Terms and Conditions
Effective 01/01/2021 Managed Cloud Nines, LLC is a Colorado corporation, all rights reserved.
MORETerms and Conditions
1.1: Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are made and entered into between Managed Cloud Nines, LLC (“MCNines”), and you a Client (“Client”), and provide the general guidelines that are applicable and enforceable regarding the services provided by MCNines to Client. MCNines and Client are each a “party” and together the “parties.”
1.2: Definitions (whether or not capitalized)
Acceptance – A valid assent by a Client to the Terms and Conditions or other Agreement created by MCNines, signifying that a valid contract has been formed for the performance of MCNines products or services. Signing a MCNines proposal, accessing or using a MCNines URL or portal (collectively “Website”), any request for commencement of service, or payment of a MCNines invoice constitutes acceptance of these Terms and Conditions or other associated Agreement. The Terms and Conditions and any associated Agreement are effective on the date of acceptance.
Agreement – Any materials, documents, or written and signed communications interpreted with or integrated into these Terms and Conditions. An Agreement may include, but is not limited to, any additional signed or “clicked” document, such as a MCNines proposal for services or the MCNines Terms of Use that signifies the commencement of services by MCNines. An Agreement does not include other communications by MCNines or Client not specifically identified by MCNines to become part of a written contract.
Calendar day – Each consecutive day shown on a calendar, including weekends and holidays, beginning at 12:00 midnight.
Bandwidth - A measurement of the maximum amount of data that a server or network can transmit/receive over a given amount of time.
Communication - Any correspondence, support ticket, email, phone call or other messaging technology used to exchange information between MCNines and a Client. A written communication includes electronic formats such as email, but such communication may require verification of receipt.
Confidential Information - Information concerning a party's business affairs, clients, vendors, finances, properties, procedures, operations, techniques, trade secrets, proprietary business information, business strategies, Confidential Information about third parties lawfully possessed by either MCNines or Client, information about products or services that are not yet released to the public, or other proprietary and/or confidential business information.
Cloud Hosting – Providing on-demand availability of applications, websites and computing system resources, across a network of interconnected, virtual, shared multi-server environments. Cloud Hosting Services (“Hosting Services”) may include the support and management of computing infrastructure (storage, networking and virtualization), platforms (hardware and software tools) or software.
CPU Cycle(s) – A Central Processing Unit (“CPU”) cycle is the time required for the execution of one simple processor operation such as fetching an instruction, accessing memory, or writing data.
DTU Cycle(s) – Database Transaction Unit (“DTU”) cycles measure database performance as a blended measure of CPU, memory, reads and writes. Some third party technology providers (such as Azure) use DTU Cycles to offer different levels of database performance based on preconfigured bundles of computer resources and included storage.
Full-Time Equivalent (FTE) - MCNines follows the U.S. Federal Government Accountability Office definition of an FTE, as the total hours worked divided by the maximum number of compensable hours in a full-time schedule per year as defined by law. Additionally, when offered by MCNines, FTE is a unique, discounted, and prepaid service which MCNines may use to provide a Client with dedicated personnel resources.
MCNines Materials - (i) All pre-existing works, inventions, technology, data and materials incorporated or used in association with the design, development and deployment of a service (including software engineering and server engineering services) or a project, or work product, and including software (including source, binary, script, text, object or other software forms); (ii) any works related by MCNines pursuant to its performance of services, including but not limited to, any proposed, draft, or preparatory materials that are not incorporated into the service or project; and (iii) all (A) derivatives, improvements, enhancement or extensions of the MCNines Materials, and (B) all ideas, concepts, know-how, and techniques that MCNines may use, conceive of, or first reduce to practice in connection with the services that are not uniquely applicable to Client.
Noisy Tenant – A cloud computing infrastructure co-tenant that monopolizes bandwidth, input/output, CPU, storage, or other resources and can negatively affect other users of a shared multi-server environment.
Normal Business Hours – Normal business hours are Monday through Friday, 9:00am – 5:00pm MST (UTC-07:00) excluding Federal and State holidays.
Project - A defined set of services or Work Product to be provided by MCNines to Client in accordance with these Terms and Conditions or associated Agreement.
Ramp-up – An increase to a Client’s FTE resource allocation.
Ramp-down – A decrease to a Client’s FTE resource allocation for a given project.
Service Level Agreement – The Service Level Agreement (“SLA”) is an agreement between MCNines and Client that documents or outlines the type and timing of services to be provided by MCNines to Client.
Service(s) – All services to be provided to Client by MCNines in accordance with an Agreement or as specified on the Services may include Cloud Hosting, data and database management, support, development, software engineering or server engineering, subject matter expertise, and consulting.
Server Engineering – Services related to configuring, implementing, maintaining and supporting servers (including virtual servers) and desktop infrastructure and networks across various locations, including shared multi-server environments, for various operating systems, and managing storage, memory and processing power requirements.
Shared Multi-Server Environment- A cloud computing network where multiple users share two or more servers running at the same time and having shared databases and shared folders.
Software Engineering - Services related to analyzing, researching, designing, implementing, testing, and supporting software systems and solutions, including building front-end and back-end architecture, creating algorithms, and analytics.
Storage – Computing technology, such as computer components, chips, and recording media, used to retain digital data either permanently or temporarily.
Terms and Conditions – These terms and conditions, which together with an Agreement as defined above, create an integrated and legally enforceable contract between the parties.
Third-Party Technology Providers – Third-parties engaged by MCNines to assist it with providing Hosting Services and other services for Clients, including without limitation, the management and storage of data, files and other content, and computing services. Primary third-party technology providers which may be engaged by MCNines include Microsoft Azure (“Azure”) and Amazon Web Services (“AWS”). Upon Client’s request, MCNines will provide Client with a list of MCNines’ current third party technology providers.
Work Product - All software, materials, designs, documentation, inventions, discoveries, techniques, processes, data, technical and/or business information, specifications, drawings, records, deliverables, and works of authorship originated or prepared by MCNines in the course of rendering services to the Client.
1.3: Services Provided
Upon acceptance of these Terms and Conditions, MCNines agrees to perform and Client agrees to pay for the mutually agreed services for Client subject to these Terms and Conditions.
2.1: Acceptance
These Terms and Conditions and any associated Agreement shall commence upon the acceptance date at which time a valid contract shall be formed between MCNines and Client. The contract shall be binding for the term specified in the Agreement and shall remain in effect until terminated by either MCNines or Client.
2.1: Termination
MCNines or Client may terminate these Terms and Conditions or an Agreement subject to the terms and conditions contained therein. If these Terms and Conditions are terminated, all associated Agreements will be terminated at the same time. For termination by the Client to be effective, a signed written notice (an email or scanned document) must be emailed to and received by MCNines at [email protected] within thirty (30) calendar days prior to the termination date. The Client account must be paid in full prior to termination; otherwise termination will be deemed invalid until Client’s account is paid in full. Oral termination is not acceptable and will be deemed invalid. The Sections that are continuing in nature, including but not limited to, 3, 4, 8, 9, 11 and 12 herein shall survive termination of these Terms and Conditions or other Agreement. MCNines may terminate these Terms and Conditions or an Agreement by sending Client thirty (30) calendar days’ prior notice, or upon less (or no) notice if Client is not complying with the Agreement. Cancellation or termination of an Agreement may invalidate discounted or pre-negotiated service or labor rates provided by MCNines. In the event that an Agreement is cancelled or terminated, or, in the event that a Client wishes to change, modify, or reduce an existing Agreement, MCNines’ labor rates will be at a rate of $200 per hour.
2.2: Due Diligence
MCNines' performance may rely upon Client’s timely and effective performance of any responsibilities, decisions or approvals. MCNines may rely on all decisions and approvals of Client and reserves the right to use professional judgment when necessary. Client agrees to act or respond in a timely and reasonable manner.
3.1: Confidential Information
The performance of services or duties outlined in these Terms and Conditions or associated Agreement, may require MCNines, Client, or both, to have access to Confidential Information concerning the other party. Additionally, the results of the services provided by MCNines to Client in which Client’s Confidential Information is required for MCNines to perform such services or reach certain results on behalf of Client may be considered to be the Confidential Information of Client and will be protected by MCNines as such upon Client’s request. MCNines and Client will not, directly or indirectly, use, disclose, or cause to be disclosed any Confidential Information of the other party for any reason other than to carry out the purposes of these Terms and Conditions or associated Agreement. The restrictions described in this Section will remain in force during the period of these Terms and Conditions and thereafter in regards to all Confidential Information herein, or, until a party is informed by the party in proper ownership or use of such Confidential Information that certain Confidential Information is no longer considered to be confidential, at which point, only the Confidential Information for which a party has released confidentiality will not be considered to be Confidential Information or such Confidential Information is no longer confidential pursuant to the below:
Confidential Information does not include information that the receiving party can demonstrate:
(a) at the time of disclosure is generally known to the public;
(b) after disclosure becomes generally known to the public through no fault of the receiving party;
(c) is already in the proper possession of the receiving party at the time of disclosure and was not obtained from the disclosing party or from a party with an obligation to hold such information as confidential;
(d) is later obtained by the receiving party on a non-confidential basis from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or
(e) is later independently developed by the employee or agents of the receiving party which had no access to or knowledge of the Confidential Information and without in any way referencing the Confidential Information of the other party to this Terms and Conditions.
Each party will make best efforts to inform the other party of or remind the other party of the confidential nature of Confidential Information shared with the other party, however a party’s failure to remind or inform the other party of the confidentiality of Confidential Information that a reasonable person would assume to be confidential in nature will not absolve a party from violating the terms of this Section.
3.2: Protecting Confidential Information
MCNines and Client will require all equity holders, officers, directors, employees, contractors, agents or other representatives to protect any Confidential Information of either party in accordance with the terms of Sections 3.1 and 3.2. Notwithstanding any other limitation set forth in these Terms and Conditions, if a party breaches an obligation to protect the Confidential Information of the other party under these Terms and Conditions, the damaged party shall be entitled to seek equitable relief such as an immediate injunction for any breach of this Agreement, without the need to post bond or other surety, and pursue any other remedies available under these Terms and Conditions, an Agreement, or the law.
4.1: MCNines Materials
MCNines and its licensors will retain exclusive ownership of all MCNines Materials. Client will have no right to use such MCNines Materials in any manner other than as provided by the license granted for the specific Work Product. If MCNines provides software code, MCNines will only provide Client with source code that is not considered to be MCNines Materials as defined herein, unless otherwise agreed between the parties in writing.
4.2: Licensing and Limitations
(I) Work Product. When MCNines receives full and final payment for each project, MCNines will grant Client a non-exclusive license to use a project Work Product for Client’s intended uses. Such license does not include (a) the right of Client to use the Work Product, or license others to use the Work Product, to compete against MCNines or (b) the right of the Client to provide services to third parties or to license the Work Product for any use or purpose. This license is limited to one active installation of the Work Product. To the extent necessary for Client to enjoy its rights in the Work Product, MCNines grants Client a non-exclusive license to use any MCNines Technology which is incorporated in the Work Product. MCNines reserves all rights not expressly granted to Client in these Terms and Conditions or any associated Agreement.
(II) Open Source Software (“OSS”). If MCNines utilizes OSS Work Product, the use of such OSS by Client is subject to the terms and conditions of the applicable third party OSS license agreement. Client agrees to comply with all applicable third party OSS license agreements, and shall indemnify MCNines against any third-party claims in accordance with section 11.1 of these Terms and Conditions.
4.3: Branding
MCNines' logo and branding will remain on all finished Work Product as delivered to Client. MCNines may choose to have its branding removed at any time. If the Client is hosting a website including MCNines branding, MCNines will notify the client in writing and the Client will have thirty (30) calendar days to comply with MCNines' request to remove the branding. Client may request MCNines' logo or branding removed from a Client website if (a) the website is not hosted by MCNines or an MCNines affiliate and (b) the Client pays an additional one-time license fee of $3,000 for the right to use the Work Product without MCNines branding.
5.1: Rates and Billing
Billing for services will be at the rate(s) defined in Services or otherwise agreed by the parties in writing. A deposit may be due upon execution of an Agreement or these Terms and Conditions, with the deposit amount to be applied toward future billing for any services. Deposits and pre-payments are non-refundable to Client. MCNines’ FTE services are pre-paid and may reflect a discounted rate. Discounted labor rates for FTE services are forfeited if an Agreement is terminated or cancelled prior to the end of the Agreement.
5.2: Agreement Type
Unless otherwise specified on the Services Rate Sheet or agreed to in a notarized document signed by a Managing Director of MCNines, all services will be billed to Client based on Time and Materials (T&M) expended by MCNines to perform Client’s project or services.
5.3: Communication Increments
Any and all communications made between MCNines employees, staff, agents, or other representatives and Client shall be billed in 1/4 (15 minutes) increments.
5.4: Invoicing
MCNines shall invoice Client for services to be performed by MCNines in advance on a monthly basis. Failure to remit payment for an undisputed invoice within thirty (30) days of the billing date will be considered delinquent and may result in MCNines suspending services until payment is received or terminating these Terms and Conditions or applicable Agreement without notice. Client will timely pay all undisputed amounts. MCNines’ standard hourly rate may vary. When necessary or reasonable, MCNines may invoice Client on a bi-monthly (twice-per-month) basis, or as otherwise agreed by the parties for certain services.
5.5: Billing Discrepancies
Any billing problems, discrepancies, or inconsistencies must be identified in writing and delivered to MCNines within thirty (30) days from the date of invoice. Any billing dispute that is not timely delivered to MCNines’ attention will be deemed waived by Client.
5.6: Full-Time Equivalent
MCNines' Full-Time Equivalent (FTE) is a unique, discounted, and prepaid service to provide a Client with dedicated personnel resources. Due to the nature of the services provided, a Ramp-down or reduction of a Client’s FTE resource allocation must be gradual, requested in writing, and shall not exceed 1.0 FTE per month unless otherwise agreed to by both parties. A Ramp-up or increase in a Client’s FTE resource allocation is subject to availability and is not guaranteed. Allocated but unused hours within a month may be rolled forward for a period of ninety (90) days. After such time, unused or unexpended hours shall be forfeited unless otherwise agreed to in writing. All changes to FTE allocations must be made on or before the 10th day of the preceding month; any request to change an FTE allocation that is received after the 10th will not be effective until the 1st day of the subsequent month, and will not take effect until the 1st day of the month succeeding that subsequent month. A breach of these Terms and Conditions or a breach in an Agreement, including a failure to remit payment, will result in a forfeiture of any discounts in labor rates; the project will be adjusted to MCNines' hourly rate as listed and MCNines' hourly rate will be no less than $200 per labor hour.
5.7: Surplus Accounts
Clients with account balances in excess of two thousand ($2,000.00) dollars may be charged maintenance fees. Maintenance fees will be charged at a rate of 1/16th of an FTE per month to each account balance for each surplus month.
5.8: Service-level or Performance Levels
MCNines engages third-party technology providers to assist with providing Hosting Services for Clients. MCNines does not provide any performance standards or service level guarantees, including without limitation, availability or download guarantees, or DTU Cycle performance for its Hosting Services, but will pass any service level or performance standards offered by the third-party technology providers to Client if Client selects and pays for a defined level of performance offered by the third-party technology provider.
For services other than Hosting Services, MCNines’ FTE allotment may include both FTE personnel as well as the execution of a Service Level Agreement (SLA). Service Level Agreements for non-Hosting Services will outline the services provided on behalf of Client by MCNines. MCNines will respond to requests for services under an FTE or SLA Agreement in a timely and reasonable manner. MCNines will respond to issue resolution requests in a timely and reasonable manner. Although MCNines is unable to guarantee issue resolution in a specified time or within a specified timeframe, MCNines will exercise reasonable diligence to address issues on behalf of Client.
5.9: Invoice Payment
Unless otherwise specified, invoices are payable within thirty (30) days of receipt by Client. If Client fails to pay any charges when due, in additions to other remedies available to MCNines under these Terms and Conditions, an Agreement or the law, MCNines reserves the right to charge Client interest at a rate of 1.5% of any unpaid balance per month, or the maximum amount allowed by law, whichever is lower. Discounts are forfeited if the Client is in breach of any obligations and Client will be liable for MCNines' hourly rate as specified in the . MCNines' hourly labor rate will be at a minimum of $200 per labor hour. If MCNines must take action to collect delinquent amounts from Client, MCNines will be entitled to recover its costs and expenses (including reasonable attorney fees) from Client.
6.1: Work Product Compliance
MCNines warrants to Client that the functionality of the Work Product developed by MCNines will materially comply with requirements set forth in writing between MCNines and Client. Discrepancies between requirements and Work Products will be deemed immaterial if related to style, design, or functionality not specifically agreed to in writing, or where MCNines developers are required to use professional or reasonable judgment. Requirements will be deemed material if they fundamentally relate to key functionality of the Work Product, or if described in such reasonable detail that leaves little or no room for ambiguity. Client must notify MCNines of any discrepancies in Work Product in the manner described in Section 7.1. If the Work Product is software, Sections 6.2 and 6.3 will apply. The warranties in Sections 6.1, 6.2, 6.3, 6.4 and 7.1 are MCNines’ sole warranties for MCNines’ services and Work Product provided to Client. Client’s remedy for MCNines’ failure to provide Work Product in accordance with the requirements of these Terms and Conditions will be for MCNines to correct the non-compliant Work Product or refund certain fees paid by Client in accordance with these Terms and Conditions.
6.2: Defects vs. Bugs (Software)
When the Work Product is software, a defect or nonconformity is a substantial deviation from a material provision in an Agreement or other signed writing between MCNines and Client. Any immaterial, minor, or insignificant deviation, flaw, or fault that does not substantially impact the functionality or characteristics of the software to be provided by MCNines will be considered a software bug or discrepancy and will be tracked or addressed within MCNines’ ticketing system. Client should expect that software creation, development, and implementation may contain software flaws or minor deviations from expected performance or design characteristics. MCNines will work in a reasonable and diligent manner to minimize software bugs and the impact that software bugs may have on a Client’s products or services. Client shall have reasonable expectations that software created on Client’s behalf may not be flawless and may contain software bugs; any fixes, alterations, designs, or iterative development processes utilized by MCNines to remedy such bugs or discrepancies is fully within the scope of these Terms and Conditions, any Agreement, and the services provided by MCNines. The existence of any software bugs or discrepancies shall in no way alleviate Client’s responsibilities to fully perform any and all obligations under these Terms and Conditions or any Agreement.
6.3: Defects and Remedies (Software)
As Client's sole and exclusive remedy for any material, nonconforming or defective Work Product that is software, MCNines will use reasonable efforts upon the receipt of adequate written notice, to correct or cure any such software nonconformity or defect, in a reasonable manner and in a reasonable time. Any software nonconformity or defect identified by Client must be annotated with sufficient detail within MCNines’ ticketing system. Client must provide a Managing Director at MCNines with adequate written notice of any software nonconformity or defect and must reference engaging Section 11.1 within these Terms and Conditions. If MCNines is unable to correct or cure such software nonconformity or defect, Client may receive a refund of a portion of the fees paid, limited to the maximum amount of any Client fees paid during the sixty (60) calendar days prior to the date of the written notice. As a condition precedent to any such refund to Client by MCNines, MCNines will be provided a reasonable opportunity and a reasonable length of time to correct or cure any such software nonconformity or defect. However, MCNines will not be obligated to correct, cure, or otherwise remedy any software nonconformity or defect if at any time: (i) MCNines has not been notified in writing of the existence and nature of any such nonconformity or defect promptly upon its discovery; or (ii) MCNines is not notified of such nonconformity or defect within thirty (30) days of completion or active operation of the project. In such an eventuality, any necessary correction of the software Work Product , or ancillary services required to be performed by MCNines, will be solely at Client's expense and Client will not be released or relieved, in whole or in part, from its duty to pay MCNines as herein agreed.
6.4: Patents, Copyrights, and Trademarks
MCNines warrants that the services and Work Product shall not infringe on any existing United States patent, registered Trademark, or Copyright existing at the time of the performance of services. This warranty does not apply to any infringement arising out of services performed or Work Product produced by MCNines and based upon specifications or designs provided by Client to MCNines. This warranty does not apply to any infringement arising out of Client's use of the services or Work Product in combination with any materials not furnished by MCNines, or Client's use of the services or Work Product in a manner for which they were not designed. The warranty shall be void if Client or any third party makes any modifications to the services or Work Product provided by MCNines. If the provision or discharge of any element of the services or Work Product is enjoined as a result of any claim arising out of MCNines’ failure to meet f this warranty, MCNines shall, at its option and expense: (i) procure the right to continue to use such element; (ii) replace such element with a comparable element which is non-infringing, provided that such comparable element is acceptable to Client; (iii) modify the services or Work Product so that it becomes non-infringing provided that such modifications are reasonably acceptable to Client; (iv) refund to Client the portion of the fees, limited to the maximum amount of any Client fees paid within the sixty (60) calendar days prior to the claim, if Client paid for the non-compliant element. Any such modified or replacement element shall conform to the Agreement made between MCNines and Client and shall be subject to MCNines' warranties contained in these Terms and Conditions. The remedy specified in this Section 6.2 is Client’s sole remedy for any infringement claims.
6.5: 3rd Party Warranties
In addition to passing on any service or performance level guarantees from third-party technology providers as described in Section 5.8, at the request of Client, MCNines will, to the extent allowable by law, pass on to Client any warranties for third-party hardware and software made by the manufacturers of the same. MCNines makes no warranties of any kind with respect to third (3rd) party hardware, software, services, or other items.
6.6: Scope of Warranties
The limited warranties set forth in Sections 6.1, 6.2 , 6.3, 6.4, 7.1 and Section 10 A, constitute the only warranties made by MCNines with respect to any Agreement, these Terms and Conditions, and all relationships between MCNines and Client. Any and all other representations, warranties, or guarantees, whether express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, non-infringement, quality, accuracy, performance, data security or freedom from error are disclaimed and excluded.
7.1: Product Review
Client will have thirty (30) calendar days after receipt of any Work Product (or portion thereof, if they are to be delivered in milestones as set forth in an applicable Agreement) to test, inspect, and review such Work Product. If a Work Product does not materially comply with the requirements MCNines agreed to, Client may request modification of such Work Product by written notice to MCNines. Such notice must specify, in detail, the reasons the Work Product fails to meet the relevant functionality or requirements. MCNines will use reasonable efforts to correct or cure any material deficiencies and provide Client with a revised Work Product in a timely and reasonable manner. Client will have the right to approve or reject the corrected Work Product in accordance with this Section, however approval by Client shall not be unreasonably withheld.
8.1: Independent Contractor
MCNines is an independent contractor and not an employee, agent, joint employer, or joint venture of the Client. Nothing herein shall be construed as inconsistent with that status. Neither MCNines nor Client shall make any representation to any third party that is inconsistent with its status as an independent contractor. MCNines, as an independent contractor, shall be solely responsible for the payment of its own state and federal income taxes and self-employment taxes and the taxes of its employees and contractors, and Client shall not, under any circumstances, withhold or pay such taxes to any government agency, or be responsible to withhold or pay such taxes, except as required by law. As a further condition of this Agreement, and prior to any payment of compensation under this Agreement, MCNines shall complete, execute, and return to Client an Internal Revenue Service W-9 form when necessary by applicable law.
8.2: Work Hours
MCNines shall have the exclusive right to establish the work hours of its personnel that are providing Client services and to control and direct the methods, means, manner, and details of performing its obligations under these Terms and Conditions and any other Agreement between MCNines and Client. The Client shall not direct, control, influence, or obstruct the manner in which MCNines, its personnel, or agents perform or execute obligations on behalf of the Client. Hours requested outside of normal business hours, to include nights, weekends, and holidays, will be recorded by MCNines as double the hours worked.
9.1: Force Majeure
Neither party will be liable for any delays or failure in the performance of services if such delay or failure is due to causes beyond reasonable control, including, but not limited to, Acts of God, such as severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions; strikes and labor disputes, delays in transportation, or inability to obtain necessary labor or materials; war, acts of terrorism, pandemics and epidemics due to disease, viruses, or other reason, social or physical distancing measure; plague, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; acts of governmental authorities such as expropriation, condemnation, states of emergency, and changes in laws and regulations; and other force majeure events.
10.1: Hosting Services
A. MCNines agrees to perform Hosting Services, with the assistance of its third-party technology providers, as follows:
- Provide Client an internet address for virtual storage, management, and access to Client's text, pictures, sound, graphics, video, links, data (including sensitive data), applications, and software ("Content") on dedicated computing infrastructure or in a shared multi-server environment as agreed by the parties;
- Provide support services on an FTE basis as agreed by the parties in accordance with these Terms and Conditions and any Agreement;
- Engage third-party technology providers which follow commercially reasonable security policies and procedures and use security tools designed to prevent unauthorized disclosure of, or access to, Client’s Content. If MCNines becomes aware of any security breach involving Client’s Content, MCNines will notify Client in a timely manner, but it is impossible for MCNines or its third-party technology providers to maintain impervious security and MCNines is not responsible for unauthorized access, loss, destruction or damage to Client’s Content.
- Make reasonable efforts to maintain, or require their third-party technology providers to maintain, all equipment and infrastructure used to provide the Hosting Services in good working order, but, as provided for in Section 5.8, MCNines is not responsible for any Client losses related to downtime, loss of Content, or equipment or infrastructure failure (including power or internet outages);
- If Client has engaged MCNines to provide Content back-up, disaster recovery, or business continuity services for Client, MCNines will provide such services for the fees agreed, but MCNines is not responsible for loss, destruction or damage to Client Content.
- Upon Client’s request, MCNines will track and report information regarding Client’s use of the Hosting Services, such as bandwidth, DTU Cycles, CPU Cycles and storage usage.
B. Client agrees:
- Client is aware that operating its computing requirements on live servers and using cloud or internet-based Hosting Services and other services has inherent risks and Client is willing to accept and assume those risks.
- Client will only use MCNines’ Hosting Services for lawful purposes and Client will not store, provide or access any Content or link to any material that violates foreign, federal, state or local law. Client will not use MCNines’ Hosting Services or other services to create, send, or facilitate the creation or use of, spam, robocalls, illegal Content or communications in violation of applicable laws.
- If Client uses the Hosting Services in a manner that causes Client to become a Noisy Tenant, as determined by MCNines in its reasonable discretion, MCNines will provide Client written notice of Client’s Noisy Tenant status, and Client will immediately (a) cease the use that is causing it to be a Noisy Tenant; or (b) engage MCNines to provide dedicated server infrastructure. If Client does not take one of these actions, MCNines may terminate Client’s Hosting Services.
- All Client Content stored via the Hosting Services shall at all times remain the property of Client. Client grants to MCNines a non-exclusive, worldwide license to the Content solely to the extent necessary for MCNines to provide the Hosting Services or other requested services to Client.
11.1: Cumulative Liability; Indemnity
MCNines' cumulative liability, if any, to Client for any and all claims whatsoever related to the services, including, without limitation, the Hosting Services, these Terms and Conditions, an Agreement, or the relationship of the parties including, but not limited to, any cause of action sounding in contract, tort, or strict liability, are limited to the maximum amount of any Client fees paid within the sixty (60) calendar days prior to the claim. In no event will MCNines be liable for any loss of profit, revenue, data or Content; any incidental, special, exemplary or consequential damages, regardless of foreseeability; or any claims or demands brought by Client, even if MCNines has been advised of the possibility of such claims or demands. Except for a breach relating to Confidential Information within Section 3 of these Terms and Conditions or other Agreement, Client will not be entitled to specific performance in connection with these Terms and Conditions or other Agreement.
Client shall defend MCNines against any third party claim, action, suit or proceeding arising from Client's use of MCNines’ services or Client’s failure to comply with these Terms and Conditions or an Agreement and indemnify MCNines for all losses, damages, expenses, and costs incurred by MCNines as a result of a final settlement or judgment entered against MCNines in any such claim, action, suit or proceeding.
12.1: Waiver
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the full right of such party to require such performance at any time thereafter nor shall the waiver of either party of a breach by the other be deemed to be a waiver of any subsequent breach of such provision.
12.2: Non-Solicitation of Employment
While these Terms and Conditions are in effect and for one (1) year thereafter, both parties agree that they shall not solicitor recruit, directly or indirectly, any of the other party's employees who have performed services for the hiring party pursuant to these Terms and Conditions, to perform similar services for the hiring party, or to serve the hiring party in a similar capacity.
12.3: Non-Hiring of Employees
While these Terms and Conditions are in effect and for one (1) year thereafter, both parties agree that they shall not, directly or indirectly, hire or retain any current or former employee of the other party until such individual has ceased to be an employee of the other party for a period of one hundred eighty (180) calendar days.
12.4: Successor and Assigns
Client may not assign any of its rights or duties under these Terms and Conditions without the prior express written consent of MCNines, which shall not be unreasonably withheld. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of MCNines, Client, and their respective permitted representatives, heirs, successors and assigns.
12.5: Taxes
Any sales, excise, duty or other tax or fee imposed by any government authority on the services shall be the responsibility of Client.
12.6: Severability
If any part of these Terms and Conditions is held void or unenforceable, the remainder of these Terms and Conditions will nevertheless remain in full force and effect.
12.7: Entire Agreement; Governing Law; Dispute Resolution
These Terms and Conditions, together with any Agreement, contains the entire understanding of the parties with respect to the subject matter hereof, and shall be governed by and construed in accordance with applicable state law. The laws of the State of Colorado and rules and regulations pursuant thereto shall be applied in the interpretation, execution, and enforcement of these Terms and Conditions and any Agreement. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of the Terms and Conditions or any Agreement.
Except for circumstances that allow a party to seek equitable relief under these Terms and Conditions, all claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of these Terms and Conditions or an Agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration.
Notwithstanding any other limitation set forth herein, if Client breaches an obligation with regard to MCNines Materials, branding, or MCNines Technology under these Terms and Conditions, MCNines shall be entitled to seek equitable relief such as an immediate injunction for such breach, without the need to post bond or other surety, and pursue any other remedies available under these Terms and Conditions or the law.
Except as explicitly set forth in these Terms and Conditions, the parties agree that all actions arising or relating to these Terms and Conditions or any associated Agreement and relating to services provided by MCNines and the relationship of the parties shall be brought exclusively in the state and federal courts located in the state of Colorado. MCNines is a company registered in the State of Colorado, whose principal place of business is Denver, Colorado.
12.7: Amendments.
These Terms and Conditions supersede all prior Agreements or assertions, whether oral or written, between the parties. MCNines may amend these Terms and Conditions contained herein periodically and without notice. The version of the Terms and Conditions in effect at the time services are performed by MCNines for Client will apply to those services. The current version of the Terms and Conditions are posted at https://www.MCNines.com/terms-and-conditions/.
1.1: Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are made and entered into between Managed Cloud Nines, LLC (“MCNines”), and you a Client (“Client”), and provide the general guidelines that are applicable and enforceable regarding the services provided by MCNines to Client. MCNines and Client are each a “party” and together the “parties.”
1.2: Definitions (whether or not capitalized)
Acceptance – A valid assent by a Client to the Terms and Conditions or other Agreement created by MCNines, signifying that a valid contract has been formed for the performance of MCNines products or services. Signing a MCNines proposal, accessing or using a MCNines URL or portal (collectively “Website”), any request for commencement of service, or payment of a MCNines invoice constitutes acceptance of these Terms and Conditions or other associated Agreement. The Terms and Conditions and any associated Agreement are effective on the date of acceptance.
Agreement – Any materials, documents, or written and signed communications interpreted with or integrated into these Terms and Conditions. An Agreement may include, but is not limited to, any additional signed or “clicked” document, such as a MCNines proposal for services or the MCNines Terms of Use that signifies the commencement of services by MCNines. An Agreement does not include other communications by MCNines or Client not specifically identified by MCNines to become part of a written contract.
Calendar day – Each consecutive day shown on a calendar, including weekends and holidays, beginning at 12:00 midnight.
Bandwidth - A measurement of the maximum amount of data that a server or network can transmit/receive over a given amount of time.
Communication - Any correspondence, support ticket, email, phone call or other messaging technology used to exchange information between MCNines and a Client. A written communication includes electronic formats such as email, but such communication may require verification of receipt.
Confidential Information - Information concerning a party's business affairs, clients, vendors, finances, properties, procedures, operations, techniques, trade secrets, proprietary business information, business strategies, Confidential Information about third parties lawfully possessed by either MCNines or Client, information about products or services that are not yet released to the public, or other proprietary and/or confidential business information.
Cloud Hosting – Providing on-demand availability of applications, websites and computing system resources, across a network of interconnected, virtual, shared multi-server environments. Cloud Hosting Services (“Hosting Services”) may include the support and management of computing infrastructure (storage, networking and virtualization), platforms (hardware and software tools) or software.
CPU Cycle(s) – A Central Processing Unit (“CPU”) cycle is the time required for the execution of one simple processor operation such as fetching an instruction, accessing memory, or writing data.
DTU Cycle(s) – Database Transaction Unit (“DTU”) cycles measure database performance as a blended measure of CPU, memory, reads and writes. Some third party technology providers (such as Azure) use DTU Cycles to offer different levels of database performance based on preconfigured bundles of computer resources and included storage.
Full-Time Equivalent (FTE) - MCNines follows the U.S. Federal Government Accountability Office definition of an FTE, as the total hours worked divided by the maximum number of compensable hours in a full-time schedule per year as defined by law. Additionally, when offered by MCNines, FTE is a unique, discounted, and prepaid service which MCNines may use to provide a Client with dedicated personnel resources.
MCNines Materials - (i) All pre-existing works, inventions, technology, data and materials incorporated or used in association with the design, development and deployment of a service (including software engineering and server engineering services) or a project, or work product, and including software (including source, binary, script, text, object or other software forms); (ii) any works related by MCNines pursuant to its performance of services, including but not limited to, any proposed, draft, or preparatory materials that are not incorporated into the service or project; and (iii) all (A) derivatives, improvements, enhancement or extensions of the MCNines Materials, and (B) all ideas, concepts, know-how, and techniques that MCNines may use, conceive of, or first reduce to practice in connection with the services that are not uniquely applicable to Client.
Noisy Tenant – A cloud computing infrastructure co-tenant that monopolizes bandwidth, input/output, CPU, storage, or other resources and can negatively affect other users of a shared multi-server environment.
Normal Business Hours – Normal business hours are Monday through Friday, 9:00am – 5:00pm MST (UTC-07:00) excluding Federal and State holidays.
Project - A defined set of services or Work Product to be provided by MCNines to Client in accordance with these Terms and Conditions or associated Agreement.
Ramp-up – An increase to a Client’s FTE resource allocation.
Ramp-down – A decrease to a Client’s FTE resource allocation for a given project.
Service Level Agreement – The Service Level Agreement (“SLA”) is an agreement between MCNines and Client that documents or outlines the type and timing of services to be provided by MCNines to Client.
Service(s) – All services to be provided to Client by MCNines in accordance with an Agreement or as specified on the Services may include Cloud Hosting, data and database management, support, development, software engineering or server engineering, subject matter expertise, and consulting.
Server Engineering – Services related to configuring, implementing, maintaining and supporting servers (including virtual servers) and desktop infrastructure and networks across various locations, including shared multi-server environments, for various operating systems, and managing storage, memory and processing power requirements.
Shared Multi-Server Environment- A cloud computing network where multiple users share two or more servers running at the same time and having shared databases and shared folders.
Software Engineering - Services related to analyzing, researching, designing, implementing, testing, and supporting software systems and solutions, including building front-end and back-end architecture, creating algorithms, and analytics.
Storage – Computing technology, such as computer components, chips, and recording media, used to retain digital data either permanently or temporarily.
Terms and Conditions – These terms and conditions, which together with an Agreement as defined above, create an integrated and legally enforceable contract between the parties.
Third-Party Technology Providers – Third-parties engaged by MCNines to assist it with providing Hosting Services and other services for Clients, including without limitation, the management and storage of data, files and other content, and computing services. Primary third-party technology providers which may be engaged by MCNines include Microsoft Azure (“Azure”) and Amazon Web Services (“AWS”). Upon Client’s request, MCNines will provide Client with a list of MCNines’ current third party technology providers.
Work Product - All software, materials, designs, documentation, inventions, discoveries, techniques, processes, data, technical and/or business information, specifications, drawings, records, deliverables, and works of authorship originated or prepared by MCNines in the course of rendering services to the Client.
1.3: Services Provided
Upon acceptance of these Terms and Conditions, MCNines agrees to perform and Client agrees to pay for the mutually agreed services for Client subject to these Terms and Conditions.
2.1: Acceptance
These Terms and Conditions and any associated Agreement shall commence upon the acceptance date at which time a valid contract shall be formed between MCNines and Client. The contract shall be binding for the term specified in the Agreement and shall remain in effect until terminated by either MCNines or Client.
2.1: Termination
MCNines or Client may terminate these Terms and Conditions or an Agreement subject to the terms and conditions contained therein. If these Terms and Conditions are terminated, all associated Agreements will be terminated at the same time. For termination by the Client to be effective, a signed written notice (an email or scanned document) must be emailed to and received by MCNines at [email protected] within thirty (30) calendar days prior to the termination date. The Client account must be paid in full prior to termination; otherwise termination will be deemed invalid until Client’s account is paid in full. Oral termination is not acceptable and will be deemed invalid. The Sections that are continuing in nature, including but not limited to, 3, 4, 8, 9, 11 and 12 herein shall survive termination of these Terms and Conditions or other Agreement. MCNines may terminate these Terms and Conditions or an Agreement by sending Client thirty (30) calendar days’ prior notice, or upon less (or no) notice if Client is not complying with the Agreement. Cancellation or termination of an Agreement may invalidate discounted or pre-negotiated service or labor rates provided by MCNines. In the event that an Agreement is cancelled or terminated, or, in the event that a Client wishes to change, modify, or reduce an existing Agreement, MCNines’ labor rates will be at a rate of $200 per hour.
2.2: Due Diligence
MCNines' performance may rely upon Client’s timely and effective performance of any responsibilities, decisions or approvals. MCNines may rely on all decisions and approvals of Client and reserves the right to use professional judgment when necessary. Client agrees to act or respond in a timely and reasonable manner.
3.1: Confidential Information
The performance of services or duties outlined in these Terms and Conditions or associated Agreement, may require MCNines, Client, or both, to have access to Confidential Information concerning the other party. Additionally, the results of the services provided by MCNines to Client in which Client’s Confidential Information is required for MCNines to perform such services or reach certain results on behalf of Client may be considered to be the Confidential Information of Client and will be protected by MCNines as such upon Client’s request. MCNines and Client will not, directly or indirectly, use, disclose, or cause to be disclosed any Confidential Information of the other party for any reason other than to carry out the purposes of these Terms and Conditions or associated Agreement. The restrictions described in this Section will remain in force during the period of these Terms and Conditions and thereafter in regards to all Confidential Information herein, or, until a party is informed by the party in proper ownership or use of such Confidential Information that certain Confidential Information is no longer considered to be confidential, at which point, only the Confidential Information for which a party has released confidentiality will not be considered to be Confidential Information or such Confidential Information is no longer confidential pursuant to the below:
Confidential Information does not include information that the receiving party can demonstrate:
(a) at the time of disclosure is generally known to the public;
(b) after disclosure becomes generally known to the public through no fault of the receiving party;
(c) is already in the proper possession of the receiving party at the time of disclosure and was not obtained from the disclosing party or from a party with an obligation to hold such information as confidential;
(d) is later obtained by the receiving party on a non-confidential basis from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or
(e) is later independently developed by the employee or agents of the receiving party which had no access to or knowledge of the Confidential Information and without in any way referencing the Confidential Information of the other party to this Terms and Conditions.
Each party will make best efforts to inform the other party of or remind the other party of the confidential nature of Confidential Information shared with the other party, however a party’s failure to remind or inform the other party of the confidentiality of Confidential Information that a reasonable person would assume to be confidential in nature will not absolve a party from violating the terms of this Section.
3.2: Protecting Confidential Information
MCNines and Client will require all equity holders, officers, directors, employees, contractors, agents or other representatives to protect any Confidential Information of either party in accordance with the terms of Sections 3.1 and 3.2. Notwithstanding any other limitation set forth in these Terms and Conditions, if a party breaches an obligation to protect the Confidential Information of the other party under these Terms and Conditions, the damaged party shall be entitled to seek equitable relief such as an immediate injunction for any breach of this Agreement, without the need to post bond or other surety, and pursue any other remedies available under these Terms and Conditions, an Agreement, or the law.
4.1: MCNines Materials
MCNines and its licensors will retain exclusive ownership of all MCNines Materials. Client will have no right to use such MCNines Materials in any manner other than as provided by the license granted for the specific Work Product. If MCNines provides software code, MCNines will only provide Client with source code that is not considered to be MCNines Materials as defined herein, unless otherwise agreed between the parties in writing.
4.2: Licensing and Limitations
(I) Work Product. When MCNines receives full and final payment for each project, MCNines will grant Client a non-exclusive license to use a project Work Product for Client’s intended uses. Such license does not include (a) the right of Client to use the Work Product, or license others to use the Work Product, to compete against MCNines or (b) the right of the Client to provide services to third parties or to license the Work Product for any use or purpose. This license is limited to one active installation of the Work Product. To the extent necessary for Client to enjoy its rights in the Work Product, MCNines grants Client a non-exclusive license to use any MCNines Technology which is incorporated in the Work Product. MCNines reserves all rights not expressly granted to Client in these Terms and Conditions or any associated Agreement.
(II) Open Source Software (“OSS”). If MCNines utilizes OSS Work Product, the use of such OSS by Client is subject to the terms and conditions of the applicable third party OSS license agreement. Client agrees to comply with all applicable third party OSS license agreements, and shall indemnify MCNines against any third-party claims in accordance with section 11.1 of these Terms and Conditions.
4.3: Branding
MCNines' logo and branding will remain on all finished Work Product as delivered to Client. MCNines may choose to have its branding removed at any time. If the Client is hosting a website including MCNines branding, MCNines will notify the client in writing and the Client will have thirty (30) calendar days to comply with MCNines' request to remove the branding. Client may request MCNines' logo or branding removed from a Client website if (a) the website is not hosted by MCNines or an MCNines affiliate and (b) the Client pays an additional one-time license fee of $3,000 for the right to use the Work Product without MCNines branding.
5.1: Rates and Billing
Billing for services will be at the rate(s) defined in Services or otherwise agreed by the parties in writing. A deposit may be due upon execution of an Agreement or these Terms and Conditions, with the deposit amount to be applied toward future billing for any services. Deposits and pre-payments are non-refundable to Client. MCNines’ FTE services are pre-paid and may reflect a discounted rate. Discounted labor rates for FTE services are forfeited if an Agreement is terminated or cancelled prior to the end of the Agreement.
5.2: Agreement Type
Unless otherwise specified on the Services Rate Sheet or agreed to in a notarized document signed by a Managing Director of MCNines, all services will be billed to Client based on Time and Materials (T&M) expended by MCNines to perform Client’s project or services.
5.3: Communication Increments
Any and all communications made between MCNines employees, staff, agents, or other representatives and Client shall be billed in 1/4 (15 minutes) increments.
5.4: Invoicing
MCNines shall invoice Client for services to be performed by MCNines in advance on a monthly basis. Failure to remit payment for an undisputed invoice within thirty (30) days of the billing date will be considered delinquent and may result in MCNines suspending services until payment is received or terminating these Terms and Conditions or applicable Agreement without notice. Client will timely pay all undisputed amounts. MCNines’ standard hourly rate may vary. When necessary or reasonable, MCNines may invoice Client on a bi-monthly (twice-per-month) basis, or as otherwise agreed by the parties for certain services.
5.5: Billing Discrepancies
Any billing problems, discrepancies, or inconsistencies must be identified in writing and delivered to MCNines within thirty (30) days from the date of invoice. Any billing dispute that is not timely delivered to MCNines’ attention will be deemed waived by Client.
5.6: Full-Time Equivalent
MCNines' Full-Time Equivalent (FTE) is a unique, discounted, and prepaid service to provide a Client with dedicated personnel resources. Due to the nature of the services provided, a Ramp-down or reduction of a Client’s FTE resource allocation must be gradual, requested in writing, and shall not exceed 1.0 FTE per month unless otherwise agreed to by both parties. A Ramp-up or increase in a Client’s FTE resource allocation is subject to availability and is not guaranteed. Allocated but unused hours within a month may be rolled forward for a period of ninety (90) days. After such time, unused or unexpended hours shall be forfeited unless otherwise agreed to in writing. All changes to FTE allocations must be made on or before the 10th day of the preceding month; any request to change an FTE allocation that is received after the 10th will not be effective until the 1st day of the subsequent month, and will not take effect until the 1st day of the month succeeding that subsequent month. A breach of these Terms and Conditions or a breach in an Agreement, including a failure to remit payment, will result in a forfeiture of any discounts in labor rates; the project will be adjusted to MCNines' hourly rate as listed and MCNines' hourly rate will be no less than $200 per labor hour.
5.7: Surplus Accounts
Clients with account balances in excess of two thousand ($2,000.00) dollars may be charged maintenance fees. Maintenance fees will be charged at a rate of 1/16th of an FTE per month to each account balance for each surplus month.
5.8: Service-level or Performance Levels
MCNines engages third-party technology providers to assist with providing Hosting Services for Clients. MCNines does not provide any performance standards or service level guarantees, including without limitation, availability or download guarantees, or DTU Cycle performance for its Hosting Services, but will pass any service level or performance standards offered by the third-party technology providers to Client if Client selects and pays for a defined level of performance offered by the third-party technology provider.
For services other than Hosting Services, MCNines’ FTE allotment may include both FTE personnel as well as the execution of a Service Level Agreement (SLA). Service Level Agreements for non-Hosting Services will outline the services provided on behalf of Client by MCNines. MCNines will respond to requests for services under an FTE or SLA Agreement in a timely and reasonable manner. MCNines will respond to issue resolution requests in a timely and reasonable manner. Although MCNines is unable to guarantee issue resolution in a specified time or within a specified timeframe, MCNines will exercise reasonable diligence to address issues on behalf of Client.
5.9: Invoice Payment
Unless otherwise specified, invoices are payable within thirty (30) days of receipt by Client. If Client fails to pay any charges when due, in additions to other remedies available to MCNines under these Terms and Conditions, an Agreement or the law, MCNines reserves the right to charge Client interest at a rate of 1.5% of any unpaid balance per month, or the maximum amount allowed by law, whichever is lower. Discounts are forfeited if the Client is in breach of any obligations and Client will be liable for MCNines' hourly rate as specified in the . MCNines' hourly labor rate will be at a minimum of $200 per labor hour. If MCNines must take action to collect delinquent amounts from Client, MCNines will be entitled to recover its costs and expenses (including reasonable attorney fees) from Client.
6.1: Work Product Compliance
MCNines warrants to Client that the functionality of the Work Product developed by MCNines will materially comply with requirements set forth in writing between MCNines and Client. Discrepancies between requirements and Work Products will be deemed immaterial if related to style, design, or functionality not specifically agreed to in writing, or where MCNines developers are required to use professional or reasonable judgment. Requirements will be deemed material if they fundamentally relate to key functionality of the Work Product, or if described in such reasonable detail that leaves little or no room for ambiguity. Client must notify MCNines of any discrepancies in Work Product in the manner described in Section 7.1. If the Work Product is software, Sections 6.2 and 6.3 will apply. The warranties in Sections 6.1, 6.2, 6.3, 6.4 and 7.1 are MCNines’ sole warranties for MCNines’ services and Work Product provided to Client. Client’s remedy for MCNines’ failure to provide Work Product in accordance with the requirements of these Terms and Conditions will be for MCNines to correct the non-compliant Work Product or refund certain fees paid by Client in accordance with these Terms and Conditions.
6.2: Defects vs. Bugs (Software)
When the Work Product is software, a defect or nonconformity is a substantial deviation from a material provision in an Agreement or other signed writing between MCNines and Client. Any immaterial, minor, or insignificant deviation, flaw, or fault that does not substantially impact the functionality or characteristics of the software to be provided by MCNines will be considered a software bug or discrepancy and will be tracked or addressed within MCNines’ ticketing system. Client should expect that software creation, development, and implementation may contain software flaws or minor deviations from expected performance or design characteristics. MCNines will work in a reasonable and diligent manner to minimize software bugs and the impact that software bugs may have on a Client’s products or services. Client shall have reasonable expectations that software created on Client’s behalf may not be flawless and may contain software bugs; any fixes, alterations, designs, or iterative development processes utilized by MCNines to remedy such bugs or discrepancies is fully within the scope of these Terms and Conditions, any Agreement, and the services provided by MCNines. The existence of any software bugs or discrepancies shall in no way alleviate Client’s responsibilities to fully perform any and all obligations under these Terms and Conditions or any Agreement.
6.3: Defects and Remedies (Software)
As Client's sole and exclusive remedy for any material, nonconforming or defective Work Product that is software, MCNines will use reasonable efforts upon the receipt of adequate written notice, to correct or cure any such software nonconformity or defect, in a reasonable manner and in a reasonable time. Any software nonconformity or defect identified by Client must be annotated with sufficient detail within MCNines’ ticketing system. Client must provide a Managing Director at MCNines with adequate written notice of any software nonconformity or defect and must reference engaging Section 11.1 within these Terms and Conditions. If MCNines is unable to correct or cure such software nonconformity or defect, Client may receive a refund of a portion of the fees paid, limited to the maximum amount of any Client fees paid during the sixty (60) calendar days prior to the date of the written notice. As a condition precedent to any such refund to Client by MCNines, MCNines will be provided a reasonable opportunity and a reasonable length of time to correct or cure any such software nonconformity or defect. However, MCNines will not be obligated to correct, cure, or otherwise remedy any software nonconformity or defect if at any time: (i) MCNines has not been notified in writing of the existence and nature of any such nonconformity or defect promptly upon its discovery; or (ii) MCNines is not notified of such nonconformity or defect within thirty (30) days of completion or active operation of the project. In such an eventuality, any necessary correction of the software Work Product , or ancillary services required to be performed by MCNines, will be solely at Client's expense and Client will not be released or relieved, in whole or in part, from its duty to pay MCNines as herein agreed.
6.4: Patents, Copyrights, and Trademarks
MCNines warrants that the services and Work Product shall not infringe on any existing United States patent, registered Trademark, or Copyright existing at the time of the performance of services. This warranty does not apply to any infringement arising out of services performed or Work Product produced by MCNines and based upon specifications or designs provided by Client to MCNines. This warranty does not apply to any infringement arising out of Client's use of the services or Work Product in combination with any materials not furnished by MCNines, or Client's use of the services or Work Product in a manner for which they were not designed. The warranty shall be void if Client or any third party makes any modifications to the services or Work Product provided by MCNines. If the provision or discharge of any element of the services or Work Product is enjoined as a result of any claim arising out of MCNines’ failure to meet f this warranty, MCNines shall, at its option and expense: (i) procure the right to continue to use such element; (ii) replace such element with a comparable element which is non-infringing, provided that such comparable element is acceptable to Client; (iii) modify the services or Work Product so that it becomes non-infringing provided that such modifications are reasonably acceptable to Client; (iv) refund to Client the portion of the fees, limited to the maximum amount of any Client fees paid within the sixty (60) calendar days prior to the claim, if Client paid for the non-compliant element. Any such modified or replacement element shall conform to the Agreement made between MCNines and Client and shall be subject to MCNines' warranties contained in these Terms and Conditions. The remedy specified in this Section 6.2 is Client’s sole remedy for any infringement claims.
6.5: 3rd Party Warranties
In addition to passing on any service or performance level guarantees from third-party technology providers as described in Section 5.8, at the request of Client, MCNines will, to the extent allowable by law, pass on to Client any warranties for third-party hardware and software made by the manufacturers of the same. MCNines makes no warranties of any kind with respect to third (3rd) party hardware, software, services, or other items.
6.6: Scope of Warranties
The limited warranties set forth in Sections 6.1, 6.2 , 6.3, 6.4, 7.1 and Section 10 A, constitute the only warranties made by MCNines with respect to any Agreement, these Terms and Conditions, and all relationships between MCNines and Client. Any and all other representations, warranties, or guarantees, whether express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, non-infringement, quality, accuracy, performance, data security or freedom from error are disclaimed and excluded.
7.1: Product Review
Client will have thirty (30) calendar days after receipt of any Work Product (or portion thereof, if they are to be delivered in milestones as set forth in an applicable Agreement) to test, inspect, and review such Work Product. If a Work Product does not materially comply with the requirements MCNines agreed to, Client may request modification of such Work Product by written notice to MCNines. Such notice must specify, in detail, the reasons the Work Product fails to meet the relevant functionality or requirements. MCNines will use reasonable efforts to correct or cure any material deficiencies and provide Client with a revised Work Product in a timely and reasonable manner. Client will have the right to approve or reject the corrected Work Product in accordance with this Section, however approval by Client shall not be unreasonably withheld.
8.1: Independent Contractor
MCNines is an independent contractor and not an employee, agent, joint employer, or joint venture of the Client. Nothing herein shall be construed as inconsistent with that status. Neither MCNines nor Client shall make any representation to any third party that is inconsistent with its status as an independent contractor. MCNines, as an independent contractor, shall be solely responsible for the payment of its own state and federal income taxes and self-employment taxes and the taxes of its employees and contractors, and Client shall not, under any circumstances, withhold or pay such taxes to any government agency, or be responsible to withhold or pay such taxes, except as required by law. As a further condition of this Agreement, and prior to any payment of compensation under this Agreement, MCNines shall complete, execute, and return to Client an Internal Revenue Service W-9 form when necessary by applicable law.
8.2: Work Hours
MCNines shall have the exclusive right to establish the work hours of its personnel that are providing Client services and to control and direct the methods, means, manner, and details of performing its obligations under these Terms and Conditions and any other Agreement between MCNines and Client. The Client shall not direct, control, influence, or obstruct the manner in which MCNines, its personnel, or agents perform or execute obligations on behalf of the Client. Hours requested outside of normal business hours, to include nights, weekends, and holidays, will be recorded by MCNines as double the hours worked.
9.1: Force Majeure
Neither party will be liable for any delays or failure in the performance of services if such delay or failure is due to causes beyond reasonable control, including, but not limited to, Acts of God, such as severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions; strikes and labor disputes, delays in transportation, or inability to obtain necessary labor or materials; war, acts of terrorism, pandemics and epidemics due to disease, viruses, or other reason, social or physical distancing measure; plague, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; acts of governmental authorities such as expropriation, condemnation, states of emergency, and changes in laws and regulations; and other force majeure events.
10.1: Hosting Services
A. MCNines agrees to perform Hosting Services, with the assistance of its third-party technology providers, as follows:
- Provide Client an internet address for virtual storage, management, and access to Client's text, pictures, sound, graphics, video, links, data (including sensitive data), applications, and software ("Content") on dedicated computing infrastructure or in a shared multi-server environment as agreed by the parties;
- Provide support services on an FTE basis as agreed by the parties in accordance with these Terms and Conditions and any Agreement;
- Engage third-party technology providers which follow commercially reasonable security policies and procedures and use security tools designed to prevent unauthorized disclosure of, or access to, Client’s Content. If MCNines becomes aware of any security breach involving Client’s Content, MCNines will notify Client in a timely manner, but it is impossible for MCNines or its third-party technology providers to maintain impervious security and MCNines is not responsible for unauthorized access, loss, destruction or damage to Client’s Content.
- Make reasonable efforts to maintain, or require their third-party technology providers to maintain, all equipment and infrastructure used to provide the Hosting Services in good working order, but, as provided for in Section 5.8, MCNines is not responsible for any Client losses related to downtime, loss of Content, or equipment or infrastructure failure (including power or internet outages);
- If Client has engaged MCNines to provide Content back-up, disaster recovery, or business continuity services for Client, MCNines will provide such services for the fees agreed, but MCNines is not responsible for loss, destruction or damage to Client Content.
- Upon Client’s request, MCNines will track and report information regarding Client’s use of the Hosting Services, such as bandwidth, DTU Cycles, CPU Cycles and storage usage.
B. Client agrees:
- Client is aware that operating its computing requirements on live servers and using cloud or internet-based Hosting Services and other services has inherent risks and Client is willing to accept and assume those risks.
- Client will only use MCNines’ Hosting Services for lawful purposes and Client will not store, provide or access any Content or link to any material that violates foreign, federal, state or local law. Client will not use MCNines’ Hosting Services or other services to create, send, or facilitate the creation or use of, spam, robocalls, illegal Content or communications in violation of applicable laws.
- If Client uses the Hosting Services in a manner that causes Client to become a Noisy Tenant, as determined by MCNines in its reasonable discretion, MCNines will provide Client written notice of Client’s Noisy Tenant status, and Client will immediately (a) cease the use that is causing it to be a Noisy Tenant; or (b) engage MCNines to provide dedicated server infrastructure. If Client does not take one of these actions, MCNines may terminate Client’s Hosting Services.
- All Client Content stored via the Hosting Services shall at all times remain the property of Client. Client grants to MCNines a non-exclusive, worldwide license to the Content solely to the extent necessary for MCNines to provide the Hosting Services or other requested services to Client.
11.1: Cumulative Liability; Indemnity
MCNines' cumulative liability, if any, to Client for any and all claims whatsoever related to the services, including, without limitation, the Hosting Services, these Terms and Conditions, an Agreement, or the relationship of the parties including, but not limited to, any cause of action sounding in contract, tort, or strict liability, are limited to the maximum amount of any Client fees paid within the sixty (60) calendar days prior to the claim. In no event will MCNines be liable for any loss of profit, revenue, data or Content; any incidental, special, exemplary or consequential damages, regardless of foreseeability; or any claims or demands brought by Client, even if MCNines has been advised of the possibility of such claims or demands. Except for a breach relating to Confidential Information within Section 3 of these Terms and Conditions or other Agreement, Client will not be entitled to specific performance in connection with these Terms and Conditions or other Agreement.
Client shall defend MCNines against any third party claim, action, suit or proceeding arising from Client's use of MCNines’ services or Client’s failure to comply with these Terms and Conditions or an Agreement and indemnify MCNines for all losses, damages, expenses, and costs incurred by MCNines as a result of a final settlement or judgment entered against MCNines in any such claim, action, suit or proceeding.
12.1: Waiver
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the full right of such party to require such performance at any time thereafter nor shall the waiver of either party of a breach by the other be deemed to be a waiver of any subsequent breach of such provision.
12.2: Non-Solicitation of Employment
While these Terms and Conditions are in effect and for one (1) year thereafter, both parties agree that they shall not solicitor recruit, directly or indirectly, any of the other party's employees who have performed services for the hiring party pursuant to these Terms and Conditions, to perform similar services for the hiring party, or to serve the hiring party in a similar capacity.
12.3: Non-Hiring of Employees
While these Terms and Conditions are in effect and for one (1) year thereafter, both parties agree that they shall not, directly or indirectly, hire or retain any current or former employee of the other party until such individual has ceased to be an employee of the other party for a period of one hundred eighty (180) calendar days.
12.4: Successor and Assigns
Client may not assign any of its rights or duties under these Terms and Conditions without the prior express written consent of MCNines, which shall not be unreasonably withheld. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of MCNines, Client, and their respective permitted representatives, heirs, successors and assigns.
12.5: Taxes
Any sales, excise, duty or other tax or fee imposed by any government authority on the services shall be the responsibility of Client.
12.6: Severability
If any part of these Terms and Conditions is held void or unenforceable, the remainder of these Terms and Conditions will nevertheless remain in full force and effect.
12.7: Entire Agreement; Governing Law; Dispute Resolution
These Terms and Conditions, together with any Agreement, contains the entire understanding of the parties with respect to the subject matter hereof, and shall be governed by and construed in accordance with applicable state law. The laws of the State of Colorado and rules and regulations pursuant thereto shall be applied in the interpretation, execution, and enforcement of these Terms and Conditions and any Agreement. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of the Terms and Conditions or any Agreement.
Except for circumstances that allow a party to seek equitable relief under these Terms and Conditions, all claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of these Terms and Conditions or an Agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration.
Notwithstanding any other limitation set forth herein, if Client breaches an obligation with regard to MCNines Materials, branding, or MCNines Technology under these Terms and Conditions, MCNines shall be entitled to seek equitable relief such as an immediate injunction for such breach, without the need to post bond or other surety, and pursue any other remedies available under these Terms and Conditions or the law.
Except as explicitly set forth in these Terms and Conditions, the parties agree that all actions arising or relating to these Terms and Conditions or any associated Agreement and relating to services provided by MCNines and the relationship of the parties shall be brought exclusively in the state and federal courts located in the state of Colorado. MCNines is a company registered in the State of Colorado, whose principal place of business is Denver, Colorado.
12.7: Amendments.
These Terms and Conditions supersede all prior Agreements or assertions, whether oral or written, between the parties. MCNines may amend these Terms and Conditions contained herein periodically and without notice. The version of the Terms and Conditions in effect at the time services are performed by MCNines for Client will apply to those services. The current version of the Terms and Conditions are posted at https://www.MCNines.com/terms-and-conditions/.