Last Updated November 10, 2016
These Master Terms of Service together with an executed order for services (“Order”) and any other documentation or agreements incorporated herein by reference (collectively “Agreement”) contain the terms and conditions that govern your access to and use of the Chronus offerings (the “Services”) as further described in each Order. This Agreement is effective as set forth in each Order and is an agreement between Chronus LLC (“Chronus,” “We,” “Us” or “Our”) and the customer set forth in the Order (“You” or “Your”). To the extent there is a conflict between these Master Terms of Service and the Order, the terms of the Order will govern.
1. Subscription to Services. By paying the fees set forth in the Order, and subject to compliance with the terms and conditions set forth in this Agreement, You shall be entitled to access the Services elected in each Order for the term set forth in the Order (“Term”). We may make changes to the Services from time to time by providing notice to You of such changes (including by e-mail, by a general posting on the Services site or by an update to these Master Terms of Service) provided that no changes materially diminish Your use of the Services.
3. Obligations of the Parties.
3.1. You will, and will ensure Your Users, use the Services for lawful purposes only. You are responsible for Your Users’ use of Your Content (defined below) and the Services. You will ensure that all Users comply with all obligations under this Agreement and that the terms of Your agreement with each User are consistent with this Agreement. If You become aware of any violation of obligations under this Agreement by a User, You will immediately terminate such User’s access to the Services. Through the Services You (and Your Users) are able to upload (or have Us upload on Your behalf) text, images and data. All such content that is uploaded by You or provided to Us by You is deemed “Your Content.” Your Content includes all information related to Your Users (including, e.g., User names, job titles, etc.) You will not upload, provide access to, or otherwise transmit through the Services any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law. You will be responsible for protecting the confidentiality of User password(s), if any. You are solely responsible for all of Your Content. You grant Us a non-exclusive, non-transferable, non-sublicensable license to use Your Content solely in connection with Our provision of the Services.
3.3. We will provide the Services in accordance with the Service Level Agreement set forth in Exhibit A.
3.4. You are responsible for providing support services (if any) to Your Users. We do not provide any support or services to Your Users without a separate written agreement.
4. Fees and Payment. We will invoice You for use of the Services (“Fees”) as detailed in the Order Form. Fees are non-refundable. We have the right to increase the Fees annually upon notice of any such increase at least thirty (30) days prior to such fees going into effect. All charges and fees shall be remitted in the currency specified in the applicable invoice and are exclusive of any taxes, duties, or similar charges imposed by any government or other authority.
5. Suspension. We may suspend Your or any Your User’s right to access or use any portion or all of the Services immediately upon notice if We determine:
5.1. You or your User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the content of any other third party, (iii) may subject Us or any third party to liability or (iv) may be fraudulent;
5.2. You or your Users are in breach of this Agreement, including if You are delinquent in payment obligations for more than thirty (30) days; or
5.3. You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If We suspend Your right to access the Services: (a) You remain responsible for all fees incurred through the date of suspension, (b) We will not erase any of Your Content as a result of Your suspension, except as specified elsewhere in this Agreement. Our right to suspend Your or Your User’s right to access or use the Services is in addition to Our right to terminate this Agreement.
6. Term and Termination.
6.1. Term. This Agreement shall be in effect for the Term unless earlier terminated in accordance with Section 6.2.
6.2. Termination. Either party may terminate this Agreement at any time, upon the uncured material breach of the other party, which such breach has not been cured within thirty (30) days’ notice thereof. Upon termination of this Agreement, You shall discontinue Your use of the Services. Notwithstanding the foregoing, termination of this Agreement by Us shall not limit Your obligation to pay all Fees, nor restrict Us from pursuing any other remedies available to Us, including injunctive relief. The following provisions of this Agreement shall survive its termination: 5, 7, 8.3, 9 and 11-16. You will have thirty (30) days from the effective date of termination to remove Your Content contained in the Services. Your Content will be deleted after such thirty (30) days have passed.
7. Confidential Information; Privacy; Feedback.
7.1. Confidential Information. Each party shall each retain in confidence all information provided to it by the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”) and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. The parties shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Your Content is Your Confidential Information.
7.2. Exclusions. Confidential Information shall not include information that the receiving party can establish: (a) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (b) is rightfully received by the receiving party from a third party without confidentiality restrictions; (c) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party hereunder; or (d) is independently developed by the receiving party.
7.3. Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party shall promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party shall cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.
7.5. Return/Destruction of Confidential Information. Upon termination of this Agreement for any reason each party shall promptly return, or if instructed by the other party, destroy all Confidential Information then in its possession.
7.6. Feedback. Any suggestions, comments, or other input You give to Us (“Feedback”), even if designated as confidential, will not create any confidentiality obligation for Us. We will be free to use, reproduce, license or otherwise distribute, and exploit Feedback to improve and enhance Our products, technology, services, documentation or otherwise. Our use of Feedback does not create any obligation to You. You agree not to provide Us with any Feedback that is subject to license terms that seek to require any Our products, technologies, services or documentation incorporating or derived from such Feedback, or any of Our intellectual property, to be licensed or otherwise shared with any third party.
8. Representations and Warranties.
8.1. Authority. Each party represents and warrants that it has the right to (a) enter into this Agreement and (b) grant the rights and licenses herein granted.
8.2. By You. You represent and warrant that Your Content will not violate any law or constitute an infringement or other violation of any copyright, trade secret, trade dress, trademark, patent, invention, mask works, proprietary information, nondisclosure and/or any other right of any third party. You will notify Us immediately in writing (electronic mail is permissible) in the event of any breach of the representations and warranties set forth in this Section 8.2.
8.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE HEREBY DISCLAIM ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY., REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE FURTHER DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER THE EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER HEREUNDER EXCEED AMOUNTS PAID BY YOU HEREUNDER. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO: (i) ANY INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (ii) DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S NEGLIGENT ACTS OR OMISSIONS; OR (iii) INDEMNITY OBLIGATIONS HEREUNDER.
10. Indemnification. You will indemnify and defend Us, Our directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses (“Claims”), incurred by Us in connection with any actual or threatened third-party claim arising directly or indirectly from Our use of Your Content as provided in this Agreement. We will indemnify and defend You and Your directors, officers, and employees from and against all Claims incurred by You to the extent that the Claims arise out of Our infringement, misuse or misappropriation of any third party IP rights. The indemnified party must: (i) give the indemnifying party prompt written notice of the claim; (ii) cede full and complete control over the defense and settlement of the claim to the indemnifying party; (iii) provide assistance in connection with the defense and settlement of the claim as the indemnifying party may reasonably request; and (iv) comply with any settlement or court order made in connection with the claim.
11. U.S. Government Rights. The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services. If You are using the Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue using the Service. The terms “commercial item,” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
12. Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Services, including Your transfer and processing of Your Content, the provision of Your Content to Your Users, and the country in which any of the foregoing occur.
13. Reference. You agree that We may reference You as a customer, subject to any trademark and logo usage guidelines you provide.
14. Professional Services. Professional/consulting services, which shall be subject to the terms of this Agreement, may be provided pursuant to a separately executed Statement of Work (“SOW”).
15. Miscellaneous. This Agreement is the entire agreement between the parties and merges all prior and contemporaneous communications. This Agreement and any of Your rights or obligations hereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, including by way of change of control, sale of assets, merger or consolidation without the prior written consent of Us, and any attempt to assign this Agreement by You without such consent shall be null and void and of no force and effect. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by each of the parties. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar; nor shall any waiver constitute a continuing waiver unless executed in writing by the party making the waiver. If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected. This Agreement shall be governed by and interpreted in accordance with the laws of The State of Washington, without reference to its choice of law provisions and any controversy or claim arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of and venue in any court of competent jurisdiction situated in King County, Washington.
16. Notices. Except as otherwise set forth herein, notices made by Us to you under this Agreement that affect Your Users generally will be posted on the Services site. Notices that affect You specifically (e.g., notices of breach and/or suspension) will be provided to You via Your billing address. Notices to Us may be sent to the return address specified on any current invoice or statement.
This Service Level Agreement sets the expectations for scope of support services, data backups and network uptime for the Services.
SERVICE LEVEL AGREEMENT – SCOPE OF SUPPORT SERVICES
Chronus will use timely and reasonable efforts to provide the following services for Customer during Regular Hours as defined below:
SERVICE LEVEL AGREEMENT – ERROR SEVERITY
ERROR SEVERITY LEVELS: Chronus will exercise timely and reasonable efforts to correct any Error (as defined below) reported in the current unmodified release of the Service in accordance with the Severity level reasonably assigned to such Error by You. Severity levels are defined below.
Severity 1 Errors — Chronus will promptly commence the following procedures upon notification of the problem during Regular Hours and upon confirmation by Chronus that the Error is a Severity 1 Error:
1. Within the first four (4) business hours, Chronus will document and commence recreation and resolution of the problem;
2. If resolution has not been determined after the initial eight business hours, Chronus will mobilize a technical team to troubleshoot the problem and define solution options;
a. Chronus will assign a company representative to oversee and report on all corrective action activities;
b. Chronus will notify You of problem resolution status and will report on the status every twelve (12) hours thereafter;
Severity 2 Errors — Chronus will exercise timely and reasonable efforts to provide a Fix as soon as an Error has been identified and the appropriate Fix developed.
Severity 3 (or lower) Errors—Chronus will exercise timely and reasonable efforts to include the Fix for the Error in a future release.
You are responsible for providing sufficient information and data to allow Us to readily reproduce all reported Errors. If Chronus believe that a problem reported by You may not be due to an Error in the Services, We will notify You.
THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY PROVISION OF ANY SUCH AGREEMENT.
SERVICE LEVEL AGREEMENT – BACKUPS
Hourly backup of data will be kept on hand for up to 90 days for recovery during disasters.
SERVICE LEVEL AGREEMENT – SERVICE AVAILABILITY
Chronus guarantees that the Chronus Mentor Service will be available for You 99.9% of the time in any calendar month (the “Chronus Mentor Service SLA”) during the course of the term of the agreement (‘Chronus Mentor Service Agreement’). You will be eligible for Service Credits if Chronus fails to meet the Chronus Mentor Service SLA.
SERVICE LEVEL AGREEMENT – SERVICE AVAILABILITY DEFINITIONS
Service unavailability – Service unavailability means the Chronus Mentor Service is not available to a valid user for more than five minutes. The following does not contribute towards unavailability calculations:
Scheduled downtime – A scheduled downtime shall occur only between 2:00 AM and 6:00 AM EST. You will be notified 48 hours ahead of the scheduled downtime if it will exceed 30 minutes.
Service Credit – If Chronus fails to meet the availability mentioned above, You may submit claim for a Service Credit. You must submit Service Credit request by email to email@example.com that includes:
The claim must be received within 30 days following the end of the downtime. Chronus will consider all the available information reasonably available to it and make a good faith judgment on whether a service credit is owed.
SERVICE LEVEL AGREEMENT – AMENDMENT
Chronus reserves the right to amend the service level agreement from time to time, subject to prior written notice to the You of the proposed change and Your written approval. In the event of any amendment resulting in a material reduction of the service level agreement, You may elect to terminate this Agreement without penalty by providing Chronus written notice of such termination within 30 days following notice of such amendment.