Product Subscription Terms and Conditions of Use
The following terms and conditions of use are applicable to any User1st Product Subscriptions (“Product Subscription Terms”) and incorporated into the agreement to which these Product Subscriptions Terms are attached or referenced. Capitalized words or phrases that are not otherwise defined herein shall have the meanings set forth in the “Definitions” section at the end of these Product Subscription Terms.
- Customer Domains and Sites. Prior to providing any User1st Product Subscription, User1st may require Customer to provide adequate proof that Customer owns or controls the Customer domains that will access or integrate with the User1st Product. Customer hereby permits the User1st Products subscribed to or installed under the User1st Product Subscription to access and integrate with the Customer domains, content therein, and underlying website language and code as may be necessary to enable operation of the User1st Product subscribed to or installed under the User1st Product Subscription.
- Product Subscription Duration. User1st Product Subscriptions shall commence upon Customer’s execution of the agreement to which these Product Subscriptions Terms are attached or referenced and continue for the Subscription Period agreed to by Customer and User1st.
- Product Limitations. User1st Products shall at all times be subject to the system requirements and limitations set forth in the System Limitations available at https://www.user1st.com/system-limitations/.
- Access to User1st Products. Although portions of the User1st Products may be downloaded or installed on Customer websites, computer systems and browsers, or servers (“Installed User1st Products”), User1st Product’s core functionality is maintained on Microsoft Azure cloud servers in accordance with Microsoft’s Service Level Agreement for Cloud Services. Customer acknowledges that it may require Internet connectivity to access the User1st Products and that User1st is not responsible or liable to Customer for such Internet connectivity or any third party connection or data plan or charges required of Customer in order to access the User1st Products.
- Customer Obligations. Customer shall not misuse User1st Products or Supporting Tools accessed or integrated via the Internet. Misuse includes, but is not limited to:
- probing, scanning, or testing the vulnerability of any User1st Product or Supporting Tool;
- breaching or otherwise circumventing any security or authentication measures;
- accessing, tampering with, or using non-Customer designated areas or parts of the User1st Products or Supporting Tools, or shared areas of the User1st Products or Supporting Tools that Customer has not been invited to; or
- interfering with or disrupting any User1st Product user, host, or network, for example by sending a virus or attempting to deny operation of any part of the User1st Product or Supporting Tool.
- User1st Proprietary Rights. User1st Products and Supporting Tools accessed or integrated via the Internet, including any underlying software, platforms, algorithms, technology and/or other proprietary materials (“Materials”) are the property of User1st and User1st retains all rights, title and interests in and to such Materials and all intellectual property rights relating thereto, including without limitations all copyright, patent, trademarks, logos, design rights, and any other proprietary rights. No transfer or grant of any rights or rights with respect to the Materials or otherwise is made or is to be implied by any access to or integration with User1st Products or Supporting Tools via the Internet. Except for Materials which are in the public domain or for which Customer has been given written permission, Customer may not copy, modify, publish, transmit, distribute, perform, display, or otherwise use any such Materials except to facilitate Customer’s use of the User1st Products in accordance with the terms and conditions of the agreement to which these Product Subscriptions Terms are attached or referenced.
- Product Availability.
- User1st will provide 100% Availability (as defined below) for the User1st Products accessed or integrated via the Internet within User1st’s Immediate Control. “Immediate Control” means User1st’s logical cloud services within the User1st cloud hosting provider, Microsoft Azure, which extends to, includes, and terminates within the User1st boundary within the Microsoft Azure Cloud.
- Specifically excluded from the foregoing definition of “Immediate Control” are the following:
(i) Equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer and Customer’s network services which allow the Customer to access the User1st Products. These components are controlled by the Customer and their performance or failure to perform can impair or disrupt Customer’s connections to the Internet and the transmission of data.
(ii) Equipment, data, materials, software, hardware, services and/or facilities provided by third party vendors or service providers of Customer.
(iii) Acts or omissions of Customers, its employees, contractors, agents, representatives, third party vendors, or service providers or anyone gaining access to User1st’s network at the request of Customer.
(iv) Issues arising from bugs or other problems in the software, firmware, or hardware of third parties.
(v) Delays or failures due to circumstances beyond User1st’s reasonable control that could not be avoided by its exercise of due care including a Force Majeure Event.
(vi) Any outage, network unavailability or downtime outside the User1st’s logical area of the Microsoft Azure Cloud.
- Maintenance Window Scheduled Downtime: User1st has an optional weekly “Maintenance Window” on Sunday between 4 am to 11 am Eastern Time during which maintenance, upgrades, and repair of the User1st Products can occur. In addition to the standard scheduled Maintenance Window, User1st may require additional scheduled downtime from time to time. These scheduled windows may take several hours to complete. User1st will notify Customer one (1) week in advance of any scheduled maintenance where possible.
- Availability Calculation: Availability is based on a weekly 7 day x 24 hour calculation excluding scheduled downtime. The calculation will be as follows: ((a – b) / a) x 100, where “a” is the total number of hours in a given calendar month, and “b” is the total number of hours that a User1st Product accessed or integrated via the Internet under a User1st Product Subscription is not Available in a given month. Specifically excluded from “b” in the calculation of the Availability measurement are (1) all planned down time including the standard Maintenance Window and any other scheduled down time; (2) a service interruption caused by a security threat until such time as the security threat has been eliminated; (3) reasons of a Force Majeure Event (as defined in the General Terms) or events which are outside User1st’s Immediate Control as defined above; (4) use of unapproved or modified hardware by or on behalf of Customer and/or (5) issues arising from misuse of the User1st Products by Customer or its employees, contractors, agents, representatives, third party vendors, or service providers or anyone gaining access to User1st’s network at the request of Customer.
- Remedies: In the event that User1st is unable to provide the level of Availability described herein for a User1st Product in any given calendar month during the User1st Product Subscription term, Customer will receive a refund of .1% of the portion of the subscription fee related to the User1st Product at issue for each 30 minutes of downtime, up to 100% of the subscription fee (with refunds calculated and provided on a monthly basis). Customer’s right to receive refund(s) will be Customer’s exclusive remedy for User1st’s failure to satisfy the foregoing Availability requirements. Remedies will not accrue if Customer is not current in its payment obligations either when the unavailability occurs or when the refund would otherwise be issued. To receive subscription refunds, Customer must contact User1st with the request within 15 days after the end of the month in which the User1st Product was unavailable, or Customer’s right to receive service refunds with respect to such unavailability will be waived.
- Notwithstanding anything to the contrary set forth herein, where a Force Majeure Event prevents full Availability for more than twenty (20) consecutive days in any six (6) month period, Customer’s sole remedy is to terminate this Order on thirty (30) day’s written notice to User1st. In such case, neither Party will be liable for penalties or damages arising out of a failure to perform due to the Force Majeure Event.
- User1st Product Condition. All User1st Products are provided “as is.” User1st reserves the right to make changes and updates at any time to the User1st Products and such changes and updates shall be provided free of charge to Customer provided such changes and updates are provided free of charge as part of User1st’s standard commercial offerings.
- Suspension of Access. Customer’s breach of any of these Product Subscription Terms may result in suspension of access to the User1st Products and Supporting Tools and such other reasonable actions appropriate to address the breach, as determined by User1st in its sole discretion. Until such breach is remedied and User1st, in its sole discretion, receives adequate assurances from the Customer that such breach will not reoccur, User1st may maintain such suspension of access without liability to Customer.
- Definitions. The following terms as used herein shall have the meanings ascribed to them below:
(a) User1st Product means the applicable User1st solution (uSuite, uTester, uRemediate, uMonitor) and associated engines, servers, plug-ins, and software snippets subscribed to by Customer.
(b) User1st Product Subscription: Customer’s agreement as set forth in the agreement to which these Product Subscription Terms are attached to access or have its websites integrate with the ordered User1st Product for the Subscription Period.
(c) Subscription Period: the length of the User1st Product Subscription as reflected in the agreement to which these Product Subscription Terms are attached.
(c) Supporting Tools: User1st’s online, executive dashboard and wiki site to which User1st may grant Customer access in support of a User1st Product Subscription.
(d) Customer: National Railroad Passenger Corporation (Amtrak)