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CLOUD COMPUTING SERVICES AGREEMENT
This Cloud Computing Services Agreement (this "Agreement") is made effective as of the Effective Date (as
defined below) by and between Speros, Inc., a Georgia corporation with principal offices at 2141 Rowland
Ave., Savannah, Georgia 31404 ("Speros"), and the customer identified below ("Customer"). I
CUSTOMER INFORMATION:
Customer Name: Tybee Island City Hall Billing Information
Contact Name: Todd Smith I Contact Name: Todd Smith
Title:
t
Address: 401 Butler Avenue Address: 401 Butler Avenue
City: Tybee Island I City: Tybee Island
State: GA I Zip: 31328 State: GA I Zip: 31328
I Phone:(912) 786-4573 I Fax: I Phone: (912) 786-4573 I Fax: I
Email: tsmith @cityoftybee.org I Email: tsmith @citvoftybee.orq I
INITIAL TERM: One (1) Year Two (2) Years _i Three (3) Years
After Service Commencement Date
DESCRIPTION OF SERVICES:
ITEM DESCRIPTION
Hardware:
(1) Exchange VM, 16GB RAM, 200 GB Storage
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Software:
(1) TrendMicro SPLA Worry-Free Business Security License - VM
(113) Microsoft SPLA Exchange Hosted Standard Edition Licenses
(113) Hosted Comprehensive Anti-Spam Service on Exchange Hosted
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FEES
(See Section 3 of the General Terms and Conditions for invoicing and payment terms.)
I Item Description Fees
Implementation Fees One-time fees for implementing Charged on a time-and-materials basis,
and configuring the Services at Speros'then-current standard rates
Monthly Services Fees Ongoing monthly fees for the [$ 850.00 ] per calendar [month],
I provision of the Services during payable in advance
the Initial Term ;
Back-Up Times [DISCUSS OPTIONS AND
FEES] '
Bandwidth [DISCUSS OPTIONS AND
FEES]
Confidential
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This Agreement is governed by and incorporates by reference the "General Terms and Conditions"
attached hereto. Capitalized terms used, but not otherwise defined, on these cover pages (the "Cover
Pages"), in the attached Schedules, or in any written order form or addendum executed by the parties
pursuant to this Agreement have the respective meanings given them in the General Terms and Conditions.
By signing below, Customer and Speros each acknowledges that (i) it has read, understands, and agrees to
be bound by the terms and conditions of this Agreement, including those of the General Terms and
Conditions and the attached Schedules and those of any other documents expressly referenced therein or
attached hereto (all of which documents and attachments are incorporated herein by this reference), and
(ii) the person signing this Agreement has legal authority to sign for their organization.ilik
Customer: Ci ti 64 i"✓� ���'"�[ Speros, Inc.
Signature: V i,
§i Signature:
Printed Name: 9 l t, So/k. t IN C L J ,S J e.,qa c
("TO 'Title: \ 8 GM A Title: / iLafcQ% 'l t" a
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(the"Effective Date")
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GENERAL TERMS AND CONDITIONS
1. Services Speros (i.e., equipment suppliers or resellers), or
f 1.1 Scope. This Agreement defines the terms any other cause beyond the reasonable control of
under which Speros will provide Customer with Speros. Unless otherwise specified on the Cover
I certain cloud computing and information technology Pages, all implementation Services shall be
("IT") related services, as defined and described on provided by Speros on a time-and-material basis, at
the Cover Pages and below in this Agreement (the Speros'then-current standard rates, with fees billed
"Services"). If and as further described on the in arrears, as incurred.
Cover Pages, the Services may include Speros 1.3 Additional Services. The parties may, from
providing Customer with the use of virtual or time to time, execute order forms or written
dedicated physical computer servers, software, addenda that reference this Agreement and
electronic storage space, and physical computer describe additional Services to be provided by
rack storage space within Speros` data center, as Speros to Customer hereunder. To be effective, any
well as related application support services, backup such order form or addendum must be signed by
services, managed firewall services, Spam filtering duly authorized representatives of each of the
services, and other IT-related services. Speros is parties. Unless otherwise provided in such an order
not responsible for providing support or service on form or addendum: (i) the terms of this Agreement
hardware, software, or equipment installed or shall apply to and govern such document and any
located other than at Speros' data center. Services provided thereunder; (ii) the process
Workstations used by Customer and its end-users described in Section 1.2, above, shall be followed
to access and use the Services shall be the sole with respect to the implementation of any Services
responsibility of Customer. Upon request, Speros to be provided thereunder; and (iii) the term for
may provide service and support for these devices, which any such additional Services shall be
f on a time-and-materials basis, at Speros' then- provided shall be co-terminous with the term of this
current standard rates, plus the cost of replacement Agreement and the other Services being provided
parts, etc. hereunder.
1.2 Implementation. Promptly after the 1.4 Additional Terms. Certain portions of the
Effective Date, Speros will provide Customer with a Services may, as further described on the Cover
'Cloud Computing Check List that will be used to Pages or in a written addendum to this Agreement,
help determine what implementation Services be subject to additional terms and conditions
Speros will need to provide in order to commence imposed by third parties, and Customer agrees to
providing the Services. Customer will be responsible promptly and fully comply with any such additional
for promptly, accurately, and fully completing the terms and conditions. The terms under which
Cloud Computing Check List with all pertinent Speros will provide support and help desk services
information and promptly returning it to Speros. are set forth in Schedule A hereto.
Using the completed Cloud Computing Check List,
Speros will create an implementation plan for the 1.5 Microsoft Products. Without limiting Section
Services, specifying the tasks that each party will 1.4, above, Speros makes software products of
be responsible for performing, and the parties will Microsoft Corporation ("Microsoft") available to
mutually agree upon the date on which Speros will Customer hereunder pursuant to the terms of
commence providing the relevant Services to Speros' volume licensing agreement with Microsoft,
Customer (the date on which the Services are first which is attached as Schedule B hereto (the
made available for Customer's use in a live, "Microsoft Agreement"). Customer shall comply at
production environment at Speros' data center, the all times with the terms of the Microsoft Agreement
"Service Commencement Date"). It is generally and shall not cause Speros to breach or violate such
expected that the Service Commencement Date will terms. Customer's rights to use such Microsoft
not normally be more than forty-five (45) days products (as well as all other software, hardware,
after the Effective Date. However, the actual and Services provided by Speros for Customer's use
Service Commencement Date will depend upon the hereunder) shall terminate upon any expiration or
specific Services to be provided, the level of termination of this Agreement. Speros will upgrade
readiness of Customer and its environment, lead the releases of Microsoft products made available
times required for ordering and delivery of hereunder within a reasonable period of time, as
equipment, and various other factors. Speros will Speros deems appropriate, after new releases
not be responsible for any delays or failures in become generally available from Microsoft. To the
meeting the agreed-upon Service Commencement extent such new releases of Microsoft products are
Date, or in otherwise performing hereunder, to the made available at no additional cost to Speros, they
extent such delays or failures are caused by will be provided to Customer at no additional
Customer, by third parties not under the control of charge. However, if Speros is required to pay
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additional fees for any such new releases and such of its users, except for any use or misuse of any
new releases are requested or required by Customer logon or ID by Speros or anyone under
Customer, the parties must enter into a written its direction or control. Customer shall immediately
order form or addendum to appropriately adjust the notify Speros of any known or suspected
fees payable hereunder by Customer in order for unauthorized access to or use of the Services,
such new releases to be made available to Customer's account, or any logons or IDs
Customer. Speros is not responsible for upgrading established or assigned with respect to Customer,
or otherwise modifying any hardware made of which Customer becomes aware.
available to Customer as part of the Services, 1.8 Acceptable Use. Customer shall only use the
regardless of whether such upgrade or modification Services in lawful manner, consistent with all
is required in connection with an upgrade of applicable laws and regulations, and only for lawful
Microsoft products pursuant to this Section, growth and legitimate purposes. Customer may not, on or
in Customer's workload or volume, or otherwise, through the Services: (i) offer, promote, engage in,
unless otherwise mutually agreed by the parties in or provide instruction in illegal activities; or (ii)n use,
l a written order form or addendum to this
display, or make available any information or
Agreement that appropriately adjusts the fees
payable by Customer hereunder. material that is false or misleading, that violates
any rights of others, or that presents or portrays
1.6 Soeros' Responsibilities. As part of the Speros in other than a professional, non-
, Services, Speros will use commercially reasonable disparaging manner. Customer shall comply with
efforts to: (1) maintain the security and integrity of any restrictions or limitations specified on the Cover
the Services in accordance with Speros' established Pages, in Schedule A, or in any applicable order
security policies and procedures; (ii) provide basic form or addendum to this Agreement regarding the
telephone and administrative support for the
Services to Customer during Speros' normal
use of the Services (e.g., restrictions or limitations
on the types or numbers of users or concurrent
business hours, as described in users, maximum amount of storage space,
Schedule A; and (iii) make the etc.).
I Services available 24 hours a .; 1,9 Prohibited Activities. Customer may
day, 7 days a week, except for [ . access and use the Services, and may
periods of scheduled or permit others to access and use the
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emergency maintenance and -° " Services, only as expressly provided herein.
outages not within the
Except as expressly permitted by this
reasonable contra! of Speros Agreement, Customer shall not: (i) modify,
(maintenance will generally be adapt, translate, reverse engineer,
scheduled on nights,
decompile, disassemble, or create
weekends, and other times of
low utilization of the Services). Except in
derivative works of, or otherwise attempt
emergency or urgent situations, Speros will notify to derive any source code of or relating to, the
Customer Services, any components thereof, or any other
ustomer reasonably in advance of any planned
upgrades to the hardware, systems, or equipment resources used by Speros to provide the Services;
used to provide the Services, in order to help (ii) alter or copy, or permit any person or entity to
alter or copy, any components of the Services; (iii)
reduce any disruption in the Services. Speros may
from time to time, in its sole discretion, modify or intentionally interfere with, disrupt, interrupt,
enhance the Services (or the resources and restrict, prevent, or disable, access to or use of the
equipment used to provide the Services), without
materially reducing the basic functionality thereof. resources used by Speros to provide the Services,
Speros shall not be obligated to cure any alleged Services or any components thereof, any other
or the receipt or utilization of the Services, whether
defect in the Services resulting from misuse or by Customer or any other customers of Speros; or
unauthorized use or modification of the Services. (iv) distribute, resell, assign, transfer, lease, rent,
license, sublicense, disclose, or encumber the
1.7 Access. Customer is solely and exclusively Services or any components thereof, or any other
responsible for procuring and maintaining resources used by Speros to provide the Services,
appropriate network and Internet connectivity, as or at any time make any portion or components of
required to access and use the Services, and the Services available in a timesharing or service-
appropriate hardware and equipment that meets bureau environment. Customer acknowledges and s
any applicable minimum requirements with respect agrees that any breach by it, or by any of its
to any given Services. Customer is also solely and agents, employees, or representatives, of this
exclusively responsible for all access and use of the Section shall cause irreparable injury to Speros and
Services by Customer and its designated users, or that, in such an event, in addition to any other
that occurs through the use of any logon or ID remedies that may be available, in law, in equity, or
established by or with respect to Customer or any otherwise, Speros shall be entitled to seek and
Confidential 4
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obtain injunctive relief against any such threatened Agreement through the effective date of
or continuing breach, without proving damages or termination.
posting bond or other security. , Fees and Payment
1.10 Suspension of Use. Customer acknowledges 3.1 Fees. Customer shall pay to Speros in a
and agrees that, in addition to Speros' other rights timely manner the fees specified or described on
hereunder, Speros may, in its sole discretion, the Cover Pages (as adjusted from time to time in
immediately suspend or disable Customer's right accordance herewith), those specified in any order
and ability to access and use the Services, without form or written addendum to this Agreement, and
notice and without liability, if Speros reasonably any other fees or other amounts payable to Speros
believes that: (i) Customer has breached or failed hereunder. Unless expressly otherwise provided on
to comply with any of the terms of this Agreement the Cover Pages or in an applicable written order
or for any other reason that Speros believes is form or addendum to this Agreement, the fees
causing loss or damage to Speros, the Services, applicable to Services provided on an ongoing or
any other users of Speros' services, or any other continuing basis shall begin to accrue as of the
third parties, or imminent risk of any such loss or applicable Service Commencement Date and shall
damage; or (ii) Customer's use of the Services is in be invoiced and payable on a monthly basis, in
violation of (or has violated) applicable law. Speros advance (with calendar months starting on the first
may, in such circumstances as it deems day of each January, April, July, and October, and
appropriate, provide Customer with notice and a with invoices for partial calendar months
reasonable opportunity to cure before suspending appropriately prorated for the portion of the month
Customer's use of the Services. In the event of a during with the applicable Services are actually
suspension of Customer's use, Customer shall provided). Unless expressly otherwise provided on }
promptly cooperate with Speros in attempting to the Cover Pages or in an applicable written order
resolve the applicable issue. form or addendum to this Agreement, Speros shall
2. Term and Termination invoice Customer for the fees for any partial initial
2.1 Term. This Agreement shat! become calendar month, and for those for the first full
effective as of the Effective Date and, unless earlier calendar month, on or about the Service
terminated in accordance herewith, shall continue Cammencement Date, with fees for subsequent
in force and effect for the period of time specified calendar months invoiced in advance of the start of
as the "Initial Term" on the Cover Pages. The term the applicable month. Notwithstanding the
of this Agreement shall automatically renew and be foregoing, if specified on the Cover Pages or in any
extended for additional periods of one (1) year each written order form or addendum that fees are to be
(each, a "Renewal Term") upon the expiration of paid monthly' than monthly, the provisions
the Initial Term or the Renewal Term, unless either of this Section shall be deemed to apply to calendar
party provides written notice of non-renewal to the months, rather than calendar months, and
other party at least ninety (90) days prior to the interpreted accordingly. Customer must report any
expiration of the then-scheduled term of this errors or discrepancies in any Speros invoice within
Agreement, whether the Initial Term or a Renewal thirty (30) days after the date of such invoice, or
Term (with the Initial Term and any Renewal Terms such invoice will be deemed correct and payable by
collectively referred to herein as the "Term"). Customer in accordance herewith.
2.2 Termination. Either party may terminate 3.2 Interest. Any amounts payable hereunder
this Agreement for cause, immediately upon that are not paid by Customer within thirty (30)
providing the other party with written notice days after the date of Speros' applicable invoice
shall thereafter accrue interest at a rate equal to
thereof, if the other party materially breaches any
provision of this Agreement and fails to cure such the lesser of (i) one and one-half percent (1.5%)
° p g per month, and (ii) the highest rate allowed by law,
breach within thirty (30) days after being provided until paid. Speros reserves the right to suspend
with written notice reasonably describing the Customer's access to and use of the Services at
breach by the non-breaching party (except that the any
applicable cure period shall be only fifteen (15) time until all fees then past-due hereunder are paid
days with respect to a breach by Customer of its in full. Except as expressly otherwise provided
payment obligations hereunder}, herein, all fees are non-refundable and shall be paid
without right of setoff, and payment obligations
2.3 Effects of Termination. Upon any expiration may not be canceled, regardless of actual usage of
or termination of this Agreement: (i) Speros shall the Services.
cease providing, and shall disable Customer's 3.3 Chances to Fees. Unless otherwise specified
access to, the Services; (ii) Customer shall by Speros in a written notice delivered to Customer
immediately cease access to and use of the at least one hundred and twenty (120) days prior to
Services; and (iii) Customer shall promptly pay to
Speros any amounts payable pursuant to this the start of any given Renewal Term, the fees
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applicable to any Renewal Term shall automatically
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increase, in comparison with the fees in effect by Customer, Speros will, upon receiving a request
immediately prior to the start of such Renewal from Customer within thirty (30) days after the
Term, by a percentage equal to the ECI (as defined effective date of termination or expiration of this
below) for the then-most recently available period Agreement (provided that Customer has paid
of twelve (12) consecutive months, plus two (2) Speros any outstanding amounts then payable
percentage points. As used herein, "ECI" means the under this Agreement), make available to
Employment Cost Index for Total Compensation Customer, for downloading or physical delivery, a
(not seasonally adjusted) for private industry file of Customer Content in a reasonable, industry-
workers, management, professional and related standard format, at no charge other than for (if and
occupations, excluding incentive paid occupations, as applicable) media and shipping. After the
December 2005 = 100, compiled by the U.S. expiration of such thirty (30)-day period, Speros
Department of Labor, Bureau of Labor Statistics. If shall have no obligation to maintain or provide any
publication of the ECI is discontinued, a similar cost Customer Content and may, unless prohibited by
index shall be substituted. Speros may revise or applicable law, delete all Customer Content in its
adjust its standard rates for other Services as it systems or otherwise in its possession or control.
deems appropriate from time to time.
5. Confidentiality 1
3.4 Taxes. All fees hereunder are exclusive of, 5.1 Definition. In performance under this
and, as between the parties, Customer is Agreement, each party will have access to certain
responsible for paying, any sales, use, and other Confidential Information of the other party or that
taxes of any applicable jurisdiction that are the other party is required to maintain as __
assessed or imposed upon the Services or the confidential pursuant to agreements with third _
provision or receipt thereof, or upon any parties. As used herein, "Confidential Information" _4
transactions executed by Customer through the use means, with respect to either party, all written or
of the Services (excluding taxes on Speros' income oral information disclosed by such party to the
or property). other, or related to the operations of such party,
r 4. Proprietary Rights that is identified as confidential at the time of 1
4.1 The Services. Customer acknowledges and disclosure or that ought reasonably to be
agrees that the Services contain valuable understood and treated as confidential, including,
proprietary and intellectual property of Speros and but not limited to, technical and non technical data,
its applicable licensors, and that Speros and its marketing and promotional information, software
applicable licensors are and shall remain the sole Programs and code (regardless of form or 1
language), methods, techniques, strategies,
and exclusive owners of the Services, all processes, customer and supplier lists, trade
components, materials, works, products,
secrets, distribution methods, and
inventions, and ideas contained therein, and all pricing and
I. intellectual property and proprietary rights financial data. Without limiting the foregoing, the
pertaining thereto. Speros and its Confidential Information of Speros includes
applicable licensors expressly the Services and any other non-public
reserve and retain all rights to ;
materials that are provided or disclosed by
the Services (and all components i Speros hereunder, as well as the terms of
thereof) that are not explicitly '' this Agreement and the Microsoft
granted in this Agreement, and —%., '� Agreement. Notwithstanding the foregoing
t� provisions of this Section, Confidential
no implied license to, or interest k a
in, any such rights shall arise as i1 Information shall not include information
a result of or in connection with rt ,,i , that: (i) is publicly available or in the public
this Agreement. domain at the time disclosed; (ii) is or
becomes publicly available or enters the
4.2 Customer Data and public domain through no fault of the
Content. As between the parties, Customer owns receiving party; (iii) is rightfully communicated to
and shall retain all right, title, and interest in and to the receiving party without obligations of
any data, media, and content provided by Customer confidentiality by persons not bound by
or its end-users in connection with the Services confidentiality obligations with respect thereto; (iv)
(collectively, the "Customer Content"). Customer is already in the receiving party's possession free of
grants to Speros a non-exclusive, non-transferable, any confidentiality obligations at the time of
worldwide license and right to use, copy, and disclosure; or (v) is independently developed by the
i modify the Customer Content during the Term, receiving party without use of, or reference to, the
solely as necessary and appropriate for Speros to other party's Confidential Information.
provide the Services and otherwise fulfill its 5.2 Restrictions. Each party shall: (i) hold th
obligations under this Agreement. In addition to the
Confidential Information of the other party i
any functionality of any applicable Services that
may allow for the downloading of Customer Content confidence and protect such Confidential
Confidential
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Information from disclosure to third parties using at common and prevalent in the industry and any
least the same efforts as such party uses to protect applicable documentation furnished by Speros. As
its own confidential information of a similar nature Customer's sole and exclusive remedy for a failure
(but not less than reasonable care); (ii) use and of the Services to conform to this limited warranty,
reproduce the Confidential Information of the other Speros will, if Customer notifies Speros in writing
party only for the purposes described herein; (iii) and in reasonable detail, of the nature and extent
restrict access to the Confidential Information of the of such failure within thirty (30) days after such
other party to such of its personnel, agents, and failure: (i) re-perform the applicable Services or
consultants as have a need for access and who are otherwise cure such failure; or (ii) if Speros
subject to legally binding obligations of determines, in its sole discretion, that it is unable to
confidentiality substantially similar to those set re-perform the applicable Services or cure such
forth herein; and (iv) upon termination or failure through the exercise of commercially
expiration of this Agreement or the request of the reasonable efforts, Speros may terminate this
other party, return or securely destroy all Agreement with respect to the non-conforming
Confidential Information of the other party then in Services and refund to Customer the fees actually
its possession or control. As between the parties, paid by Customer for the non-conforming Services
each party's Confidential Information shall be and with respect to the then-immediately preceding
remain solely the property of such party. Each party thirty (30) days.
may disclose Confidential Information of the other
6 3 Third-Party Products. Speros will use
party to the extent required: (a) in order to comply commercially reasonable efforts to enforce on
with the order of a court or other governmental Customer's behalf any warranties and indemnities
body, or as otherwise necessary to comply with made by any manufacturers or suppliers of third-
applicable law, provided that the party required to
make such disclosure first provides, unless party software or hardware products made available
by Speros for Customer's use as part of the
prohibited by applicable law, written notice to the Services ("Third-Party Products"), including, but not
other party, affording it an opportunity to obtain a necessarily limited to, Microsoft products.
protective order; or (b) to establish or enforce such CUSTOMER EXPRESSLY ACKNOWLEDGES AND
party's rights under this Agreement. AGREES THAT, OTHER THAN AS SET FORTH IN THE
5.3 Duration. Each party's obligations with IMMEDIATELY PRECEDING SENTENCE AND FOR ,
respect to Confidential Information set forth in this VERIFYING THAT THIRD-PARTY PRODUCTS ARE
Section 5 shall continue in force and effect PROPERLY IMPLEMENTED AND CONFIGURED AT
throughout the Term and: (i) respect to SPEROS' DATA CENTER, SPEROS IS NOT
Confidential Information that constitute a trade RESPONSIBLE OR LIABLE FOR PERFORMANCE (OR
secret under applicable law, for so long as, without FAILURES IN PERFORMANCE) OF THIRD-PARTY
breach hereof, such trade secret status is PRODUCTS.
maintained (without breach hereof); and (ii) with 6.4 Disclaimer of Warranties. EXCEPT AS
respect to any other Confidential Information, for a EXPRESSLY PROVIDED IN THIS SECTION 6: (I)
period of five (5) years after termination or
expiration of this Agreement or the longest period SPEROS MAKES NO WARRANTIES, EXPRESS OR
enforceable under applicable law, if shorter than IMPLIED, IN CONNECTION WITH THIS AGREEMENT;
five enforce
years. (II) THE SERVICES ARE PROVIDED "AS-IS",
WITHOUT ANY WARRANTIES OF ANY KIND; AND
6. Representations and Warranties (III) SPEROS DOES NOT REPRESENT, WARRANT,
6.1 Mutual. Each party represents and warrants OR COVENANT THAT THE SERVICES ARE OR WILL
that: (i) it is duly organized, validly existing, and in NECESSARILY BE CONTINUOUSLY AVAILABLE,
good standing under the laws of its applicable state, ERROR-FREE, OR APPROPRIATE FOR ANY
commonwealth, or province; (ii) it has all necessary PARTICULAR USE TO WHICH CUSTOMER OR ANY
rights, powers, and authority to enter into and THIRD PARTY MAY CHOOSE TO PUT THEM. SPEROS
perform under this Agreement; (iii) the execution EXPRESSLY DISCLAIMS ALL WARRANTIES,
and performance of this Agreement by it shall not EXPRESS AND IMPLIED, OTHER THAN THOSE SET
violate any applicable laws or regulations and shall FORTH IN THIS SECTION 6, INCLUDING, BUT NOT
not breach any agreement, covenant, court order, LIMITED TO, ANY IMPLIED WARRANTIES OF
judgment, or decree to which it is a party or by MERCHANTABILITY AND FITNESS FOR A
which it is bound; and (iv) it shall comply with all PARTICULAR PURPOSE AND ANY IMPLIED
applicable laws and regulations that apply with WARRANTIES THAT MIGHT ARISE THROUGH
respect to it and its business operations in USAGE OF TRADE OR CUSTOM, COURSE OF
connection with this Agreement. DEALING, AND COURSE OF PERFORMANCE.
,
6.2 Services. Speros warrants that the Services 7. Limitations of Liability
will be performed in a competent and workmanlike 7.1 Limitations. IN NO EVENT WILL SPEROS OR
3 manner, in material accordance with standards ITS AFFILIATES, CONTRACTORS, LICENSORS, OR
i
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SUPPLIERS (COLLECTIVELY, SPEROS' held to be invalid, illegal, or unenforceable, it shall
"ASSOCIATES"), BE LIABLE FOR ANY INCIDENTAL, be severed herefrom, and the remaining provisions
CONSEQUENTIAL, INDIRECT, SPECIAL, OR of this Agreement shall remain valid and
PUNITIVE DAMAGES (INCLUDING, BUT NOT enforceable and of full force and effect. Any
I LIMITED TO, LOST PROFITS, COSTS OF COVER OR provisions of this Agreement that impose continuing
DELAY, AND DAMAGES DUE TO BUSINESS obligations upon a party or, by their nature or
INTERRUPTION OR DATA LOSS), REGARDLESS OF terms, would be reasonably understood to have
THE NATURE OF THE CLAIM, EVEN IF SPEROS HAS been intended to survive and continue in force and ',
BEEN ADVISED OF THE POSSIBILITY OF SUCH effect after expiration or termination of this
DAMAGES. THE CUMULATIVE AND AGGREGATE Agreement, shall remain in force and effect after
LIABILITY OF SPEROS AND ITS ASSOCIATES FOR such expiration or termination for so long as
ALL CLAIMS ARISING OUT OF OR RELATING TO intended. No failure by either party to enforce any
THIS AGREEMENT, WHETHER IN CONTRACT, TORT, right or remedy under this Agreement shall be
STRICT LIABILITY, OR OTHER LEGAL THEORY, construed as a waiver of such party's right to
SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES enforce any provision of this Agreement in the
PAID TO SPEROS BY CUSTOMER UNDER THIS future. Customer may not assign or otherwise
AGREEMENT WITH RESPECT TO THE THEN- transfer this Agreement or its rights or obligations
IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. hereunder without the prior written consent of
THE LIMITATIONS OF LIABILITY AND EXCLUSIONS Speros which shall not be unreasonably withheld.
OF CERTAIN TYPES OF DAMAGES AND CLAIMS SET The parties are independent contractors with
FORTH HEREIN ARE INTENDED TO APPLY WITHOUT respect to each other and this Agreement, and
REGARD TO WHETHER ANY PROVISIONS OF THIS nothing in this Agreement shall be construed to
AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN constitute either party as a partner, joint venturer,
INEFFECTIVE, OR HAVE FAILED OF THEIR employee, agent, or representative of the other.
ESSENTIAL PURPOSE. 9.2 Governing Law. This Agreement and all
7.2 Basis of the Bargain. THE PROVISIONS OF performance hereunder, and any claim, suit, action,
SECTIONS 6, 7, AND 8 OF THIS AGREEMENT ARE or proceeding arising out of or relating to this
ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS Agreement, shall be governed by and construed in
OF THE BASIS OF THE BARGAIN BETWEEN all respects in accordance with the substantive laws
CUSTOMER AND SPEROS, AND SPEROS WOULD of the United States of America and State of
NOT BE ABLE TO PROVIDE THE SERVICES ON THE Georgia, without regard to conflicts of laws
OTHER TERMS SET FORTH HEREIN WITHOUT EACH provisions. The exclusive forum and venue for any
SUCH PROVISION. legal or equitable claim or action brought in
S. Indemnification connection with this Agreement shall be the state
8.1 Customer's Use of the Services. Customer and federal courts located in Savannah, Georgia.
shall indemnify, defend, and hold Speros harmless The parties hereby irrevocably submit and consent
from and against any claims, actions, liabilities, to the personal and subject matter jurisdiction of
losses, and damages, and shall pay all costs and such courts and irrevocably waive any objection or
expenses (including reasonable
claim that venue is improper for any 1
reason in such courts.
attorneys' fees), arising out of 1
any third-party claim to the 1 ,f K 9.3 Attorney's Fees. If any action
extent that a court of competent � : ,Y shall be instituted by either party for 1
jurisdiction finally determines ; the enforcement of this Agreement,
that such losses directly relate to 5/,! -- ',_ the prevailing party shall be entitled
or arise out of Customer's use of �,rw to recover all costs reasonably
the Services. ' ',.., "°°,t, incurred therein, including, but not
9. Miscellaneous limited to, attorneys' fees,
e '� ' r arbitration costs, and any ancillary
9.1 Entire Agreement. This � �
Agreement constitutes the entire ®w ,;. : � , court costs related thereto.
_ agreement between Customer and Speros with 9.4 Injunctive Relief. Each party acknowledges
respect to the subject matter hereof and and agrees that any breach by it of Sections 1.8,
supersedes any prior or contemporary 1.9, 1.9, 4, or 5 hereof may cause irreparable
representations, statements, proposals, injury to the other party and that, in such an event,
negotiations, discussions, understandings, or in addition to any other remedies, the other party
agreements regarding such subject matter. This shall be entitled to seek injunctive relief, without
Agreement may not be modified or amended except the necessity of proving actual damages or posting
by a writing signed by authorized representatives of bond.
both parties. In the event any one or more
9.5 Force Maieure. Neither party shall be
provisions of this Agreement shall for any reason be deemed in default of any provision hereof as a
confidential __ 8
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result of, or be liable for any delay, failure in updated by such party from time to time by notice
performance, or interruption of the Services delivered in accordance herewith.
resulting from, directly or indirectly, acts of God, 9.7 Non-Solicitation. Neither party shall, during
civil or military authority, civil disturbance, war, the Term and for a period of one (1) year after any
strikes, fires, hurricanes, tropical storms, other termination or expiration of this Agreement, directly
catastrophes, power or other utility failure, Internet or indirectly, whether through an affiliate or
or telecommunications disruptions, or any other otherwise, offer employment to, solicit for
cause beyond its reasonable control. employment, hire, employ, engage in any
9.6 Notices. All notices hereunder shall be in professional capacity, or retain the services of, any
writing and shall be deemed to have been given personnel of the other party engaged in
when delivered by first class mail or nationally performance under this Agreement, without the
recognized express carrier to the respective address
of the applicable party, as specified express prior written consent of the other party.
fied herein and as
is
sg
Confidential 9
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SCHEDULE A
Support and Help Desk Services
1. Help Desk and Support Services
1.1 General. Speros will make help desk and support Services for the hardware and software
provided or made available for Customer's use as part of the Services under the Agreement available
to Customer, as described in this Schedule, during Speros' normal business hours (currently from 8:00
a.m. to 5:00 p.m., Eastern time, each Monday through Friday, excluding holidays observed by
Speros).
1.2 Exceptions. Unless expressly specified on the Cover Pages or in any written order form or
addendum to this Agreement, Speros is not responsible for developing, supporting, or maintaining, or
for licensing or procuring, any application software for Customer, and Customer is responsible for, at
its expense, obtaining any application software licenses that it may require and for maintaining in
force and effect a support and maintenance agreement with the applicable third-party licensors of
application software used by Customer. Except for upgrades to new releases of Microsoft products,
which will be performed by Speros as described in the General Terms and Conditions, Speros will,
upon reasonable advance request, perform upgrades to application software used by Customer, with
any time expended by Speros in performing such upgrades billed on a time-and-materials basis, at
Speros' then-current standard rates.
2. Problem Response and Resolution
2.1 Submitting Service Requests. Customer should promptly report any problems or issues with
the Services, or request any support Services, by calling Speros' designated telephone support
number (currently 912-354-8989) or by sending an email to the service email address designated by Speros for
Customer. In urgent or emergency situations, Customer may send an email, but must always follow up with a
telephone call to Speros support line, notifying Speros of the issue.
2.2 Service Reouest Response. Upon discovery or receipt of a report, each service request or
issue (a "Service Request") will be assigned a Speros ticket number for purposes of reference. The
ticket number will be emailed to Customer's assigned point of contact for the Service Request (as
designated by Customer when the Service Request was opened or in accordance with agreed upon
procedures) and will be specified in all correspondence relating to the Service Request. Speros will
also use Customer's point of contact's email address to update Customer with respect to the Service
Request and to notify Customer of resolution thereof.
2.3 Prioritization. Speros'support personnel are trained to prioritize Service Requests and, to help
to set Customer's expectations and expedite Service Requests appropriately, will assign each Service
Request to one of the following four categories or classifications:
(i) Speros Managed Services notification and reporting help;
(ii) Help desk support;
(iii) Normal Service Requests; and
(iv) Emergency Service Requests.
2.4 Categories of Service Requests.
(a) Speros Managed Services Notification and Reporting Help. These Service
Requests generally result from electronic notifications that Speros receives
from devices and monitors used in connection with providing the Services. In
most cases these Service Requests will not be critical, but Speros' support
personnel will still review and report any material issues or problems to
Customer's designated point of contact and take any steps reasonably
necessary to resolve any issues.
(b) Help desk support. Speros' help desk personnel are available for telephone
technical support and consultation during Speros' normal business hours, as
described above. Upon receiving a call or an email, Speros' help desk
IIIIIIIIIIIIIIVIIIIIIIIIIIIIIIIIIIIIIIIIIIhIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIV611111IIIIIIIVIIIIIIIIIIIVIIIIIIIIIIIIIIIIIIIIIIIIIIIVIIIIIIIIIIVI IIIIIIVtll6611
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personnel will open a Service Request and work to resolve the applicable issue
in a timely fashion.
(c) Normal Service Requests. Speros will use commercially reasonable efforts to
respond to each Normal Service Request within two (2) business days after
the request is first opened. Most Normal Service Requests will be handled
remotely, at Speros' location. However, at times it may be necessary for
Speros to dispatch a service technician to Customer's location to resolve a
Normal Service Request. In such a case, Speros will use commercially
reasonable efforts to respond to the issue within the two (2) business day
timeframe described above, but additional time may possibly be required.
Customer agrees to reimburse Speros for any travel and related expenses
incurred by Speros' personnel in traveling to and from Customer's location to
resolve Service Requests.
(d) Emergency Service Requests. Speros will use all commercially reasonable
efforts to respond to each Emergency Service Request within two (2) hours
after the request is first opened. Speros will give Emergency Service Requests
immediate priority and an appropriate level of support, promptly creating a
plan for resolution. Notwithstanding the foregoing, response and resolution of
problem and issues involving Third-Party Products (e.g., Hewlett Packard
servers) are dependent upon the applicable third-party vendors and the
applicable support agreements Speros has with such vendors.
2.5 Exclusions. Special IT projects are not within the scope of Services that will be provided
through Service Requests and will involve additional fees and costs to Customer. Special IT projects
include, but are not limited to,the following:
(i) addition of new hardware and software to the scope of the Services
and any related installation services; and
(ii) addition of new cables, switches, patch panels, and other materials
and any related installation services.
Speros and Customer must agree in writing upon a "Scope of Work" pursuant to which any special IT project will
performed. The fees for any hardware and software to be added to the scope of the Services will be set forth in I-
such Scope of Work or in a separate quotation issued by Speros. Unless otherwise mutually agreed by the parties
in writing, the fees for any services provided by Speros for any special IT project shall be charged at Speros'then-
current standard rates.
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SCHEDULE B
Microsoft Agresmerit
(ATTACH COPY OF MICROSOFT AGREEKE-7171
907208-6
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