AppEazy Services Agreement
Provider wishes to begin providing AppEazy Services to Customer; and Customer wishes to purchase and acquire such services under the terms and conditions as hereinafter provided.
The following terms, as defined, are used hereafter in this
- Service: The various services provided under this agreement including but not limited to: Automatic
Backup Service, One-Click Remote Access Service, Business Continuity Service, System
Replacement Service, Automated Updated Service, and Continuous Monitoring Service.
- Applianz Hardware: aggregate of all components that constitute the computer system upon which
Provider installs the AppEazy Technology.
- AppEazy Technology or Technology: That combination of code, scripting, and software & hardware
settings that automates and manages the virtual environment, negotiates and establishes user
connections, and enables Provider to provide the Service.
- Operating System Environment (OSE): Unique instance of the Microsoft Server operating system, with
dedicated CPU, RAM, and disc space allocations, presented to users as a virtual machine.
- AppEazy System or System: A combination of hardware, AppEazy Technology, and Operating System
Environments, purchased from and supplied by Provider.
- Application: The primary business software installed on an Applianz system such as an accounting
system or a medical practice management solution.
- Client: The Applianz Client remote access software.
- Datacenter: A Datacenter is a secure facility with high speed Internet, redundant power, and other
hosting related services.
- Partner: An Applianz Authorized Partner that sells Application that are bundled with an Applianz
System. Applianz solutions are only available from these Partners.
- Support: Support engineers are available live from 9 a.m. to 5 p.m. CST, Monday through Friday, at 316-263-4800 x5 and online at email@example.com. Customer is encouraged to contact their Partner,
rather than Applianz, for all support as Partners are trained to understand the entire solution including
both the Application and the AppEazy System.
Provider uses multiple technology, software, and operating system licenses to provide complete
solutions. Use of the AppEazy System constitutes use of all, but not limited to, the following licenses:
- AppEazy Technology License
- Microsoft Licensing
- End User License (AppEazy Connect)
The AppEazy Technology and End User license terms are set by Provider. Microsoft license terms are
set by Microsoft Corporation.
In accordance with Provider’s Service Provider Licensing Agreement (SPLA) with Microsoft, Provider
may “lease” Windows Server operating system licenses to Customer on a monthly basis only so long as
Provider is providing daily maintenance to Customer’s System in accordance with the terms of this
agreement. Terms for the licenses state that use of the operating system license for any day in a
calendar month requires payment for the entire calendar month (i.e. no pro-rated payments or refunds).
Should this agreement be terminated, for any reason, Provider must disable all SPLA Microsoft licenses
not later than the end of the current calendar month, rendering the System unusable until appropriate
licenses are acquired. In this scenario Provider will assist Customer in acquiring the appropriate licenses
through a Microsoft partner upon written request within 30 days of termination.
2. Backup & Disaster Recovery Services
Provider will provide an automated, daily backup of customer's system and data and will, upon request
from Customer to Support, restore such data if lost, all in accordance with the terms of this Agreement.
While Provider will make its best effort to maintain two (2) separate copies of this System backup [one
local on the Customer’s System, and a second in an off-site data facility], Customer is advised to
maintain a secondary backup of all of their data. In the unlikely case that hardware failure is experienced in both backup media, any indemnification or warranty for such an event shall be governed by the terms of this agreement.
Provider shall not be responsible for files that cannot be recovered due to corrupt data, fires, or any
other disaster or event not under Provider’s control.
- Primary Backup - Customer is responsible for and must provide all bandwidth and other
equipment such as routers, hubs and firewalls necessary to access the Service. Customer
should maintain a secondary electronic backup file of all their data. Customer should not rely
upon AppEazy Services as its exclusive data backup solution.
- Off-Site Data Retention – The Standard off-site data retention policy is 30 days, but can be increased on a case-by-case basis and may increase the service fees. Applianz retains the right to change the off-site retention policy with two (2) weeks written notice to Client.
- System Restore - Provider will assist the customer with restoration of their data from the saved backup, at customer's request. Two complete system restorations will be provided annually at no charge as part of this Agreement. For additional restores as well as single file restores the then standard labor rate will be charged (currently $150/hour). Customer further acknowledges that upon requesting a restore, a “target date” will be chosen from among the current daily backups available to Provider, and any data created after the target date will be lost and cannot be recovered.
- Business Continuity Service - In the event of a business interruption, Provider will, upon request to Support, transfer Customer's most recent backup from the Automatic Backup Service to a temporary replacement system in a Datacenter. After this replacement system is operational, discussion between Provider and the Customer (or Customer's Partner) will determine cause of interruption and financial ramifications (labor, shipping, replacement system, etc.), as well as dates and times to transfer service back to the Customer's original system and or state on a replacement system if deemed appropriate. Customer understands that they may use the temporary replacement system for 30 days free of charge. After 30 days they will be required to pay for rent of the hardware as well as hosting fees. Customer understands that this is a best-efforts assurance and large natural disasters, equipment shortages, and other factors beyond Provider's control may hinder performance of this service. Customer further understands that the temporary system may not have the full capacity of the customer's system. Provider will make every reasonable effort to have Customer fully operational again in the minimum amount of time. At no time should the replacement system provided by Applianz during the interruption be interpreted as a permanent replacement, nor should the Customer assume ownership of the replacement system at anytime without purchase.
3. Ownership of Data
The backup data stored on an Applianz Backup Server remains the sole property of Customer. If Customer terminates Service, upon Customer request to Support, Provider will assist in the orderly termination of Service, which may include copying Customer’s data to an external drive in a readable format, which does not contain any Provider code or Technology. Customer agrees to pay Provider the actual costs of rendering such assistance should they be requested.
4. One-Click Remote Access
The One-Click Remote Access Service allows any user of a System to use Provider assets to negotiate a connection to their system from any location where they have access to an Internet connection. Customer understands that if this Agreement is terminated for any reason Provider reserves the right to restrict access to Provider assets to provide this service. If denied access to Provider assets to negotiate connections with the One-Click Remote Access Service, Customers will be able to connect to their System, but at times may have to manually enter network settings and other parameters. Provider will provide free documentation of this process, or can be contracted for implementation at its then standard labor rate.
5. Automated Update Service
The AppEazy System is made up of three core components; Applianz Hardware, AppEazy Technology,and the Operating System Environment. A line of demarcation exists between each, but updates to one component may require other components to be updated, patched, or changed.
- Applianz Hardware – Applianz maintains, at its sole discretion, the option to move, update, transfer to, or replace the Applianz Hardware that contains the AppEazy Technology and Operating System Environment of the Customer.
- AppEazy Technology– This agreement constitutes a license to Customer to use the Technology, but ownership of the Technology remains with Provider. The Technology is also used to secure the System against known vulnerabilities. Therefore, it remains Provider’s sole responsibility to maintain the Technology. Doing so will require periodic updates, that are installed remotely, and automatically. Updates will be logged, and the change logs are available to Customer at any time. Some updates will affect portions of the OSE that interact with the Technology to secure the System. Customer will be notified of updates that will affect the OSE prior to the update being applied to the System. Updates may be rolled back to address second- and third-order effects that disrupt Customer operations, but once those issues are addressed, the update will be reapplied to maintain the security of the System.
- Operating System Environment – The OSE will receive no updates or patches from Provider. Customer is responsible for maintaining security updates and/or patches from Microsoft, or other third-party software companies. Changes to the OSE that relate directly to the Technology will be presented to Customer for documentation prior to implementation. Requests for assistance, support, or changes to the OSE that do not pertain directly to the AppEazy technology or not otherwise provided for herein may be performed at the Provider’s standard hourly labor rate (Currently $150/hour).
Upgrades are provided to Customer only while this Agreement is in effect. Customer grants Provider the right to install updates to the AppEazy Technology automatically, as noted above. This permission is granted for updates only to the AppEazy Technology.
6. Continuous Monitoring Service
Provider will monitor the System to ensure its availability. Monitoring consists of, but is not limited to, measuring the progress of backups, tracking automated updates, and collecting data about the performance of system hardware and software components. All data collected is subject to the confidentiality provisions of this Agreement.
7. Additional Services
Provider supports, updates, and provides assistance to areas of the Operating System Environment (OSE) that directly relate to the Technology. Provider does not manage or provide any updates, patches, or configurations to the OSE, the installed operating system, or any third-party software installed on the OSE. The customer is solely responsible for maintaining security updates and/or patches from Microsoft, or any other third-party software company. At the request of Customer, and with the consent of Provider, additional technical, operational or other assistance or consulting no otherwise provided for herein will be performed at Provider's standard hourly labor rate (currently $150/ hour).
8. Datacenter Hosting Service (Optional)
Provider can install the AppEazy System in a Datacenter instead of on Customer premises, for an additional fee as outlined in Exhibit A. Provider, through certain agreements with independent third parties, provides Internet connectivity services, power, and physical space (Hosting) in a secure location (Premises) to safely store and operate its customer's computer and network hardware.
- Premises or Facility Maintenance - From time to time, Provider or its agents, employees or contractors may conduct routine tests, maintenance, upgrades or repairs which may interrupt its provision of the Hosting, and Provider will attempt to give the Customer commercially reasonable notice thereof. The Customer acknowledges that there may be instances where it is not practicable for Provider to give advance notice of a disruption, for example, in the event of an emergency, and Provider shall be entitled to disrupt the provision of this service at its discretion to conduct restoration and remedial repairs without prior notice to Customer.
- Control of Property and Access to Facility - Provider has an Agreement with independent third parties to provide the Premises, lighting, temperature controls (HVAC), electrical power and safety systems required for the provision of the Service. The Customer may appoint a representative that will be from time to time, allowed into the Premises to inspect or maintain Customer's hardware or other property held therein. Visitation hours are generally from 9:00 a.m. to 5:00 p.m., Monday to Friday in the time zone of the facility. Access outside of those times must be prearranged in advance.
- Retention of Title - As long as Customer’s account is in good standing, title to and the right of immediate possession of any Customer hardware held pursuant to this agreement at the Premises shall at all times remain with Customer and neither Provider nor any other party claiming through Provider shall have any right of property therein. Any accession or confusion of the Customer's hardware with other hosted components in any manner shall not affect Customer's right, title, and interest in the Customer's hardware.
- Service Interruptions - Provider shall not be liable for any failure, disruption or delay in the performance of the Services or the nonperformance of any of its obligations hereunder if such failure, disruption or delay is due to circumstances beyond its control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, wind storm, power outage, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, or failure of third party software or supplies.
- Equipment Transfers – Provider reserves the right to move Systems between its Data Centers without advance notice. Provider will, upon request, inform customer as to the present location of Customer's equipment.
9. Outbound Network Connectivity (On-Site Only)
In order to ensure proper operation, Provider has designed the Technology to access various websites for updates to the AppEazy Software, enabling Provider to deliver service and ensure Customer’s system is secure against outside threats. Customer shall ensure listed websites and ports are opened so that Provider can ensure quality of service of the Technology, and so that Service can be rendered. If Customer requires assistance, Provider will assist.
The list of required websites and ports are as follows:
- *.applianz.com (ports 22, 80, and 443)
- *.github.com (ports 22 and 443)
- *.virtualbox.org (ports 80 and 443)
- *.ubuntu.com (ports 80 and 443)
- *.canonical.com (ports 80 and 443)
- *.sensuapp.org (ports 80 and 443)
- *.postgresql.org (ports 80 and 443)
- *.launchpad.net (ports 80 and 443)
- *.rubygems.org (ports 80 and 443)
- *.fastly.net (ports 80 and 443)
This list is subject to change as features are added and/or changed with the Service.
If Customer is not able to open listed website-port combinations, Provider may not be able to render Service in manner prescribed in this Agreement. Provider will make every effort to provide Service as prescribed, and if failure to do so is directly or indirectly related to inability and/or unwillingness of Customer to open website-port combinations, Customer shall not hold Provider responsible for failure to provide Service, and failure shall not represent a breach of this Agreement.
Further, Customer’s System must have access to a Dynamic Name Service (DNS) server. Provider offers assistance, if requested, to ensure access to a proper DNS server is available to Customer’s System. If DNS is disabled or impeded in any way, Service may be interrupted and any failure of Provider to provide Service due to impeded or lack of access to a proper DNS server shall not represent a breach of this Agreement on the part of Provider.
Any firewall rules that are created to accommodate these required connections should use host names in the rule, rather than IP addresses. If using IP addresses is forced by Customer restrictions, Provider reserves the right to determine the effectiveness of said rule and whether it is suitable for Provider’s needs in providing the Service. Rules determined to impede Provider’s ability to provide the Service shall represent a breach of this Agreement by Customer, and any failure in the Service provided, as a result of this rule, shall not represent a breach of this Agreement by Provider.
10. Terms of Payment
Customer shall pay in advance for all fees and other charges incurred by Customer in accordance with and at the rates as they are described in Exhibit “A” attached hereto. For situations where credit card payment is utilized, Customer shall maintain a current authorization for Provider to charge Customer's credit card or bank account for such amounts. In addition, Customer shall provide Provider a current street address, phone number, contact person, and Internet e-mail address and shall notify Provider of any change in these. Customer shall pay all applicable taxes related to use of the Service by Customer or Customer's designated users. For situations where the Customer's credit card issuing financial institution has been notified of a payment dispute, Customer agrees that proof of Service usage by Customer constitutes Customer authorization to submit payment request to the Credit Card issuing financial institution.
- Invoices are sent to Customer not later than 30 days prior to Service anniversary date for annual payments. Payment is due not later than the Service anniversary date. This effectively offers “net-30” payment terms for annual payments. Invoices are sent only by request for Customers on month-to-month payment schedules. Payment is due not later than the Service date of each month.
- If at any time Customer's account is more than 5 business days past due, Provider may at its sole discretion and without notice to the Customer, (i) suspend its performance under this Agreement and deny Customer and Customer's designated users' access to and use of the Service until Customer is back in good standing, or (ii) terminate this Agreement and Customer's and Customer's designated users' access to and the use of the Service.
- All accounts more than 30 days past due will be charged interest from the due date thereof of the lesser of (i) 2% per month; or (ii) the highest legal rate of interest. The Customer agrees to indemnify Provider for all costs of collection, including, but not limited to, reasonable attorney's fees.
- If Customer account exceeds 30 days past due, Customer agrees that Provider may place a mechanic's lien on any of Customer's equipment within its possession. Customer further agrees that Provider may charge Customer a monthly secure storage fee (currently $200). Should unpaid Service fees and secure storage fees exceed the value of Customer’s hardware, based on a 5-year depreciation, Customer agrees to transfer ownership of hardware to Provider. Upon transfer of ownership, Provider may terminate this agreement and Customer data will be subject to the terms of this agreement.
- Provider reserves the right to modify all of its rates, charges and fees related to the provision of the Services. The Customer shall be notified in writing or via email of any such price change prior to the effective date of any such changes.
- Provider will attempt to contact Customer in advance of the expiration of this Agreement. In order to provide uninterrupted service, Agreement will automatically renew on its expiration date on a month-to-month basis and Customer's will be automatically charged at the then current labor rate.
11. Law Enforcement
Customer shall not use the Service for storage, possession or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, including without limitation, stolen materials, or obscene materials. CUSTOMER'S BACKUP FILES MAINTAINED BY PROVIDER ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT CUSTOMER'S CONSENT UPON PRESENTATION TO CUSTOMER OR PROVIDER OF A SEARCH WARRANT OR SUBPOENA OR OTHER AUTHORIZED DOCUMENTATION.
Customer agrees to indemnify Provider against all liability for use of Customer's account which liability is a direct result of Customer's misuse or negligent use of the Service. The Customer shall defend, indemnify, and hold harmless Provider, its agents, employees, officers and independent contractors from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys' fees and litigation expenses) arising out of or relating to any breach of this agreement or other action or inaction by the Customer. The Customer and Provider will promptly notify each other upon receipt of any third party claim or legal action arising out of or relating to this Agreement.
13. Limitation of Liability / Disclaimer of Warranty.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. NEITHER PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, AFFILIATES OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR PROVIDER OR ANY OF ITS LICENSORS, EMPLOYEES, AFFILIATES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER PROVIDER NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL PROVIDER'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER, IF ANY, FOR THE SERVICE FOR THE CURRENT BILLING PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
EACH OF THE PARTIES HERETO AGREE TO INDEMNIFY AND SAVE HARMLESS THE OTHER, AND ANY OF ITS LICENSORS, EMPLOYEES, AFFILIATES OR AGENTS FROM ANY AND ALL LOSSES, COSTS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING REASONABLE LAWYER FEES) RESULTING FROM ANY BREACH OF ANY REPRESENTATION, WARRANTY AND/OR COVENANT UNDER THIS AGREEMENT
This Agreement shall be effective from the date it was signed unless otherwise noted and shall continue thereafter until terminated as follows:
- By either party hereto by giving 30 days prior written notice to the other party; or
- Upon the occurrence of any default or breach by Customer of any agreement(s) then in effect with Provider.
Upon termination of this Agreement for any reason, all amounts due from Customer to Provider hereunder (including all past due amounts) shall become immediately due and payable in full. Provider reserves the right to discontinue the Service at any time if Customer's account is greater than 30 days past due.
If Customer decides for any reason to cancel or otherwise terminate this agreement before the original term (as described in the attached Exhibit “A”), Customer agrees to the following reimbursement schedule.
- Monthly Payment Schedule
- 0.0% reimbursement
- Annual Payment Schedule
- Cancellation in first quarter after signing agreement: 25.0%
- Cancellation in second quarter after signing agreement: 12.5%
- Cancellation in third or fourth quarter after signing agreement: 0.0%
15. Data Retention
At the time of Termination of this agreement, the Customer's access to any of Customer's data stored by the Service shall be permanently terminated. Provider shall thereafter assume no further responsibility for the storage or maintenance of any of Customer's data.
Provider acknowledges that in the course of providing the Service, or other services provided hereunder, Provider, or its employees or consultants, may be supplied with or come into possession of information, which is confidential to Customer. Provider hereby agrees that except as otherwise provided for herein, it will in a commercially reasonable fashion, attempt to keep all such information confidential. Subject to the terms of this clause and the rest of this agreement, Customer further grants to Provider the right for its employees and contractors and the tools within their purview to access the hardware, system software, settings and other features of their System for purposes of providing the Services and as otherwise provided in this Agreement. Customer agrees to hold Provider harmless for any unintentional dissemination of any such confidential information.
- Choice of Law. This Agreement shall be deemed to have been entered into in the County of Sedgwick, State of Kansas. All questions concerning the validity, interpretation or performance of any of its terms or provisions or of any rights or obligations of the parties hereto, shall be resolved in any court of competent jurisdiction residing in Sedgwick County, Kansas and in accordance with the laws of the State of Kansas.
- Independent Contractor. The relationship between Provider and the Customer under this Agreement is that of independent contractors and not partners, joint ventures, or co-owners as participants. Neither party has authority to obligate or bind the other.
- Notices. Any notice hereunder shall be in writing and shall be given by registered or express mail, or reliable courier (such as Fed-EX) addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or 3 days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of notice to the other party given in accordance with this Section.
- Severability. If any provision of this Agreement is invalid, unlawful or unenforceable, that provision to the extent it is invalid, unlawful or unenforceable shall be deemed omitted from the remaining terms, conditions and provisions hereof, which shall thereafter continue to be valid and enforceable to the fullest extent permitted by law.
- Assignment. Customer may not assign or convey any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the prior written consent of Provider. Subject to the foregoing, this Agreement shall be binding upon and will inure to the benefit of the parties hereto and their respective successors and assigns.
- Collection Expenses. Customer shall indemnify and reimburse Provider for and Provider shall have the right to collect from Customer all of its reasonable expenses (including actual legal fees and costs) incurred in collecting payment for Service rendered by Provider.
- Waiver. The waiver or failure of Provider to exercise in any respect any right provided for herein shall not be deemed a waiver for any further right hereunder.
- Force Majeure. Provider shall not incur any liability on account of any loss or damage to or by Customer resulting from or attributable to any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence or fault of the Provider. Such events, occurrences, or causes may include, but without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of communications facilities or equipment of third parties, earthquakes, fire and explosions.
- Entire Agreement; Modification. Each party acknowledges that it has read this Agreement, it understands it, and agrees to be bound by its terms, and further agrees that this Agreement constitutes the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the Agreement's subject matter. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
Exhibit A: Pricing and Terms
AppEazy Services will begin on the date of this signed agreement. Payment options include annual payment by check or monthly payment by credit, ACH, or debit card. Prices are subject to change at any time. Current prices are available at any time from your Applianz Authorized Partner or by contacting Applianz.