“Supplementary Services” means those Services and licenses you purchase from Arcane Strategies other than the Cloud Services, including time and materials based professional or consulting services (such as database administration or “DBA” services), one-time or non-recurring services which are not part of the existing Support (such as support for the application that you operate on your Hosted System), and any other services identified as “Supplementary Services” on the applicable Services Description.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
5.2 We disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. You are solely responsible for the suitability of the services chosen. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an ‘AS IS’ basis.5.3 We do not have knowledge of the data you store within your Hosted System, including the quantity, value or use of the data. You are therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the Services, including loss of your data, including any PII (as defined in the applicable Product Terms and Conditions) or “cardholder data” as that term is defined in the Payment Card Industry-Data Security Standard. The Services that Arcane Strategies has agreed to provide to assist you to mitigate such loss (if required) are set out in the Services Description, which may include backup services and geographically redundant servers. In the event your Hosted System is not provided by Arcane Strategies, you are responsible for completing the set up of these additional services, in the event that they require agreements, changes to existing agreements, payments, or changes to existing payment terms, between you and your hosting provider, herto referred to as Hosting Vendor. Arcane Strategies does not promise to back up your data unless you have purchased backup services. If you purchase backup services Arcane Strategies does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Services Description. In all events, you release Arcane Strategies from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
5.5 Certain Arcane Strategies Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.
7.2 Withholding Taxes. All payments to Arcane Strategies shall be made without any withholding or deduction for any Taxes, except for any withholding (or similar) taxes imposed on income that may be attributed to Arcane Strategies in connection with its provision of the Services that you are legally required to withhold from such payment and remit to the applicable governmental or taxing authority (such taxes, “Local Withholding Taxes”). You agree to timely provide Arcane Strategies with adequate and accurate factual information and documentation (as determined by Arcane Strategies), including tax receipts, of your payment of any such Local Withholding Taxes. Arcane Strategies shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes as set forth above.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned. You must pay reasonable legal fees and expenses due under this clause as we incur them.
16.2 Customer Provided Licenses. If you use any non-Arcane Strategies provided software on your Hosted System you represent and warrant to Arcane Strategies that you have the legal right to use the software in that manner. If we have agreed to install, patch or otherwise manage software for you in reliance on your license with a software vendor (rather than Arcane Strategies’s license with the software vendor), then you represent and warrant that you have a written license agreement with the software vendor that permits Arcane Strategies to perform these activities. On Arcane Strategies’s request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request. If you fail to provide the required evidence of licensing, Arcane Strategies may, at its option, either:16.2.1. charge you its standard fee for the use of the software in reliance on Arcane Strategies’s licensing agreement with the vendor until such time as the required evidence is provided; or
16.2.2. suspend or terminate the Agreement.
Your licensed software may not be compatible with our standard process for deploying, repairing, and supporting Hosted Systems. In addition, in order to install the software, Arcane Strategies may require you to send the physical or electronic media provided to you by the software vendor, both for deployment, and again in the event of a failure of your Hosted System. You agree that Arcane Strategies will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for the delay resulting from our agreement to use your licensed software.
20.1.1 Your use of said instances are subject to agreement with said provider. Arcane Strategies merely offers a service to handle payment and configuration of instances between said provider and you.
20.1.2 Resources of said provider include but are not limited to RAM, Disk Space, IP dedication, and VPS or shared space, as defined by Arcane Strategies’s specification under “Description” of each selected “Use” on the hosting configuration page: https://www.arcanestrategies.com/product/cloud-hosting-providers/
20.1.3 Setup of your instance is included as a one-time service based on a default configuration. Default configurations include Arcane’s standard images on either Linux or Windows, standard images made available by the provider, or default configuration offered by the provider. You agree to allow Arcane Strategies to select these default configurations unless otherwise specified within 24 hours of purchase, by phone, email, or support request.
20.1.4 By default, Availability and Accessibility of your hosted instance is limited to and secured by Arcane Strategies, alone, unless otherwise specified by you, via email, phone, or support request. By accepting this default security, you are guaranteed a 24/7 up-time SLA. By requesting access to the instance for your own management, you hereby waive said SLA under the Hosting Agreement.
20.1.5 Changes to default configurations or resource specifications are not covered by the Hosting Agreement. Said changes may only be handled by either a Client Services or Cloud Support agreement.
20.2.1 Your use of any API, code or SDK (software development kit) you download from the Arcane Strategies website is governed by the terms and conditions included with the code in the file named “COPYING” or “LICENSE” or like caption and the terms of the Agreement. Your Service Order includes any Services which you provision through the service changes or support ticket requests
20.2.2 You agree that we may establish new procedures for your use of the Services as we deem necessary for the optimal performance of the Services. You agree that we may migrate the Customer Configuration or your Customer Data within or between data centers if we determine doing so is necessary to remediate service degradation or resource constraints or for the optimal performance of the Services. If such migration will result in your Customer Data residing in a data center in a different country we will give you reasonable advance notice of at least thirty (30) days.
20.2.3 The individual who submits an order for Services warrants and represents that they do so on behalf of a business, company or other legal entity and not as a consumer unless the Account Exceptions apply. If the individual placing the order is a consumer, and not otherwise subject to the Account Exceptions, Arcane Strategies may cancel the Service
20.3 In the event that the Hosted System covered in an Agreement is that of a 3rd party systems, we are not responsible for the up-time guarantees of said systems, nor responsible for any agreements that exist between you and said provider.
20.4 We are constantly upgrading our hosting platforms and in order for you to benefit from this, you agree that we may relocate your servers within our hosting platforms, make changes to the provision of the Services, URLs and your IP addresses and may establish new procedures for the use of the Services. We may also make changes to DNS records and zones on your Hosted Services account operated or managed DNS servers as we deem necessary for the operation of the shared network infrastructure. In each case, we will give you reasonable advance notice and use all reasonable endeavours to minimise the effect that such change will have on your use of the Services.
Arcane Strategies’s routine communications regarding the Services and legal notices will be posted on the My Account portal or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your My Account portal), first class post, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
33.2 Modifications. Unless otherwise expressly permitted in this Agreement, the General Terms and Conditions, Product Terms, and Country Specific Terms may be amended only by a formal written agreement signed by both parties. A Services Description may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or the Arcane Strategies ticketing system, that includes the express consent of an authorized individual for each of us. The pre-printed terms on your purchase order or other business forms will not become part of this Agreement.33.3 The Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Arcane Strategies which is not set out in the Agreement.
33. 4 Order of Precedence. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: signature page for the Cloud Services Agreement, Country Specific Terms (if any), Services Description, Product Terms, any addendum to the General Terms and Conditions, the General Terms and Conditions, and the Acceptable Use Policy.
33.5 Unenforceable Provisions. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement.
33.6 No Waiver. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
33.7 No Partnership. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.33.8 Interpretation. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” The words “our” and “us” refer to Arcane Strategies unless the context clearly indicates another meaning.
33.9 Survival. The following terms shall survive expiration or termination of the Agreement: Sections 7, 12, 13, 14, 17, 26, 27, 28, 29, 31, 32 and 33 of these General Terms and Conditions, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination or requiring you to pay an early termination fee, and all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.
33.10 Changes Not Made Known. If you have made any change to the Agreement that you did not bring to Arcane Strategies’s attention in a way that is reasonably calculated to put Arcane Strategies on notice of the change, the change shall not form part of the Agreement.
33.11 Counterparts. The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
© 2017 Arcane Straegies
©2017 Arcane Straegies SP — Revised 01/20/2017