Hosting Services Terms and Conditions
Last Amendment Date: April 28th, 2016
This Hosting Services Terms and Conditions (this “Agreement”) governs each User’s (“you” , “your” or “Customer”) purchase and use of all hosting and related services offered by Lambda Solutions Inc. (“we” , “us”, “our” or “Lambda”) as may be further described in this Agreement or any quotation or invoice Lambda provides to you prior to Hosting Services commencing or upon any renewal of such Hosting Services (each, an “Order Confirmation”). This Agreement applies to all purchasers and their employees, agents, contractors, or other users who obtain Hosting Services from Lambda (each such person or entity being a “User”). PLEASE READ THESE TERMS AND CONDITIONS OF HOSTING SERVICE CAREFULLY. BY USING THE HOSTING SERVICES AND/OR SUBMITTING YOUR INITIAL OR RENEWAL PAYMENT TO LAMBDA IN ACCORDANCE WITH AN ORDER CONFIRMATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU EXPRESSLY OFFER TO ACCESS, USE AND PAY FOR THE HOSTING SERVICES OF LAMBDA, AND YOU AGREE THAT A CONTRACT WILL BE FORMED AND YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY RELATED POLICIES OR GUIDELINES, INCLUDING ANY MODIFICATIONS TO THIS AGREEMENT AND RELATED POLICIES OR GUIDELINES AT TIME OF RENEWAL, UPON LAMBDA ACCEPTING YOUR OFFER BY NOTICE TO YOU (the “Effective Date of Contract or Renewal”).
This Agreement is the complete and exclusive agreement between you and Lambda regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. This Agreement applies to Hosting Services only, and does not grant any software license to a User or apply to integration and customization services, all of such software or services will be provided to you pursuant to separate agreements. This Agreement is deemed to be a contract formed in British Columbia, Canada regardless of Customer’s location or where Customer is located when accessing or using the Hosting Services.
“Acceptable Use Policy” means Lambda’s Acceptable Use Policy found at www.lambdasolutions.net/legal as of the date Effective Date of Contract or Renewal.
“Business Day” means 8:00 a.m. – 5:00 p.m. Pacific Standard Times (PST), Monday through Friday, excluding federal public holidays in Canada.
“Cancellation Date” means the last day of the month following the month the Cancellation Request was received by Lambda.
“Cancellation Request” means a written based Hosting Service cancellation request submitted via support ticket. To schedule your account for cancellation, please login to techsupport.lambdasolutions.
“Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, Lambda’s systems, (b) for Lambda, unpublished prices and other terms of Hosting Service, audit and security reports, product development plans, data center designs (including without limitation non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.
“Order Confirmation” means either: (a) the online Order Confirmation that you submit to Lambda via the Lambda Website, or (b) any other written Order Confirmation (either in electronic or paper form) provided to you by Lambda for signature that describes the Hosting Services you are purchasing, and that may be signed by you, either manually or electronically.
“Lambda’s Website” means Lambda’s websites located at www.lambdasolutions.net.
“Hosting Services” means those Lambda hosting-related services described in the Order Confirmation, which may include without limitation e-learning software platform setup, configuration and branding, hosting, and technical support. Customization and integration services are not included in Hosting Services.
“Technical Support Policy” means Lambda’s technical support policy located atwww.lambdasolutions.net/legal as of the Effective Date of Contract or Renewal.
“Third Party Products” means third party software or products that Lambda may provide to you under this Agreement.
“Third Party Vendors” means certain reseller and other relationships that Lambda has established with certain commercial vendors.
“User” or “Active User” means any person who logs into Moodle LMS or Totara LMS one or more times during a billing period of one year.
2. Obligations, Rights and Responsibilities
2.1. Lambda’s Obligations. For all Order Confirmations accepted by Lambda and subject to this Hosting Agreement, Lambda agrees to provide the Hosting Services and the applicable support listed on your Order Confirmations, subject to and in accordance with Lambda’s Technical Support Policy.
2.2. Your Obligations. You agree to do each of the following:
a) pay when due the fees for the Hosting Services and applicable charges;
b) use reasonable security precautions in light of your use of the Hosting Services;
c) cooperate with Lambda’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
d) keep your billing contact, information, and other account information up to date;
e) immediately notify Lambda of any unauthorized use of your account or any other breach of the security of the Hosting Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then Lambda’s reasonable determination will control;
f) pay all federal, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Hosting Services; and
g) provide Lambda with accurate factual information to help Lambda determine if any tax is due with respect to the provision of the Hosting Services, and if Lambda is required by law to collect taxes on the provision of the Hosting Services, then you must pay Lambda the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
2.3. Acceptable Use Policy. By agreeing to the terms and conditions of this Agreement, you agree to Lambda’s Acceptable Use Policy, which is expressly incorporated herein by reference.
2.4. Intellectual Property Rights. You warrant, represent, and covenant to Lambda that:
a) you are at least 18 years of age if an individual;
b) you possess the legal right and ability to enter into this Agreement;
c) you and your Users will use the Hosting Services only for lawful purposes and in accordance with this Agreement, Lambda’s Acceptable Use Policy, and all applicable Lambda policies and guidelines, as contained in this Agreement and/or posted on the Lambda’s Website; and
d) you and your Users have obtained all licenses, consents or other rights necessary to install or use any software or products in conjunction with your use of the Hosting Services.
You also hereby grant Lambda a perpetual, non-exclusive, royalty free and paid up license to use all materials provided by you to Lambda in relation to the Hosting Services, including any logos or trademarks, solely in order for Lambda to provide the Hosting Services to you. You agree to review Lambda’s use of any trade-marks licensed to Lambda by you, and may reasonably request that Lambda modify its use of such trade-marks as required by you to comply with your trade-mark acceptable use policies.
2.5. IP Numbers. Lambda will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. Lambda may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses, which case Lambda will use commercially reasonable efforts to advise you of such changes in a timely manner.
2.6. Third Party Products. For your convenience, Lambda may provide you access to Third Party Products through certain Third Party Vendors. Neither Lambda nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that you will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, except with Lambda’s prior authorization, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and Lambda will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Hosting Services.
2.7. Security. Lambda is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify Lambda immediately, and Lambda will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
2.8. Confidentiality. Any Confidential Information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Agreement and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, affiliates, or agents (including outside counsel and consultants) on a “need to know” basis in connection with the Hosting Services, who are bound by confidentiality obligations no less stringent than these prior to any disclosure. Each party may disclose Confidential Information relating to the Hosting Services to providers of goods and Hosting Services for the engagement to the extent such disclosure is necessary and reasonably anticipated. Confidential Information does not include information which: (i) is already known to Recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the Recipient; (iii) is independently developed by Recipient without benefit of Disclosing Party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, but that disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.
3. Term and Payment for Hosting Service.
3.1. Term. This Agreement will be for the “Initial Term” as further described in the Order Confirmation. If no term is listed in the Order Confirmation, then the Initial Term will be one year. At the end of the Initial Term, the Agreement will renew on a year to year basis. If you do not wish to renew, then you must provide Lambda the Cancellation Request as provided in this Agreement.
3.2. Termination. This Agreement may be terminated in one of the following ways:
a) by Lambda in the event you do not pay any undisputed fees due hereunder within or after 10 days of the due date;
b) by you or Lambda, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
c) as otherwise provided in this Agreement or the Acceptable Use Policy.
3.3. Termination Liability. If you terminate this Agreement before the end of the Initial Term other than for Lambda’s material breach, then you will be required to pay actual amounts that have been invoiced for the Hosting Services provided to the date the Agreement is terminated as determined by the Cancellation Date.
a) All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
b) For non-recurring fees (such as fees for initial set-up, backup overages, bandwidth overages, paid for support request and any other non-recurring Hosting Service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Lambda’s option; provided that Lambda may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount.
c) Unless you have made other arrangements, Lambda will charge your credit card on the due date. If you pay by credit card, then Lambda will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
d) You also will be responsible for any costs Lambda incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
e) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
f) Non Sufficient Funds Fees (NSF) – Lambda has the right to charge you NSF fees if your payment method is cheque and it was returned by the bank due to insufficient funds. The fees are Thirty (USD$ 30) and Thirty (CAD$ 30) in the United States and Canada respectively.
g) If you pay by credit card, then Lambda will charge your credit card to pay for any charges that may apply to your account. You agree that you will notify Lambda of any changes to your account, your billing address, or any information that Lambda may reasonably require in order to process your payments in a timely manner.
h) Payment for invoices that are not formally and rightfully deemed as disputed may be subject to interest at a rate of one and one-half percent (1.5%) per month accruing from date the invoice was due.
i) Prices per unit during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term.
Except as expressly provided in the applicable Order Confirmation, renewal of promotional or one-time priced subscriptions will be at Lambda applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Hosting Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
3.5. Refund and Disputes. Except where expressly provided in this Agreement, all payments to Lambda are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to Lambda within 30 days of your receipt of an applicable invoice.
3.6. Data Retention / Server Reclaim Policy. In case of expiration or termination of this agreement, Lambda Solutions will take the client site offline and provide a copy of site files (database and data files) for your organization. The copy of the site files will be made available for up to 30 days from the end of service date. After 30 days, Lambda Solutions will completely remove the files from storage and the files will no longer be available to restore.
4.1. Lambda may modify any of the terms and conditions contained in this Agreement and any related policies and guidelines at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the Lambda Website. Your continued use of the Hosting Services following Lambda’s posting of any modifications constitutes your offer to accept the modifications; Lambda allowing you to access and use the Hosting Services upon posting of the revisions of this Agreement on the Lambda Website will deemed acceptance of your offer and formation of the modified Agreement. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by ceasing your access and use of the Hosting Services and providing written notice to Lambda within 30 days of the posting of any modifications of this Agreement by Lambda.
5. Limitation of Liability and Indemnity
5.1. Monitoring User Activity. Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. Lambda exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Hosting Services, including without limitation any information passing through Lambda’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will Lambda, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Hosting Services through accident, or fraudulent means or devices.
5.2. Interruption of Hosting Service. Except as expressly provided in the Technical Support Policy, Lambda will not be liable for any temporary delay, outages, or interruptions of the Hosting Services. Further, Lambda is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). Lambda cannot guarantee that (a) access to the Hosting Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Hosting Services will be secure.
5.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE HOSTING SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER HOSTING SERVICES MADE AVAILABLE BY LAMBDA OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER LAMBDA, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE HOSTING SERVICES. LAMBDA, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.4. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT HOSTING SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE HOSTING SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LAMBDA’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, LAMBDA LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO LAMBDA UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE HOSTING SERVICES SET BY LAMBDA UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.
5.5. Customer Indemnity. You agree to indemnify, defend, and hold harmless Lambda, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by Lambda arising out of any breach of this Agreement by you, your Users, or your customers.
5.6. Lambda Indemnity. Lambda agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Hosting Services as provided by Lambda infringe any third party’s intellectual property rights.
6. Governing Law
6.1. If you are located in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of Washington, without reference to conflicts of laws, and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the state of Washington; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.
6.2. If you are located in any country other than the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflicts of laws, and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the Province of British Columbia; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.
7. Miscellaneous Provisions.
7.1. You and Lambda are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Lambda. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of Lambda, and any attempted assignment or delegation without such consent will be void. Lambda and you agree that, except as otherwise expressly provided in this Agreement, the Order Confirmation, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.