Adaptiva CDN Service Level Agreement

Updated January 2021

This Adaptiva Service Level Agreement (“SLA”) is a policy governing the use of Adaptiva CDN Service and applies separately to each customer using this service.

1. Agreement and Acceptance​: ​Thank you for selecting the Adaptiva CDN Service (the “​Service​”). This Service Level Agreement (“​SLA​”) is entered into by Adaptiva and you (“​Customer​” or “​you​,” and, collectively with Adaptiva, the “​Parties​”) effective as of the Effective Date (as defined below). Your use of the Service is subject to the terms of this SLA
2. Service Description​: ​The Service enables the Customer to distribute files using the HTTP or HTTPS These files will be origin hosted by Customer for access by the Service and served by Adaptiva CDN Service's caching nodes to end users.
3. Customer Responsibilities: ​The Customer agrees to do the following during the Term:
   1. Compliance with SLA and Laws. ​The Customer shall comply with the terms of this SLA, including all payment terms, all applicable laws, rules and regulations, including intellectual property, export, and data privacy laws, and all license terms or terms of use relating to any software, content, or services used by Customer in connection with the Service.
   2. Lawful Use— Customer will only use Adaptiva CDN Service for hosting lawful content which Customer either lawfully owns or validly licenses the right to distribute, and which is permitted to be distributed to end­ users by applicable laws, rules and regulations.
   3. DMCA Compliance​— Both Adaptiva and Customer shall maintain procedures, policies, and designated agents necessary to comply with applicable safe harbors offered by the Digital Millennium Copyright Act of 1998, as amended (“​DMCA​”).  Customer acknowledges that Adaptiva will remove or block access to Customer’s content if Adaptiva receives a proper DMCA notice or other legal action and Customer does not respond in a timely manner.
   4. Compliance with Notices​— Customer agrees to reasonably respond to any notices received with respect to Customer’s content transmitted through the Service by promptly:
      1. removing such content from transmission via the Service,
      2. blocking access to such material from transmission via the Service, or
      3. providing a written response explaining why such content is not required to be removed or blocked from transmission via the Service.
   5. Unsolicited Commercial Email​​— Customer agrees not to use the Service in any manner related to unsolicited commercial email. This includes but is not limited to images/javascripts/style sheets loaded from such emails or landing pages linked to or from such email.
   6. Denial Of Service​— Customer agrees not to use the Service to host abusive services which may or are reasonably likely to cause an outage to a third party.
   7. Offensive Content​​— Customer agrees not to use the Service to host content which is offensive in nature.
   8. No Death, Injury or Damage​— Customer may not use the Service in any situation where failure or fault of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage.
   9. Data Backup – The Adaptiva CDN service utilizes Amazon S3 highly durable and redundant storage infrastructure. Adaptiva does not back up any data stored in Adaptiva CDN.  The Customer is solely responsible for the backup of all of Customer's data and files at source. Adaptiva is disclaiming any and all responsibility for the backup of customer's files, data, content and the integrity and content of Customer's files.
4. Restricted Access to Service: ​The Customer shall provide access to the Service only to authorized employees or contractors of Customer and implement reasonable security measures to ensure that such employees and contractors comply with the terms of this SLA and all applicable laws, rules and regulations. Customer shall be solely responsible for use of the Service by any person to whom Customer has given access to the Service, and by any person who gains access to Customer’s content on the Service. Customer shall use commercially reasonable efforts to restrict access to the Service, and immediately notify Adaptiva of any suspected or actual unauthorized use or access of the Service.
5. Cooperation with Adaptiva: ​The Customer shall cooperate with Adaptiva in good faith in all respects in connection with this SLA. Such cooperation shall include providing Adaptiva true and accurate information in connection with Customer when establishing an account for the Service, and timely informing Adaptiva of any updates to such information. Further, such cooperation shall include good ­faith efforts to resolve any issues which may arise relating to this SLA, including cooperating with Adaptiva’s investigation of suspected breaches of this SLA, security issues, and outages.
6. Adaptiva Responsibilities:
   1. Provision of Service​. Adaptiva shall provide the Service to the Customer during the Term on the terms and conditions in this SLA. Adaptiva may modify the Service from time to time in its discretion.
   2. Service Availability​. Adaptiva will use commercially reasonable efforts to make the Adaptiva CDN Service available 99% or more of the time during each month of the Term. If service is unavailable, Adaptiva shall not provide Customer with Credit because the Service is being provided free-of-charge (excluding overage charges) to the Customer.
   3. Maintenance: For any planned changes or upgrades outside of standard system maintenance, customers will be notified at least 5 days in advance by e-mail sent to the registered support e-mail address. It is possible that during any planned changes the service or services are temporarily completely or partially out of use and is therefore not available to the customer, details of any expected impacts will be included in the notification.
      

      Adaptiva may need to perform emergency maintenance on the service when conditions require immediate intervention, which may be carried out at any time.  Adaptiva will provide the customer with as much prior notice as possible, on a best efforts basis.

7. Service Charges: As of the 01^st December 2020, the included and additional costs for the Adaptiva CDN service are as follows:
   

   	Included	Overage Costs
   Data Storage	2TB per Customer	$300 per 1TB (or part thereof), per year
   Data Transfer / Egress	1GB per endpoint, per month *	$0.02 per 1GB, per month

   * This is a shared/pooled across all licensed endpoints.

8. Term and Termination:
   1. ​The term of this SLA shall commence on the “​Effective Date​,” which shall be the date Customer enters into an Order for Adaptiva Cloud and elects to use the Adaptiva CDN Service.  The end date of the term shall match the end date of the Adaptiva Cloud product contract.
   2. We reserve the right to suspend your service if you are intentionally abusing the platform and affecting other customers. You will be given advance notice and an acceptable amount of time to rectify the issue (unless you're causing an outage, then you'll be suspended immediately).
9. Indemnification: ​Customer releases and holds harmless, and agrees to indemnify, Adaptiva and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Adaptiva or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this SLA, or any applicable policy or guideline; (b) your improper or illegal use of the Service; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non­proprietary right of a third party (including defamation, libel, violation of privacy or publicity).
10. Limitation of Liability:
    1. Limitations​. IN NO EVENT WILL ADAPTIVA OR ITS AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER ADAPTIVA NOR ITS AFFILIATES OR SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO ADAPTIVA’S OBLIGATIONS UNDER THIS SLA, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF ADAPTIVA HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF ADAPTIVA AND ITS AFFILIATES AND SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE UNAVAILABILITY CREDIT SET FORTH ABOVE.
    2. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY ADAPTIVA UNDER THIS SLA HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE ADAPTIVA AND ITS AFFILIATES AND SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREIN.
11. Interruption of Service: Adaptiva and its affiliates and suppliers are not liable for any temporary delay, outages or interruptions of the Service except as expressly provided hereunder. Further, Adaptiva is not liable for any delay or failure to perform its obligations under this SLA, where the delay or failure results from, any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third ­party supplier failure).
12. Indemnification:. Adaptiva exercises no control over, and accepts no responsibility for, the content of the information passing through Adaptiva CDN Service’s host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS SLA ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE, INCLUDING ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SLA, ADAPTIVA DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON­INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
13. General.
    1. Entire Agreement:​ This SLA, in conjunction with all Order Forms, policies and guidelines incorporated by reference, constitutes the entire agreement between you and Adaptiva with respect to the subject matter of the SLA, and there are no representations, understandings or agreements that are not fully expressed in this SLA ​and the related policies and guidelines.
    2. Amendments: Except as expressly provided in this SLA, no amendment, change, waiver, or discharge of this SLA is valid unless in writing and signed by the parties.
    3. Choice of Law and Forum​: THIS SLA IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF WASHINGTON, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS.
    4. Compliance With Laws:​ You will comply with all applicable laws and regulations and will indemnify and save Adaptiva harmless from your failure to so comply. Adaptiva will not have to perform any obligations set forth in this SLA if the performance would violate any present or future law, regulation or policy of any applicable government.
    5. Non-­Assignment:​ You may not assign this SLA or any right or obligation under this SLA, by operation of law or otherwise, without Adaptiva’s prior written consent. Adaptiva may assign its rights and obligations under this SLA and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This SLA is binding upon, inures to the benefit of, and is enforceable against the Parties and their respective successors and assigns.
    6. No Waiver​: Adaptiva’s failure to enforce the strict performance of any provision of this SLA does not constitute a waiver of Adaptiva’s right to subsequently enforce the provision or any other provisions of this SLA.
    7. Severability: If any term or provision of this SLA is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this SLA, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
    8. Survival: All provisions of this SLA relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the SLA.