Data Sheets

Fusion Cloud Legal Hold Data Sheet

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Get Ahead In The Clouds With Fusion Cloud Legal Hold

READ THESE TERMS CAREFULLY BEFORE ENROLLING FOR OR USING THE SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICE. BY USING THE SERVICE, YOU INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS.

Exterro has developed certain technologies and support capabilities, as further described below, to host a workspace and a web portal for the management of legal hold activities. The Customer desires to subscribe to the Exterro services described in Order (Order), and Exterro wishes to provide access to the Fusion Cloud systems and to provide the Services on the terms and conditions set forth herein.

These Terms of Service ("Terms") are entered into between Exterro® Incorporated ("Exterro") and the individual and/or entity ("Customer") identified in the Order. In consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:

1.    The Services.
1.1    Purpose.  This Agreement sets forth the terms and conditions under which Exterro agrees to license certain hosted “software as a service” (Fusion Cloud systems) and provide all other services, data import / export, monitoring, support, backup and recovery, change management, technology upgrades, and training necessary for Customer’s productive use of such software (the “Services”), as further set forth in the form of the Order attached hereto or in other Statements of Work containing substantially similar information and identified as an Order (sequentially numbered).  The Agreement and each Order shall remain in effect unless terminated as provided herein.

1.2    Grant of License.  
Exterro grants to Customer, and Customer accepts from Exterro, subject to the terms and conditions of this Agreement, a nonexclusive, nontransferable, revocable license to use the Services specified on an Order. The Services may be used only for Customer's internal business purposes and not as a service bureau, ASP, or other service provided to third parties.  Customer is solely responsible for obtaining and maintaining the hardware, software, and telecommunications equipment needed to access the Service.  To facilitate access to the Service, Exterro will supply default administrator login credentials (“Login Credentials”) for Customer to assign user names and passwords to all personnel that will access the Service.  Customer assumes sole responsibility for use of the Login Credentials. 

1.3    Authorized Users.  Unless otherwise limited on an Order, Customer and any of its employees, agents, contractors, or suppliers of services that have a need to use the Services for the benefit of Customer shall have the right to operate and use the same.

1.4    Restrictions on Use.  Customer may not: (a) sublicense, transfer, or otherwise assign its rights in the Service or the Documentation to any third-party nor allow any third-party to access or use the Service or the Documentation, except as expressly provided in this Agreement; (b) modify the software elements of the Service; (c) create derivative works of the Service or the Documentation; (d) translate, reverse engineer, de-compile, or disassemble the software elements of the Service to develop any other computer program or for any other reason; (e) copy the software elements of the Service; or (f) copy the Documentation, in whole or in part, without the prior written consent of Exterro, except as permitted by this Agreement .  The original and all copies of the software elements of the Service and the Documentation, as well as all worldwide intellectual property rights therein, remain the sole property of Exterro, subject to all of the confidentiality and other restrictions set forth in this Agreement.  The Service may only be used for lawful purposes; transmission of any material which, in the sole determination of Exterro, is threatening, obscene, libelous, defamatory, discriminatory, or is otherwise offensive or illegal shall constitute a material breach of this Agreement.

1.5    Control of Services.  The method and means of providing the Services shall be under the exclusive control, management, and supervision of Exterro, giving due consideration to the requests of Customer.

1.6    Time of Exterro Performance of Services.  For the term of the applicable Order, Exterro shall provide the Services during the applicable Service Windows and in accordance with Service Levels described herein.

1.7    Backup and Recovery of Customer Data.  As a part of the Services, Exterro is responsible for maintaining a backup of Customer Data, for an orderly and timely recovery of such data in the event that the Services may be interrupted.  Unless otherwise described in an Order, Exterro shall maintain a contemporaneous backup of Customer Data that can be recovered within two (2) hours at any point in time. Additionally, Exterro shall store a backup of Customer Data in an off-site “hardened” facility no less than daily, maintaining the security of Customer Data, the security requirements of which are further described herein.

2.    Term and Termination.
2.1    Term.  Unless this Agreement or an Order is terminated earlier in accordance with the terms set forth in this Section, the term of an Order (the “Initial Term”) shall commence on the Effective Date and continue for twelve (12) months thereafter.  Following the Initial Term, an Order shall automatically renew for successive one year terms (each, a “Renewal Term”) until such time as Customer provides Exterro with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.  “Term” shall collectively mean and include the Agreement terms represented by the Initial Term and the Renewal Term.

2.2    Termination for Cause.  If either party materially breaches any of its duties or obligations hereunder, including three periods of successive failure of Exterro to meet a Service Level, and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non breaching party’s satisfaction, within thirty (30) calendar days after written notice of the breach, then the non breaching party may terminate this Agreement or an Order for cause as of a date specified in such notice.

2.3    Payments upon Termination.  Upon the expiration or termination of this Agreement or an Order for any reason, Customer shall pay to Exterro all undisputed amounts due and payable hereunder.

2.4    Effect of Termination. Termination of this Agreement terminates this agreement and all Orders hereunder.  Within 30 days of either the expiration of the Service Term or other termination Customer must cease all use of the Services.

2.5    Return of Materials.  Upon expiration or earlier termination of this Agreement or an Order, each party shall: (a) promptly return to the other party, or certify the destruction of any of the following of the other party held in connection with the performance of this Agreement or the Services: (i) all Confidential Information; and, (ii) any other data  and materials; and, (b) return to the other party, or permit the other party to remove, any properties of the other party then situated on such party’s premises.  In the case of Customer Data, Exterro, upon termination of this Agreement or an Order, shall provide Customer with a final export of the Customer Data and shall certify the destruction of any Customer Data within the possession of Exterro.  The parties agree to work in good faith to execute the foregoing in a timely and efficient manner.  This Section shall survive the termination of this Agreement.

3.    Services Levels.

3.1    Service Levels Reviews.  Exterro and Customer will meet as often as shall be reasonably requested by Customer, but no more than monthly, to review the performance of Exterro as it relates to the Service Levels as defined herein.

3.2    Failure to Meet Service Levels.  In the event Exterro does not meet one or more of the requisite Service Levels, Exterro shall: (a) reduce the applicable monthly invoice to Customer by the amount of the applicable Performance Credits as a credit, and not as liquidated damages; and, (b) use its best efforts to ensure that any unmet Service Level is subsequently met.  Notwithstanding the foregoing, Exterro will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of Service.

4.    Fees and Expenses. Customer shall pay Exterro the fees specified in an Order or related Statement of Work.

4.1    Billing Procedures.  Unless otherwise provided for under an Order, on a monthly basis Exterro shall bill to Customer the sums due pursuant to an Order by Exterro’s invoice, which shall contain: (a) Customer purchase order number, if any, and invoice number; (b) description of Services rendered; (c) the Services fee or portion thereof that is due; (d); taxes, if any; and, (e) total amount due.  All fees shall be due and payable within thirty (30) days of receipt of invoice.  Upon execution of Order or related Statement of Work, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable.  Overdue payments shall bear interest at the lesser of twelve percent (12%) or the maximum rate allowed under applicable law.

4.2    Credits.  Any amounts due as credits from Exterro may be applied by Customer against any fees due to Exterro.

4.3    Taxes.  If applicable, Customer is responsible for any duties, customs fees, or taxes (other than Exterro’s income tax) associated with the sale of the Services, including any related penalties or interest. Customer will pay Exterro for the Services without any reduction for such amounts.  If Exterro is obligated to collect or pay such taxes, the taxes will be invoiced to Customer, unless Customer provides Exterro with a valid tax exemption certificate authorized by the appropriate taxing authority.  If Customer is required by law to withhold any taxes from its payments to Exterro, Customer must provide Exterro with an official tax receipt or other appropriate documentation to support such payments.  Exterro represents and warrants that it is an independent contractor for purposes of federal, state, and local employment taxes.  Exterro agrees that Customer is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Exterro.  Any and all taxes, interest or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Exterro.

4.4    Verification of Usage.  Exterro reserves the right to verify Customer’s usage of the Services.  If Exterro determines that Customer’s Use of the Service has exceeded the cumulative usage defined by all of Customer’s Orders (Order and related Statements of Work), Exterro shall so notify Customer in writing, and Customer shall submit an Order to establish compliance with the terms of this Agreement within thirty (30) days after receipt of the Exterro’s written notice.

5.    Customer Resources and Exterro Resources.  In accordance with the terms set forth in Order, each party shall provide certain resources (Customer Resources and Exterro Resources, as the case may be) to the other party as Customer and Exterro may mutually deem necessary to perform the Services.

5.1    Exterro Resources.  In addition to any Exterro Resources described in an Order, Exterro shall, at a minimum, provide all of the resources necessary to ensure that the Services continue uninterrupted, considering the applicable Service Windows and Service Levels, that Customer Data is secure to the standards and satisfaction of Customer, and provide for an optimal response time for Customer’s users of the Services.

6.    Information Security.  Without limiting Exterro’s obligation of confidentiality as further described herein, Exterro shall be responsible for establishing and maintaining an information security program that is designed to: (i) ensure the security and confidentiality of the Protected Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Protected Data; (iii) protect against unauthorized access to or use of the Protected Data; (iv) ensure the proper disposal of Protected Data; and, (v) ensure that all subcontractors of Exterro, if any, comply with all of the foregoing.  

7.    Warranty and Disclaimer of Warranties.
Exterro WARRANTS THAT THE SITE AND SERVICE SHALL MATERIALLY OPERATE AS DESCRIBED IN Exterro's SITE DOCUMENTATION FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE THE SITE AND THE SERVICE ARE MADE AVAILABLE TO USER ('WARRANTY PERIOD'). IF USER NOTIFIES Exterro OF ANY NON-CONFORMITY DURING THE WARRANTY PERIOD, Exterro SHALL PROMPTLY REPLACE OR REPAIR ANY ELEMENT WHICH IS CONFIRMED BY Exterro TO CONTAIN THE NON-CONFORMITY. Exterro's SOLE OBLIGATION AND USER'S SOLE REMEDY IS THE REPAIR OR REPLACEMENT OF THE NON-CONFORMING ELEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, AND Exterro HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS. Exterro MAKES NO WARRANTY THAT (i) THE SITE OR THE SERVICE WILL MEET USER'S EXPECTATIONS, (ii) THE SITE AND SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) ANY ERRORS IN THE SITE OR THE SERVICE WILL BE CORRECTED. Exterro SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY HOSTED DATA. NO ORAL OR WRITTEN STATEMENTS BY ANY Exterro REPRESENTATIVE WILL CREATE ANY WARRANTY.

8.    Confidentiality

8.1.    Confidential Information.  Each recipient of Confidential Information (the “Recipient”) agrees that it will not disclose, provide, or otherwise make available any Confidential Information of the other Party (the “Disclosing Party”) during the Service Term and for a period of 10 years thereafter, and in the case of Confidential Information that constitutes a trade secret under applicable law, for as long as such Confidential Information remains a trade secret.  Each Recipient agrees that it will obtain a written confidentiality agreement from each third party (consultant or any other person) not governed by this agreement who is provided access to the Confidential Information of the Disclosing Party.  In addition, each Recipient agrees that it will not:














9.    Proprietary Rights.

9.1    Pre-existing Materials.  Customer acknowledges that, in the course of performing the Services, Exterro may use software and related processes, instructions, methods, and techniques that have been previously developed by Exterro (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of Exterro.

9.2    Data of Customer.  Customer’s information, or any derivatives thereof, contained in any Exterro repository (the “Customer Data,” which shall also be known and treated by Exterro as Confidential Information) shall be and remain the sole and exclusive property of Customer. Customer provides to Exterro a license to Customer Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Customer Data only to the extent necessary in the provisioning of the Services.

9.3    No License. Except as expressly set forth herein, no license is granted by either party to the other with respect the Confidential Information, Pre-existing Materials, or Customer Data. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information, Services, Pre-existing Materials, or Customer Data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Materials, or Customer Data.

9.4    The provisions of this Section shall survive the termination of this Agreement.

10.    Indemnification.

10.1    Customer agrees to indemnify and hold harmless Exterro, its affiliates, service providers, employees, agents, officers, directors, successors and assigns from and against any and all liability, loss, claim, demands, obligations, damages, penalties, fines, punitive damages, amounts in interest, and expenses and disbursements of any kind and nature whatsoever, including reasonable attorney's fees (collectively, "Claims"), to the extent such Claims arise out of or result from Customer’s use of the Services, the Hosted Data, Customer's violation of any of these Terms, Customer's failure to implement and abide by any industry-appropriate practices and policies, Customer's products or services and any transactions resulting there from, or Customer's misuse of the Site or the Service. This includes but is not limited to any claims regarding (a) Customer's infringement or violation of third party proprietary or other rights; (b) Customer's violation of any federal, state, or local laws or regulations.

10.2    Exterro shall indemnify, defend, and hold harmless Customer, its affiliates, employees, agents, officers, directors, successors and assigns from and against any and all Claims made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys' fees and expenses, to the extent such Claims arise out of or relate to any claims that the use of the Service under this Agreement violates, misappropriates or infringes the U.S. patent, copyright, trade secret, or other proprietary rights of any third party ("Intellectual Property Rights").

10.3    The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

11.    Limitation of Liability

11.1    EXCEPT FOR AMOUNTS ATTRIBUTABLE TO THE INDEMNIFICATION OBLIGATIONS OF EXTERRO OR OF CUSTOMER, OR FOR BREACH OF CONFIDENTIALITY OBLIGATIONS OF EXTERRO OR CUSTOMER, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF EXTERRO AND CUSTOMER, AND EXTERRO'S AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY CAUSE WHATSOEVER, ARISING UNDER OR RELATED TO THESE TERMS OR THE SERVICE, SHALL BE LIMITED TO AMOUNT OF FEES PAID OR PAYABLE UNDER THIS AGREEMENT.

11.2    UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE THE PARTY'S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW, OR (II) FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THIS EXCLUSION OR LIMITATION.
THE EXCEPTIONS NOTED IN SECTIONS 11.1 AND 11.2 WILL APPLY NOTWITHSTANDING ANY CONTRARY PROVISIONS SET FORTH HEREIN OR IN ANY ADDITIONAL TERMS.

12.    General.

12.1    Relationship between Customer and Exterro. Exterro represents and warrants that it is an independent contractor with no authority to contract for Customer or in any way to bind or to commit Customer to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Customer.  Under no circumstances shall Exterro, or any of its staff, be considered an agent employee, joint venture, or partner of Customer.  In recognition of Exterro’s status as independent contractor, Customer shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Exterro or Exterro’s agents or staff.  Customer shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship.  Neither Exterro nor its staff shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Customer.

12.2    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon and the federal laws of the United States of America.  Customer hereby consents and submits to the jurisdiction and forum of the state and federal courts in the State of Oregon in all questions and controversies arising out of this Agreement.  In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.

12.3    Dispute Resolution.  In the event of any dispute or disagreement between the parties with respect to the interpretation of any provision of this Agreement, or with respect to the performance of either party hereunder, Customer and Exterro Senior Managers will meet for the purpose of resolving the dispute.  If the parties are unable to resolve the dispute within five (5) working days, or as otherwise agreed, Exterro’s vice president level and Customer’s vice president level (the “Representatives”) will meet as often as the parties reasonably deem necessary in order to gather and furnish to each other all essential, non-privileged information that the parties believe germane to resolution of the matter at issue.  During the course of these non-judicial dispute resolution procedures, documents used to resolve the dispute shall be limited to essential, non-privileged information. All requests shall be made in good faith and be reasonable in light of the economics and time efficiencies intended by the dispute resolution procedures.  The Representatives may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions.  No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the parties may mutually agree to in writing.  Either party may then seek whatever remedy is available in law or in equity.  The provisions of this Section will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.

12.4    Compliance with Laws; Customer Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.  Exterro shall comply with Customer policies and procedures where the same are posted, conveyed, or otherwise made available to Exterro, to the extent such compliance is reasonable and commercially appropriate.

12.5    Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.  Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder.

12.6    Force Majeure. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control.  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party.  However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control.  The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

12.7    Reference Account. Customer agrees that Exterro may include identification of Customer as a customer on Exterro's website, provided that the identification Customer is no more prominent that the identification Exterro's other customers and otherwise consistent with Exterro's practice of identifying its customers on Exterro's website as of the Effective Date.  With Customer’s prior written consent, Exterro may refer to Customer in other Exterro’s other promotional materials. At Customer’s sole option, Customer may serve as a reference site and speak with two (2) prospective customers at mutually agreeable times in each twelve (12) month period during the Service Term and/or be featured in a case study (in a form and format approved in advance and in writing by Customer) which may be published in an online or offline periodical, newspaper, journal, or other publication, and posted on Exterro’s website with case studies featuring other Exterro customers. 

12.8    No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

12.9    Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party.  Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.

12.10    Assignment of Agreement. Neither party may assign or transfer any part of the Agreement without the written consent of the other party, except to an affiliate, but only if:


12.11    Counterparts; Facsimile.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.  The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
12.12    Entire Agreement.  This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Exterro as to the subject matter hereof.  This Agreement may only be amended by an instrument in writing signed by the parties.

12.13    Cumulative Remedies.  All rights and remedies of both parties herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance for the enforcement of this Agreement, and temporary and permanent injunctive relief.

12.14    Severability.  If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.

12.15    Amendments.  Any amendment must be in writing and expressly state that it is amending this Agreement.

12.16    Survival.  Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.  Without limiting the foregoing, Section 8 (Limited Warranties and Remedies), Section 9 (Confidentiality), Section 10 (Proprietary rights), and Section 12 (Indemnification) shall survive this Agreement.

12.17    Interpretation of Conflicting Terms.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, Exhibits A (Exterro Support Policy) and B (Order), other attached Exhibits, and the terms located at any URL.

12.18    Counterparts.  The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

13.    Definitions.

13.1    "Hosted Site" or "Site" means the website/s owned and/or operated by Exterro in providing the Service

13.2    “Administrator” means Customer designated technical or legal personnel who administer the Services to End Users on Customer’s behalf.

13.3    “End Users” means the individuals Customer permits to use the Services.

13.4    “Excusable Downtime” means time that the Service is not available to Customer because of (a) scheduled maintenance provided that such maintenance is not scheduled on weekdays between the hours of 7:00 am to 6:00 pm Pacific time more than 2 times in any 12 month period, (b) outages caused by misuse of the Service by Customer, (c) failure of the Internet and/or public switched network, and (d) events that are beyond Exterro’s reasonable control.

13.5    “Documentation” means the on-line information and materials, relating to the use of the Services, made available to Customer in connection with the license of the Services.

13.6    “Intellectual Property Rights” means current and future world rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.

13.7    “New Module” means a new module related to the Services which contains business logic not offered or contained in the then-current version of the Services and is offered by Exterro as a separate option or feature and is priced separately.  New Modules are not included in the Support Services and are subject to a separate charge.

14.    Support Policy

14.1    Customer Responsibilities. 
Upon the execution of each Order, Customer shall designate one or two individuals as the representatives of Customer (the “Customer Representatives”), whose names are set forth on each Order, and who shall be authorized to make decisions, approve plans, and grant requests on behalf of Customer.  Customer hereby authorizes Exterro to rely on all communications from and decisions of the Customer Representatives. Except as otherwise expressly provided, Customer shall be responsible for the provision of all goods and services required to install and operate the Service.

14.2    Training and Consulting Services. 
If so indicated on an Order, Exterro will provide to Customer training services (“Training”) and/or the consulting services (“Consulting”) identified on a Statement of Work attached to the Order and executed by Customer and Exterro. Training and Consulting are sometimes collectively referred to as “Professional Services”. Exterro will be in an independent contractor relationship to Customer at all times, and neither Exterro nor any employee or subcontractor of Exterro will be, or be deemed to be, an employee or agent of Customer. Exterro warrants that Professional Services shall be performed in a workmanlike, professional manner by qualified personnel, and that Consulting will be performed in conformity with the terms of the applicable Statement of Work. In the event of a breach of this warranty, Customer shall notify Exterro of the breach and Exterro shall promptly re-perform the Professional Services at no cost to Customer. If Exterro is unable to correct the deficient performance of Professional Services within a commercially reasonable time, Customer may terminate the applicable Statement of Work and receive a refund of amounts paid in respect of the deficient Services.  THIS SECTION 2 STATES EXTERRO'S ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY IN THIS SECTION.

14.3    Case Logging
New cases can be logged online anytime from Exterro Support Portal. Exterro’s Customer support will be available from 8:00 AM to 6:00 PM PST to respond to any issues. After-hours support is available through email and support portal. Our technical support team is on-call 24/7 to support any high priority issues that might arise after-hours. 24 hour customer support is available through Exterro’s Support Portal. All tickets logged can be tracked and managed from our support portal. Exterro Support Portal: http://support.exterro.com

14.4    Priority Setting and Response Time                           
Exterro uses five priority levels to identify severity of your issues and its impact on your business. Table 1: Case Priority and Response Time generally identifies those priority levels and the associated Service Level Agreement (SLA) initial response times and resolution times for our Standard support plan customers.

Regardless of the SLA, Exterro Support endeavors to connect all Priority 1 cases directly to a Exterro Support Analyst during regular hours of service. Any priority 1 call not directly connected to a Support Analyst will be responded to within the SLA time frames defined above.
To ensure speedy resolution, the customer contact who logged the case must be readily available throughout the time period that the case is being worked on. For Priority 1 cases, Exterro Support will work on the case until one of the following states is reached:

Priority	Definition	Business Impact	Initial Response Time	App Resolution Time
1	Emergency Production Issue – High severity – Severity 1	Major impact – system affected, customers business cannot continue	30 minutes	1-2 hours
2	High level production issue - Medium Severity –Severity 2	Significant impact – restricted processing possible.	30 minutes	2-4 hours
3	Operational Issue – Low Severity – Severity 3	Minor impact on customers business, does not prevent system operation. Software error for which there is an acceptable alternative solution. Minor performance degradation.	8 hours	8-16 hours
4	How-to’s – Low Severity -Severity 4	Minimal impact on customers business. Tips / Techniques	12 hours	16-48 hours
4	Informational - Low Severity - Severity 5	No business impact. Documentation use. Web site use	24 hours	24-48 hours

14.5    Related Case Resolution Policies   
                       

 

By clicking on "I agree" below (or otherwise using the Service), Customer is providing his or her electronic signature to these Terms, and to the Enrollment Materials and is acknowledging that Customer consents to enter into this Agreement with Exterro electronically. All agreements completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.