Master Customer Agreement
This Master Customer Agreement (“the Agreement”) is dated and is by and between
Sonic Digital, Inc, a Maine corporation with offices at212 Canco Road, Portland, ME. 04103, here-forth “The Company”
, , here-forth “The Client”
Together, The Company and The Client may be referred to herein as the “Parties” and, separately, each may be referred to as a “Party”.
WHEREAS, The Parties desire to consider a possible business arrangement or explore various transactions involving the Parties (the “Transaction”); and
WHEREAS, in connection with considering and or entering into a Transaction, the Parties anticipate requesting and receiving from each other information and materials concerning, without limitation, the business and operation of the other, which may be provided by directors, officers, employees and/or agents or representatives of the Parties; and
WHEREAS, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree, as a condition to considering or entering into the Transaction, to enter into this Agreement according to the terms and subject to the conditions set forth herein.
This Agreement is effective only upon execution by SONIC DIGITAL and Client. Each party hereto warrants and represents that this Agreement constitutes the legal, valid and binding obligation of such party as of the Effective Date.
Addendum 1 Statement of Work: Cloud Platform Services
This Statement of Work is an Addendum to, and is governed by the general terms of, the Master Customer Agreement. In the event of any conflict between the terms of the Statement of Work and those of this Agreement, the terms of this Statement of Work will prevail. This Statement of Work describes a product, service, or material good, here-forth, “The Product” and is provided by SONIC DIGITAL for the benefit of The Client.
SONIC DIGITAL reserves the right to stem or suspend any services provided for any condition including but not limited to non-payment and for violations of the Acceptable Use Policy. By ordering the Product, you agree to adhere to our Acceptable Use Policy. The Client shall be afforded a right to remedy. If the Client is unable to satisfactorily remedy, SONIC DIGITAL further reserves the right to cancel or terminate any services provided with or without refund. SONIC DIGITAL will provide The Client clear notice of any warnings or violations of policy. Modifications to this Statement of Work will only occur with consent from both Parties. SONIC DIGITAL reserves the right to discontinue offering the Product at any time, providing written notice is presented to The Client with “Sufficient Time” for The Client to make other arrangements. “Sufficient Time” for the purpose of this Statement of Work is deemed to be the lesser of 90 days, or the number of days for which the Client has paid for the Product under the terms of this agreement.
SONIC DIGITAL will provide professional services to manage the cloud infrastructure and platform to ensure platform functionality, stability, performance, and uptime. Anything that SONIC DIGITAL did not install and configure for The Client at the time of delivery, is the Client’s responsibility and is not covered by our support. SONIC DIGITAL will not install or configure any additional packages or software on a server that is not present in the default templates.
SONIC DIGITAL servers are designed for system administrators comfortable in managing their own system (Adds, Moves, and Changes). In order to successfully manage SONIC DIGITAL servers, the client should be familiar with using a web browser based administrative interface. SONIC DIGITAL will provide basic tools needed to configure and maintain the Client’s Server. SONIC DIGITAL provides knowledge and how-to articles covering various topics which may offer insight into common questions regarding the Product. SONIC DIGITAL will also provide remote console access to our servers in case of emergency, which gives the Client a way to access the server in the event it becomes inaccessible through any other means.. The Client is responsible for managing any aspects of their server beyond the Operating System layer. SONIC DIGITAL will provide support staff available for general support during normal business hours. SONIC DIGITAL will provide Emergency level support during all hours. SONIC DIGITAL will monitor and proactively address any issues affecting Infrastructure and Platform availability during all hours.
Client may contact SONIC DIGITAL support at any time regarding the following issues:
Client agrees to utilize the Emergency response system responsibly. Support tickets will be processed in the order they were received, and triage into the appropriate support response priority. Multiple Client replies to tickets will not result in a faster response. SONIC DIGITAL only provides support in English and require that it be used for all communications with staff. Support staff will not tolerate profanity or abusive language, threats of bodily harm, threats of legal action with them via emails, ticketing system, or via Internet including social media. Use of the emergency response support for non-emergency purposes constitutes abuse. SONIC DIGITAL will notify the Client if such abuse occurs. If further abuse of the system continues, SONIC DIGITAL will offer to provide the service at the published labor rate for Emergency response, or otherwise those issues will be deferred until normal business hours. Continued abuse of support systems will ultimately result in suspension and/or termination of this Statement of Work.
Service Payment, Refunds and Cancellation Guidelines
All services are prepaid. Failure to maintain a positive balance will result in suspended and, ultimately, terminated service. Upon reaching a negative balance, services will be suspended. Storage and IP related charges will continue to be deducted and are subject to a 20% late penalty. If a positive balance is not restored within 21 days, SONIC DIGITAL reserves the right to terminate Client’s service. Service termination will include deletion of all data on storage services, and backup storage, and all IP addresses will be released back to the availability pool at which time other customers may be assigned the Client’s IPs. SONIC DIGITAL will not be responsible for any data loss due to termination. Following a service termination if you wish to resume Client’s services with us you must first resolve the negative balance of Client’s account including any late penalties.
SONIC DIGITAL offers no refunds for any payments made.
If the Client creates a PayPal subscription to pay for the Product, the client is responsible to cancel that subscription when he or she no longer wants service with SONIC DIGITAL. SONIC DIGITAL will not be responsible for handling or refunding any transactions that take place after the Client has cancelled his or her service with SONIC DIGITAL in the event that the client fails to cancel the related PayPal subscription.
Payment Charge-backs and Billing Disputes
Raising a billing dispute with a payment processors or charging back a payment made to SONIC DIGITAL will place the Client’s account in bad standing, and SONIC DIGITAL further reserves the right to terminate services without refund.
Any threat of legal action against SONIC DIGITAL will signify the termination of this Statement of Work and will result in immediate account and service termination without refund.
In additional to general liabilities described in the Master Customer Agreement, At no time will SONIC DIGITAL be liable for any amount exceeding the total amount paid for the Product in a the given month. SONIC DIGITAL EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE DATA AND CONTENT TRANSMITTED THROUGH OR TEMPORARILY OR PERMANENTLY STORED ON OUR NETWORK OR ANY SERVER AND FOR THE ACTIONS OR OMISSION OF USERS.
Data Security Agreement
SONIC DIGITAL will be required to adhere to particular data handling detailed in the Addendum entitled Data Security Agreement.
Service Level Agreement
SONIC DIGITAL will provide a Service Level Agreement which shall outline the expected level of service the Client should expect to receive for the Product.
Addendum 1-1 Cloud Platform: Acceptable Use Policy
The provisions of this AUP are intended as guidelines and are not meant to be exhaustive. This policy is an Addendum to the Statement of Work regarding Cloud Platform services and references the terms provided there, and is also generally governed by the Master Customer Agreement. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this AUP, are prohibited. We reserve the right at all times to prohibit activities that damage our or our affiliates commercial reputation and goodwill. We will be the sole and final arbiter as to what constitutes a violation of our policies.
The Products may be used only for lawful purposes. Transmission of, distribution of, storage of, or linking to any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property rights used without proper authorization, and material that is defamatory, constitutes an illegal threat, violates export control laws, or is otherwise prohibited by US law.
All users must comply with all relevant legislation and regulations on bulk and commercial e-mail, including but not limited to the CAN-SPAM Act of 2003.
Users may not send mass unsolicited e-mail, which is email that is sent to recipients who have not “opted-in” to mailings from the user. Users are prohibited from operating mailing lists, listservs, or mailing services that do not target an audience that has voluntarily signed up for email information using an “opt-in” process or that has made their email addresses available to a user for distribution of information. Users who operate mailing lists must maintain complete and accurate records of all consents and “opt-in” elections and provide such records to SONIC DIGITAL upon its request. If a user cannot provide positive and verifiable proof of such consents and “opt-in” elections, we will consider the list mailing to be unsolicited. Any user-maintained mailing list must also allow any party on the list to remove itself automatically and permanently. Other prohibited activities include, without limitation, the following:
If, as a result of Client’s actions, our mail servers or IP address ranges are placed on black hole lists or other mail filtering software systems, Client’s VM may be suspended and possibly terminated upon review. If we deem Client’s account at risk for repeated AUP infractions, we may suspend and/or terminate all products.
HARDWARE RESOURCE USAGE
Client agrees not to operate any server in any way which interferes with, degrades, or otherwise impairs the overall system performance, or performance of other Clients. This includes but is not limited to excessive use of resources including CPU, network bandwidth, storage bandwidth, or storage usage. SONIC DIGITAL reserves the right to determine what constitutes resource usage.
SONIC DIGITAL has the capacity to tolerate occasional non-targeted DDoS attacks. Clients who are targeted with frequent and/or disruptive attacks will be terminated. In addition, we do not allow port-scanning or UDP floods to be sent from SONIC DIGITAL’s network. Accounts sending floods, port-scanning, and/or creating artificial traffic will be suspended and/or terminated.
STRICTLY FORBIDDEN USES
The following are strictly forbidden uses and will result in immediate termination if discovered on Client’s account:
Violations of SONIC DIGITAL’s system or network security are prohibited, and may result in criminal and civil liability. SONIC DIGITAL’s servers and networks may not be used for:
The preceding list is an example and not an exhaustive list of prohibited activity.
Failure to adhere to the Acceptable Use Policy will result in service suspension and possibly termination without refund. Any activity not mentioned above but which is considered illegal in the United States will result in immediate termination.
When you sign up for SONIC DIGITAL’s service, SONIC DIGITAL will ask you to provide contact information such as Client’s name, address, telephone number, and e-mail address. If you contact us for customer support, SONIC DIGITAL may also ask you for information about Client’s account and services. When you visit SONIC DIGITAL’s website SONIC DIGITAL will capture Client’s IP Address, time of and duration of visit, and time and duration of the pages on SONIC DIGITAL’s website that you view. SONIC DIGITAL may tie this information to personally identifiable information SONIC DIGITAL have about you. [If SONIC DIGITAL send you an e-mail, SONIC DIGITAL may include a marker that will allow us to identify e-mail that is opened and viewed.]
Use of Personally Identifiable Information
SONIC DIGITAL will use Client’s personally identifiable information only as follows:
SONIC DIGITAL will not provide any personally identifiable information about you to any other person other than:
SONIC DIGITAL absolutely do not transfer or sell Client’s information for inclusion on third party e-mail or other marketing lists.
Use of Non-Personally Identifiable Information
SONIC DIGITAL may share aggregate statistical data about SONIC DIGITAL’s customers with third parties, such as advertisers or suppliers. This aggregate statistical data will not identify you personally.
Security of Client’s Information
SONIC DIGITAL store Client’s personally identifiable information and payment information in forms viewable by administration only. Client’s transfer of data to us occurs over a SSL connection so that all information is securely encrypted during the transfer. Private virtual networks are secured and only accessibly by Client’s virtual machines. Data stored on storage services is only available and accessible by you.
SONIC DIGITAL’s service is not available to anyone under the age of 18, and SONIC DIGITAL will not intentionally maintain information about anyone under the age of 18.
Addendum 1-3: Cloud Platform : Service Level Agreement
SONIC DIGITAL shall provide a 100% Service Level Agreement (SLA) defined by this Addendum to the Statement of Work for Cloud Platform services which extends the Master Customer Agreement entered into by both Parties.
Quality of Service (QoS); Used to generally refer to the final resulting experience of Client using the Product.
Infrastructure Layer; The physical data center, power, cooling, networking, racks, physical servers, cabling, physical server maintenance, physical server availability.
Platform Layer; The SONIC DIGITAL virtualization software platform which provides virtualization of servers, networking, and storage resources, up to and including the virtual server operating system software, network settings, and storage settings.
Application Layer; The Client’s software layer installed upon the Platform layer. Per the Statement of Work for Cloud Platform, it is the Client’s responsibility to monitor, detect, and remedy QoS issues related to the Application Layer.
SLA monitoring (monitoring); an optional Product, which if purchased by the Client, will provide real-time validation of QoS
SLA violation detection (violation detection); an optional Product, which if purchased by the Client, will provide real-time notification and response to violations of QoS.
Probe; a virtual device which is used to facilitate the monitoring and violation detection from within the Client’s private network.
SLA enforcement (enforcement); assessing a penalty to SONIC DIGITAL for a violation detected by monitoring or covered under the Basic SLA.
Support; SONIC DIGITAL shall provide customer service and technical support to facilitate addressing Client’s issues. SONIC DIGITAL will make support available by Toll-Free telephone, Email, and Electronic Ticketing. Email support is read during normal business hours. Email support has a maximum priority of “Medium”. For High Priority issues requiring immediate response, Client agrees to use Telephone support, or to submit a High Priority ticket by Electronic Ticketing.
Time Based Metrics and Responsiveness
Basic SLA: A baseline set of QoS Standard which shall be provided by SONIC DIGITAL to all customers regardless if they purchase additional SLA monitoring and violation detection. Under the Basic SLA, QoS monitoring and violation detection is the Client’s experience and the Client’s ability to consume resources. It is the Client responsibility to request enforcement of a suspected violation of QoS. The Basic SLA only covers QoS violations which are due to Infrastructure level components including, Internet carrier signals, Datacenter power and cooling, networking components, physical server hardware, and physical server accessibility. The Basic SLA also provides coverage at the Platform level, however this coverage is limited to QoS issues related to virtual server uptime, virtual network, and virtual storage connectivity. The Basic SLA does not provide specific performance metrics in terms of latency, round-trip times, jitter, bandwidth usage, including network and storage bandwidth, or voice quality issues.
Advanced SLA: A set of QoS Standards which shall be provided by SONIC DIGITAL to all customers who have purchased this Product. Under the Advanced SLA, SONIC DIGITAL shall provide real-time automated monitoring and violation detection. The Client may still request enforcement of suspected QoS violations due to Client’s experience. In this case, SONIC DIGITAL’s real-time monitoring will be used to validate such requests. Advanced SLA provides detailed real-time metrics of, and shall automatically report a violation of any of the following minimal conditions:
Penalties and Enforcement
For any violation of the above Basic or Advanced SLA, lasting beyond 1 hour after violation detection, shall incur a penalty to be enforced upon SONIC DIGITAL in the amount of 5% of the monthly recurring costs of the affected Product. For each additional hour an additional 5% penalty shall be enforced up to a maximum of 20 hours or 100% of the monthly recurring costs of the affected Product within a single calendar month. Any violation of QoS that does not exceed 1 hour will not incur a penalty, however if multiple violations within a calendar month cumulatively exceed greater than 1 hour, a penalty will be enforced upon SONIC DIGITAL in the amount of 5% per hour up to a maximum of 100% of the recurring costs of the affected Products within a single calendar month. At no time with the penalty exceed 100% of the recurring cost of the affected Product within a calendar month. The penalty will be enforced upon SONIC DIGITAL will be made to the Client in the form of an Account Credit which will be automatically applied on the Clients next product Invoice. No refunds will be given in the form of Cash, Check, or otherwise for violations of this SLA. The Client must request credit for violations of QoS under this SLA. No credits will be issued automatically for violations that are not reported by the Client. Suspected violations of QoS and any requests for credits must be submitted within 7 days of the actual occurrence of the violation.
SONIC DIGITAL shall compile time based metrics per calendar month. The Client may request a penalty be enforced upon SONIC DIGITAL for any failure to meet these minimums within a given calendar month. The penalty assessed shall be 5% of the monthly recurring cost of the affected product for Response Time, 5% for Repair Time, and 5% for MTBF, up to a maximum of 15% of monthly recurring cost of the affected Product. At no time shall any combination of SLA penalties exceed 100% of the monthly recurring income for an affected Product.
WHEREAS both Parties desire to maintain system uptime, and Infrastructure and Platform related outages may occur from time to time, both Parties agree to make equal effort to restore systems to normal QoS, and both Parties agree to communicate and collaborate in a timely manner. SONIC DIGITAL will not be liable for penalty hours that were incurred as a result of delayed action on behalf of the Client.
Addendum 1-4: Cloud Platform: Data Security Agreement
SONIC DIGITAL provides this Data Security Agreement (DSA) to define responsibility of SONIC DIGITAL and Client with regards to the privacy, redundancy, backups and restoration of Client’s data by this Addendum to the Statement of Work for Cloud Platform services which extends the Master Customer Agreement entered into by both Parties.
Access, accessible; Read and/or Write, or the ability to read and/or write data.
Sandbox restore; To restore a backup or snapshot to a new isolated VM. Does not over-write original VM.
SONIC DIGITAL shall take the following measures to ensure data security:
The Client is encouraged to create their own backups and data security within the Application Layer of critically important data.
Restoration of Data
SONIC DIGITAL will be responsible for restoring data in case that such restoration is required to restore the uptime and operating state of the Product, and also in the event the Client requests a restoration.
SONIC DIGITAL will provide restoration of the backups at no charge to the client, however any additional time and/or materials incurred following the restoration, such as settings adjustments, drive swaps, copying or migration of other data or any other condition not related to the restoration of the virtual server uptime shall be billable to the Client and due to SONIC DIGITAL at the current published labor rates for system administration at the time of the incident. If Client requires a sandbox restore, and requires to keep both the original and new virtual machines online for a period of longer than 12 hours, SONIC DIGITAL may charge a fee for usage of those resources.
SONIC DIGITAL will make every reasonable effort to restore data, however if for any reason unable to restore backup data, the Client’s shall agree to restore from Client’s own backups.
Disclaimer of Liability
SONIC DIGITAL shalt by no means be liable for any monetary damages resulting from loss of data, or compromise in data security, or any other storage or data related issue.
In the event of some disaster (natural, technical or otherwise) that compromises the accessibility of data in a way that prevents systems from being restored from snapshot, SONIC DIGITAL shall make every effort to restore the platform to full working condition by means of restoring offsite FTP backups, then restoring snapshots.
SONIC DIGITAL is not necessarily bound to a single infrastructure provider, and thus in the event that an Infrastructure provider or internet providers infrastructure is impeded in some manner, SONIC DIGITAL will procure Infrastructure services within a different data center from the same Infrastructure Provider, or with a completely different Infrastructure Provider, at SONIC DIGITAL’s discretion to ensure the fastest time to repair.
In the event that the platform is unable to be restored from offsite FTP backups, SONIC DIGITAL will re-create virtual machines to their default deliverable state (OS installed, Network and Storage configured). Client will be responsible to restore their applications from their own backups.
Testing and Validation
SONIC DIGITAL will perform a monthly snapshot sandbox restore of a test virtual machine to ensure the snapshot mechanisms are working as expected.
SONIC DIGITAL will perform a quarterly restore from offsite FTP to ensure the offsite backups mechanisms are working as expected.
SONIC DIGITAL will resolve any issues related to backup testing and validation without fee or cost to the Client.
Addendum 2 Statement of Work – Consulting Services Agreement
This Statement of Work is an addendum to Master Customer Agreement and outlines an agreement for hourly billing of labor time for consulting services.
Consulting Services Provided
The consulting services to be provided by SONIC DIGITAL are as follows:
Responsibilities of the Parties
Client agrees to pay SONIC DIGITAL’s fees accrued hereunder on or before their billing date, to be truthful, to cooperate with SONIC DIGITAL, and to keep SONIC DIGITAL informed of Client’s address, phone number and whereabouts and to any relevant developments which might affect the relationship between the parties. SONIC DIGITAL agrees to keep Client informed of any relevant developments, to respond promptly to Client’s inquiries and to perform the consulting services mentioned above.
Client shall pay SONIC DIGITAL for the consulting services provided hereunder at SONIC DIGITAL’s current published hourly rates.
Charges shall be billed in increments of one-tenth of an hour with a 1 hour minimum. Hourly fees hereunder may be changed upon thirty (30) days’ written notice to the Client. Client shall be billed weekly for all SONIC DIGITAL’s fees and expenses.
Expenses shall include, but are not limited to, court fees, deposition fees, investigation expenses, expert fees and expenses, telephone charges, copying charges and service of process fees. SONIC DIGITAL shall advance all expenses of $100 or less in connection with the deliverable provided to the Client. Client shall be billed for any accrued expenses on a weekly basis. Any expenses in excess of $100.00 shall be paid in advance by the Client.
Discharge of Consultant
Client may discharge SONIC DIGITAL at any time by written notice to SONIC DIGITAL. The discharge shall be effective upon Receipt. If proceedings have commenced Client shall execute and return a substitution-of-consultant form to be sent by SONIC DIGITAL. Notwithstanding the foregoing, Client shall be obligated to pay SONIC DIGITAL for all expenses advanced by SONIC DIGITAL and all accrued consulting fees including any further fees accrued for knowledge transfer to a third-party consultant after the termination of this agreement.
Agreement and Acceptance
By signing, the Client and SONIC DIGITAL confirm they have read, understand, accept, and agree to the terms outlined in these agreements.
The undersigned persons agree on behalf of their corporations, they are signing as lawful actors for their corporation in the execution of these agreements.
Signed by Russell T. Purinton President/CEO, Sonic Digital, Inc.
Signed On: August 10, 2016
If you have questions about the contents of this document, you can email the document owner.
Document Name: Master Customer Agreement
Agree & Sign