WIRE CAR, LLC SOFTWARE AS A SERVICE AGREEMENT
This Wire Car Software as a Service Agreement (SaaS) is a legal agreement between you (either an individual or a single entity) and Wire Car, LLC for software hosting services (Services) that you purchased or were provided for free in connection with Wire Car. YOU AGREE TO BE BOUND BY THE TERMS OF THIS SAAS BY PURCHASING OR USING SOFTWARE HOSTING SERVICES FROM WIRE CAR.
By way of this Software as a Service Agreement, you agree to allow Wire Car to host Wire Car Software, which you have paid for or agreed to use, at its data center. Your receipt of Services is in accordance with the terms of the SaaS in effect at the time of such Services. By securing Services, you accept and agree to the SaaS in effect at such time.
Service and Network Availability
- Guarantee of Availability: Wire Car guarantees uptime of 95% with regard to Services during any given U.S. calendar month, except during maintenance windows.
- Maintenance Windows: Wire Car will set forth a standard maintenance schedule to maintain and update its Services. The standard maintenance windows will be published on Wire Car’s web site. In case of emergency maintenance requirements, Wire Car will make efforts to announce such maintenance windows at least 24 hours in advance of emergency maintenance, but in no event less than 12 hours prior to scheduled maintenance.
- Third Party Network Availability: Wire Car does not guarantee network availability between the customer and Wire Car’s hosting servers as network availability can involve numerous third parties and is beyond the control of Wire Car. Wire Car will not be liable for any down time caused by its data center provider nor for any down time that you experience as a result of your own network connectivity issues.
- Unavailability of Services: If you experience a Service outage and are unable to access the Services, you must immediately contact Wire Car and notify Wire Car of the service outage, providing any/all necessary information that may assist Wire Car’s technical support in determining the cause of the outage. Wire Car will determine whether the outage or failure was within Wire Car’s reasonable control. If Wire Car determines that a service outage was attributable to Wire Car, then Wire Car will credit you 1-day of Service fees for every 2 hours of down-time you experienced, up to a maximum of that month’s Service fees. Wire Car will have no other liability to you for failure to provide the guaranteed network availability.
Information Security, Storage and Backup
- Information Security: Wire Car will make commercially reasonable efforts to provide and maintain a secure environment for your stored data/information at Wire Car’s data center(s). In the unlikely event of a security breach of your data/information, your exclusive remedy will be limited to a refund of 1-month of Service fees. You understand and agree to assume the risk of any such security breach and agree to hold Wire Car harmless therefrom.
- Data Storage: Customer data is stored in a relational database file on a hosted server. Wire Car shall maintain your data/information for a period of seven (7) business days after receiving a cancellation of Services notice from you.
- Data Backup: Wire Car will backup data on a nightly basis. Your data will be backed up onto a machine separate from the machine servicing your data. All backed up data will be stored at two physically separate locations. In the unlikely event of a physical disaster, it is possible that your backed-up data may be destroyed, along with Wire Car’s main hosting equipment. In such event, Wire Car’s sole liability will be to provide you with a refund of three (3) months of Service fees.
- Return of Data: Should you wish to obtain a raw copy of your database from Wire Car, you may do so by communicating your request to Wire Car prior to or in conjunction with termination of Services.
Support and Announcements
- Support: Wire Car support is provided via email (firstname.lastname@example.org).
- Announcements: From time to time, Wire Car may make announcements to customers, including all users of the Services. Such announcements will typically be made through the software Service itself. If you do not log in to the Services, it is possible that you might miss such announcements. Wire Car will not be responsible for your failure to make yourself aware of any such announcements.
Service Fees: You agree to pay for such Services on a timely basis and in accordance with payment terms and contract duration set forth in the Wire Car Invoice. Your failure to make timely payment for Service fees shall result in Wire Car deleting your data/information from its servers thirty (30) days after the Service fee due date if Wire Car has not received the due Service fees by such date.
Disclaimer of Warranties and No Liability
DISCLAIMER OF WARRANTIES: Wire Car disclaims all warranties concerning the Services and any support, express, implied, or statutory, including without limitation, any warranties, duties or conditions of merchantability or fitness for a particular purpose, warranties of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence. Wire Car does not warrant that the Services will be uninterrupted, secure, or backed up. Additionally, Wire Car and its suppliers provide the Services AS IS AND WITH ALL FAULTS. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE SERVICES.
NO LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WIRE CAR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR LOSS OF DATA, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES OR INFORMATION, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OF WIRE CAR OR ANY SUPPLIER, AND EVEN IF WIRE CAR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Consent to Use of Data: You agree that Wire Car and its affiliates may collect and use technical information gathered as part of any support provided to you in relation to the Services. Wire Car may use this information solely to improve Wire Car support and Services or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
- Additional Services: This SaaS applies to Service updates, supplements, or Internet- based Services components that Wire Car may provide to you or make available to you after the date you purchase Services from Wire Car, unless Wire Car provides other terms along with the updates, supplements, or Internet-based Services components. Wire Car reserves the right to discontinue any Internet-based Services provided to you or made available to you.
- Applicable Law: This SaaS is governed by the laws of the State of Minnesota, excluding that body of law applicable to choice of law. Any legal action or proceeding relating to this SaaS shall be instituted in a state or federal court in Stearns County, Minnesota. Wire Car and you agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding. The prevailing party in any action to enforce this SaaS will be entitled to recover its attorney fees and costs in connection with such action.
- Assignment: You may not assign this SaaS or your rights, obligations or interest under this SaaS, except with the prior written consent of Wire Car.
- Waiver: The failure of either party to enforce any of the terms of this SaaS shall not be construed as a waiver of future enforcement of that or any other term.
- Termination: Without prejudice to any other rights, Wire Car may terminate this SaaS if you fail to comply with the terms and conditions of this SaaS. In such event, you must stop using the Services and will not be entitled to any refund of monies. Wire Car may take legal and/or equitable action against you for any breach of this SaaS.
- Notices: Any notice given under this SaaS shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, or sent by courier to the addresses set forth in the Invoice. Notice is deemed received upon verification of delivery.