MANAGED SERVICES AGREEMENT
Last Revised: July 19, 2019
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES
In this Agreement, when we say "you," "your," and "Customer", we mean the owner of the Media Temple account and the person utilizing the Service. When we say "we," "our," "us," "Provider," "(mt)" and "Media Temple", we mean GoDaddy Media Temple, Inc. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits, except where specifically granted herein.
We may, in our sole and absolute discretion, change or modify this Agreement, and any policies or agreements that are incorporated herein, at any time and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Service after such changes or modifications shall constitute your acceptance of this Agreement as last revised. If at any time, you do not agree to the terms of this Agreement or any of the policies on our Website, discontinue use of the Service immediately and close your account(s). We may, without obligation, occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account contact information current. We assume no liability or responsibility for your failure to receive important notification if such failure results from inaccurate contact information.
For the purposes of this Agreement, the following definitions apply and any undefined terms have the meaning ascribed to them in the context in which they are used in this Agreement:
- AWS, Amazon or Amazon Web Services refers to Amazon Web Services, Inc.
- Service Guide means the document containing the Service descriptions that are available under this Agreement and the proposed guidelines regarding the use of those services, a current version of which is located here, in addition to the relevant sections attached hereto.
- Services Addendum refers to a separate document detailing agreed upon work outside those services detailed in the Service Guide. Where applicable, the Services Addendum is incorporated herein by reference.
- Cost and Fees Addendum refers to a separate document detailing agreed upon pricing, or those services detailed in the Service Guide. The Cost and Fees Addendum is incorporated herein by reference.
- Content refers to all data and materials, including, but not limited to code, text, links, images, photographs, messages, graphics, music, sounds, video, files, data, software, applications and any other materials that are provided to AWS or Media Temple by, or on behalf of you through use of the Service.
- Infrastructure includes AWS instances, AWS networking, and any configuration of the AWS platform.
- AWS VM or EC2 Instance means the virtual machines deployed on AWS for which you have purchased support from Media Temple.
- Support Fee means a separate fee outside of AWS usage for support services paid to Media Temple, as detailed below, and in the Service Guide, in addition to the relevant section attached hereto.
- Support Services Request means an internal ticket created by Customer either via email or via Media Temple’s ticketing system.
- Business Hours means the hours between 8:00 a.m. to 6:00 p.m. Pacific Standard Time, Monday through Friday, excluding nationally recognized holidays.
- Monitoring Alarms means the alarms setup for monitoring Customer’s Infrastructure.
- Master Account means Media Temple’s master AWS account, under which customers’ member AWS accounts are consolidated for the purposes of management and billing.
- Member Account refers to the AWS customer account(s) managed by Media Temple via the Service, which is consolidated under the Master Account throughout the use of the Service.
3. DESCRIPTION OF SERVICES
The Service, including the various service levels, are designed to assist you with your cloud computing services by leveraging Media Temple’s human expertise, tooling, and automation. Infrastructure designed by us are built on and integrated with Amazon Web Services.
For a detailed description of services and service levels, please see the Service Guide, of which the relevant sections are also attached hereto.
4. SERVICE LEVEL AGREEMENT
(a) Initial Response Time
Media Temple will provide an initial response to your Support Services Request within the time frame set forth below. Emergency and Urgent requests, as defined below, are applicable to those services with Monitoring Alarms only. Initial response is not a guarantee of a resolution time.
- Emergency: If you cannot access the Service from the public Internet resulting in the inability to complete business transactions, we will provide an initial response to emergency Monitoring Alarms within fifteen minutes. Emergency is applicable to Fully Managed Service level only, as defined in the Service Guide.
- Urgent: If the Service is functioning improperly, or at less than optimal performance, but the failure is not impacting business transactions, we will provide an initial response to urgent Monitoring Alarms within one hour. Urgent is applicable to Fully Managed Service level only, as defined in the Service Guide.
- Standard: If the Service is functioning normally, but you require information or assistance, wish to schedule maintenance, or require the completion of any other non-immediate tasks, we will provide an initial response to your Support Services Request within eight Business Hours.
If we fail to meet the Service Level Agreement, you may request a credit of ten percent (10%) of your monthly Support Fee, but in no event shall this credit exceed $250 USD per month. You must request a credit within thirty (30) days of the incident via a Support Services Request. Credit is forfeited if the Service is terminated for any reason. Credit has no cash value and cannot be transferred or converted to refunds. Credit is exclusive of any applicable taxes. Credit is your sole remedy for any failure of Media Temple to meet the Service Level Agreement
(a) Support Services
Media Temple live support is available 24 hours per day, 7 days per week, year round, subject to any other applicable provisions herein. Customer is responsible for maintaining Customer’s websites and other applications. For details, see Appendix A Responsibility Matrix in the Service Guide, a copy of which is also attached hereto.
Customer may add additional services “Add-Ons” to Managed Services service level offerings in line with, and as described in the Service Guide, at an additional cost.
(c) Support Method
You must submit all Support Services Requests directly to Media Temple at the contact information provided in your Account. You agree not to submit requests directly to Amazon.
(e) Third-Party Suppliers
For issues involving your third-party suppliers and vendors, any communication Media Temple has must be coordinated by you. You also acknowledge and agree that Media Temple is not liable for services or support provided by or to any third-party supplier or vendor. Media Temple has no obligation to communicate with third-party suppliers. If this service is available, additional fees may apply.
(f) Database Tuning
If you experience issues with your database, at an additional charge, Media Temple may provide consulting services. The time spent investigating and providing advice will be billed hourly and Media Temple does not guarantee any specific outcome. This service may not be available in all markets.
This section shall supersede section D of the Media Temple Terms of Service Agreement and all terms and provisions included in that section.
(a) General Billing
Media Temple bills for the AWS usage associated with the Service, in addition to the Media Temple Support Fee and any other add-on services.
Billing for Media Temple Managed Services begins on the day of the onboarding call, at which point Customer’s debit or credit card on file in the Account Center will be charged, unless payment by wire has been arranged in advance, which is subject to additional terms, including your sole responsibility for payment of the transfer fee. Payment terms may also be subject to additional verification, including but not limited to a credit check, as solely determined by Media Temple.
Billing generally runs on a 30-day cycle. Customer’s first payment shall be the greater of either a minimum Support Fee or a percentage of the expected AWS usage. The onboarding date will be the service anniversary and in each subsequent month the Support Fee will be collected on or about this date. Services, such as the Support Fee and AWS usage, may be billed separately. Any projected billing usage is a projection only and may not reflect the actual balance.
Billing statements become available around the Service's anniversary date and may be retrieved via: (i) the Account Center; (ii) email; or (iii) postal mail. Media Temple has the right, but not the obligation, to email a copy of the billing statement to at least the Account Owner. Customer is responsible for setting and maintaining billing preferences. All fees are subject to change at any time, and such changes shall be posted online and effective immediately without need for further notice to you.
(b) Term Commitment
If you wish to change your billing commitment, you may request to change the billing term by sending us a Support Services Request. If an annual term has been purchased, it may only be converted into monthly once the term commitment has ended. Additional restrictions may apply.
(c) Past Due Balance
Payment is due upon Media Temple generating the initial invoice in the Account Center. The (mt) Account is considered past due if Media Temple does not receive payment within ten (10) days of the billing date of any Service. The (mt) Account may be suspended or closed if the (mt) Account remains past due beyond ten (10) days from the billing date. To reinstate the (mt) Account, full payment of any balance must first be received by Media Temple.
(d) Payment Methods
Media Temple accepts the following methods of payment (each, a "Payment Method"): Visa, MasterCard, American Express, Discover Card and wire transfer. The Payment Method you first specify will be set as the Payment Method for the (mt) Account, unless you change it in the Account Center. We will not honor any limiting, modifying or conditional notation you make with your Payment Method. You agree that you will be responsible for all wire transfer fees, both incoming and outgoing, associated with your Account. You hereby expressly authorize Media Temple to reduce your Account by the amount of wire transfer fees Media Temple incurs in order to receive your funds.
You are responsible for ensuring that the Payment Method on file is up-to-date at all times and that the (mt) Account balance is kept current. If the Payment Method for the (mt) Account is credit or debit card, Media Temple and/or our payment processor may store the credit or debit card(s) in a database for future renewals. We may automatically attempt to collect payment from any Payment Method left on file, without notice, when a balance comes due.
(e) Unauthorized Transactions
At Media Temple’s sole discretion, upon receipt of sufficient documentation from an unlisted contact, requests to remove a stored Payment Method from the (mt) Account may be honored. In such a case, Media Temple may refund unauthorized charges collected from the Payment Method on behalf of the (mt) Account. Refunds issued in connection with such a request will result in the (mt) Account immediately becoming past due and the refunded amounts will be reassessed to the (mt) Account. To avoid an interruption in service, you must remit payment of the past due balance and any related fees within 72 hours of our notice to you. If you don't, the (mt) Account may be suspended or closed for nonpayment.
(f) Credits and Refunds
Credit issued to the (mt) Account ("in-store credit") by Media Temple is not redeemable for cash and may not be transferred. Any amount of in-store credit that you do not use will remain on the (mt) Account for two years or until the Account is closed. The issuance of in-store credit is solely within Media Temple's discretion.
Media Temple may, in its sole discretion, issue the refund either (i) in the form of an in-store credit, (ii) via PayPal, or (iii) via check. Media Temple also has the right, but not the obligation, to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the payment provider, payment processor or individual issuing bank associated with your Payment Method. If we issue a refund to your bank account, PayPal account, or debit/credit card, it may not show up in your account immediately.
(g) Promotional Offers
Discount and coupon codes are applicable only to the Service to which they are applied. Discount and coupon codes are valid only towards the initial purchase and shall not affect the renewal or recurring price of any Service, unless a recurring discount is specifically referenced in the coupon or promotion and only to the extent set forth in that coupon or promotion. Discounts offered after you have purchased, or agreed to purchase the Service are not applicable. Upon any downgrade, upgrade or closure of the Service to which the discount or coupon code was applied, the discount offered in connection with said discount or coupon code is considered null and void. Discount and coupon codes have no cash value and may not be transferred or used towards later purchases, downgrades, upgrades or modifications to any Service. Discount or coupon code abuse is not permitted and may result in the suspension or closure of the (mt) Account or retroactive adjustment of related charges. Media Temple reserves the right to discontinue any discount code or promotion at any time, without notice.
You agree to pay all prices and fees due for Services purchased or obtained at the time you order the Service, in addition to any recurring fees. We may assess any related charges to the (mt) Account and suspend the (mt) Account until full payment of the outstanding balance has been received. We may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Method on file for the (mt) Account.
We expressly reserve the right to change our fees and prices at any time. Further, we reserve the right to adjust the amount of resources given to plans at any time. In the event of any change in price or fees, notice shall be posted online at this Website and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.
Regardless of the reason why a credit, debit or PayPal payment is retracted by a financial institution, a $25.00 NON-REFUNDABLE chargeback fee will be assessed to the (mt) Account for each chargeback we receive. This fee is in addition to any monies owing on the (mt) Account, and any fees assessed by the financial institution. Upon receipt of any chargeback, we will immediately, re-assess the related charges and suspend the (mt) Account and all Service(s) until such time as you have fully complied with the instructions set forth in our notice to you regarding the chargeback. We may refuse to allow credit or debit, PayPal or automated payment from you in the future. Upon our receipt of any third chargeback, we may close the (mt) Account without notice; we may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Methods on file for the (mt) Account.
(j) Miscellaneous Billing Provisions
In the event a billing dispute arises, either brought by you or by Media Temple, the dispute must be given in writing to the other party within thirty (30) days of the disputed transaction occurring.
All monies are payable to Media Temple in U.S. dollars ("USD") only. In our sole discretion, we may reject or convert into USD any non-USD payment, using the exchange rate in effect at the time of the conversion used by our payment processor.
If, in our judgment, your purchase constitutes a high risk transaction, we may require you to provide additional documentation to validate the purchase.
If our attempts to collect payment from the credit or debit card(s) on file are unsuccessful and any of the Services in the (mt) Account lapses into a past due status as a result of our inability to collect payment from your Payment Method, the (mt) Account may be suspended or closed for nonpayment. In no event shall Media Temple be held liable for any action we may take against you as a result of our inability to collect payment from your Payment Method. Any Communications we may send you concerning our inability to collect payment from your Payment Method are sent as a courtesy only.
You agree that Media Temple shall not be liable for costs or expenses you may incur, including, but not limited to, overdraft and insufficient funds fees you may incur from any financial institution or other third party as a result of our attempts to collect payment from your Payment Method. You agree to assume complete responsibility for any third party costs or expenses you may incur as a result of our billing actions.
No credits or refunds will be issued for non-usage of the Service or cancellation of the Service.
UNLESS OTHERWISE NOTED, MEDIA TEMPLE SERVICES AUTOMATICALLY RENEW THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. IF YOU’D LIKE TO CHANGE THE TERM, PLEASE OPEN A SUPPORT SERVICES REQUEST.
7. YOUR OBLIGATIONS
(a) Your Account
Before initiating your new Service with Media Temple, you must register for a Media Temple Account via the Website. During the registration process, you will appoint an Account Owner, and this Account Owner cannot be modified, subject to the Terms of Service Agreement. During this registration process, Media Temple will also create an AWS Member Account for you, which is consolidated under the Media Temple AWS Master Account. For our purposes, the lawful owner of the Member Account is the Media Temple Account Owner, and all other provisions set forth in the Terms of Service Agreement shall apply to the AWS Member Account as if that entity is the Media Temple Account Owner, unless stated otherwise herein. Media Temple will provision these accounts as described in the Service Guide. Upon consolidation, you will be unable to access the billing console functionality in the AWS console.
(b) New Services
Media Temple builds new virtual environments based on custom architecture and opinionated guidance. For Customers with existing AWS environments hosted on AWS, Media Temple will work with Customers to re-architect and migrate the existing platform to a Media Temple supported one. Media Temple will make a good faith effort to build an environment for the Service centered around Customer’s business needs. Media Temple makes no guarantees that this environment will fully conform to Customer's desired goals.
(c) Reasonable Requests
You agree that all requests will be reasonable in nature and within the scope of the Service purchased. Failure to maintain your Account in good standing may result in termination of any outstanding or pending services without refund or credit.
(d) Provision and Timing of Services
An onboarding call will generally be set within two weeks of the contract sign date. The date of the onboarding call is the commencement date of the provisioning and start of the Service.
(e) Submission of Content
You are responsible for submitting all Content. You agree to respond to any request for additional information, material, credentials, feedback or approval within a mutually agreed time frame.
(f) Account Security
You are solely responsible for the security of your Media Temple Account and any other applications, plug-ins, or add-ons. You must keep your Account information and passwords secure. You are also responsible for maintaining the security of the Account, pursuant to the Terms of Service Agreement. We expressly disclaim any responsibility or liability for any unauthorized use of or access to your Account or any Peripherals.
Unless otherwise noted herein, this section shall supersede section F of the Media Temple Terms of Service Agreement and all terms and provisions included in that section. For any other applicable term or provision in section F not noted herein, the terms and provisions in the Terms of Service Agreement shall apply.
As long as the (mt) Account is open, this Agreement shall be effective, and certain terms continue even after the (mt) Account is closed. The terms set forth herein that govern the (mt) Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the (mt) Account.
(a) Your Right to Close Your Service
If Customer wishes to close the Service or the Account, the listed Account Owner must submit a Request to Close (“RTC”) via the Account Center. Requests to expedite Service or Account closure may be honored in some cases, at Media Temple’s sole discretion. Any request to expedite closure must be submitted via a written Support Services Request. Additional restrictions may apply.
(b) Termination of Support Service
Customer wholly owns the Member Account and should Customer no longer wish to utilize Media Temple to support that Member Account, notwithstanding any obligations to term commitments or outstanding delinquencies, Customer may request to separate it from the Master Account at any time by submitting a written Support Services Request. Customer may be required to complete an assignment agreement with AWS in order to complete the legal transfer. If Customer fails to submit an RTC via the Account Center, the Service will remain open and Customer is responsible for any charges that occur during that time, even if Customer is no longer using the Service.
(c) Our Right to Terminate the Service or Account
Media Temple has the absolute right and power, in its sole discretion, to terminate your Service or Account under any of the following circumstances: (i) we are required to do so by law; (ii) you, or any of your Account Contacts, violate any provision of the Media Temple’s Terms of Service Agreement, AWS Customer License Terms, or any other agreement incorporated herein or into the Service; (iii) we receive notice of any insolvency proceedings; (iv) if, in our judgment, your use of the Service has the potential to pose any harm to Media Temple, any of our affiliates, partners, service providers or customers; or (v) excessive complaints about a Website hosted through Media Temple’s Service(s) are received. In the event of any such closure of the (mt) Account, you will not be eligible for a refund of any fees and you may be prohibited from reopening the (mt) Account, opening a new (mt) Account or accessing any existing (mt) Account. You agree that Media Temple shall not be liable, in any way, for any closure pursuant to this section of this Agreement.
(d) Service Termination
Within ten (10) business days of Customer’s termination of the Service and upon Customer’s written request, Media Temple will transfer ownership of Customer’s Member Account to Customer. Media Temple will remove all non-customer AWS Identity Access Management (IAM) accounts, groups, roles, and federation prior to transfer of account ownership. AWS root account credential transfer will occur via an encrypted data transfer. Media Temple is not responsible for any breaches as a result of the transfer. Billing will be reconciled following termination due to AWS billing usage in arrears. Customer is liable for any outstanding balance and must pay this balance pursuant to the terms of this Agreement.
(e) Effects of Suspension
Upon any suspension of the (mt) Account or Service, the Service may become unavailable until all issues are resolved by you, to our satisfaction.
(f) Reopening a Service or Account
Once closed, the only services that may be reopened are unexpired domain name registrations and SSL certificates, if the (mt) Account is open and in good standing. The Account Owner is the only person authorized to re-open the (mt) Account. If the Account Owner is unable to authenticate to Media Temple’s satisfaction, the Account Owner must complete a verification process, which may include completing a form and submitting government-issued identification. Any unpaid or otherwise outstanding balance must be paid before we will complete any re-opening. Re-opening an account does not mean that we are willing or able to restore your Content.
(g) Miscellaneous Provisions
Terms set forth herein that govern the (mt) Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the (mt) Account. This Agreement and all Services on the (mt) Account will automatically renew and you will be charged for additional terms until the (mt) Account is closed by you or Media Temple in accordance with this Agreement. All monies and fees due through the closure date are completely NON-REFUNDABLE. You agree to hold Media Temple harmless from and against any claims, losses or damages arising from any suspension or closure of the (mt) Account or the individual Service.
(a) Limitation on Services
We are not responsible for any outages due to Amazon or any other third party.
(b) Your Delay
Our ability to offer the Service and provide successful support depends upon your timely feedback and approval. We are not responsible for additional fees, time, or expenses incurred because of delays caused by your lack of or untimely response, account access, asset delivery, feedback or approval.
We are not responsible for the maintenance on any third-party add-ons or plug-ins added to your website. You are solely responsible for ensuring your add-ons or plug-ins remain current, secure and are functional. Media Temple may, at its own discretion, choose to provide support for third-party plug-ins or add-ons. Such support should not be construed as an ongoing part of the Service, unless expressly agreed in a written Services Addendum.
In the event that an update fails, Media Temple will switch back to an earlier Amazon Machine Image (AMI) or revert the configuration to an earlier working state. Media Temple is not responsible for any for any loss of Content or any other issues that may arise.
10. MISCELLANEOUS PROVISIONS
(a) Acceptable Usage
You acknowledge and agree that you shall not use the Service in any manner that violates the Terms of Service Agreement, AWS Customer License Terms, Media Temple DMCA Policy, or any other agreement incorporated herein, as determined by us in our sole discretion.
(b) Intellectual Property
Customer owns all data submitted to Media Temple to be included with the Service, in addition to the AWS architecture and configuration built by Media Temple for Customer’s use.
You authorize Media Temple to manage your AWS Account and perform work on your behalf. In no event shall Media Temple be liable to you, or any other person or party, as a result of any work we perform on your behalf.
(d) Agent for Third Party Software
We may install third party software (for example, from AWS marketplace) as part of the Service. Where such activity requires the acceptance of an End User License Agreement (or similar terms), you hereby authorize Media Temple to accept such terms on your behalf, agree to be bound by and adhere to such terms, and acknowledge that you, and not Media Temple are bound by such terms.
You acknowledge and agree that you will protect, defend, indemnify and hold harmless Media Temple from and against any and all claims imposed upon or incurred by us directly or indirectly arising from your use or misuse of the Service, any third-party applications, software or files. You acknowledge and agree that any third-party providers are third-party beneficiaries to this Agreement for purposes of enforcing only their rights under this Agreement. Media Temple is not responsible for any service interruptions or other changes done by Amazon or any other third party.
11. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not in any way be utilized to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
12. ENGLISH LANGUAGE CONTROLS
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.
13. DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Terms of Service Agreement, the provisions of this Agreement shall control.
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