Software Hosting and License Agreement
IMPORTANT: THIS SOFTWARE HOSTING AND END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND OCCYGEN, LLC. READ IT CAREFULLY BEFORE PURCHASING A SOFTWARE SUBSCRIPTION AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE HOSTED VERSION OF THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY LOGGING IN YOUR INSTANCE OF THE HOSTED SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE / HOSTING SERVICE. AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT LOGIN TO THE SOFTWARE AND NOTIFY OCCYGEN, LLC IMMEDIATELY FOR AN IMMEDIATE TERMINATION OF SERVICE AND REFUND.
THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE AND HOSTING SERVICES SUPPLIED BY OCCYGEN, LLC HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE OR SERVICES ARE REFERRED TO OR DESCRIBED HEREIN.
1. ABREVIATIONS AND DEFINITIONS
(i) "OCCYGEN" means OCCYGEN Limited Liability Corporation and its licensors or affiliates, if any.
(b) "Software" means only the QACOVERAGE software and third party software programs, in each case, supplied by OCCYGEN, LLC herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
(c) “Software Edition” means the specific version of the Software that you have purchased including the specified number of user licenses.
(d) "Hosting" means the service provided by OCCYGEN, LLC to install and host the Software on a shared LINUX CENTOS Web Server and mySQL Database Server that is publicly accessible to you over the Internet.
(e) “Subscription” means the combination of Software and Hosting provided by OCCYGEN, LLC to you during the specified Subscription Period.
(f) "Subscription Period" means the period(s) during which a specified number of Users are licensed to use the Subscription pursuant to the purchased Software Edition.
(g) “Organization” means the legal entity purchasing the Subscription. In the case of local, state, territory or federal governments, organization will be limited to the specific department or statutory agency of Government purchasing the license.
(h) "User(s)" means employees, representatives, consultants, contractors, agents or customers of Organization who are authorized to use the Subscription and have been supplied user identifications and passwords by Organization (or by OCCYGEN, LLC at Organization's request).
(i) "User Data" means all text, pictures, sound, graphics, video and other data provided by users of the Software.
(j) “Free Trial Subscription” means a time-limited evaluation Subscription provided at no cost to Organization for the purposes of evaluating the functionality of the Software.
(k) “Commercial Subscription” means a Subscription that is not a “Trial Subscription”
2. HOSTING AND CUSTOMER SUPPORT
Hosting Services: OCCYGEN, LLC will provide the following Software hosting services as part of a Commercial Subscription. Such services will be performed in a professional, workmanlike manner with a high grade of services, so that the Software is accessible to third parties as can be reasonably be required by Organization.
(a) Data Backup: IOCCYGEN, LLC will maintain a daily copy of the User Data stored in the Software as part of the Subscription.
(b) Data Downloads. Organization may request a copy of any and all User Data at any time. OCCYGEN, LLC will make requested User Data available on its secure web site for Organization to download. The charge to Organization, payable to OCCYGE, LLC, will be $125 per hour. This fee is subject to change with one-month advance written notice from OCCYGEN, LLC to Organization.
(c) Standards/Service Level Guarantees. OCCYGEN’s hosting standards will conform to the standards, service level guarantees and specifications set forth in Exhibit A.
(d) Security. OCCYGEN, LLC will exercise industry-standard measure to prevent unauthorized access to the backup server sites, restricted areas of the Software and any databases or other sensitive material generated from or used in conjunction with the Software; and OCCYGE, LLC will notify Organization of any known security breaches or holes.
(e) Support. OCCYGEN, LLC shall maintain an organization and be prepared with suitably qualified and competent personnel during its normal business hours to provide knowledgeable and timely support service in accordance with this Agreement. Under the terms of this Agreement, OCCYGEN, LLC will provide to Organization the following support services:
i. Email Support: Organization may log requests for support via email by directing its query to an email account or website provided by OCCYGEN, LLC.
ii. Turnaround Time: OCCYGEN, LLC will make reasonable efforts for a TSE to respond to emails and phone messages within one (1) Business Day.
In the case of a Trial Subscription, OCCYGEN, LLC will NOT provide services (a), (b), (c) and (d) from the list defined in Section 2 above.
3. LISENCE GRANTS & RESTRICTIONS
(a) OCCYGEN, LLC hereby grants Organization a non-exclusive, non-transferable right to use the Subscription, subject to the terms and conditions of this Agreement. All rights not expressly granted to Organization are reserved by OCCYGEN, LLC and its licensors.
(b) During the period that OCCYGEN, LLC provides web hosting services pursuant to Section 3, Organization hereby grants to OCCYGEN, LLC a non-exclusive, non-sublicensed, royalty-free, worldwide license to store, reproduce, distribute and display and the User Data only on or in conjunction with the Subscription. Organization grants no rights other than explicitly granted herein, and OCCYGEN, LLC will not exceed the scope of its license.
(c) Organization may use the Subscription only for Organization’s business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Subscription or the data contained therein; or (v) attempt to gain unauthorized access to the Hosting service or its related systems or networks.
4. USERS OBLIGATIONS AND RSPONSIBILITIES
Organization is responsible for all activity occurring on OCCYGEN’s servers and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Subscription, including those related to data privacy, international communications and the transmission of technical or personal data. OCCYGEN is responsible for providing the Hosting service and shall abide by all local, state, national and foreign laws, treaties and regulations applicable to it in connection with the Subscription, including those related to data privacy, international communications and the transmission of technical or personal data. Each party shall: (i) notify the other immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to the other party immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of User Data that is known or suspected by either party. Organization shall not impersonate another OCCYGEN’s customer, or provide false identity information to gain access to or use the Subscription.
5. ACCOUNT INFORMATION AND DATA
OCCYGEN, LLC does not own or license any data, information or material that Organization submits to the Software in the course of using the Subscription (“User Data”). Organization, not OCCYGEN, LLC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and OCCYGEN, LLC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data, except as specifically required by this Agreement. In the event this Agreement is terminated (other than by reason of Organization’s breach), OCCYGEN, LLC will make available to Organization a file of the User Data within 30 days of termination if Organization so requests at the time of termination.
6. INTELECTUAL PROPERTY RIGHTS & OWNERSHIP
(a) OCCYGEN, LLC Software ( QACOVERAGE). The foregoing grants of rights give Organization limited license to use the Software. Except as expressly provided in this Agreement, OCCYGEN, LLC and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications you may develop), and all copies thereof. All rights not specifically granted in this AGREEMENT, including Federal and International Copyrights, are reserved by OCCYGEN, LLC and its suppliers.
(b) Ownership of User Data. As between OCCYGEN, LLC and Organization, any data given to OCCYGEN, LLC by Organization under this Agreement or otherwise (“Data”), and all User Data, will at all times remain the property of Organization or its licensor. OCCYGEN, LLC will have no rights in such Data or User Data, other than the limited right to use such data for the purposes expressly set forth in this Agreement.
8. BILLING AND RENEWALS
OCCYGEN, LLC charges and collects in advance for use of the Subscription. OCCYGEN, LLC will automatically renew and issue an invoice to Organization monthly or as otherwise set forth in any Order Form Organization has executed. Fees for other services will be charged on an as-quoted basis. OCCYGEN, LLC fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Organization shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) or foreign taxes based solely on OCCYGEN, LLC or its personnel’s income.
Organization agrees to provide OCCYGEN, LLC with complete and accurate billing and contact information. This information includes Organization’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Organization agrees to update this information within 30 days of any change to it. If the contact information Organization has provided is false or fraudulent, OCCYGEN, LLC reserves the right to terminate Organization’s access to the Subscription in addition to any other legal remedies.
If Organization believes its bill is incorrect, Organization must contact OCCYGEN, LLC in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to OCCYGEN, LLC herein, OCCYGEN, LLC reserves the right to suspend or terminate this Agreement and Organization’s access to the Subscription if Organization fails to pay any invoice when due and OCCYGEN, LLC has provided Organization with written notice of such failure and Organization has failed to make such payment within an additional thirty (30) days. Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Organization will continue to be charged for Subscription during any period of suspension. If Organization or OCCYGEN, LLC initiates termination of this Agreement, Organization will be obligated to pay the balance due on Organization’s account prior to the date of termination, computed in accordance with the Charges and Payment of Fees section above. Organization agrees that OCCYGEN, LLC may bill Organization for such unpaid fees.
OCCYGEN, LLC reserves the right to impose a reconnection fee in the event Organization is suspended and thereafter requests access to the Subscription. Organization agrees and acknowledges that OCCYGEN, LLC has no obligation to retain User Data 30 days after any termination of this Agreement.
10. TERMS AND TERMINATIONS
This Agreement commences on the date Users first access the Subscription (the “Effective Date”). The Initial Term will be from the Effective Date for the period of one (1) calendar month. Unless either party provides written notice of non-renewal to the other party ten (10) days prior to expiration of the Initial Term, upon the expiration of the Initial Term any Order Form in effect under this Agreement will automatically renew for successive renewal terms of one calendar month. The rate specified in each Order Form shall continue to be the rate during any renewal term unless OCCYGEN, LLC provides written notice to Organization of any price increase at least ten (10) days prior to the end of the current term. Either party may terminate this Agreement due to a material breach of this Agreement by the other party, provided the party seeking termination first provides the breaching party written notice of the breach and thirty (30) days in which to cure the breach. After the Initial Term, either party also may terminate this Agreement for convenience, by notifying the other party in writing at least ten (10) days prior to termination. In the event this Agreement is terminated (other than by reason of Organization’s breach), OCCYGEN, LLC will make available to Organization a file of the Data within thirty (30) days of termination if Organization so requests at the time of termination and has paid OCCYGEN, LLC, in full, for all services to that point. Organization agrees and acknowledges that OCCYGEN, LLC has no obligation to retain the User Data, and may delete such User Data, more than sixty (60) days after any termination or expiration of this Agreement.
11. TERMINATION FOR CAUSE
Any breach of Organization’s payment obligations or unauthorized use of the OCCYGEN, LLC software or Subscription will be deemed a material breach of this Agreement. OCCYGEN, LLC in its sole discretion, may terminate Organization’s passwords, accounts and/or access to the Subscription after providing the notice and right to cure provided in Section 10, if Organization breaches or otherwise fails to comply with this Agreement.
12. REPRESENTATIONS AND WARRANTY
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. OCCYGEN, LLC represents and warrants that it will provide the Subscription in a manner consistent with commercially reasonable industry standards reasonably applicable to the provision thereof. Organization represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Subscription and that Organization’s billing information is correct.
13. LIMITED WARRANTY AND DISCLAIMER
(a) OCCYGEN, LLC AND ITS SUPPLIERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION OR ANY DATA.
(b) OCCYGEN, LLC AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE SUBSCRIPTION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(d) OCCYGEN, LLC PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR TRIAL SUBSCRIPTIONS. TRIAL SUBSCRIPTIONS ARE EXPLICITLY PROVIDED “AS IS”.
(e) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO THE SUBSCRIPTION OTHER THAN TRIAL SUBSCRIPTIONS, OCCYGEN, LLC AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. OCCYGEN, LLC DOES NOT WARRANT THAT THE SUBSCRIPTION WILL PERFORM ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SUBSCRIPTION IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. OCCYGEN, LLC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(e) OCCYGEN, LLC AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION OR THE SERVER(S) THAT MAKE THE SUBSCRIPTION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(f) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OCCYGEN, LLC, ITS DEALERS, DISTRIBUTORS, AFFILIATES, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
14. EXCLUSIVE REMEDY
Your exclusive remedy under the preceding is to terminate your Subscription in accordance with the terms defined in section 10. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
15. INTERNET INTERUPTIONS
QACOVERAGE SUBSCRIPTIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OCCYGEN, LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, EXCEPT TO THE EXTENT CAUSED BY OCCYGEN, LLC GROSS NEGLIGENCE OR WILFULL MISCONDUCT.
16. LIMITATION OF LIABILITY
(a) NEITHER OCCYGEN, LLC NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF OCCYGEN, LLC OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) OCCYGEN, LLC TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $100 OR FOR THREE (3) MONTHS FEES FOR THE SUBSCRIPTION.
(c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
17. BASIS OF NEGOTIATION
The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between OCCYGEN, LLC and you. OCCYGEN, LLC would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability inure to the benefit of OCCYGEN, LLC licensors.
18. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Subscription and the documentation are provided with "RESTRICTED RIGHTS” applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this AGREEMENT and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: OCCYGEN, LLC, 276 5th Ave Suite 704, New York, NY 10001
19. (OUTSIDE OF USA) CONSUMERS END USERS ONLY
The limitations or exclusions of warranties and liability contained in this AGREEMENT do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this AGREEMENT shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
20. THIRD PARTY SOFTWARE
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions as part of Legal Notice and are made a part of and incorporated by reference into this AGREEMENT. By accepting this AGREEMENT, you are also accepting the additional terms and conditions, if any, set forth therein.
OCCYGEN, LLC may give notice by means of a general notice on the Software, electronic mail to Organization’s e-mail address on record in OCCYGEN, LLC account information, or by written communication sent by first class mail or pre-paid post to Organization’s address on record in OCCYGEN, LLC account information. Notice shall be deemed to have been given upon the expiration of two business days after mailing or posting (if sent by first class mail or pre-paid post), one business day after mailing via an overnight delivery service, upon receipt of facsimile confirmation by sender, or 12 hours after sending by email.
22. CONFIDENTIAL INFORMATION
OCCYGEN, LLC may have access to and special knowledge of Organization’s business affairs and related information and User Data disclosed to it or known to it as a consequence of providing the Subscription to Organization, which is considered to be trade secret, proprietary, confidential and/or sensitive (“Confidential Information”). OCCYGEN, LLC agrees not to use Confidential Information except for Organization’s benefit in the course of performing services for Organization, and not to disclose Confidential Information to any third party without Organization’s prior written consent, except as required by law. Upon expiration or termination of this Agreement OCCYGEN, LLC will return or destroy (at Organization’s request) any of Organization’s Confidential Information.
This AGREEMENT shall be governed by the internal laws of the State of New York, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts and in the Federal Judicial District of New York to resolve any disputes arising under this AGREEMENT. In each case this AGREEMENT shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This AGREEMENT contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Subscription licensed hereunder shall be of no effect. The failure or delay of OCCYGEN, LLC to exercise any of its rights under this AGREEMENT or upon any breach of this AGREEMENT shall not be deemed a waiver of those rights or of the breach.
Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action, unless both you and OCCYGEN, LLC specifically agree to do so in writing following initiation of the arbitration.
No OCCYGEN, LLC dealer, agent, affiliate or employee is authorized to make any amendment to this AGREEMENT.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
All questions concerning this AGREEMENT shall be directed to: OCCYGEN, LLC, 276 5th Ave Suite 704, New York, NY 10001, Attention: CEO-Ruslan Desyatnikov.
QACOVERAGE and other trademarks contained in the Software are trademarks or registered trademarks of OCCYGEN, LLC in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This AGREEMENT does not authorize you to use OCCYGEN, LLC or its licensors’ names or any of their respective trademarks.
1. Subscription Availability
If the availability of Subscription within a given month is less than 95%, OCCYGEN, LLC will issue a credit to Organization in accordance with the following schedule, with the credit being calculated on the basis of the monthly service charge for the affected services:
(a) 95% - 100% availability = 0%
(b) 90% - 94.9% availability = 20%
(c) 80% - 89.9% availability = 50%
(d) 79.9% or below availability = 100%
2. Organization will not receive any credits under this Agreement in connection with any failure or deficiency of Subscription availability caused by or associated with:
(a) circumstances beyond OCCYGEN, LLC reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment getaways, chat, supplies, or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this AGREEMENT;
(b) Failure of access circuits and hosted cloud network, unless such failure is caused solely by OCCYGEN, LLC;
(c) Scheduled maintenance and emergency maintenance and upgrades;
(d) Domain Name Server ("DNS") issues outside the direct control of OCCYGEN, LLC
(e) Issues with FTP, POP, or SMTP OCCYGEN, LLC access;
(f) False Agreement breaches reported as a result of outages or errors of any OCCYGEN, LLC measurement system;
(g) Organization’s acts or omissions (or acts or omissions of others engaged or authorized by Organization, negligence, willful misconduct, or use of the Subscription in breach of OCCYGEN, LLC Terms and Conditions and Acceptable Use Policy;
(h) E-mail or webmail delivery and transmission;
(i) DNS propagation;
(j) Outages elsewhere on the Internet that hinder access to Organization’s account. OCCYGEN, LLC is not responsible for browser or DNS caching that may make Organization’s site appear inaccessible when others can still access it. OCCYGEN, LLC will guarantee only those areas considered under the control of OCCYGEN, LLC.