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TERMS AND CONDITIONS FOR DONOMA FLxSTORE, FLxCLOUD, & FLxDR)

These Terms and Conditions are incorporated into certain written agreements (the “Agreement” or “Referencing Agreement”) between Donoma, Inc. (“Donoma”) and its customers (“Customer” or “Client”) and Reseller Partners (“Reseller”) that reference these Terms and Conditions (“Terms”) for FLx Services (FLxCloud, FLxStore and FLxDR), as applicable, and sets forth the Terms and Conditions under which Donoma and/or its Resellers will provide services to Customer. By executing an order form that references these Terms, Customer agrees to be legally bound by these Terms and Conditions.  If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms and Conditions.

These Terms and Conditions also include by reference Donoma’s Acceptable Use Policy set forth at https://www.donomasoftware.com/licenseagreement/acceptable-use-policy/.

*Capitalized terms not defined in context are defined at the end of these Terms and Conditions

FLxCLOUD, FLxSTORE & FLxDR TERMS AND CONDITIONS

  1. FLx Services. Donoma agrees to supply the services set forth in the quote, order form or invoice (“Agreement”, or “Referencing Agreement”) as defined herein or as otherwise provided in the Agreement collectively, the “FLx Services”.
  2. Fees for Services.

2.1 Customer Fees. Customer shall pay the fees specified on the Order Form or Invoice, as well as any variable charges invoiced in arrears. Upon 30 days or more written notice prior to the end of the Term, Donoma may change any fees for services provided.

2.2 Taxes. Customer Fees do not include sales or use taxes, or similar taxes which may be assessed on the transaction. Client is responsible for all such taxes, fees, or charges.

2.3 Recurring Fees, Invoice and Automatic Payment Schedule. If Customer is to be billed annually, Customer will be invoiced in equal installments at the time of order and on the same date each year during the Subscription Term unless agreed to otherwise on the Order Form.

If Customer is to be billed in less than annual increments, Customer will be enrolled in automatic payments using the payment information provided at time of order. Customer shall provide a valid credit card or bank information authorized for automatic bill payment and shall take all necessary steps to authorize payment of the fees. Donoma uses a third-party payment provider and does not store payment information, except the last four digits of Customer’s credit card or bank account numbers for information/display purposes only. Customer authorizes Donoma and its third-party payment provider to charge this payment method for all subsequent payments within the Subscription Term. All Recurring Fees are invoiced monthly in advance. Recurring Fees will be automatically charged to the credit card or bank account provided by Customer.  Variable charges will be billed in arrears and charged to the same credit card or bank account at time of invoice.

A 10% service charge will be applied in addition to the total amount invoiced for all payments not processed using a credit card or ACH payment. Invoices not paid by credit card or ACH payment will be payable within 15 days of the invoice date unless agreed elsewhere in writing.

  1. Termination.

3.1 Termination by Donoma. Donoma may terminate FLx Services at any time upon 60 days written notice to Customer. In addition, Donoma may terminate FLx Services immediately upon a “default” by Customer. A “default” shall occur if Customer: (1) fails to make any payment when due; (2) provides false information regarding Customer’s identity or address; (3) fails to comply with Donoma’s Acceptable Use Policy; (4) breaches any of these Terms; or (5) uses the FLx Services in violation of applicable laws.

3.2 Termination by Customer. Customer may terminate FLx Services as of the end of the initial Term defined in the Agreement, or any renewal Term, by providing written notice of termination at least 90 days before the end of the then-current Term. Customer may also terminate Services if it gives 30 days written notice of “default” and Donoma does not cure such default within such 30-day period.

3.3 Early Termination and Early Termination Fee. Except for FLxCloud and FLxDR Services, which may be terminated during the first year, multi-year Agreements may not be terminated prior to the end of the first year. In all cases, including FLxCloud and FLxDR, an Early Termination Fee will apply in addition to fees due for services provided. This Early Termination Fee will be calculated as the difference between the non-discounted monthly rate, and the discounted rates charged to Customer, multiplied by the number of months of service. The Early Termination Fee must be received by Donoma before Early Termination can take effect.

3.4 Termination by Either Party. Either party may terminate these Services if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.

3.5 Termination Due to Government Action. Notwithstanding the foregoing, and upon written notice to the Customer consistent with applicable governmental rules, Donoma may, without incurring liability to the Customer, disconnect the affected portion of any Services if Donoma or its licensors’ is prohibited by governmental authority from furnishing the FLx Services, or if any material rate or term in the referencing Agreement is substantially changed by judicial or regulatory order of any local, state, federal, or foreign government authority.

3.6 Effect of Termination. Upon termination of FLx Services for any reason, Customer shall pay all fees due up to the date of termination provided that in the event of termination due to Customer default, Customer shall be responsible for the remaining fees due during the then-current Term. Upon termination of the Agreement pursuant to Section 5, Donoma may in its sole discretion exercise all the rights and remedies under applicable law to collect any sums due.

  1. Rights Granted.

4.1 For the duration of the Term and subject to Customer payment obligations, and except as otherwise set forth in these Terms, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the FLx Services set forth in the Agreement, solely for Customer internal business operations and subject to these Terms and any referencing Agreement. Customer may allow Users to use the FLx Services for this purpose and Customer is responsible for Users’ compliance with these Terms and any Customer order.

4.2 Customer does not acquire under these Terms any right or license to use the FLx Services, including the FLx Services Programs and Services Environment, in excess of the scope and/or duration of the FLx Services stated in the referencing Agreement. Upon the end of the FLx Services Term, Customer’s right to access and use the FLx Services will terminate.

4.3 To enable Donoma to provide Customer and Users with the FLx Services, Customer grants Donoma the right to use, process and transmit, in accordance with these Terms and any Customer order, Customer Content and Customer Applications for the duration of the Term plus any additional post-termination period during which Donoma provides Customer with access to retrieve an export file of Customer Content and Customer Applications. If Customer Applications include third-party programs, Customer acknowledges that Donoma may allow providers of those third-party programs to access the Services Environment, including Customer Content and Customer Applications, as required for the interoperation of such third-party programs with the FLx Services. Donoma will not be responsible for any use, disclosure, modification or deletion of Customer Content or Customer Applications resulting from any such access by Third-Party program providers or for the interoperability of such third-party programs with the FLx Services.

4.4 The FLx Services may contain or require the use of Separately Licensed Third-Party Technology. Customer is responsible for complying with the Separate Terms specified by Donoma that govern Customer use of Separately Licensed Third-Party Technology. Donoma may provide certain notices to Customer via readme or notice files in connection with such Separately Licensed Third-Party Technology. The Third-Party owner, author, or provider of such Separately Licensed Third-Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third-Party Technology.

4.5 As part of FLx Services, Customer may have access to Third-Party Content within the Services Environment. The Third-Party owner, author or provider of such Third-Party Content retains all ownership and intellectual property rights in and to that content, and Customer rights to use such Third-Party Content are subject to, and governed by, the terms applicable to such content as specified by such Third-Party owner, author, or provider.

  1. Ownership and Restrictions.Customer retains all ownership and intellectual property rights in and to Customer Content and Customer Applications. Donoma and its licensors retain all ownership and intellectual property rights to the FLx Services, including Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of Donoma under these Terms. Customer may not, and may not cause or permit others to:

5.1 Remove or modify any program markings or any notice of Donoma or its licensors’ proprietary rights;

5.2 Make the programs or materials resulting from the FLx Services (excluding Customer Content and Customer Applications) available in any manner to any third-party for use in the third-party’s business operations (unless such access is expressly permitted for the specific Services Customer has acquired);

5.3 Modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the FLx Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), or access or use the FLx Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Donoma;

5.4 Perform or disclose any benchmark or performance tests of the FLx Services;

5.5 Perform or disclose any of the following security testing of the Services Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and

5.6 License, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the FLx Services, Ancillary Programs, Services Environments or Donoma and its licensors’ materials to any third party, other than as expressly permitted under the terms of the applicable order.

  1. Service Specifications

6.1 Referencing Agreement FLx Services are subject to and governed by the Referencing Agreement. The referencing Agreement may define provisioning and management processes applicable to the FLx Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the Programs, as well as any FLx Services deliverables (collectively, Service Specifications). Customer acknowledges that use of the FLx Services in a manner not consistent with the referencing Agreement may adversely affect FLx Services performance and/or may result in additional fees. If the FLx Services permit Customer to exceed the ordered quantity (e.g., soft limits on counts for Users, sessions, storage, etc.), then Customer agreement will be amended to reflect the actual usage and Customer will be invoiced accordingly. Customer agrees to promptly pay for the excess usage upon receipt of invoice.

6.2 FLx Services Changes Donoma or its licensors’ may make changes or updates to the FLx Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Content. The Service Specifications are subject to change at Donoma’s discretion; however, changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable FLx Services provided to Customer for the duration of the Term.

  1. Use of FLxCloud, FLxStore and FLxDR Services

7.1 Customer’s Users Access Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the FLx Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords, and account information. By federating or otherwise associating Customer and Users’ usernames, passwords, and accounts with Donoma, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer local identity infrastructure or on Customer local computers. Neither Donoma or its Resellers will be responsible for any harm caused by Users, including individuals who were not authorized to have access to the FLx Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis by Customer. Customer is responsible for all activities that occur under Customer and Users’ usernames, passwords, or accounts or because of Customer’s or Users’ access to the FLx Services and agree to notify Donoma immediately of any unauthorized use. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the FLx Services.

7.2 Patches Customer is required to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, “Patches”) necessary for the proper function and security of the FLx Services, including for the Programs, as such Patches are generally released by Donoma or its licensors. Donoma and its Resellers are not responsible for performance or security issues encountered with the FLx Services that result from the application of Third-Party patches that are necessary for the proper function and security of the FLx Services. Except for emergency or security related maintenance activities, Donoma will coordinate with Customer the scheduling of application of Patches, where possible.

7.3 Cloud Service Backups Although the FLxCloud and FLxDR Services may be used as a back-up service, Customer agrees that Customer will maintain at least one additional current copy of programs and data stored on the FLxCloud or FLxDR system somewhere other than on the FLxCloud or FLxDR system or subscribe to FLxStore Back-Up Service (FLxStore). Customer is responsible for performing and testing restores as well as testing Customer systems and monitoring the integrity of Customer data.

7.4 FLxDR Failover and Replication Services During a partial or full site failover, Customer will be billed for the resources used to host the Customer’s environment during the failover. The resources used during a failover will be billed in hourly increments based on the rates provided in the referencing agreement. No failover will occur without customer participation. The customer can initiate failover through a Veeam Management portal or by contacting Donoma or its Reseller for assistance. Additional fees may apply if assistance through Donoma or its Reseller is required. Once a failover has occurred, the customer will continue to be billed hourly (invoiced monthly) until the failover event is complete and no failover resources are being consumed. No change of failover status will occur without customer participation. The customer can initiate failback through the Veeam Management portal or by contacting Donoma or its Reseller for assistance. Additional fees may apply if assistance through Donoma or its Reseller is required.

Partial Site Failover Customer can perform partial site failover provided the rest of the Customer’s production environment, including Veeam Backup & Replication infrastructure (NEA) remains operative. Partial site failover will only be available if the Customer’s network connection to Donoma’s hosting facility remains available.

Full Site Failover When the entire Customer production environment becomes unavailable because of a software or hardware malfunction, the Customer can perform full site failover. In the event of a full site failover, all critical VMs fail over to their replicas on the cloud host. The Customer’s network must be extended into Donoma’s hosting facility to allow full site failover. Full site failover requires a separate Statement of Work between the Customer and Donoma to configure Layer 2 networking.

7.5 Access. Customer may access the FLx Services by a mutually agreed upon mechanism, suiting both Donoma and its licensors’ service and support capabilities and Customer’s objective. Customer’s use of any code or SDK (Software Development Kit) provided is governed by the license terms included with the code. The servers used to provide the FLx Services will be located in a controlled access data center operated by Donoma’s data center, Brush Mountain Data Center, LLC (“BMDC”). The data center will be monitored by video surveillance, 24/7/365. Entrance to the data center will be authorized by proximity-based access cards or other BMDC approved security authentication methods.

  1. 8. Distribution of Software

8.1 All software provided as part of the Services for Customer use is subject to these Terms, including software provided to Customer to install on devices located outside of Donoma’s data center. Customer may not use any software provided after the expiration of the Term or termination of the referencing Agreement, or the service for which it was provided, and Customer may not copy the software unless expressly permitted by these Terms. Customer may not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided as part of the Service. Unless permitted by the terms of an open-source software license, Customer may not reverse engineer, decompile or disassemble any software provided except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to Donoma.

8.2 In the event Donoma or its licensors distributes any open-source software to Customer as part of the FLx Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open-source licenses) then such open-source software is subject to the terms of the applicable open-source license. There are no warranties provided with respect to any open-source software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open-source license with respect to any open-source software, the terms of the applicable open-source license shall control. In addition to the terms of these Terms, Customer’s use of any Microsoft® software is governed by Microsoft’s license terms.

  1. End of FLx Services

9.1 Upon the end of the FLx Services subscription term, Customer no longer has rights to access or use the FLx Services, including the associated Programs and Services Environments; however, at Customer’s request, as long as Customer is not in default, and for a reasonable fee to be determined by Donoma, for a period of up to 30 days after the end of the applicable Term, Donoma will make available Customer Content and Customer Applications then in the Services Environment for the purpose of retrieval by Customer. At the end of such 30-day period, and except as may be required by law, Donoma will delete or otherwise render inaccessible any of Customer Content and Customer Applications that remain in the Services Environment.

9.2 Donoma may temporarily suspend Customer password, account, and access to or use of the FLx Services if Customer or Users violate any provision of these Terms, or if in Donoma or its licensors’ reasonable judgment, the FLx Services or any component thereof are about to suffer a threat to security or functionality. Donoma will provide notice to Customer of any such suspension in its reasonable discretion based on the nature of the circumstances giving rise to the suspension. Donoma and its licensors will use reasonable efforts to re-establish the affected FLx Services promptly after Donoma and its licensors determine, in their reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Donoma will make available to Customer (as is reasonably available) Customer Content and Customer Applications as existing in the Services Environment on the date of suspension. Donoma may terminate the FLx Services if any of the foregoing causes of suspension is not cured within 30 days after Donoma’s initial notice thereof. Any suspension or termination by Donoma under this paragraph shall not excuse Customer from Customer’s obligation to make payment(s) under these Terms and referencing Agreement.

9.3 Removal of Equipment from Customer premises. Any hardware delivered to Customer necessary to run the Services is the sole property of Donoma. Upon termination or expiration of the referencing Agreement, Customer will uninstall and return any equipment provided to Customer necessary to run the Services. Unless the Parties otherwise agree in writing, in the event the Equipment has not been returned within 30 days following the termination or expiration, Donoma will have the right to remove the Equipment at Customer’s expense without liability to Donoma, absent gross negligence on the part of Donoma and Customer will provide access to Customer facilities to do so.

  1. Third-Party Websites, Content, Products and Services

10.1 The FLx Services may enable Customer to link to, transmit Customer Content to, or otherwise access, other web sites, content, products, services, and information of third parties. Donoma and its licensors do not control and are not responsible for such web sites or any such content, products, services, and information accessible from or provided through the FLx Services, and Customer bears all risks associated with access to and use of such web sites and third-party content, products, services and information.

10.2 Any Third-Party Content made accessible through the Services Environment is provided on an “as-is” and “as available” basis without any warranty of any kind. Third-Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and Customer acknowledges that Donoma and its licensors are not responsible for and under no obligation to control, monitor or correct Third-Party Content; however, Donoma and its licensors reserve the right to take remedial action if any such content violates applicable restrictions under these Terms, including the removal of, or disablement of access to, such content.

10.3 Any Third-Party Content that Customer stores in Customer’s Services Environment will count towards any storage or other allotments applicable to the FLx Services that Customer ordered.

  1. Service Tools and Ancillary Programs

11.1 Donoma and its licensors may use tools, scripts, software, and utilities (collectively, “Tools”) to monitor and administer the FLx Services and to help resolve Customer service requests. The Tools will not collect or store any of Customer Content or Customer Applications residing in the Services Environment, except as necessary to provide the FLx Services or troubleshoot service requests or other problems in the FLx Services. Information collected by the Tools (excluding Customer Content and Customer Applications) may also be used to assist in managing Donoma’s product and service portfolios, to help address deficiencies in its product and service offerings, and for license and FLx Services management.

11.2 As part of the FLx Services, Customer may be provided with on-line access to download certain Ancillary Programs for use with the FLx Services. If Donoma does not specify separate terms for such Ancillary Programs, then, subject to Customer payment obligations, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to use such Ancillary Programs solely to facilitate Customer access to, operation of, and/or use of the Services Environment, subject to these Terms and Customer order, including the Service Specifications. Customer’s right to use such Ancillary Programs will terminate upon the earlier of Donoma’s notice, the end of the FLx Services associated with the Ancillary Programs, or the date on which the license to use the Ancillary Programs ends under the Separate Terms specified for such programs.

  1. Export

12.1 Export laws and regulations of the United States. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the FLx Services. Customer agrees that such export laws govern Customer use of the FLx Services (including technical data) and any FLx Services deliverables provided under these Terms, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

12.2 Customer acknowledges that the FLx Services are designed with capabilities for Customer and Users to access the Services Environment without regard to geographic location and to transfer or otherwise move Customer Content and Customer Applications between the Services Environment and other locations such as User workstations. Customer is solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Customer Content and Customer Applications.

SERVICE LEVEL AGREEMENT FOR FLXCLOUD SERVICES

  1. 1 Service Level Agreement for FLxCloud Services. The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of Donoma or BMDC, outages due to Customer equipment or caused by individuals not directly employed by Donoma or BMDC. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance.
  2. Control Plane.

14.1 The Control Plane is the FLxCloud Servers’ application programming interface (“API”) used to create, manage, and delete FLxCloud Servers. The FLxCloud Servers Control Plane shall be available 99.9% of the time in any billing period.

14.2 Monthly Availability is calculated by the number of API errors when compared to the total number of Valid API Requests, on a per customer, per location basis, for a given monthly billing period, as follows (represented as a percentage): 1 – (Total API Errors)/(Total Valid API Requests).

14.3 If Monthly Availability falls below the guaranteed levels, a credit may be issued to Customer. Credits will be calculated as a percentage of all FLxCloud Server Fees in the affected location for the monthly billing period.

  1. Data Plane. The Data Plane includes FLxCloud Servers created via the Control Plane plus supporting systems and services required for the proper functioning and availability of those FLxCloud Servers. Customers manage and have full control over their FLxCloud Servers and Donoma guarantees proper functioning of the supporting systems and services.
  2. Credits for Control and Data Planes will be allocated as follows:
Monthly Availability Credit Percentage
100% – 99.5% 0%
≤ 99.4% – 99.0% 10%
≤ 98.9% – 98.0% 20%
< 98.0% 30%
  1. Limitations.Customer is not entitled to a credit if Customer is in breach of these Terms or referencing Agreement (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or referencing Agreement or Customer’s misuse of the FLx Services. Customer is not entitled to a credit for downtime or outages resulting from denial-of-service attacks, virus activity, hacking attempts, or any other circumstances that are not within Donoma’s or BMDC’s control. To receive a credit, Customer must log a request via email to support@donomasoftware.com within fifteen (15) days following the end of the downtime and provide logs evidencing Donoma’s failure to meet the requirements of this Agreement. Customer must show that Customer’s use of FLxCloud Servers was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FLxCloud Server Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FLxCloud Server unavailability.
  2. Service Level Agreement Update Notification. Donoma reserves the right to alter this FLxCloud Service Level Agreement without advanced notice.

SERVICE LEVEL AGREEMENT FOR FLXDR SERVICES.

  1. Service Level Agreement for FLxDR Services. The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of Donoma or BMDC, outages due to Customer equipment or caused by individuals not directly employed by Donoma or BMDC. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance.
  2. Control Plane.

20.1 The Control Plane is the FLxDR Servers’ application programming interface (“API”) used to create, manage, and delete FLxDR Servers. The FLxDR Servers Control Plane to be available 99.9% of the time in any billing period.

20.2 Monthly Availability is calculated by the number of API errors when compared to the total number of Valid API Requests, on a per customer, per location basis, for a given monthly billing period, as follows (represented as a percentage): 1 – (Total API Errors)/(Total Valid API Requests).

20.3 If Monthly Availability falls below the guaranteed levels, a credit may be issued to Customer. Credits will be calculated as a percentage of all FLxDR Server Fees in the affected location for the monthly billing period.

  1. 21. Data Plane. The Data Plane includes FLxDR Servers created via the Control Plane plus supporting systems and services required for the proper functioning and availability of those FLxDR Servers. Customers manage and have full control over their FLxDR Servers and Donoma guarantees proper functioning of the supporting systems and services.
  2. 22. Credits for Control and Data Planes will be allocated as follows:
Monthly Availability Credit Percentage
100% – 99.5% 0%
≤ 99.4% – 99.0% 10%
≤ 98.9% – 98.0% 20%
< 98.0% 30%
  1. Limitations.Customer is not entitled to a credit if Customer is in breach of these Terms or referencing Agreement (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or referencing Agreement or Customer’s misuse of the FLx Services. Customer is not entitled to a credit for downtime or outages resulting from denial-of-service attacks, virus activity, hacking attempts, or any other circumstances that are not within Donoma’s or BMDC’s control. To receive a credit, Customer must log a request via email to support@donomasoftware.com within fifteen (15) days following the end of the downtime and provide logs evidencing Donoma’s failure to meet the requirements of this Agreement. Customer must show that Customer’s use of FLxDR Servers was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FLxCloud Server Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FLxDR Server unavailability.
  2. Service Level Agreement Update Notification. Donoma reserves the right to alter this FLxDR Service Level Agreement without advanced notice.

SERVICE LEVEL AGREEMENT FOR FLXSTORE SERVICES

  1. Service Level Agreement for FLxStore Services.The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of Donoma or BMDC, outages due to Customer equipment or caused by individuals not directly employed by Donoma or BMDC. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance. This Service Level Agreement does not cover Individual Servers, Workstations, or Virtual Machines backup failures only the total failure of the provided service appliance.
  2. Sequential Related Service Credit:
Sequential Days without backed up data Days of Service credited
1 3
2-4 6
5+ 15
  1. Access Related Service Credit:
Monthly Availability Credit Percentage
100% – 99.5% 0%
≤ 99.4% – 99.0% 10%
≤ 98.9% – 98.0% 20%
< 98.0% 30%
  1. Customer Request Service Credit To receive any the service credits described above, Customer must notify Donoma within 15 days from the time Customer becomes eligible to receive a service credit. Customer should send an email to support@donomasoftware.com to request a credit. Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
  2. Onsite Back-Up Equipment Failure. If any FLxStore On-Premise Back-Up Equipment fails, Donoma guarantees that shipment of replacement unit(s) will be completed within 1 business day of contacting Donoma at support@donomasoftware.com. Customer is required to return any damaged unit(s) with 10 days or will be charged for the replacement unit(s).
  3. Data Replication Service. Donoma may provide a Data Replication Service for customer’s computer data where Customer is responsible for back-up software and Donoma is only providing network services and Data Replication storage. Customer is eligible for Access Related Service Credit as stated above only and this service excludes the performance related credit. In such instances, Donoma is not responsible for Back-Up Service and is only providing disk storage.
  4. Return of Back-Up Equipment.Upon termination or expiration of the Service, Customer will return all FLxStore Back-Up Equipment and software located on their premises. In the event the Back-Up Equipment has not been returned within 10 days following the termination or expiration, Donoma will bill Customer for the replacement cost of the Back-Up Equipment and software.
  5. Limitations.Customer is not entitled to a credit if Customer is in breach of these Terms or referencing Agreement (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or referencing Agreement or Customer’s misuse of the FLx Services. Customer is not entitled to a credit for downtime or outages resulting from denial-of-service attacks, virus activity, hacking attempts, or any other circumstances that are not within Donoma’s or BMDC’s control. To receive a credit, Customer must log a request via email to support@donomasoftware.com within fifteen (15) days following the end of the downtime and provide logs evidencing Donoma’s failure to meet the requirements of this Agreement. Customer must show that Customer’s use of FLxStore Servers was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FLxStore Server Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FLxStore Server unavailability.
  6. Service Level Agreement Update Notification.Donoma reserves the right to alter this FLxStore Service Level Agreement without advanced notice.

GENERAL TERMS

THE FOLLOWING TERMS ARE APPLICABLE TO THE TERMS AND CONDITIONS FOR FLx SERVICES (FLxCLOUD, FLxSTORE AND FLxDR)

  1. Compliance with Laws. The parties will comply with all applicable laws, rules, regulations, and ordinances.
  2. Confidentiality. Each party recognizes and acknowledges that during the Term it may be given access to valuable and important confidential technical and business information, processes and software of the other party, whether oral or written, which is claimed by the disclosing party as proprietary and which shall be marked as proprietary by that party prior to disclosure, or if disclosed orally, shall be identified as proprietary at the time of oral disclosure (“Confidential Information“). Confidential Information does not include (a) information known to the recipient at the time of disclosure, which can be documented; (b) information learned by the recipient from a third party lawfully holding same and not disclosing same in violation of an obligation of confidentiality; (c) information that subsequently becomes generally known other than as the result of wrongful disclosure; and (d) information required to be disclosed publicly by law or regulation to the extent so disclosed, but only after prior written notice to discloser of such requirement prior to such disclosure. Each party agrees that, except as authorized by the disclosing party, recipient shall not use any Confidential Information of the other party except for the purposes of these Terms and shall not disclose such information unless authorized in writing by the disclosing party.
  3. Warranty. Donoma hereby represents and warrants that services shall be performed in a professional and workmanlike manner and in accordance with any agreed-upon specifications. Donoma further warrants that it shall not infringe on any third-party rights, including, but not limited to, intellectual property rights. DONOMA ASSUMES NO LIABILITY FOR CUSTOMER’S SELECTION OF PRODUCTS AND SOFTWARE APPLICATIONS, OR THE CAPACITY OR CONNECTIVITY OF SUCH PRODUCTS OR SOFTWARE APPLICATIONS, OR ANY FUTURE OBSOLESCENCE OF CUSTOMER’S PRODUCTS OR SOFTWARE APPLICATIONS OR THE FAILURE OF THE PRODUCT MANUFACTURER OR SOFTWARE PROVIDER TO SUPPORT SUCH PRODUCTS OR SOFTWARE APPLICATIONS AND, IN ANY AND ALL SUCH EVENTS, CUSTOMER SHALL PAY ALL OF THE COSTS OF UPGRADES OR REPLACEMENT. ALL PRODUCTS AND SOFTWARE CONNECTED TO THE INTERNET, TO A NETWORK, OR TO OTHER COMMUNICATIONS DEVICES OR SERVICES, ARE SUBJECT TO UNAUTHORIZED ACCESS, “HACKING,” AND OTHER DISRUPTION AND NO MEASURES TO PREVENT SUCH DAMAGES ARE “FOOLPROOF.” THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DONOMA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SERVICES, PRODUCTS AND SOFTWARE. THE WARRANTIES AND REMEDIES SET FORTH IN THESE TERMS AND REFERENCING AGREEMENT ARE EXCLUSIVE AND NO OTHER WARRANTY OR REMEDY OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING THE WARRANTIES OF PERFORMANCE, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH CUSTOMER WAIVES IN FULL.
  4. Indemnity.Each party (the “Indemnitor”) agrees to defend, at its own expense, and indemnify and hold harmless, the other party, its predecessors and successors, and all of its directors, officers, managers, members, employees, affiliates and agents (collectively, the “Indemnitee”) from and against any and all damages, demands, expenses, claims, liability, injuries, suits, and proceedings brought by a third party against Indemnitee, including reasonable attorneys’ fees, as a result of (i) Indemnitor’s gross negligence or willful misconduct, or (ii) a violation of any material federal, state, local or foreign law, regulation, or ordinance by Indemnitor or any person acting at its direction.

37.1 Indemnity Based on Intellectual Property Rights Violations. If a third party makes a claim against either Customer or Donoma (“Recipient” which may refer to Customer or Donoma depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either Customer or Donoma (“Provider” which may refer to Customer or Donoma depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: (a) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); (b) gives the Provider sole control of the defense and any settlement negotiations; and (c) gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Donoma’s ability to meet its obligations under the relevant order, then Donoma may, at its option and upon 30 days prior written notice, terminate the referencing Agreement. The Provider will not indemnify the Recipient if the Recipient: (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or (c) continues to use the applicable Material after the end of the license to use that Material if the Recipient knows of such expiration date. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware, or material not furnished by the Provider. Donoma will not indemnify Customer for any portion of an infringement claim that is based upon the combination of any Material with any products or Services not provided by Donoma. Donoma will not indemnify Customer to the extent that an infringement claim is based on any Material from a third-party portal or other external source that is accessible to Customer within or from the services (e.g., a social media post from a third-party blog or forum, a third-party Web page accessed via a hyperlink, etc.). Donoma will not indemnify Customer for infringement caused by Customer’s actions against any third party if the services as delivered to Customer and used in accordance with these Terms would not otherwise infringe any third-party intellectual property rights. Donoma will not indemnify Customer for any intellectual property infringement claim(s) known to Customer at the time Services rights are obtained.

  1. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THESE TERMS OR REFERENCING AGREEMENT), DATA, OR DATA USE. DONOMAS AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE REFERENCING AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO DONOMA FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY LESS AND UNDER NO CIRCUMSTANCE AMOUNT PAID IN PREVIOUS THREE (3) MONTHS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM DONOMA UNDER SUCH ORDER.
  2. Liens and Encumbrances.Customer (and its clients) will not have the power, authority or right to create and will not permit tax liens, mechanics’ liens, or builders’ liens with respect to work performed, in connection with the equipment or use of the Customer Space.
  3. Credit Authorization. Customer hereby authorizes Donoma to obtain credit information and bank and other financial references regarding Customer for the purposes of assessing Customer’s credit worthiness, and Customer will promptly execute and deliver to Donoma such further documents and assurances and take such further actions as Donoma may from time-to-time reasonably request.
  4. Force Majeure.Neither party hereto shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both parties hereto will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed services and affected orders upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.
  5. Notices. Any notice required or permitted to be given hereunder will be effective upon receipt and shall be given in writing and delivered via email with a confirmation of receipt by the recipient, via nationally recognized overnight express courier, or registered or certified mail with postage prepaid and return receipt requested, to the parties at their respective addresses set forth in the referencing agreement(s) or at such other address as designated by written notice. When submitting written notices to Donoma by email, they should be sent to Legal@donomasoftware.com. Written notices shall be delivered to Donoma Software at 1750 Kraft Drive, Suite 1200, Blacksburg, VA 24060.
  6. Assignment. Customer shall not assign the referencing Agreement or any of its rights or obligations hereunder, without the prior written consent of Donoma, such consent not to be unreasonably withheld. Notwithstanding the foregoing, prior written consent of Donoma is not required to assign any Agreement by operation of law or to any successor-in-interest acquiring substantially all of Customer’s stock or assets.
  7. Survival. Provisions that survive termination or expiration of the referencing Agreement are those relating to limitation of liability, indemnification, payment, and others which by their nature are intended to survive.
  8. Entire Agreement.These terms in conjunction with the referencing Agreement supersedes all previous Agreements between the parties related to the FLx Services. The referencing Agreement and any subsequent agreements or addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.
  9. No Waiver.No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
  10. Severability. If any of these Terms of are found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the referencing Agreement.
  11. Relationship.The relationship of Donoma to Customer will be that of an independent contractor, and neither Donoma nor any employee of Donoma will be deemed to be an agent or employee of Customer.
  12. Choice of Law and Venue. These Terms and referencing Agreement are governed by the substantive and procedural laws of the Commonwealth of Virginia and Customer and Donoma agree to submit to the exclusive jurisdiction of, and venue in, the courts in Roanoke, Virginia in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to the referencing Agreement or to orders placed under it.
  13. Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time-to-time request in order to more effectively carry out the intent and purpose of the referencing Agreement and to establish and protect the rights, interests and remedies intended to be created in favor of the other.
  14. Attorney’s Fees.If Customer defaults in the performance of any of the terms, covenants, agreements or conditions contained in these Terms, and Donoma places the enforcement of these Terms and the referencing Agreement, or any part thereof, in the hands of an attorney or files suit upon the same, Customer agrees to pay Donoma’s reasonable attorneys’ fees and costs.
  15. Waiver of Trial by Jury.ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JURY, AND EACH PARTY WAIVES ITS RIGHT TO A JURY AS TO ANY DISPUTE OR CLAIMS ARISING UNDER OR RELATING TO THESE TERMS AND REFERENCING AGREEMENT, WHETHER FOR BREACH OR ENFORCEMENT OF CONTRACT, TORT OR OTHERWISE.

DEFINITIONS

THE FOLLOWING TERMS ARE DEFINED FOR PURPOSES OF THE TERMS AND CONDITIONS FOR BANDWIDTH SERVICES, AND FLx SERVICES (FLxCLOUD, FLxSTORE AND FLxDR)

“Access Related Service Credit” means there has been a hardware or communications failure that has prevented the successful performance of a back-up.

“Ancillary Program” means any software agent or tool owned or licensed by Donoma or any affiliate of Donoma that Donoma makes available to Customer for download as part of the FLx Services for purposes of facilitating Customer access to, operation of, and/or use with, the Services Environment. The term “Ancillary Program” does not include Separately Licensed Third-Party Technology.

“API Error” is defined as: (i) an HTTP 5xx server error response to a valid API request or (ii) no response to a valid API request because the API is down. Network errors or downtime outside of the BMDC Data Center Network do not constitute an API error.

“Back up” means the software that is used to schedule and perform required back up task.

“Back-Up” means the process of copying computer data to a data storage vault.

“Back-Up Equipment” means a storage device used to provide back-up services and storage.

“Backed Up Data” means to save a copy of data designated by the Customer.

“Back-Up Service” means the back-up and recovery service provided by Donoma to Customer under these Terms.

“Programs” refers to the software products owned or licensed by Donoma or any of its affiliates to which Donoma grants Customer access as part of the FLx Services, including Program Documentation, and any program updates provided as part of the FLx Services.

“Programs” does not include Separately Licensed Third-Party Technology.

“Customer Applications” means all software programs, including any source code for such programs, that Customer or Users provide and load onto, or create using, any Donoma FLx Services. Services under these Terms, including Programs and Services Environments, Donoma or its affiliates or it licensors’ intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer Applications.”

“Customer Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material (other than Customer Applications), in any format, provided by Customer or Users that reside in, or run on or through, the Services Environment.

“Data Center Location” refers to the location in which the Services Environment is physically located.

“Downtime” means the service is unavailable for a Customer, exclusive of permitted downtime.

“Effective Date” means the date provided in the referencing Agreement.

“Emergency Maintenance” means critical unforeseen maintenance (e.g. repairs, modifications, or upgrades) needed to ensure security or reliability.

“FLxCloud Server” means a unique virtual machine instance.

“FLxCloud Server Fees” means the fees for FLxCloud Servers for the monthly billing period in which the failure occurred and includes hourly virtual machine usage and bandwidth charges.

“FLxCloud Server Host” means the physical server which hosts the FLxCloud Server.

“FLxDR FailBack” means the return of resources to the customers production environment after a failover event.

“FLxDR Full Site Failover” means the transition of all replicated critical production VMs to the cloud host during an event where the Customer’s production site becomes unavailable.

“FLxDR Partial Site Failover” means the transition of one or more VMs to the cloud host during an event where the certain servers on the Customer’s production site become unavailable.

“FLxDR Server” means a unique virtual machine instance.

“FLxDR Server Fees” means the fees for FLxDR Servers for the monthly billing period in which the failure occurred and includes hourly virtual machine usage and bandwidth charges.

“FLxDR Server Host” means the physical server which hosts the FLxDR Server.

“Hosting Facility” means the controlled access data center operated by Brush Mountain Data Center, LLC (“BMDC”).

“Internet” means the international network of computer systems, or related equipment and software, comprising the interconnected worldwide network of computer networks used to transmit information.

“Layer 2 Network” – Layer 2, also known as the Data Link Layer, is the second level in the seven-layer OSI reference model for network protocol design. Layer 2 is equivalent to the link layer (the lowest layer) in the TCP/IP network model. Layer2 is the network layer used to transfer data between adjacent network nodes in a wide area network or between nodes on the same local area network.

For Bandwidth Services: the aggregate maximum number of service credits to be credited by Donoma to customer in a single calendar month shall not exceed fifteen (15) days of service.

For FLx Services: the aggregate maximum number of service credits or credit percentage to be credited by Donoma to customer in a single calendar month for FLx Services are outlined in the Service Level Agreement for FLxCloud Services, FLxStore Services and FLxDR, as applicable.

“Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number minutes of downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.

“On Their Premises” means Donoma customer site or designated alternate location not within Donoma or the BMDC data center.

“Other Services” means services provided by Donoma for Customer or Reseller as described in a Sales Proposal, Quote, Support Services Agreement, Statement of Work or other written agreement (each “Agreement”) between Donoma and Customer or Reseller.

“NEA – Network Extension Appliance“ to enable communication between production VMs on the tenant side, VM replicas on the cloud host, backup infrastructure components and external network nodes, Veeam Backup & Replication uses network extension appliances. The network extension appliance is a Linux-based auxiliary VM created on virtualization hosts where tenant VMs and their replicas reside.

“Permitted Downtime” means:

For FLx Services: the service is unavailable for Customer use during a prescheduled period which has been announced at least ten business days in advance. Unless otherwise communicated, scheduled downtime shall not be more than 4 hours per month for major system configuration changes, upgrades or normal maintenance.

“Power” excludes FLxCloud and FLxDR Server Host power supplies which is covered as part of the FLxCloud and FLxDR Server Hosts guarantee.

“Recurring Fees” means those charges that are billed periodically, as further outlined in the referencing Agreement.

“Referencing Agreement” means the quote, order form or invoice supplied to customer by Donoma and/or its Resellers for the FLx Services.

“Separate Terms” refers to separate license terms between Customer and a Third-Party licensor that are specified in a Support Services Agreement, readme or notice files and that apply to Separately Licensed Third-Party Technology.

“Separately Licensed Third-Party Technology” refers to Third-Party technology that is licensed under Separate Terms and not under the terms of these Terms.

“Sequential days without backed up data” means the number of sequential calendar days without a successful data back-up.

“Services” means, collectively, both the FLx Services and Other Services that Customer has ordered.

“Services Environment” refers to the combination of hardware and software components owned, licensed or managed by Donoma or BMDC to which Donoma grants Customer and Users access as part of the FLx Services. As applicable and subject to the terms of the referencing Agreement and Customer’s order, Programs, Third-Party Content, Customer Content and Customer Applications may be hosted in the Services Environment.

“Term” shall mean the Initial Term and any Renewal Term, as provided in the referencing Agreement.

“Third-Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Donoma and BMDC and made available to Customer through, within, or in conjunction with Customer use of, the FLx Services. Examples of Third-Party Content include data feeds from social network services, RSS feeds from blog posts, data libraries and dictionaries. Third-Party Content does not include Separately Licensed Third-Party Technology.

“Users” means those employees, contractors, and end users, as applicable, who use the FLx Services in accordance with these Terms. For FLx Services that are specifically designed to allow Customer customers suppliers or other third parties to access the FLx Services to interact with Customer, such third parties will be considered “Users” subject to these Terms and Customer order.

“Valid API Request” is defined as a well-formed request that complies with the published API specification.

“Variable Charges” means amounts invoiced to Customer for the amounts in excess of the specified order quantity in the Referencing Agreement if the FLx Services permit Customer to exceed the ordered quantity.

“Veeam Management Portal” means the customer internet portal to interact with and change Disaster Recovery failover options.

Reviewed: December 4, 2024

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