1. Hosting Services Requirements. Customer acknowledges and agrees that it and Designated Users and other users with access to shared folders and/or workspaces: (i) will not use the Hosted Services to transmit or store any communications or files that constitute spam, are obscene, abusive, harassing, threatening, racist, malicious, illegal, fraudulent, defamatory, libelous, harmful to minors, that violate or infringe the rights of third parties; and (ii) will comply with acceptable use policies applicable to the Hosted Services as required by hosting providers as made available to you by Kiteworks from time to time. Customer represents and warrants to Kiteworks and its hosting providers that Customer, Designated Users, and other users with access to shared folders and/or workspaces have all necessary rights to any data and information stored on or sent with the Hosted Services (“Customer Data”) and that use of Customer Data as contemplated herein does not violate any third party rights; and (iii) Customer hereby grants Kiteworks and its hosting providers the right to use, copy, cache and transmit Customer Data in conjunction with Customer’s use of the Hosted Services. Customer acknowledges that Hosted Services provided by Kiteworks may transfer and process Customer Data within and outside the European Union and shall obtain all necessary consents from Customer for the same.
  1. Hosting Provider Capabilities. Kiteworks utilizes the secure data centers provided by either Amazon Web Services, Inc. (“AWS”) and Microsoft Azure (“Hosting Provider(s)”). The Hosting Providers continually manage risk and undergo recurring assessments to ensure compliance with industry standards as more fully described at https://aws.amazon.com/security/ and https://azure.microsoft.com/en-us/explore/security/
  1. Up-Time Commitment. If Customer has elected to utilize Hosting Services from Kiteworks, then Kiteworks agrees that Hosting Services will be available 99.9% of the time, seven (7) days per week, subject to the exclusions below (the “Up-Time Commitment”). The Up-Time Commitment will be measured annually during the License Term, based upon the trailing period of the License Term prior to the date of the reported unavailability. If Kiteworks does not meet the Up-Time Commitment, Customer will be entitled to the credits (“Service Credits”) as Customer sole and exclusive remedy for the performance of Hosting Services, as outlined below.

Calculation of the Up-Time Commitment shall exclude unavailability of the Hosted Services caused by any of the following:

  • Scheduled, announced downtime for maintenance or unscheduled downtime for emergency maintenance;
  • Failures in the Internet or failure of other items that are outside Kiteworks’s reasonable control;
  • Hardware, communication lines or application problems (g., Internet, ISDN, DSL, etc.) of Customer that prevent/disrupt access;
  • Your violation of hosting provider acceptable use policies; or
  • Any downtime caused by the action or inaction of Customer.
  1. Service Credits. If Kiteworks fails to meet the Up-Time Commitment, Customer shall have the right, as Customer’s sole remedy for such failure, to receive Service Credits pro rata to the amount of time Hosted Services are unavailable, subject to the exclusions above, after Service Credits are claimed in writing by Customer and the corresponding unavailability is confirmed by Kiteworks with the hosting provider. By way of example, if such unavailability is for twenty- four (24) hours, Customer shall be entitled to Service Credits equal to 1/365th of fees applicable to an annual License Term. Service Credits will be applied to any amounts due from Customer or if no amounts are due, Kiteworks shall pay Customer an amount equal to the dollar amount of Service Credits within thirty (30) days following the month during which Service Credits are earned. Service Credits shall not be awarded unless claimed within fifteen (15) days following the end of the month during which the corresponding unavailability occurred.

 

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