Service Agreement and Terms of Service
Last updated January 20, 2017
Recent updates include formatting, and changes to these sections:
TERMS OF SERVICE between Pantek Inc. (“Pantek”) and the customer who orders Pantek® service (“you” or “Client” or “Customer”). Your use of Pantek’s services is governed by this agreement, all applicable appendices, duly executed Service Orders (defined below), and these terms of service (collectively, the “Agreement”). Your use of any of Pantek’s services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent, and/or your written or verbal assent, and/or your actual usage of Pantek’s services, constitute your acceptance to the Agreement for each purchase or transaction you enter, or service you utilize.
In certain circumstances, Pantek may execute separate written agreements with certain customers, and in that event, such agreement shall not be replaced or superseded by this Agreement, unless such agreement specifically refers to the Pantek Terms of Service as taking precedence.
A. “Service(s)” shall mean the services particularly described in each Service Order, and shall include the additional terms, conditions, covenants and agreements particular to each Service Order as described in Appendix B herein.
B. “Service Order(s)” shall mean either (a) orders for specific Services as placed online through the Pantek Store or Pantek Portal; or (b) orders for specific Services on Pantek provided Service Order forms, including attachments thereto. Each Service Order shall be issued and accepted by the Parties in accordance with the provisions of this Agreement and shall only be effective when executed by both of the Parties. Orders placed online through the Pantek Store or Pantek Portal are considered executed by Client when the order is placed, and by Pantek when the order is marked as Accepted by Pantek staff. Each Service Order will contain specific provisions with respect to prices, features, descriptions of service, duration and other terms as appropriate, either specifically on such Service Order or as defined in Appendix B herein.
C. “Pantek Portal” shall mean the Pantek Client Portal located at the following base URL: https://portal.pantek.com/
D. “Pantek Store” shall mean the Pantek Web Store located at the following base URL: https://portal.pantek.com/cart.php
2. SCOPE AND ORDER OF PRECEDENCE
2.1. Each Service Order issued and accepted, and all Services provided by Pantek, shall be subject to all of the terms of this Agreement.
2.2. Except for sections 4 and 12 thru 30 herein, in the event of conflict or inconsistency between the provisions of this Agreement and those of an individual Service Order, the conflict or inconsistency shall be resolved in the following order of precedence: first, in favor of the Service Order and secondly this Agreement.
3. CLIENT’S OBLIGATIONS
3.1 Client-Supplied Equipment. Unless otherwise negotiated and documented herein, Client shall be responsible for obtaining, maintaining and installing all third-party hardware, obtaining hosting services (unless Client is purchasing Pantek Cloud Hosting services), and software required to operate Client’s server systems.
3.2 Cooperation. Client shall cooperate with Pantek in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and Client shall take such actions as Pantek may reasonably request from time to time in connection with the performance of the Services hereunder, including but not limited to, providing reasonable advance notice when scheduling installation and delivery of servers and/or equipment, maintenance work and other events where Client may require assistance from Pantek personnel. Client should provide such notice by opening a support ticket via the Pantek Portal.
3.3 Primary and Secondary Contact. Client shall designate a primary contact and a secondary contact that will be responsible for all technical matters relating to this Agreement, and Client shall provide Pantek with emergency contact information for both contacts (such emergency information shall consist of email address, cell phone number and the like and may be used by Pantek to contact Client for all appropriate purposes). Client may change the individuals designated as primary and secondary. All contacts must be designated and managed via the Pantek Portal. If specific contacts are not designated, the primary contact will be designated automatically as the person who placed the first Service Order with Pantek, and no secondary contact will be listed.
4. TERM and RENEWAL
This Agreement shall commence on the Commencement Date and conclude upon completion of work under each Service Order.
Prices for Services are specified on each Service Order, and are only guaranteed for the term listed in each duly executed Service Order. Unless otherwise specified on a Service Order, prices for hourly professional services work are provided during Pantek Standard Support Hours (9AM to 5PM Monday – Friday EST/EDT excluding Holidays). Services provided outside of these hours will be charged at two times (2.0X) the normal rate. Services provided on Pantek Holidays will be charged at two times (2.0X) the normal rate. Time is recorded in 30 minute minimum increments. Pantek Holidays are defined as: New Years Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
A. Taxes and Other Fees. Prices established in this Agreement and the applicable Service Order are exclusive of taxes and other fees (including FCC fees like universal service fees, TRS, etc.) which may be imposed on Pantek or Client for the provision or use of the Services. Client will pay such taxes and other fees, except for Pantek’s U.S. federal and state income tax and Pantek’s personal property tax. Tax exempt status will be granted to Client upon presentation of a satisfactory certificate of exemption for each respective taxing jurisdiction.
B. Invoicing and Payment. Invoicing and Payment terms are defined on individual Service Orders. Pantek reserves the right to charge interest on delinquent amounts at the lower of one and one-half percent (1.5%) per month or such other rate or rates as may be permitted under applicable law.
C. Disputed Payments. In the event Client in good faith disputes any charges invoiced by Pantek, Client shall promptly pay all undisputed charges, and shall notify Pantek in writing of any such disputed amounts within ten (10) days after the invoice date, identifying in reasonable detail its reasons for the dispute and the nature and amount of the disputed charges. All amounts not timely and appropriately disputed within sixty (60) days after the invoice date shall be deemed final and not subject to further dispute. If Client was billed in error, a credit for the amount billed incorrectly will be made to the next invoice. If the amount was billed correctly, Client will pay the amount within fifteen (15) business days of confirmation.
D. Suspension or Termination of the Services. Most Service Orders require payment in advance. If Pantek waives this requirement, if payment in full for Services performed under any Service Order (other than for charges validly disputed by Client in good faith) is not received by Pantek within thirty (30) days after the invoice date, Pantek shall have the right to take the following actions: (i) no earlier than thirty-one (31) days after the invoice date refuse new Service Order(s); (ii) no earlier than thirty-one (31) days after the invoice date, mail notice of payment default with fifteen (15) days to cure; (iii) if payment default is not cured, no earlier than forty-five (45) days after the invoice date, mail notice of termination with ten (10) days to cure; and, (iv) if payment default is still not cured by the deadline, terminate Service. Following payment, Pantek shall reinstate the account provided that Client furnishes to Pantek satisfactory assurance of its ability to pay for the Services. No cancellation or termination under this provision shall relieve Client from its obligations to pay for Services under any Service Order not so canceled or terminated. Client hereby agrees to pay Pantek for any and all collection costs, including but not limited to attorneys fees, bounced check fees, charge-back fees, court costs, and/or interest charges that are in addition to the amount owed for services provided.
E. Payment Types. Pantek accepts payments via Visa, MasterCard, American Express, Discover cards, and PayPal as well as payments by Check, or Money Order, in U.S. dollars only. Pantek will not accept international checks, BitCoin, Dwolla, LightCoin, or any foreign currency. In the event a check is returned as un-payable, Client will be assessed a $40.00 returned check fee. For any recurring services, Credit Cards will be kept on file, and charged up to seven (7) days prior to the Payment Date. Payment by Credit Card includes Client’s express authorization to charge all future recurring fees and charges, as well as charges for any additional services requested or used by Client, to the Credit Card on file with Pantek. If a Credit Card is denied for any reason, Pantek may make additional attempts to charge the card. After two unsuccessful attempts, Client will be sent a notice by e-mail, and Pantek may make one final attempt to charge Client’s Credit Card. Pantek takes Customer billing concerns very seriously, and will always make reasonable efforts to resolve any concerns directly with the Client. Credit Card “Charge Backs” are expensive and not recommended – if you have a disagreement about a charge please contact us directly to resolve the issue, by submitting a Billing Support Ticket via the Pantek Portal. In the event Client does initiate a charge back for any reason, Pantek may immediately suspend all Services until such time as full payment, plus a $50.00 charge back fee is paid.
7. SERVICE LEVEL COMMITMENTS
Pantek represents to Client that the Services shall comply with the Service Level Agreements (“SLA(s)”) for each Service as more specifically described in Appendix A of this Agreement. Client agrees that the credits applicable to the specific Services and as specified in the SLAs for each Service are its exclusive remedy in case of any failure of Pantek to comply with such SLA.
A. Each Party shall indemnify and hold harmless the other Party and its affiliates, and its and their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by any third party, and all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including reasonable legal fees and expenses) (collectively “Losses”) incurred in connection with such third party claims, for personal injury (including death) or damage to real and/or tangible property arising out of or resulting from acts or omission to act under this Agreement or employees, contractors, or agents of the indemnifying party.
B. Client shall indemnify and hold harmless Pantek and its affiliates, their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by themselves or any third party, and all Losses incurred in connection with such claims, arising out of or resulting from (i) their or Client’s breach of this Agreement, and/or (ii) their or Client’s use of any Services, including but not limited to any Third Party Components thereof.
C. The indemnifying party shall have the right, at its sole expense, to defend with counsel reasonably acceptable to the indemnified party all claims, demands, actions and proceedings related to the indemnifying party’s obligations under this Section 8. The indemnified party shall notify promptly the indemnifying party of any such claims, demands, actions or proceedings in writing and, if it is defending any such claim diligently and in good faith, the indemnifying party shall have full and complete authority for the defense thereof; provided, however, the indemnifying party shall have no authority to enter into any settlement or compromise on behalf of the indemnified party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party does not undertake the diligent, good faith defense of a claim, the indemnified party shall have the right to conduct the defense of such claim at its sole defense, provide, (i) nothing in the foregoing shall limit or be deemed to limit a party’s right to dispute the a claim (and/or any Losses arising therefrom) relates to an indemnifiable matter hereunder, and (ii) if the indemnifying party has agreed that a claim relates to an indemnifiable matter hereunder, the indemnified party shall have no authority to enter into any settlement or compromise on behalf of the indemnifying party, which consent shall not be reasonably withheld or delayed. In all circumstances, the indemnified party shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its sole expense, and shall cooperate with the indemnifying party in the defense of any claim maintained thereby.
Either Party in accordance with the following may terminate this Agreement and any Service Order(s):
A. Default. If either Party is in breach of this Agreement or any Service Order, (other than for failure by Customer to pay any undisputed amounts due under any Service Order which are covered under Section 6 (D) above), in order for such breach to constitute a default, the other Party shall give the breaching party notice in writing of such breach. If the breach has not been cured to the non-breaching party’s reasonable satisfaction within thirty (30) days of such written notice (the “Notice Period”), then the non-breaching party may terminate the applicable Service Order effective at the end of the Notice Period immediately upon written notice to the breaching party and without penalty. No termination for breach pursuant to this Section shall constitute or permit termination of any portions of this Agreement or any Service Order not breached or affected by such breach, provided, however, that Pantek may revoke or suspend this Agreement in its entirety if Client (or any of its affiliate companies) is in material breach of any other agreement with Pantek or (or any of its affiliate companies).
B. Cause. This Agreement may be terminated for cause by either Party in the event that the other Party: (i) shall become insolvent; (ii) admits in writing its inability to pay its debts; or (iii) ceases to function as a going concern or to conduct its operations in the normal course of business.
C. Remedies. In the event of termination for breach or cause, the non-breaching party shall have the right to pursue any or all remedies available to it at law or in equity.
D. Early Termination. Some services provided by Pantek may require an early termination fee, as specified in particular Service Orders. For such specified services, if Client terminates or cancels service under such Service Order for reason other than Pantek’s breach prior to its agreed expiration date, Client will pay Pantek as a termination fee, 100% of the then current monthly charges for each month remaining in the term as indicated in the applicable Service Order. Such termination fee shall be considered liquidated damages and not as a penalty. This shall be the sole remedy of Pantek in the event of an early termination by Client. All termination charges shall be due and payable within fifteen (15) days after the effective date of termination of the Service Order.
E. Service Refusal. Pantek reserves the right to refuse service to anyone at anytime, however Pantek will not refuse service to anyone on the basis of race, color, religion, national origin, gender, sexual orientation, disability, or any other basis protected by local, state, or Federal law. When refusing service, Pantek’s sole liability will be to issue Client a refund (within ten (10) business days) to Client of any amounts paid for services which have not been used by Client. Unless otherwise stated, all Pantek Services are “business to business” only.
F. Termination by Pantek. Pantek may terminate this Agreement at any time for any or no reason by providing notice to Client. When terminating this Agreement, Pantek’s sole liability will be to (a) issue Client a refund (within ten (10) business days) to Client of any amounts paid for services which have not been used by Client; and (b) waive any applicable early termination fees.
No termination pursuant to this Section shall relieve either Party of any of its obligations under this Agreement or any Service Order intended to continue, including, without limitation, the obligation to pay for Service prior to such termination.
“Confidential Information” shall include: (i) all requests for quotations and proposals for Services, including resulting Service Orders, (ii) all prices, rates and other financial information related to the Services, (iii) all information relating to the customers of either party, including customer lists, and (iv) all information one party provides to the other which is clearly identified as confidential or proprietary. Confidential Information disclosed by either party to the other shall be held by the recipient in confidence and not: (a) used by the recipient for personal advantage of any kind, or (b) made available for third parties to use. Each party will direct its employees, contractors, consultants and representatives who have access to any Confidential Information to comply with all of the terms of this Section. The following information shall not be Confidential Information if: (i) it is or becomes available to the public through no wrongful act of the receiving party; (ii) it is already in the possession of the receiving party and not subject to any agreement of confidence between the parties; (iii) it is received from a third party without restriction for the benefit of the disclosing party and without breach of this Agreement; (iv) it is independently developed by the receiving party; (v) it is disclosed pursuant to a requirement of law or a duly empowered government agency or a court of competent jurisdiction after due notice and an adequate opportunity to intervene is given to the disclosing party unless such notice is prohibited. Upon termination or expiration of this Agreement, the receiving party shall at the disclosing party’s direction, either return or destroy all of the disclosing party’s Confidential Information and so certify in writing. The obligations of this provision will survive for five (5) years after any termination or expiration of this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
Neither Party shall use any copyrights, patents, trade secrets, software, trade marks, trade names, service marks, license rights or other intellectual property rights (collectively “Intellectual Property”) owned, licensed or used by the other Party, without the written consent of the other Party. Either Party may use the other Party’s name and logo in any and all media for the sole purpose of listing one or more representative customers or vendors or to issue press releases (each, a “Permitted Use”), with the prior written consent of the other Party, such consent not to be unreasonably withheld. Upon expiration or termination of this Agreement, or any affected Service Order, all Permitted Uses shall be discontinued, and any Intellectual Property, including all copies thereof, shall be returned to the other Party. Each Party hereby disclaims any right, title and interest in any Intellectual Property, owned, used or licensed by the other Party.
12. FORCE MAJEURE
Neither Party shall have any claim or right against the other for any failure of or delay in performance by such other Party if the failure or delay is caused by or the result of causes beyond the reasonable control of such other Party, including, but not limited to, acts of God, fire, flood, hurricane, or other natural catastrophe; terrorist actions, cyber attacks, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof; or any civil or military authority, national emergency, insurrection, riot or war; inability to obtain equipment, material or other supplies, or other similar occurrence beyond the control and without the fault or negligence of the affected Party. Any such delay or failure shall suspend the affected Service Order until the delay or failure ceases, and the Service Order shall be deemed extended accordingly. Notwithstanding the foregoing, if the excusable delay exceeds thirty (30) days, either Party may terminate this Agreement immediately upon written notice without incurring any termination liability hereunder.
13. RECORDS KEPT
In order to better serve our Clients, Pantek engineers record all time spent and services performed (“Internal Documentation”) in our internal Services Databases, Timesheets, and internal Ticketing Systems. This Internal Documentation is kept strictly confidential and will not be released to any outside party without your prior written consent, or a valid court order.
14. LEGAL NOTICES
A. Notices and communications concerning this Agreement shall be addressed to (a) Client using the contact information provided by Client in their initial (or most recent) Service Order; and (b) to Pantek as follows:
4401 Rockside Rd. #205
Independence, OH 44131
B. Notices shall be sent by registered or certified US Mail, postage prepaid, or by commercial overnight delivery service, or electronic transmission, and shall be deemed delivered either on the date of return receipt acknowledgment (in the case of US Mail), or on the next day after the sending of the notice (in the case of facsimile, email, or overnight delivery service).
15. DISCLAIMER OF WARRANTIES
A. CLIENT ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CLIENT’S OWN DATA, INFORMATION, NETWORK, SOFTWARE, AND SYSTEMS. CLIENT ACKNOWLEDGES THAT THE INTERNET IS ACCESSIBLE BY PERSONS WHO MAY ATTEMPT TO BREACH THE SECURITY OF CLIENT’S NETWORK FACILITIES. PANTEK HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE CONTENT OF MATERIALS TRANSMITTED OVER THE INTERNET, SERVICE INTERRUPTIONS, ANY CLIENT EQUIPMENT FAILURES, OR ANY OTHER SUCH CAUSES. CLIENT ACCESSES AND USES THE SERVICES AT THEIR OWN RISK.
B. EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN ANY SERVICE ORDER, THE PRODUCTS AND SERVICES PROVIDED BY PANTEK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY PANTEK, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY.
16. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PANTEK, ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS AND OTHER REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING FROM OR RELATED TO THE SERVICES OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) IRRESPECTIVE OF WHETHER THE OTHER PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. PANTEK’S MAXIMUM LIABILITY HEREUNDER TO CLIENT SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT FOR THE PARTICULAR SERVICE, OR SERVICE ORDER TO WHICH THE CLAIM PERTAINS, FOR THE IMMEDIATELY PRECEEDING THREE (3) MONTH PERIOD ONLY. THE PARTIES HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE THEM OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Client may not assign this Agreement or any Service Order without the prior written consent of Pantek, which consent will not be unreasonably withheld or denied. “Assignment” within the meaning of this Section shall not include any transfer to any entity controlling, controlled by, or under common control with a Party (hereafter collectively, “Affiliate(s)”), or any sale of all or substantially all of the assets of either Party, or pursuant to any merger, reorganization or consolidation, provided that the transferee agrees to be bound by all of the terms and conditions of this Agreement and the Service Orders.
Section, subsection and other headings used in this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement or any Service Order.
19. COMPLIANCE WITH LAWS & GOVERNING LAW
A. Each Party agrees to conduct its business in a reputable manner and agrees to comply with all federal, state and municipal laws, rules, regulations, and codes of ethics that are binding upon or applicable to the Parties or their business, equipment or personnel under or related by this Agreement. This Agreement and all services provided hereunder shall be governed by the laws of the County of Cuyahoga, State of Ohio, U.S.A without regard to any provision that would make the laws of another jurisdiction applicable.
B. Arbitration: Any controversy or claim arising out of or relating to this Agreement and/or Client’s use of Pantek Services shall be settled by arbitration conducted in accordance with the then-current Rules of the American Arbitration Association (the “Association”), strictly in accordance with the terms of this Agreement and the substantive law of the State of Ohio. The arbitration shall be held at the office of the Association located closest to the principal place of business of Pantek, and conducted by three arbitrators. At least one of the arbitrators shall be chosen from a panel of persons knowledgeable in data processing and business information systems, and at least one of the arbitrators shall be an attorney. Judgment on an award rendered by the arbitrators may be entered and enforced in any court of competent jurisdiction. Neither party shall institute any arbitration proceeding until that party has furnished to the other party, by certified mail, at least thirty days prior written notice of its intent to do so.
While this agreement is in effect and for the period of three (3) years thereafter, Client will not hire, or engage as an independent contractor, any individual who has worked as an employee or contractor of Pantek, without the express written consent of Pantek. In the event of a breach of this Non-Solicitation section, Client agrees to pay Pantek liquidated damages equal to the forecasted first year compensation of the hired or engaged individual.
Each Party warrants that during the Term, they have or shall purchase and maintain, at their own expense, (a) Commercial General Liability insurance with a limit of not less than $1,000,000 per occurrence; and (b) Workers Compensation insurance as required by their home state. Either Party may request certificates of such insurance from the other Party at any time during the Term, but no more than once every calendar year, which must be provided to the requesting Party within ten (10) business days.
Each Party has full power and authority to enter into and perform this Agreement, and the person signing and/or entering into this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement and to execute it and any Service Orders or other attachments hereto on behalf of such party and any of its Affiliates.
The relationship established between the Parties by this Agreement is that of independent contractors, and nothing contained herein shall be construed to: (1) give either Party the power to direct and/or control the day to day activities of the other, (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow a Party to create or assume any obligation on behalf of the other party for any purpose whatsoever, except as contemplated by this Agreement.
In certain cases, Client may request Pantek to act as their agent in order to communicate with, procure from, and/or manage work provided by Client’s suppliers. Such requests shall be made via email or the Pantek Portal only. Pantek reserves the right to approve or refuse any such request in their sole discretion, and any refusal shall not affect any other terms of the Agreement.
25. ENTIRE AGREEMENT
This Agreement, Appendices, Service Order(s) and the attachments and Exhibits to each Service Order constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous agreements, written or oral. This Agreement and executed Service Order(s) may be modified at any time only by written agreement of the Parties.
Pantek may revise this Agreement at anytime, but only with respect to future Service Orders issued after the date of such revision In this event, such revised Agreement will be in effect and supersede all prior or contemporaneous agreements, written or oral, only for future Service Orders issued after the date of such revision. The revised Agreement will be posted at https://www.pantek.com/tos, and Pantek will also revise the “Last Updated” date at the top. Client is responsible for reviewing this Agreement prior to placing Service Orders, as each Service Order binds Client to the terms of the currently posted Agreement. For Service Orders with a monthly or periodic recurring term commitment, each monthly or periodic renewal shall be considered a new Service Order, subject to any previously revised terms.
In the event that any provision of this Agreement or any Service Order is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement or such Service Order did not contain the particular provisions held to be unenforceable and the unenforceable provisions shall be replaced by mutually acceptable provisions which, being valid, legal and enforceable, come closest to the intention of the Parties underlying the invalid or unenforceable provision.
Sections 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 28, 29 and 30 shall survive any termination of this Agreement.
28. NO WAIVER
No waiver of any breach of this Agreement or any Service Order shall be deemed to be a waiver of any other or subsequent breach.
Each Party agrees that the delivery of signatures to this Agreement and any Service Orders issued hereunder by electronic, click-accept, click-thru, and/or facsimile/pdf format shall have the same force and effect as delivery of original signatures and that each Party may use such electronic, click-accept, click-thru, and/or facsimile/pdf format signatures as evidence of the execution and delivery of the Agreement and Service Orders to the same extent that an original signature could be used.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement.
Appendix A – Service Level Agreements for various Service Orders
I. Managed Services – Incident Response Services
This section applies to the following product only: Pantek Managed Services
Pantek provides the following SLA’s for responding to Client issues and requests, and critical monitoring alerts:
|Severity Level||Priority||Response Time|
Emergency phone calls are typically answered within 10 – 20 minutes, Monitor alerts typically within 10 – 20 minutes of the original failure notification.
Urgent phone calls are typically answered within 30 – 45 minutes, Monitor alerts typically within 10 – 20 minutes of the original failure notification.
Client system is functioning normally, but Client requires information, assistance, wishes to schedule maintenance outages, or requests any other non-immediate tasks
Pantek shall use commercially reasonable efforts to meet these SLAs within each service billing cycle.
If Client experiences response times which qualify for a remedy, in order to receive consideration for a corresponding Service Credit, Client must submit a “Request for SLA Credit” by opening a ticket in the Pantek Portal with the subject “Request for SLA Credit” within ten (10) days of the incident. The request should include, at minimum, the date and time of the incident, the reason for contacting Pantek, the Pantek response time, and ticket number (if available). In instances of uncertainty or dispute as to whether an actual Pantek non-performance has occurred, Pantek shall make a final determination with respect to such uncertainty and/or dispute, in good faith, based on its review of data provided by our computer systems and discussion with the Pantek staff.
Service Credits are provided in the form of an automatic discount on future invoices. Pantek does not issue any refunds. Service Credits unused due to customer termination after thirty (30) days shall be forfeited. The maximum value of Service Credits provided in any given month shall not be greater than one (1) month of fees paid by Client to Pantek for the particular affected service. The value of approved Service Credits shall be calculated by the following formula:
(Number of whole hours above the listed response time Pantek failed to respond) X $50.00
II. Cloud Server Hosting – 100% Server and Network Uptime SLA
This section applies to the following product only: Pantek Cloud Hosting Services
Pantek offers a 100% Server and Network Uptime Guarantee for all Pantek Cloud Hosting Services, providing credits should Pantek not meet our strict standards for uptime, in accordance with this section. Pantek has designed and built a fully redundant network and hosting environment, maximized to deliver 100% server and network uptime. Pantek guarantees its network and server hosting environment will be available 100% of the time, including 100% availability of our routers, switches, Internet connectivity, and VMware® infrastructure.
Should 100% network uptime not occur, Pantek will credit 5% of the Customer’s monthly service fees for affected services, for each 30 minutes of network downtime experienced, up to 50% of the monthly service fees for those servers affected. Downtime will be measured from the time when a Pantek Cloud Support Ticket is opened by the Customer via the Pantek Portal.
This guarantee excludes: any scheduled downtime taken by Pantek; packet loss or outages outside of the Pantek network; security attacks including but not limited to Denial of Service (DoS) attacks; any outages caused in whole or in part by Customer; any customer initiated configuration changes; customer server resource overload or overuse; software or operating system related issues when outside the direct control of Pantek; customer initiated server or service reboots or shutdowns; and non-Pantek provided services or software running on a Customer’s server(s).
To receive an SLA credit for any guarantee, Customers must open a Pantek Billing Support Ticket from the Pantek Portal, requesting an SLA Credit within 30 days of the incident in question. Service Credits are provided in the form of an automatic discount on future invoices. Pantek does not issue any refunds. Service Credits unused due to customer termination after thirty (30) days shall be forfeited.
Appendix B – Additional Terms for various Service Orders
I. Expert Technical Support and Consulting Services
This section applies to the following products only:
Expert Technical Support Services and Consulting Services are provided on a time and materials basis. Hourly Rates are determined based on the options Client selects at the time of order on the Support Order Page, and are also displayed on both the invoice/receipt.
1. Work Authorization: Before work is performed, Pantek will provide to Client an estimate of time and costs required to complete the requested services. Work begins only when Client has approved the estimate verbally, via email, via the Pantek Portal, or a mutually executed Statement of Work. If Client or Pantek determine that additional time is required, services will be performed only after Pantek has received an additional approval and, if required, has received an additional time purchase or SOW. Time estimates and authorizations are only valid for five (5) business days from the date provided, unless otherwise written by Pantek. Unless otherwise agreed to in advance by Pantek, the maximum number of hours Client may use is limited to six (6) hours per day, and twenty (20) hours per seven (7) day period. If after completion of services, time remains unused from a Block purchase, such time shall remain available for one (1) year from the order date.
1a. System Access Authorization: By providing Pantek with access credentials to any system, server or device, Client (a) warrants that they are authorized to provide such access to Pantek; and (b) grants Pantek support staff access and authority to login and make changes directly to such system, server, or device. Upon conclusion of work, as a proactive security precaution Pantek recommends that Clients change all provided access credentials.
2. Payment: Hourly services will be charged for the amount of time as authorized by Client prior to Pantek commencing work (as described in section one above). Clients purchasing a Ten, Fifty or One Hundred Hour Block will be charged for the entire block at the receipt of this signed Services Agreement and must submit payment for the block in advance. All time available may be used within one year of the order date. Any unused time after such period will be forfeit. Pantek does not provide any refunds hereunder, even if services are unused, or even if Client’s desired resolution is not achieved. Pantek uses best efforts to achieve Client’s desired resolution within the provided estimates, however this is not guaranteed. At Pantek’s sole discretion, Client may alternatively (a) be invoiced for services occurring twice per month (on the 15th and 30th) with net 10 day terms or (b) Pantek may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Pantek reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
3. Support Subscription Service: Clients purchasing Pantek’s Support Subscription Services agree to a minimum monthly commitment as described in their order, for a minimum term of one (1) year, which shall automatically renew for additional one (1) year periods unless terminated within thirty days of the end of the initial term or any subsequent renewal term. Support Subscription Services also entitle Client to a discount on regular hours of Expert Technical Support Services as described in their order. The minimum commitment is invoiced and charged monthly, up to ten (10) days in advance for service the following month. Early termination fees in accordance with Section 9(D) shall apply in the event of any early termination. This service requires pre-payment, and Pantek does not accept Client Purchase Orders or post-pay for Support Subscription Services.
4. Response Time: Standard response time is within one (1) business hour from the time the request is placed by customer opening a ticket in the Pantek Portal, or as otherwise agreed upon by Client and Pantek, whichever is later. For faster response to critical issues, Client may also optionally purchase a RUSH charge at the prices currently listed in the Pantek Store, which can increase response time to Within One Hour 24/7 (RUSH1). If Pantek fails to respond in the stated time frame and Pantek is the sole cause for the failure, Pantek’s sole liability shall be to credit Client with any amounts paid for the RUSH charge towards their next purchase from Pantek. Pantek will use their best, commercially reasonable efforts to respond within the requested time frame, but shall not be liable for any other damages whatsoever in the event of a failure to respond in such time frame.
4a) Extended Support Hours. Support provided outside of normal business hours is intended to be for emergency issues only, and Pantek reserves the right to limit or discontinue such support if in Pantek’s discretion any issue is not an emergency. If Client requires non-emergency support to be performed outside of normal business hours, Client must schedule such work with Pantek and typically a minimum of one week advance notice will be required.
5. Travel Costs: In the event a physical visit is requested by Client, Applicable Hourly Rates shall apply to all Non Local travel to/from the Pantek office and the Client location. “Non Local” travel is defined as travel requiring sixty (60) minutes or more. For Local travel (“Local” defined as less than sixty (60) minutes), Client will not billed for travel required to/from the Client’s location, unless such travel occurs during Pantek’s Standard Support Hours. Client is also responsible for all reasonable travel costs, including: airfare, hotel, meals, tolls, mileage, etc. At Pantek’s sole discretion, travel charges may be reduced or waived.
6. License: Client hereby grants to Pantek the entire right, title, and interest in and to all software, inventions and designs made by any Pantek employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”). Pantek hereby grants to Client a royalty-free, world-wide, perpetual license to use such Discovered Intellectual Property.
II. Fixed Price Managed Services
This section applies to the following products only:
- Linux Server Management Program (and ala-cart options)
- Magento Site Management Program
- WordPress Site Management Program
Managed Services are provided on a fixed price recurring basis. All Rates and Service Pricing are determined based on the options Client selects at the time of order and the number of sites or systems to be managed, and are also displayed on both the invoice/receipt.
General Terms for all Fixed Price Managed Services
1. Payment: Fixed Price Managed Services are invoiced and charged prior to Pantek commencing work, and charges for recurring services shall automatically recur either monthly, quarterly, or annually as selected by Client in their order. In Pantek’s sole discretion, alternatively Client may be invoiced for services with net 10 day terms or Pantek may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Pantek reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
2. Term and Refunds: The minimum Term for all Fixed Price Managed Services is one (1) month of service. Pantek does not provide partial months of service. Client may select a quarterly or annual term in their order, which provides the described discount. Pantek does not provide any refunds whatsoever, even if such services are unused.
3. SLA: Standard response times for managed services are defined in Appendix A.
4. License: Client hereby grants to Pantek the entire right, title, and interest in and to all software, inventions and designs made by any Pantek employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”).
5. System Access Authorization: By providing Pantek with access credentials to any system, server, site or device (a “Managed System”), Client (a) warrants that they are authorized to provide such access to Pantek; and (b) grants Pantek support staff access and authority to login and make changes directly to such Managed System; and (c) permits Pantek support staff to install standard tools and custom Pantek software on such Managed System to assist Pantek with performing their work hereunder. Upon conclusion of work, as a proactive security precaution Pantek recommends that Clients change all provided access credentials.
6. Terms for Specific Managed Services
A. Managed Monitoring Services.
a) Basic Monitoring – ping plus up to 10 standard services checks per server
b) Standard Monitoring – ping plus up to 20 standard services checks per server
c) Premium Monitoring – Unlimited services checks and custom checks
i) Custom checks are only available with the Premium Monitoring option, and refer to either (a) service checks that are not part of the standard Nagios platform; or (b) service checks that are a part of the standard Nagios platform, but require modification to meet customer monitoring needs. Depending on the nature of the requested custom check, or modified standard check, additional fees may be required
ii) FREE Basic Monitoring is limited to a number of servers, sites or devices as determined in Pantek’s sole discretion.
B. Incident Response Service
a) Basic Incident Response – Report incident and basic service restarting/power cycling only (24/7)
b) Standard Incident Response – Basic plus outage troubleshooting during Standard hours.
c) Premium Incident Response – Standard plus 24/7 outage troubleshooting
i) Remote root access to server via SSH and/or Control Panel is required for all Incident Response Services
ii) Remote access to remote reboot software is required for Power Cycling. This software is not included from Pantek unless your server is hosted within Pantek’s enterprise class infrastructure. Check with your hosting provider for details.
iii) A server must have passed with a Basic or Full Security Check to be eligible for Incident Response Services
iv) Standard Incident Response covers any troubleshooting related to services not restarting, or servers not coming back online after a reboot. Troubleshooting is limited to 2 hours per incident. Then, normal hourly pricing applies.
v) Premium Incident Response is Standard Incident Response, plus 24/7 troubleshooting.
vi) In the event of three or more Incidents of an identical or similar nature within any one month period, Pantek reserves the right to discontinue Incident Response for such issue only, or require hourly fees for continued response.
vii) To facilitate Incident Response, you authorize Pantek to make direct changes to your server when necessary to restore failed services. Any changes made may be documented by Pantek in a Support Ticket accessible in the Pantek Portal. All root emails for the server must be copied to email@example.com and rsyslog must be configured to copy all syslog messages to syslog.pantek.com.
viii) If a Server Security Audit discovers a security compromise, major mis-configuration, or degraded system state, Pantek may require such issue(s) to be resolved before Incident Response services begin or continue.
C. Managed Software Update Service (“SUS”)
Standard pricing for this service is valid for software and systems that are not currently in “End of Life” (“EOL”) stage.
a) Automated Updates – Pantek configures cron to automatically perform unattended updates on any regular interval
b) Basic Managed Updates – all packages are manually updated once per month regardless of severity
c) Standard Managed Updates – Basic plus all Critical updates are updated within 5 business days
d) Premium Managed Updates – Basic plus all Critical updates are updated within 1 business day
i) Remote root access to server via SSH is required for all Software Update Services.
ii) Included updates are for standard distribution releases only as provided by vendor repositories, plus other Pantek-approved repo’s such as Epel or Webtatic.
iii) Excluded from the Software Update Service are:
(a) custom compiled software that must be manually recompiled; and
(b) software source from repositories that are not approved by Pantek; and
(c) any End of Life (EOL) software, or software where no updates are available; and
(d) any special configuration or coding required to accommodate incompatibilities.
Pantek can provide updates for these excluded items as a separate, hourly service. Please contact your Pantek Account Rep for more details.
iv) There is always the potential for downtime or issues with any software update. Pantek will use commercially reasonable efforts to avoid or minimize downtime. However, Pantek strongly recommends customer engage in regular data backups for all servers. In the event an update fails or causes unforeseen issues, Pantek will either revert to the previous package version or restore from backup or snapshot. Additional troubleshooting related to such an incident is not included in the base service price.
v) For the Basic Managed Updates: package updates will be scheduled during Standard Support Hours. These can only be rescheduled outside of Standard Support Hours for a $50/update fee.
D. Managed Backups
Includes up to 50GB total storage per Managed Service Subscription on Pantek’s Backup Server, with up to 30 days of total archived data.
a) Managed Backups are available for Linux based systems only, and remote SSH access is required for backups to function.
b) Pantek may require a fee of between $25-$75 to perform data restores.
c) This service is intended to supplement, not replace, existing client backups. Pantek makes no warranties as to the integrity of these backups.
E. Named Account Manager
When included in a Managed Services Plan, service will be setup and managed by one Pantek Project Manager who you receive direct contact info for.
F. Architecture and Security Advisors
When included in a Managed Services Plan, includes free discussions with Pantek architecture and security advisors to provide recommendations for growth, scalability, virtualization, security and data integrity. Limited to one hour per month unless otherwise decided in Pantek’s sole discretion.
G. Pantek Linux Server Management Program
Includes the above Named Account Manager, Architecture and Security Advisors, Standard Monitoring, Standard Incident Response, Standard Managed Updates, and Managed Backups. Software updates are limited to CentOS, Fedora, Red Hat, and Ubuntu Linux Distributions.
H. Pantek WordPress Site Management Program
I. Pantek Magento® Site Management Program
III. Fixed Price Professional Services
Professional Services provided on a fixed cost basis. Costs are determined based on the options Client selects at the time of order, and are also displayed on the invoice/receipt.
General Terms for all Fixed Price Professional Services.
1. Payment: All Fixed Price Professional Services are invoiced and charged prior to Pantek commencing work, and charges for recurring services shall automatically recur either monthly, quarterly, or annually as selected by Client in their order. In Pantek’s sole discretion, alternatively Client may be invoiced for services with net 10 day terms or Pantek may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Pantek reserves the right to temporarily suspend services without terminating the Agreement, until payment is received.
2. Refunds: Pantek does not provide any refunds whatsoever, even if such services are unused. If a refund is requested within thirty (30) days after the order date, and no part of such Fixed Price Professional Service has actually been provided, Pantek will credit the full prepaid amount to Clients account which can be applied to any future invoice.
3. License: Client hereby grants to Pantek the entire right, title, and interest in and to all software, inventions and designs made by any Pantek employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs.
4. System Access Authorization: By providing Pantek with access credentials to any system, server or device, Client (a) warrants that they are authorized to provide such access to Pantek; and (b) grants Pantek support staff access and authority to login and make changes directly to such system, server, or device. Upon conclusion of work, as a proactive security precaution Pantek recommends that Clients change all provided access credentials.
5. Terms for Specific Fixed Price Professional Services
A. Linux Server Security Audit Service
1. Procedure: Described in detail at http://www.pantek.com/support.php?subsect=security
2. Deliverables: Described in detail at http://www.pantek.com/support.php?subsect=security
3. Special Terms and Conditions:
Linux Server Security Audits are performed during Pantek’s Standard Support Hours only, and will be scheduled for completion within five (5) business days after receipt and acceptance of your order. If faster response is required, Client may also optionally purchase a RUSH service at the prices currently listed in the Pantek Store, which can increase response time to either Within One Hour (RUSH1) or Within Four Hours (RUSH4). If Pantek fails to respond in the stated time frame and Pantek is the sole cause for the failure, Pantek’s sole liability shall be to credit Client with any amounts paid for the RUSH charge towards their next purchase from Pantek. Pantek will use their best, commercially reasonable efforts to respond within the requested time frame, but shall not be liable for any other damages whatsoever in the event of a failure to respond in such time frame.
Pantek will use commercially reasonable methods, practices, and technologies while conducting audits. However, due to the inherent nature of internet and system security issues, it is not possible to guarantee that our findings will be entirely accurate, and/or that a finding of a “Clean” server can be relied on to be absolutely Clean or secure. The only way to absolutely ensure any server is 100% secure is to unplug it from the Internet, encase it in ten feet of reinforced concrete, and drop it into the Marianas Trench. Since that is impractical, the best policy is continued vigilance and frequent audits by trained professionals.
B. MySQL Level I and Level II Assessments
1. Procedure: Described in detail at http://www.pantek.com/support.php?subsect=mysqlPerformance
2. Deliverables: Described in detail at http://www.pantek.com/support.php?subsect=mysqlPerformance
3. Special Terms and Conditions:
MySQL Level I and Level II Assessments are performed during Pantek’s Standard Support Hours only, and will be scheduled for completion within ten (10) business after receipt and acceptance of your order.
IV. Software Development Services
Software Development Services are typically provided on a time and materials basis, however in some cases Pantek may propose fixed price alternatives. Hourly Rates, and/or fixed prices, are determined based on the requirements of the project as defined and agreed to on any Pantek Proposal/Service Order.
1. Work Authorization: Unless otherwise defined in the applicable Pantek Proposal/Service Order, before work is performed, Pantek will provide to Client an estimate of time and costs required to complete the requested services. Work begins only when Client has approved the estimate verbally, via email, via the Pantek Portal, or a mutually executed Statement of Work. If Client or Pantek determine that additional time is required, services will be performed only after Pantek has received an additional approval and, if required, has received an additional time purchase or SOW. Time estimates and authorizations are only valid for five (5) business days from the date provided, unless otherwise written by Pantek.
2. Payment: Payment terms for Software Development Services will be defined in the applicable Pantek Proposal/Service Order. However, if not defined, the following terms apply. Hourly services will be charged for the amount of time as authorized by Client prior to Pantek commencing work (as described in section one above). Clients purchasing a Ten, Fifty or One Hundred Hour Block will be charged for the entire block at the receipt of this signed Services Agreement and must submit payment for the block in advance. All time purchased may be used within one year of the order date. Any unused time after such period will be forfeit. At Pantek’s sole discretion, Client may be invoiced for services, which will occur weekly. In case any payment is not received within ten (10) days of the due date, Pantek reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
3. License: Pantek hereby grants to Client the entire right, title, and interest in and to all software, inventions and designs made by any Pantek employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”). Client hereby grants to Pantek a royalty-free, world-wide, perpetual license to use such Discovered Intellectual Property.
4. Fixed Price Software Development Services
A. Website Development
i) All websites must be approved by the Client in writing or via email, prior to launching a site. Pantek is not responsible for errors or omissions on a site, after the Client has indicated final approval to go live.
ii) Client is responsible for proofing and fact checking. Any errors, typos or omissions are the sole responsibility of the Client.
iii) All copy, photos, illustrations and vector logo files are to be provided by the Client for each page, in acceptable digital format, unless otherwise specified. These services can be provided by Pantek for an additional charge.
iv) Client is responsible for ensuring that all materials supplied to Pantek are either copyright free or that the Client has the permission of the respective copyright owners to use the materials.
v) At the time it is designed and coded, a copy of the website can be provided for an additional fee. Pantek does not keep copies, or accept responsibility for backup of sites which have been updated or revised by Client.
vi) Additional copies of Client’s branding project will be provided to Client on DVD or via upload for an additional fee. The copy will be accurate as of the date created. vii) Pantek is not responsible for the website’s performance in search engines, or the inclusion of search engine optimization or analytics. Search engine optimization services can be provided for an additional cost.
viii) While every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Pantek does not accept responsibility for any losses incurred due to malfunction, the website or any part of it.
ix) Pantek is not responsible for any browser updates that affect the performance of Client’s site once Contractor has completed the coding and testing phase. If updates to Client’s site are required due to browser compatibility issues which occur after Pantek has coded and tested the site, they will be billed at current Pantek hourly support rates.
x) Pantek is not responsible for website archiving, backups, troubleshooting or technical support once the client or a third party has made any changes to the site via the Content Management System (“CMS”).
xi) Pantek is not responsible for materials, artwork or archival of projects and files beyond 3 (three) months after completion. Re-creation of projects can be done at the current Pantek hourly support rates.
Pantek will invoice Client for payment as specified in the Pantek Proposal/Service Order. In case any payment is not received within ten (10) days of the due date, Pantek reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
Training will be provided by Pantek as more specifically set forth in the Pantek Proposal/Service Order. Extended or additional training sessions are available at current Pantek hourly support rates.
D. Future Maintenance and Service
Future maintenance and service will be provided as more specifically set forth in the Pantek Proposal/Service Order or in a prepaid Service Agreement.
V. Cloud Hosting Services
This section applies to the following products only:
- Pantek Cloud Hosting Services
- Pantek Physical Dedicated Servers
- Pantek Ancillary Hosting Services (DNS, Email, SSL certs, etc)
Cloud Hosting Services are provided on a fixed price recurring basis, and are available both to businesses and individuals. All Rates and Service Pricing are determined based on the options Client selects at the time of order, and are also displayed on both the invoice/receipt.
1. Acceptable Use Policy. All services are subject to Pantek’s business and network policies and practices, which can change without notice. Policies are listed in our Acceptable Use Policy, located at http://www.pantek.com/aup and hereby incorporated into this Agreement.
2. Policy & Agreement Changes. Unless otherwise prohibited by law, Pantek may also change service prices, as well any other term within this Agreement at any time, in accordance with these procedures:
a) Services on a Monthly Plan or ‘No Term’ Service: All changes will be published to the following URL: https://www.pantek.com/tos. Price changes will become effective on your next regularly scheduled invoice period. Any other changes will become effective one (1) business day after they are published.
b) Services on a Term Plan of at least Three (3) Months: Pantek service pricing per your initial Order is guaranteed for the duration of your Term, except with respect to any third-party license costs, per section 8.8 of Appendix B(V) of this Agreement. All changes will be published to the following URL: https://www.pantek.com/tos. All non-material changes will become effective one (1) business day after they are published. Material changes will be effective upon your next Term renewal date.
3. Service Suspension. Customer agrees that Pantek may suspend Services to Customer without notice and without liability if: (a) Pantek reasonably believes that the Services are being used in violation of the AUP; or (b) Customer fails to cooperate with any reasonable Pantek investigation of any suspected violation of the AUP; or (c) there is a denial of service or other attack on Customer’s servers or other event for which Pantek reasonably believes that the suspension of Services is necessary to protect its network or its other customers, and/or (d) as requested by a law enforcement or government agency. Information on Pantek’s servers will be unavailable during a suspension of Services.
4. Pantek Cloud Technical Support Policies.
4.1 Technical Support Hours and Methods. Cloud Hosting includes free 24x7x365 emergency technical support, and 9×5 standard support from the hours of 9am to 5pm M-F EST, excluding holidays. Support is provided via telephone, email, chat, as well as the Pantek Portal, where Customers can submit Support Tickets, view ticket and billing history, update account information, manage Cloud Servers, and order new services. Customer agrees as a first step and whenever possible, to submit a Support Ticket via the Pantek Portal for non-emergency requests.
4.2. Support Exclusions. Pantek does not provide free training nor end-user support for any Services, nor for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by Customer and agreed to by Pantek. Pantek does not provide technical support for Customer’s clients.
5. Lease Periods. Customers contracting for Cloud Hosting services agree to an initial Lease Period as specified in their original order or Service Order, or for a one (1) year Lease Period if unspecified. Customer’s plan and Lease Period will then automatically renew at the end of each Lease Period, until terminated by Customer or Pantek in accordance with this Agreement.
6. Related Services. Payment for SSL Certificates, Domain Registrations, Third Party Licenses, etc. are due and payable in advance of service and are non-refundable.
7. System Access Authorization: Client grants Pantek system administrators access to Client servers to be used when requested by Client or when required for Pantek to fulfill its duties hereunder. Client (a) warrants that they are authorized to provide such access to Pantek; and (b) grants Pantek support staff access and authority to login and make changes directly.
8. Customer’s Obligations.
8.1 Reasonable Security Precautions and Acceptable Actions. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Pantek shall have no liability for any damages incurred by Customer due to a breach of security. Accordingly, Customer agrees to (a) use reasonable security precautions in connection with its use of the Services, and (b) if Customer resells Pantek’s services, require its customers and end users to use reasonable security precautions. In addition, Customer agrees not to take any action or install any software which may preclude or impair Pantek’s ability to access or administer its servers.
8.2 Customer Data Back Up. Depending on the specific Services purchased by Customer, Pantek may provide either partial or full Data backup services for Customer, or Customer may choose not to have Pantek provide any Data backup services, on any or all of Pantek’s servers used by Customer. As such, Customer acknowledges that any servers can and do fail, and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that Pantek provides. Customer also acknowledges that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that Pantek’s Data backup services may not always allow Customer to restore any or all of their Data in the event of a failure of any kind. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Customer agrees that Pantek shall have no liability for loss of any Data stored on Pantek’s server’s by Customer or otherwise provided by Pantek to Customer, even if Pantek is providing any type of Data Backup services to Customer. Pantek recommends that all Customers also perform their own independent periodic data backups. For purposes of this section, ‘Data’ shall include any software, content, and any other information stored on Pantek’s servers by Customer or otherwise provided to Pantek by Customer. Customers may opt-out of the Pantek Data backup services by opening a Support Ticket in the Pantek Portal indicating your request, including specifically which services, servers, or domains you wish to opt-out.
8.3 Legal Compliance. Customer shall be responsible for compliance with all applicable laws and governmental regulations affecting its use of the Services, and Pantek shall not have any responsibility relating to Customer therefore, including, without limitation, any responsibility to advise Customer of Customer’s responsibilities in complying with any laws or governmental regulations affecting its use of the Services.
8.4 Customer’s Applications & Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) Customer’s application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using Pantek’s Service(s), (b) Customer is solely responsible for ensuring that Customer’s applications and/or website will function properly on Pantek’s Service(s) using the hardware and software supported by Pantek prior to contracting with Pantek, and (c) Pantek has no obligation whatsoever to assist or ensure that Customer’s applications or website functions properly on Pantek’s Service(s). Accordingly, Customer shall be solely responsible for any cost or effort to change or modify Customer’s applications or website to function properly on the Pantek Service(s), and Customer’s inability to have its applications or website function properly using the Pantek Service(s) shall not relieve Customer of any of its obligations under this Agreement.
8.5. Customer Security. Customer is responsible for the security of the Services provided pursuant to this Agreement, and Pantek agrees only to perform the specific security services described in the AUP, SLA, Order Form or in this Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use was because of a security breach that occurred due to Pantek’s gross negligence. Pantek complies with the Payment Card Industry Data Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, Customer is solely responsible for the security of all data and billing information on your website(s) and server(s), and unless specifically contracted by Customer, Pantek does not monitor Customer website(s) for PCI compliance nor are we able to verify whether your website(s) meet the PCI Standard. When Customer does contract Pantek for PCI Compliance services regarding their web hosting, Customer’s invoice will state “PCI Compliant Hosting”, and Pantek’s responsibilities are generally limited to only those aspects of Customer Hosting which are under the complete and sole control of Pantek, and usually only including the relevant sub-sections of the PCI Standard Sections: 1, 2, 6.1, 6.2, 8, 9, 10, 11, 12. When new service is established, services marked as PCI Compliant are provisioned in accordance with the current PCI Compliance standards. However, maintaining PCI compliance is an ongoing process which is the responsibility of Customer unless otherwise contracted specifically with Pantek.
8.6. Acceptable Use Policy (AUP). Customer acknowledges that it has read Pantek’s Acceptable Use Policy located at http://www.pantek.com/aup, and Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this section. Pantek may change such policy by posting the revised policy on its web site or by giving Customer notice thereof. Any such change shall be effective on the earlier of the date the new policy is posted or on the date Pantek gives Customer notice thereof. If Customer resells Pantek’s Service, Customer shall require its customers and end users to comply with such AUP. Furthermore, Customer agrees to cooperate with Pantek’s reasonable investigation of any suspected violation of the AUP by Customer or any of its customer or end users.8.7. Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Pantek. Customer may not reverse engineer, decompile, or disassemble any Pantek provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software. If the applicable Statement of Work or Order Form indicates that Pantek uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software published by Microsoft Corporation.
8.8. Third Party Products. As a convenience to Customer, Pantek may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Customer’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party. Any price increases initiated by such third parties for use or access to their services, products, or licenses will be passed along to customer in kind. Pantek does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these third party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers. Pantek is not an agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
8.8.1. Pantek as a Reseller or Licensor. Pantek may act as a reseller or licensor of certain third party services, hardware, software and equipment used in connection with the Services (“Non-Pantek Products”). Pantek shall not be responsible for any changes in the Services that cause any Non-Pantek Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Pantek Products, either sold, licensed or provided by Pantek to you will not be deemed a breach of Pantek’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-Pantek Product are limited to those rights extended to you by the manufacturer of such Non-Pantek Product. You are entitled to use any Non-Pantek Product supplied by Pantek only in connection with your use of the Services as permitted under this Agreement. You shall make no attempt to copy, alter, reverse engineer, or tamper with such Non-Pantek Product or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-Pantek Product, or any technical data derived therefrom, in violation of any applicable law, rules or regulations.
8.8.4. Volusion. Pantek is a Volusion Authorized Partner and Reseller and offers the Volusion platform bundled with some hosting options, and also as a standalone product in some cases. Clients who utilize Volusion are also bound by and hereby agree to the latest effective versions of the Volusion Terms of Service, published at: http://www.volusion.com/legal as Volusion may modify from time to time.
8.9. Distributed Denial Of Service (DDoS) Attacks. A DDoS attack occurs when a number of servers (that have typically been “hacked” or compromised) located throughout the Internet, launch an attack against a website or a server by sending a flood of traffic to that website or server. A DDoS attack can significantly impact the performance of the network under attack, and can consume significant amounts of Internet bandwidth. In order to protect Pantek and its customers from DDoS attacks, Pantek provides all customers with basic DDoS protection. Customer’s traffic is scrubbed and good traffic (i.e., non-attacked traffic) will be sent to Customer’s servers, although Customer agrees and accepts that Pantek shall be allowed to place a limit on the amount of Internet traffic to be accepted as part of an attack on Customer’s server(s). This limit may vary based upon the load on Pantek’s network at any given time, and will be determined by Pantek in its sole discretion. In the event the total traffic (including attacking and non-attacking traffic) to Customer’s server(s) goes above the limit set by Pantek such that Pantek believes a continued attack may cause a significant impact to Pantek’s network or other customers, Customer accepts that Customer’s Internet traffic going to the attacked server(s) will be null routed (blocked) until the attack drops to a level deemed to be acceptable by Pantek. For those Pantek customers that find themselves under a DDoS attack, Internet traffic will null routed (blocked) on the server(s) being attacked. In addition, Customer agrees that they will be responsible for any monthly Internet bandwidth usage charges or monthly data transfer charges above Customers contracted amounts during such an attack, as calculated by Pantek using Pantek’s standard monthly data transfer calculation methods and its current rates for additional data transfer. For the purposes of this Agreement, a less severe attack type known as a Denial of Service Attack (“DOS Attack”), where a single website or server is under attack by a single server, is considered identical to a DDos Attack.
8.10. Data Encryption. In the event Customer stores any Protected Health Information (PHI) as defined by the United States Department of Health and Human Services (“DHHS”) pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer agrees to the following: (a) Customer shall only store said data in an encrypted format on Pantek’s server(s); (b) while Customer may request assistance from Pantek to setup encryption for its PHI data to be stored on Pantek’s servers, Customer agrees that Customer is solely responsible to ensure that said PHI data is encrypted properly at all times; and (c) Customer shall not disclose to Pantek any encryption key(s) necessary to decrypt such data nor provide access to Pantek to any application(s) residing on the Pantek server(s) which stores PHI. Notwithstanding any other provision of this Agreement, Customer agrees that in the event Customer fails to encrypt any PHI data as provided herein and such unencrypted data is accessed by an unauthorized party while being stored on Pantek servers subjecting Pantek to compliance with any regulations and/or laws, Customer shall be solely responsible for all costs associated with compliance with such regulations and/or laws and shall indemnify Pantek for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs and expenses (including reasonable attorneys. fees and other expenses) associated with or arising out of such disclosure to the extent caused by the Customer’s failure to encrypt such data. The provisions of this paragraph only apply to any Customer that is storing PHI on Pantek servers that is subject to HIPAA Compliance.
8.11. Shared Server Resource Policy. Customers contracting for Shared Hosting Services may not utilize unlimited resources on their assigned hosting server. If in Pantek’s sole determination Customer is using extreme server resources (including but not limited to CPU time, memory usage, and network resources), Customer will be notified via email and given an option of either upgrading to the appropriate service level (usually a Dedicated Server), reducing the resource used, or terminating service in accordance with this Agreement. Any website, application, script, or service deemed to be adversely affecting Pantek server performance or network integrity may be shut down without prior notice, in Pantek’s sole discretion, however whenever possible Pantek will use reasonable efforts to first contact Customer and attempt to resolve the issue prior to shutting down service.
9. Termination of Services. To terminate this Agreement, Customer shall notify Pantek by requesting a cancellation through the Pantek Portal. To protect Customer security, Email, HelpDesk, FAX, and phone cancellation requests are NOT accepted. Customers shall continue to be responsible for all charges to their account through the date of termination. Pantek shall continue to provide services through the date of termination only if Customer’s account is current and no past-due balances exist. Pantek may terminate this Agreement for any reason or no reason by providing thirty (30) days advance notice to Customer, or immediately in the event of a material breach of this Agreement in Pantek’s discretion. Please see this KnowledgeBase article for specific instructions to request a cancellation thru the Pantek Portal: https://portal.Pantek.com/knowledgebase.php?action=displayarticle&id=82
9a. Termination – Shared Hosting Plans – Non-Term. Customers purchasing any Shared Hosting Plan may terminate this Agreement and receive a full refund, for any reason, during the first thirty (30) days of service. This thirty (30) day money-back offer does NOT apply to purchases of Cloud Dedicated Servers or any other service types (including but not limited to SSL Certificates, extra bandwidth allotments, or extra Miva or other Modules). If this Agreement is terminated after the first thirty (30) days of service but before the first ninety (90) days of service, Customer shall pay Pantek for the full ninety (90) days of service. If this Agreement is terminated after the first ninety (90) days of service, Pantek shall give Customer a prorated refund for any months prepaid and unused.
9b. Termination – Shared Hosting Plans – Term Agreement. In the event this Agreement is terminated by Customer, or by a breach of this Agreement by Customer, prior to the end of their current Contract Period (or Lease Period or Term Period), Customer shall pay Pantek an early termination fee equal to the number of remaining months of unused service, multiplied by their contracted monthly rate for services.
9c. Termination – Cloud Dedicated Servers. In the event this Agreement is terminated by Customer, or by a breach of this Agreement by Customer, prior to the end of their current Lease Period, Customer shall pay Pantek an early termination fee equal to the number of remaining months of unused service, multiplied by their contracted monthly rate for services.
9d. Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name), and (c) that Pantek may take steps to change or remove any such IP addresses. Unless Customer requests in writing to the contrary, Pantek agrees to destroy all Customer-provided software and data after expiration or termination of this Agreement within sixty (60) days. In the event Customer requests the return of its software or data, or assistance with migrating their software, data, or systems away from Pantek, Customer agrees to be responsible for all associated costs, and any time spent by Pantek will be billable services as Systems Administration hours which Customer agrees to pay for prior to having its software and/or data returned.
10. Incidental and Overage Charges. As specified in your initial service order or current plan description, certain services may be billed in addition to normal hosting charges, when such services are actually used by customer. Some examples include extra disk space usage, extra bandwidth usage, extra email accounts, or additional shopping cart licenses. Such services are invoiced on a monthly basis for services used the prior month.
11. Actions Taken by Pantek. When Pantek becomes aware of an alleged violation of this Agreement, Pantek will initiate an investigation. During the investigation Pantek may restrict Customer access and/or disable services in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Pantek may, at its sole discretion, restrict, suspend, or terminate Customer’s account, delete individual files or block services which are in violation of the Terms of Service, and/or pursue other civil remedies. If such violation is a criminal offense, Pantek will notify the appropriate law enforcement department of such violation. Pantek does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
12. Intellectual Property Ownership
12.1. Subject to the further provisions of this Section, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party’s trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. Further, Pantek acknowledges that Customer owns, and shall continue to own, any and all data and content which Customer stores on Pantek’s servers, and nothing in this Agreement shall transfer ownership of Customer’s data or content to Pantek. Customer acknowledges and agrees that (a) Pantek owns, and shall continue to own any and all intellectual property (including, without limitation, all of Pantek’s Trade Secrets) that Pantek may utilize or develop in the course of performing the Services, and (b) Customer does not acquire any ownership interest or rights to possess Pantek’s server(s) or other hardware, and has no right of physical access to the hardware. To the extent that Customer provides any comments, instructions, suggestions, supporting information, and/or other feedback to Pantek, respecting any Services and/or any other subject matter of this Agreement collectively, ‘Feedback’), such Feedback shall be owned exclusively by Pantek. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to Pantek as of the date such right first vests in Customer.
12.2. Customer acknowledges and agrees that in the course of providing services to Customer, Pantek may disclose (or Customer may otherwise learn) one or more of Pantek’s Trade Secrets. For example, Pantek may give Customer, as applicable, full (a) ‘Root access’ (for Linux), and/or (b) ‘Admin access’ (for Windows), in each instance to Pantek’s software and hardware including Pantek’s servers. Customer further acknowledges and agrees that in the course of such access, Customer may gain access and knowledge to certain tools, methods and techniques used by Pantek to deliver Pantek’s uniquely high levels of performance, security, cost-effectiveness, and reliability (all of such tools, methods and techniques shall be referred to collectively herein as “Pantek’s Hosting Tools”). Without limiting the generality of the foregoing, Customer further acknowledges and agrees that Pantek’s Hosting Tools and all other of Pantek’s Trade Secrets (i) are not generally known to, and are not readily ascertainable by proper means by, Customer or by third parties, (ii) derive independent economic value to Pantek from not being generally known to, and not being readily ascertainable by proper means by, Customer or by third parties, and (iii) are the subject substantial efforts by Pantek to maintain their confidential nature. Customer further acknowledges and agrees that third parties would obtain economic value from the disclosure of Pantek’s Designated Trade Secrets to them. Customer acknowledges and agrees that all Pantek’s Trade Secrets constitute Pantek’s trade secrets under applicable law.
13. Resellers and White Labeled Hosting
Customer may only resell or white label Pantek’s Services (both referred to as a “Reseller”) with advance written authorization from Pantek and in accordance with the following terms:
- Reseller shall ensure that each of their clients complies with this Agreement and all attachments.
- Reseller is responsible for supporting their clients. Pantek does not provide support to clients of Resellers. All support requests must be made by the Reseller on its client’s behalf.
- Reseller is responsible for all billing and billing support for each of their clients.
- Resellers are responsible for all content stored or transmitted under their Reseller account(s) and the actions of their clients. Pantek will hold any Reseller responsible for any of their client’s actions that violate the law, this Agreement, or any attachment or included agreement.
- Reseller will not resell Pantek Services for a cost less than Pantek’s then-current list price.
- Reseller will not purchase search engine or other pay-per-click terms or domain names that use the trademarks of Pantek, their partners or trademarks or any variations and misspellings thereof.
- Neither party will solicit a direct or indirect sales relationship, other than as contemplated by this Agreement, with respect to each other’s services, unless such party has a pre-existing relationship.
- Pantek is not responsible for the acts or omissions of Reseller. Reseller hereby agrees to indemnify Pantek from and against any and all claims arising from Reseller’s acts or omissions.
VI. Hardware and Software Resale
This section applies to any sale of hardware or software by Pantek to Client.
In certain circumstances, Pantek may directly sell third party hardware or software to Client. Pricing is determined based on the written Quotes and/or Service Orders Pantek provides to clients.
1. No Refunds, Returns, or Exchanges. All hardware and software sales are final. Pantek does not provide any credits, discounts, refunds, returns, or exchanges whatsoever of any third party hardware or software products sold to Client.
2. No Warranties. PANTEK MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY PRODUCT OR SERVICE.
3. Export Control. Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Unless otherwise agreed upon in writing by Pantek, Client hereby warrants that no hardware or software received by Pantek shall be exported outside the United States.