On-Demand Application Service
I. PRODUCT DESCRIPTION
1. OAS Service: Companys On-Demand Application Service (OAS) distributes software applications in the U.S. Mainland to Companys Data Centers and provides a reporting capability for the metering and use of the application(s) by user(s). Such software applications are configured into AppSet(s) which are appropriately segmented and streamed to the desktop. OAS is managed in that a centralized platform facilitates intelligent software distribution integrated with a managed element that enables the metering, monitoring, and reporting of application usage. Application entitlement is based on information collected about users and deposited in a database of user profiles and levels. Information on an application is reported in terms of user, group, and administrative levels. Beginning February 1, 2006, On-Demand Application Service is not available to new Customers of the service.
2. Technical Support
2.1 Event Management: Company monitors all elements of the OAS 24 hours a day, 7 days a week, and provides Helpdesk services (as described in Section I.2.3) within the same time-frame.
2.2 Service Support Response: Company will acknowledge OAS support issues within 24 hours.
2.3 Customers Technical Administrator: Company will provide direct technical support in the form of a Helpdesk for an individual technical point-of-contact (Technical Administrator) within Customers organization identified in writing by Customer. Customer must provide Company with accurate and current 24x7 contact information for its Technical Administrator, and Company shall not be responsible to the extent Customer fails to update such information or provides inaccurate information.
2.4 Problem Resolution: Technical problems, if any, will be handled and resolved by Company through a process of Identification, Triage, Remedy, and Escalation, as required.
II. DEFINITIONS: The definitions contained in the General Terms and Conditions for Internet, Enhanced and Other Non-Telecommunications Products and Services apply to the service.
III. FEATURES AND OPTIONS
1. Application Delivery Service (ADS): If Customer selects this option, Customer will publish its own application(s) into AppSet(s), deliver the AppSet to Company via a file transfer protocol, and Company will host and deliver the application to Customers end users. Pricing is offered on a tiered download basis, or if Customer possesses a set of applications (either commercial off-the-shelf or developed in-house), it may choose tiered subscriber pricing. In addition, a Start-Up Fee applies. Companys Start-Up Fee for the ADS option includes provision of the publishing software to Customer, subject to the OAS Publication Software Terms and Conditions, publication of Customers first application, and on-site publishing training within the U.S. Mainland and Alaska. For both tiered download pricing and tiered subscriber pricing, a charge is assessed for usage in excess of the tier. Publishing applications will be charged a custom fee based on the complexity of the application.
2. Application Publication Service (APS): If Customer selects this option, Customer will provide application(s) to Company, and Company will publish, customize, host, and deliver the AppSet(s) to Customers end users, to a maximum of 10 AppSets per contract year. Additional customization or publishing beyond 10 AppSets per year is available via SSAP or CSAP as described in Section 3 - Other Services, and all publishing may be ordered during the contract year subject to the availability of Companys publishing team. Pricing is also offered on a tiered download basis, or if Customer possesses a set of applications (either commercial off-the-shelf or developed in-house), it may choose tiered subscriber pricing. In addition, a Start-Up Fee applies. Companys Start-Up Fee for the APS option includes publication of Customers first application. For both tiered download pricing and tiered subscriber pricing, a charge applies for usage in excess of the tier. A custom fee applies for publishing applications based on the complexity of the application.
3. Other Services
3.1 Standard Supplemental Application Publishing SSAP: Standard Supplemental Application Publishing (SSAP) is available on a per-application basis to have an application converted to an AppSet via standard defaults. SSAP covers five days of publishing, testing, and installation time.
3.2 Customized Supplemental Application Publishing CSAP: Customized Supplemental Application Publishing (CSAP) covers (i) the specific customization of an application as ordered by Customer; (ii) changes in the registry file, and (iii) associated macros of the AppSet which are outside the default options of the standard application publishing process.
3.3 Training: On-site training for application publishing is available.
3.4 AppSet Engineering: Company offers administrative support and minor publishing upgrades (e.g., service pack updates and patches to an existing AppSet) if such assistance is requested by Customer regarding its publishing or administration processes.
4. Operating System Support: Company offers publishing capabilities for the following operating systems: Windows NT4 (SP6), 2000 (SP3, SP4), XP (SP1, SP1a). Windows 95 and ME are not supported. The Windows 98 operating system will only be supported under CSAP (see Other Services, above). Other operating systems not noted above may also be supported under CSAP.
IV. RATES AND CHARGES: OAS rates and charges will be set forth in a Price Schedule appended to Customers Service Agreement or Service Attachment, as applicable.
1. Professional services beyond those set forth in Section I and Section III will be provided pursuant to a separate agreement and will be billed at a rate of $300 per hour with a minimum charge of four hours, or as otherwise provided in the separate agreement for such services.
2. Start-up fees, other non-recurring charges, and monthly recurring charges will be billed in advance, with tier overage billed in arrears.
3. Two hours of AppSet Engineering per month are included in Customers monthly recurring charge. Thereafter, Companys hourly rate of $300 per hour applies in 15 minute increments for AppSet Engineering support.
V. TERMS AND CONDITIONS: The following Terms and Conditions apply in addition to those set forth in the General Terms and Conditions for Internet, Enhanced and Other Non-Telecommunications Products and Services of this Guide
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1. Customer Obligations
1.1 Customer shall comply with all applicable law, rules, regulations and ordinances, including without limitation, local license or permit requirements that may apply.
1.2 Customer shall obtain the appropriate licenses to use the applications as contemplated by Companys provision of OAS. Customer shall indemnify and hold Company harmless from any claims or legal actions for damage or injury arising out of its failure to obtain the proper licenses or its breach of such licenses.
1.3 Customer shall not lease or resell OAS to another person or entity without the express prior written consent of Company.
1.4 Network Connections: Customer is responsible for arranging transport capabilities for accessing the Internet.
1.5 Customers ADS Contacts: With respect to ADS, Customer shall provide to Company not more than five names and attendant contact information of Customer personnel authorized to request technical assistance from Company. Company is not responsible for providing ADS technical assistance to any other Customer personnel, and also is not responsible to the extent Customer fails to update such contact information or provides inaccurate information.
2. APS: It is entirely within Companys discretion as to whether applications are publishable into AppSets. For example, applications that change the operating system or the device driver on the desktop are not publishable.
3. AppSet Engineering: For any AppSets that Company has published, Customer is responsible for requesting or ordering, as applicable, upgraded AppSets when new-feature releases are issued. If such upgrades are critical to Customers use of OAS, Company may contact Customer and require that such upgrades be implemented for OAS to continue.
4. Service Activation Date/Term: The Service Activation Date for: (i) an ADS is the date Company provides access information to Customers designated Administrator; (ii) an APS is the date Company publishes the first application. The term of any ADS or APS (Service Term) commences upon the Service Activation Date and automatically renews, expires and terminates according to the terms of Customers contract agreement. Notwithstanding the above, the minimum Service Term for OAS is one year, and if the contract agreement terminates or expires prior to the expiration of this minimum Service Term, OAS shall continue to be provided pursuant to the terms and conditions of the contract agreement for the longer of the minimum Service Term or the Service Term otherwise agreed to by Customer. If Customer terminates an On-Demand Application Service before the end of the one-year minimum Service Term (or longer committed Service Term) for reasons other than Customer termination for Cause, Customer will pay an amount equal to seventy-five percent of the monthly recurring charge for the discontinued On-Demand Application Service(s) multiplied by the number of months remaining in the unexpired portion of the one-year commitment or committed Service Term, plus a pro rata portion of any and all credits received by Customer, in addition to any amounts owed for OAS already received. In order to terminate OAS, in addition to the Notice requirements set forth in the contract agreement, Customer must deliver an e-mail message stating its desire to terminate to the following e-mail address: hosting-cancel@mci.com (or other url designated by Company). Such termination shall be effective thirty (30) days following Companys receipt of such notice.
5. Employee Contact Information
5.1 Each party (Providing Party) agrees to allow the other party and its corporate affiliates (collectively, the Receiving Party) to store and use the employee contact information of the Providing Party and its corporate affiliates, and further as to Company, the employee contact information of its subcontractors and as to Customer, the employee contact information of its users of OAS, all as received in connection with the contract agreement, including names, phone numbers, and e-mail addresses, as required solely in connection with performance by Company of OAS anywhere Company is engaged in such performance. Company as the Receiving Party may further permit its subcontractors involved in performance hereunder to store and use such employee contact information solely in connection with such performance, including for the purpose of communicating with the Customer and its users about OAS.
5.2 For the avoidance of doubt, any such employee contact information received by a Receiving Party in connection with the contract agreement shall be deemed the Confidential Information of the Providing Party under this Agreement. Without limiting or modifying the obligations of the Receiving Party set forth in the contract agreement as to Confidential Information received thereunder, the Receiving Party will ensure adequate protection of such employee contact information, including by such subcontractors, through compliance with any data protection or privacy laws relevant to its performance in accordance with the contract agreement and these terms.
6. Service Upgrades: Company reserves the right, in its sole discretion, to deploy upgrades to the OAS-enabling software in a timeframe that is conducive to the safety of Company's data center and its ability to provide service to its other customers. Further, Company, in its sole discretion, may require Customer to install upgrades made available by Company to any OAS-enabling software deployed on Customers equipment. Such version/upgrade deployment shall constitute neither a material change to OAS nor a change affecting Customer in a material and adverse manner for purposes of justifying a contract termination.
7. Subcontractors: Company reserves the right to use subcontractors or any other third parties to fulfill its obligations under its Agreement with Customer including, without limitation, deployment and onsite installation.
8. Warranty Disclaimer: COMPANY AND ITS SUBCONTRACTORS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO OAS AND/OR ANY EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY OAS-ENABLING SOFTWARE, THEIR RESPECTIVE QUALITY OR PERFORMANCE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMERS USE OF OAS AND/OR ANY EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY OAS-ENABLING SOFTWARE, AND ANY INFORMATION OBTAINED OR CONVEYED THEREBY, INCLUDING, BUT NOT LIMITED TO, REPORTS, IS AT CUSTOMERS OWN RISK.
9. Third-Party Sites: TO THE EXTENT OAS IS DEPLOYED OR APPLICATIONS USED AT THIRD-PARTY SITES (INCLUDING CUSTOMERS AFFILIATES SITES) PURSUANT TO CUSTOMERS REQUEST OR ACTION, CUSTOMER SHALL INDEMNIFY AND HOLD COMPANY HARMLESS FROM ANY CLAIMS OR LEGAL ACTIONS FOR DAMAGE OR INJURY ARISING OUT OF SUCH DEPLOYMENT OR THIRD-PARTY USE.
10. Order Process: Customer may order OAS by submitting its request to Customers Company-designated account representative or by e-mailing it to Company, in accordance with Companys instructions and the Electronic Signatures in Global and National Commerce Act, as it may be amended from time-to-time (the "E-Sign Act"). Customers submission shall constitute its binding commitment to purchase OAS described in its request. Companys activation of OAS at a particular site shall constitute Companys acceptance of the Customers order. Company reserves the right to reject any order submitted hereunder for any reason, including without limitation due to Companys obligations under applicable laws, regulations, directives, governmental authority or orders, third party contracts, or Customers failure to meet Companys credit approval requirements. In addition, Company may reject an order in the case (a) of the inability or impracticality of providing OAS in a particular geographic area in which Company does not have sufficient presence, capacity, corporate infrastructure or network technical infrastructure to effectively support OAS, or (b) Company no longer commercially offers OAS.
VI. SERVICE LEVEL AGREEMENT: Any service level agreement for OAS is in Customers Service Agreement.
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