Yakima County Technology Srvcs.MASTER SERVICES AGREEMENT
Yakima County Technology Services - Secure Data Center
THIS MASTER SERVICES AGREEMENT (the "Agreement") is made on the Effective Date below by and
between the parties written below (hereinafter collectively referred to as the "Parties" or individually as the "Party).
YAKIMA COUNTY TECHNOLOGY SERVICES -
("Host")
(a Washington State governmental entity)
Attention: George Helton
Address:
128 North 2nd Street
1.
Yakima, WA 98901
Phone:
(509) 574 - 2005
Fax:
(509) 574 - 2001
Email:
George.helton@co.yakima.wa.us
Effective Date: October 1, 2014
CITY OF EDMONDS
("Entity")
(a Washington State governmental entity)
Attention: Scott James
Address: 121 51h Ave North
Edmonds, WA 98020
Phone: 425.775.7743
Fax:
Email: scott.james@edmondswa.gov
Type(s) of Service: ❑ Primary Data Center
❑ On -Line Production Remote Data Center
❑ On -Line Idle Data Center
❑ Near -Line Data Storage
❑ Off -Line Data Storage
❑ Web Host
❑ ASP Hosting
x Hot -Site Data Center
Total Contract $US 2,100/year
Amount: (An estimated total which includes both recurring and non-recurring amounts)
Table of Contents: Section
Title
Page
1.
Services
2
2.
Compensation
2
3.
Term & Termination
2
4.
Proprietary Information
3
5.
Confidentiality
4
6.
Representations and Warranties
4
7.
Indemnification, Insurance and Protection of Property
3
8.
Taxes
6
9.
Other Terms and Conditions
6
Exhibit A, A-1,
A-2 Statement of Work (SOW)
Schedule 1
Fee Schedule
Attachment 1
Special Provisions
Exhibit B
List of Equipment and Software
Exhibit C
Mutual Non -Disclosure Agreement
Exhibit D
Insurance Requirements & Certificate
Exhibit E
Yakima County SDC Privacy Policy
Exhibit F
Yakima County SDC Terms of Use
1
�drf
11
Form last revised 19 Aug 2004
AGREEMENT
WHEREAS, Entity (i.e., corporation, not -profit or government agency) desires to have Host provide services as
set forth in the Statement of Work ("SOW") set forth in Exhibit A attached to and under the terms and conditions of
this Agreement (the "Services"); and,
WHEREAS, Host agrees to provide Services to Entity within its Secure Data Center facility (hereinafter "SDC,"
"Site" or "Facility").
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby
acknowledged, Entity and Host, intending to be legally bound, hereby agree as follows:
1. SERVICES. Host shall provide all required Services, including services commercially reasonably required
to support the Services, as set forth in Exhibit A and in accordance with this Agreement and all Exhibits,
Schedules and Attachments thereof.
2. COMPENSATION. Entity agrees to pay Host for the Services in accordance with this Agreement and all
Exhibits, Schedules and Attachments thereof and the following terms and conditions:
(a) Payments. Initial payment for Services shall be due on the first day of the month immediately
following the Effective Date of this Agreement. Unless otherwise stated in this Agreement, Entity shall make
payments to Host on a monthly basis until the Agreement or applicable Statement of Work is terminated or
expires. Final payment shall be due no later than 30 days after termination or expiry of this Agreement or the
applicable Statement of Work. Entity may pro rate its payments for partial months, subject to the prior review and
approval of Host. Upon receipt of a notice of termination, Host shall inform Entity of the extent to which
performance of services form the purpose of establishing any final amounts due, if any.
(b) Remittance. Payment for any charges is due upon the date of the invoice or the first day of each
month as applicable. All payments must be in U.S. Dollars. Any charge that is not paid within thirty (30) days from
the date of the invoice shall be subject to an interest rate of 1.5% per month, or the maximum allowed by law.
Entity shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event
of a default for nonpayment of any amounts due Host. Entity shall remit all payments to: "Yakima County
Technology Services". Entity shall make payment by Entity check, mailed to Yakima County, 128 North 2nd Street,
Yakima, WA, 98901, to the attention of Yakima County Technology Services.
(c) Transition; Refunds. Upon expiry or termination of this agreement and subject to prior approval
of Host, Entity may be eligible for a refund in part or in whole for the final month of the Agreement based on
difference in any amount paid in advance by Entity and the pro rated amount applied to the Services provided.
However, Entity will not be eligible to receive a refund for any of the following: (i) setup fees or any fees other than
the monthly or yearly recurring hosting fees; (ii) fees resulting from extra services or "add-ons" not classified as
monthly or yearly recurring fees; (iii) late cancellation; (iv) slow connection caused by Entity's network or Entity's
network service provider, (v) problems in Services caused by Entity's ignorance; (vi) InterNIC delays; (vii)
termination for any of the causes set forth in Section 3(c); or (viii) any other reason not provided for in this Section
2(c). In addition, Entity is obligated to pay Host for any non-recurring costs incurred by Host, including but not
limited to set-up or take down of Entity's equipment, and Host reserves the right to offset any refunds against any
such costs not yet paid by Entity.
3. TERM AND TERMINATION.
(a) Term. This Agreement shall commence on the Effective Date and shall continue for a period of
no less than one (1) year, unless sooner terminated as provided herein, and will automatically continue on a
month to month basis thereafter unless either Party provides fifteen (15) calendar days written notice of its intent
to terminate or cancel. The term of any right or license or proprietary rights granted to Entity under this Agreement
shall run concurrently with this Agreement or be for the full term of such proprietary rights. Either Party may
terminate this Agreement without cause upon fifteen (15) calendar days written notice.
Form last revised 19 Aug 2004 _2.
(b) Termination for Convenience. Host may terminate this Agreement at its sole discretion or any
or all services hereunder, or any portion thereof, upon fifteen (15) calendar days' written notice to Entity.
(c) Termination for Breach. Either Party may terminate this Agreement upon fifteen (15) calendar
days' notice to the other Party in the event of a breach of any material provision of this Agreement by the other
Party, provided that, during the fifteen -day period, the breaching Party fails to cure such breach or, should the
breach not be curable within said fifteen -day period, the breaching Party has not initiated steps to cure such
breach. In addition, Host may immediately terminate this Agreement for any of the following causes without
possibility of cure, and in such case Host reserves the right to immediately terminate Entity's account and
suspend or cancel Services, and for such suspension or cancellation Entity shall not be eligible to receive a
refund and may be subject to additional charges: (i) failure on the part of Entity to make payment in accordance
with Section 3 of this Agreement for a period of fifteen (15) calendar days after payment is due; (ii) interference
with the operation or security of Host's facility or equipment or another Entity's equipment or software; (iii)
malicious or negligent acts on the part of the Entity, its employees, agents or subcontractors, which cause harm to
Host or another Entity; (iv) any violations of security, confidentiality or proprietary rights of the Host or another
Entity on the part of the Entity, its employees, agents or subcontractors; (v) any violation of Host's Terms of Use,
a copy of which is set forth herein under Exhibit F; the acceptance of which constitutes an acceptance of any
fines, penalties or service charges that might arise out of violation of these policies; (vi) commencement of any
lawsuit or proceeding against Entity arising from or relating to its use of the Services, whether or not such suit
names Host as a party or seeks any recovery from Host; (vi) Entity becoming insolvent or filing for bankruptcy
protection; or (vii) assignment of this Agreement by Entity to any other entity without the prior approval of the
Host, including assignment to an agent for the purpose of receivership.
(d) Transition; Removal of Equipment. Entity or its designated agent or subcontractor shall take
down and remove from Hosts premises all of its equipment and hardware, including resident software, within one
(1) calendar week of the effective date of termination or expiry of this Agreement. Should Entity fail to remove
such equipment and hardware within this one-week period, Host may at its discretion forfeit any refunds due to
Entity. If equipment or hardware has not been removed from Host's premises within one (1) calendar month of the
effective date of termination or expiry of this Agreement, the equipment or hardware shall be considered
abandoned and Host may at its discretion take possession of it for disposition, sale and/or disposal.
4. PROPRIETARY INFORMATION. It is understood that either Party may use its own previously developed
data, documentation, software, ideas, concepts, materials, or information, in whatever form, in performing its
services hereunder (collectively referred to as "Preexisting Works"). Insofar as such Preexisting Works were not
first produced or created solely and exclusively for performance of work or the rendition of Services under this
Agreement, but are necessary or useful for, or are used in connection with the Services, any and all right, title,
and interest in Preexisting Works shall remain the sole and exclusive property of the Party who created such
works. The Parties mutually grant a nonexclusive license to use each other's Preexisting Works when used solely
and exclusively in combination with the Services. Neither Party shall have any other rights, whatsoever, with
respect to use of the other Party's Preexisting Works.
(a) It is understood that in performing its services, Host may have occasion to develop new and
unique work products for use in conjunction with the Services. The Parties agree that all such work products shall
be considered "Works Made for Hire" as defined under the U.S. Copyright Laws, and Host shall be deemed the
sole and exclusive owner of all right, title, and interest therein, including all copyright and proprietary rights
relating thereto. All such work performed by Host and any supporting documentation therefor and, as such, shall
be owned by and for the benefit of the Host. For the purpose of this Agreement "Work Product(s)" shall mean all
data, documentation, software, ideas, concepts, materials, and information, in whatever form, first produced or
created by or for Host, which relate solely and exclusively to the performance of Services under this Agreement
(hereinafter "Work Product(s)").
(b) As necessary for performance of the Services, Host will and hereby does assign to Entity for no
additional consideration, all right, title, and interest that it may possess in Work Products including, but not limited
to, all Host and proprietary rights relating thereto. Upon request, Host will take such steps as are reasonably
necessary to enable Entity to record such assignment.
Form last revised 19 Aug 2004 3
5. CONFIDENTIALITY.
The terms and conditions set forth in the Non -disclosure Agreement between the Parties included in this
Agreement under Exhibit C shall apply to this Agreement and are incorporated in this section by this reference.
6. REPRESENTATIONS AND WARRANTIES.
(a) By Host:
(i) Host has full rights to enter into and perform according to the terms of this Agreement,
and that such performance will not violate any agreement or obligation between Host and any third party. Entity
understands that Host is currently providing one or more clients with similar Services. Provided that those
Services do not interfere or conflict with Host's obligations under this Agreement, provision of those Services shall
not constitute a violation of this provision of the Agreement. Host reserves the right to restrict access to Host's
facility in its own discretion.
(ii) Host has and will have full and sufficient right to assign or grant the rights and/or licenses
granted in support of Services this Agreement, and such grant(s) do not and will not infringe any patents,
copyrights, trademarks, or other intellectual property rights (including trade secrets), privacy, or similar rights of
any person or entity, nor has any claim (whether or not embodied in an action, past or present) of such
infringement been threatened or asserted, nor is such a claim pending against Host or, insofar as Host is aware,
against any entity from which Host has obtained such rights.
(iii) Host Services (A) shall be provided in a workmanlike manner and with professional
diligence and skill; (B) all website -related Services will function under standard HTML conventions; (C) all
Services will conform to the specifications and functions set forth in this Agreement; and (D) Host will perform all
work called for by this Agreement. This warranty shall extend only for the life of this Agreement. This warranty
does not cover failures in Entity -provided equipment or software, Entity's website, Entity's website links that
change over time, Entity's webpages that become obsolete over time, Entity's content that becomes outdated
over time, or other changes that do not result from any error on the part of Host.
(iv) Host will take every step to ensure that the Facility and Services are available to users on
demand. Notwithstanding same, Host is not liable for loss of internet service, internet access, or data for any
reason including, but not limited to, any unforeseen or preventable failure related to changes in the internet
infrastructure or traffic capabilities, failure or breakdown of the internet, the World Wide Web, any related
telecommunications equipment or systems, or any computer hardware or software.
(v) Host shall comply with all terms relating to Confidential Information and Entity
understands that Host may, if compelled by superceding law, disclose information to a governmental agency upon
request by that agency. In such case Host shall not be liable for any violation of the Mutual Non -disclosure
Agreement between the Parties, Sections 4 or 5 of this Agreement, or any other applicable terms and conditions
of this Agreement.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, HOST MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES PROVIDED, AND HOST SPECIFICALLY DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA,
WHETHER RESULTING FROM HARDWARE FAILURES, DELAYS ON DELIVERIES, WRONG DELIVERY, ANY
AND ALL SERVICE INTERRUPTIONS CAUSED BY HOST AND ITS EMPLOYEES, SECURITY VIOLATIONS
AND ANY OTHER CAUSE.
(b) By Entity:
(i) Entity has full rights to enter into and perform according to the terms of this Agreement,
Form last revised 19 Aug 2004 -4-
and that such performance will not violate any agreement or obligation between Entity and any third party.
(ii) Entity will, at all times relevant to this Agreement, keep any and all license agreements
with third parties relevant to the Services in force and in good standing;
(iii) Entity is the legal owner or Lessor of all equipment and hardware to be housed at Host's
facility under this Agreement.
(iv) Entity is solely responsible for maintaining its equipment and software. Entity shall
maintain all software virus -free and to the extent possible shall incorporate all defenses, shields, programs or
other means to ensure that software remains virus -free during performance of Services.
(v) Entity and all of Entity's data complies with all rules, requirements, obligations, laws,
statutes, international conventions on use of data, and the terms and conditions of this Agreement.
(vi) Entity and all employees, agents, and contractors of Entity shall comply with the Privacy
Policy (Exhibit E), Terms of Use (Exhibit F) and any Facilities Use Policies which may be published by the SDC
from time to time.
(vii) Entity will not permit the use or sublicense of any of Entity's services or rights under this
Agreement.
ENTITY ACKNOWLEDGES THAT IT HAS READ AND FULLY UNDERSTANDS THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 6(b).
7. INDEMNIFICATION, INSURANCE AND PROTECTION OF PROPERTY.
(a) Indemnification by Entity. Entity shall indemnify and hold harmless Yakima County, its
directors, officers, employees and agents from and against all actions, causes of action, liabilities, claims, suits,
judgments, liens, awards and damages of any kind and nature whatsoever for losses due to the Services,
damages due to software viruses or service interruptions due to malicious acts, property damage, personal injury
or death (including without limitation injury to or death of employees of Entity or any subcontractor thereof) and
expenses, costs of litigation and counsel fees related thereto or incident to establishing the right to
indemnification, arising out of or in any way related to the Services, the performance thereof by Entity or any
subcontractor thereof or other third parties, including, without limitation, the provision of Services, personnel,
facilities, equipment, support, supervision or review. The foregoing indemnity shall apply only to the extent of the
negligence of Entity, any subcontractor thereof, or their respective employees. In no event shall Entity's
obligations hereunder be limited to the extent of any insurance available to or provided by Entity or any
subcontractor thereof. Entity expressly waives any immunity under industrial insurance, whether arising out of
statute or source, to the extent of the indemnity set forth in this paragraph (a).
(b) Insurance. Entity shall comply with the Additional Terms Regarding Insurance for Work set forth
in Exhibit D.
(c) Duty to Protect Property. At all times Entity shall, and ensure that any subcontractor thereof
shall, use suitable precautions to prevent damage to Host's or other parties' property. If any such property is
damaged by the fault or negligence of Entity or any subcontractor thereof, Entity shall, at no cost to Host,
promptly and equitably reimburse Host or the other party for such damage or repair or otherwise make good such
property to Host's or the other party's satisfaction. If Entity fails to repair or otherwise make good such property,
Host or other party may do so and recover from Entity the cost thereof.
8. TAXES.
Entity shall be responsible for payment of all sales and use taxes applicable under this Agreement.
Form last revised 19 Aug 2004 5
9. OTHER TERMS AND CONDITIONS.
(a) Force Majeure. Neither Party will be liable for, or will be considered to be in breach of or default
under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of
any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to
overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the
affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to
minimize the impact of the event.
(b) Relationship of the Parties. Host, in rendering performance under this Agreement, shall be
deemed an independent contractor and nothing contained herein shall constitute this arrangement to be
employment, agency, a joint venture, or a partnership.
(c) Notices. Any notice required to be given under this Agreement shall be in writing and delivered
personally to the other designated Party at the above stated address or mailed by certified, registered or Express
mail, return receipt requested or by Federal Express. Either Party may change the address to which notice or
payment is to be sent by written notice to the other Party.
(d) Governing Law; Venue; Attorney's Fees. This Agreement shall be governed in accordance
with the laws of the State of Washington and Entity agrees that any disputes under this Agreement shall be
resolved by litigation in the U.S. Federal District Court for the Eastern District of Washington, sitting in Spokane,
Washington, unless no federal jurisdiction exists, which in such event litigation shall be brought in the State
Superior Court in Yakima, Washington. Entity agrees to accept service of process by mail, and hereby waive any
jurisdictional or venue defenses otherwise available to it. In any action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing Party will be entitled to recover its costs,
including reasonable attorneys' fees.
(e) Binding Agreement. The provisions of the Agreement shall be binding upon and shall inure to
the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
(f) Assignment. Neither Party may assign this Agreement nor the rights and obligations thereunder
to any third party without the prior express written approval of the other Party, which shall not be unreasonably
withheld.
(g) Waiver. No waiver by either Party of any default shall be deemed as a waiver of prior or
subsequent default of the same of other provisions of this Agreement.
(h) Severability. If a court of competent jurisdiction hereof holds any term, clause or provision invalid
or unenforceable, such invalidity shall not affect the validity or operation of any other term, clause or provision and
such invalid term, clause or provision shall be deemed to be severed from the Agreement.
(i) Special Provisions. Certain Special Provisions are included in this Agreement under Exhibit A,
Attachment 1, and are incorporated herein by this reference and made a part hereof.
Q) Precedence. Should there be a conflict between the terms and conditions of any Special
Provision, Exhibit, SOW, Attachment or Schedule and the terms and conditions of this Agreement, the terms and
conditions of this Agreement shall take precedence.
(k) Entire Agreement. This Agreement constitutes the entire understanding of the Parties, and
revokes and supersedes all prior agreements between the Parties whether verbal or in writing and is intended as
a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties
hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other
documents that may conflict with this Agreement.
Form last revised 19 Aug 2004 -6-
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be
affixed hereto by their hand their signatures on the Effective Date written below.
YAKIMA COU TY TECHNO'LOGY�SERVICES
By;
lqi,�
Title: Director, Technology Services
ENTI=—g'Q
Edmonds
by:
Title: Mayor
Form last revised 19 Aug 2004 -7-
03-27-04
EXHIBIT A, A-1 and/or A-2
STATEMENT OF WORK
The City of Edmonds will place hardware listed in Exhibit B, into the Yakima County SDC,
Secure Data Center. The network connection to this equipment will be over the LGN, Local
Government Network.
The City of Edmonds will install the equipment and provide the necessary monitoring of their
computer hardware.
Yakima County to provide:
- Security
o Card key access
o Multiple cameras in the data center
o Electronic notification to on call staff when the data center is accessed
- Rack space will be provided as needed
- Replacement of drives in City of Edmonds equipment as needed using City of Edmonds
provided drives (see Fee Schedule for rates)
- The data center is designed to keep the temperature within 58 to 75 degrees and humidity
within 35 to 50%. The system will notify on call Staff when the environment is outside
of those ranges.
- Tier 2 data center which includes
o Liebert Npower l 30kVA Uninterruptible Power Supply
o Auxiliary power services provided via a Caterpillar® 450 KW diesel generator
with 7 days of autonomous runtime before requiring refueling
Page 1 at Exhibit A
SCHEDULE 1 TO EXHIBIT A
FEE SCHEDULE
Description
# U
per U
extension
Nimble SAN CS220
3
$25
75
Cisco 4938 Switch
1
$25
25
HP Server DL360
2
$25
50
Cisco ASA 5510
1
$25
25
Cost per month
$175
Support is available from Yakima County technical staff at the rate per hour of:
Rate Time of Day
$ 85 Normal business hours, Monday — Friday, 8am — 5pm
$150 Outside of normal business hours, including holidays
Page 1 at Schedule 1
ATTACHMENT 1 TO EXHIBIT A
SPECIAL PROVISIONS
NONE
Page 1 at Attachment 1
EXHIBIT B
LIST OF EQUIPMENT AND SOFTWARE
Quantity 1, Nimble SAN CS220, 2U
Quantity 1, Cisco 4938 Switch, lU
Quantity 1, HP Server DL360, lU
Quantity 1, Cisco ASA 5510, 1 U
Page 2 at Exhibit B
EXHIBIT C
MUTUAL NON -DISCLOSURE AGREEMENT
This Mutual Non -Disclosure Agreement (the "Agreement") is made and entered into as of the
later of the two signature dates below by and between YAKIMA COUNTY TECHNOLOGY
SERVICES, a Washington State governmental entity ("Yakima"), and City of Edmonds, a
Washington State governmental entity ("Entity").
IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS
AGREEMENT AND THE MUTUAL DISCLOSURE OF CONFIDENTIAL INFORMATION, THE
PARTIES HERETO AGREE AS FOLLOWS:
A. Definition of Confidential Information and Exclusions.
(1) "Confidential Information" means nonpublic information that a Party to this Agreement
("Disclosing Party") designates as being confidential to the Party that receives such information
("Receiving Party") or which, under the circumstances surrounding disclosure ought to be treated
as confidential by the Receiving Party. "Confidential Information" includes, without limitation,
information in tangible or intangible form relating to and/or including released or unreleased
Disclosing Party software or hardware products, the marketing or promotion of any Disclosing
Party product, Disclosing Party's business policies or practices, and information received from
others that Disclosing Party is obligated to treat as confidential. Except as otherwise indicated in
this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and,
except as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the
Receiving Party. An "Affiliate" means any person, partnership, joint venture, corporation or other
form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or
indirectly, control, are controlled by, or are under common control with a party. Prior to the time
that any Confidential Information is shared with an Affiliate who has not signed this Agreement,
the Receiving Party that executed this Agreement below (the "Undersigned Receiving Party")
shall have entered into an appropriate written agreement with that Affiliate sufficient to enable the
Disclosing Party and/or the Undersigned Receiving Party to enforce all of the provisions of this
Agreement against such Affiliate.
(2) Confidential Information shall not include any information, however designated, that:
(a) is or subsequently becomes publicly available without Receiving Party's breach of any
obligation owed Disclosing Party; (b) became known to Receiving Party prior to Disclosing Party's
disclosure of such information to Receiving Party pursuant to the terms of this Agreement;
(c) became known to Receiving Party from a source other than Disclosing Party other than by the
breach of an obligation of confidentiality owed to Disclosing Party; or (d) is independently
developed by Receiving Party.
B. Obligations Regarding Confidential Information
(1) Receiving Party shall:
(a) Refrain from disclosing any Confidential Information of the Disclosing Party to
third parties for five (5) years following the date that Disclosing Party first discloses such
Confidential Information to Receiving Party, except as expressly provided in Sections 13(2) and
B(3) of this Agreement;
(b) Take reasonable security precautions, at least as great as the precautions it takes
to protect its own confidential information, but no less than reasonable care, to keep confidential
the Confidential Information of the Disclosing Party;
Form last revised 19 Aug 2004 Page 1 at Exhibit C
(c) Refrain from disclosing, reproducing, summarizing and/or distributing
Confidential Information of the Disclosing Party except in pursuance of Receiving Party's
business relationship with Disclosing Party, and only as otherwise provided hereunder; and
(d) Refrain from reverse engineering, decompiling or disassembling any software
code and/or pre-release hardware devices disclosed by Disclosing Party to Receiving Party under
the terms of this Agreement, except as expressly permitted by applicable law.
(2) Receiving Party may disclose Confidential Information of Disclosing Party in
accordance with a judicial or other governmental order, provided that Receiving Party either (a)
gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow
Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (b) obtains
written assurance from the applicable judicial or governmental entity that it will afford the
Confidential Information the highest level of protection afforded under applicable law or
regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer
source code that contains Confidential Information of the Disclosing Party in accordance with a
judicial or other governmental order unless it complies with the requirement set forth in sub-
section (a) of this Section B(2).
(3) The undersigned Receiving Party may disclose Confidential Information only to
Receiving Party's employees and consultants on a need -to -know basis. The undersigned
Receiving Party will have executed or shall execute appropriate written agreements with its
employees and consultants sufficient to enable Receiving Party to enforce all the provisions of
this Agreement.
(4) Receiving Party shall notify the undersigned Disclosing Party immediately upon
discovery of any unauthorized use or disclosure of Confidential Information or any other breach of
this Agreement by Receiving Party and its employees and consultants, and will cooperate with
Disclosing Party in every reasonable way to help Disclosing Party regain possession of the
Confidential Information and prevent its further unauthorized use or disclosure.
(5) Receiving Party shall, at Disclosing Party's request, return all originals, copies,
reproductions and summaries of Confidential Information and all other tangible materials and
devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's
option, certify destruction of the same.
C. Remedies
The parties acknowledge that monetary damages may not be a sufficient remedy for
unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled,
without waiving any other rights or remedies, to such injunctive or equitable relief as may be
deemed proper by a court of competent jurisdiction.
D. Other Terms & Conditions
(1) All Confidential Information is and shall remain the property of Disclosing Party. By
disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any
express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or
trade secret information except as otherwise provided herein. Disclosing Party reserves without
prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade
secrets except as otherwise provided herein.
(2) In the event that the Disclosing Party provides any computer software and/or
Form last revised 19 Aug 2004 Page 2 at Exhibit C
hardware to the Receiving Party as Confidential Information under the terms of this Agreement,
such computer software and/or hardware may only be used by the Receiving Party for evaluation
and providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party.
Unless otherwise agreed by the Disclosing Party and the Receiving Party, all such computer
software and/or hardware is provided "AS IS" without warranty of any kind, and Receiving Party
agrees that neither Disclosing Party nor its suppliers shall be liable for any damages whatsoever
arising from or relating to Receiving Party's use of or inability to use such software and/or
hardware.
(3) The parties agree to comply with all applicable international and national laws that
apply to (a) any Confidential Information, or (b) any product (or any part thereof), process or
service that is the direct product of the Confidential Information, including the U.S. Export
Administration Regulations, as well as end-user, end-use and destination restrictions issued by
U.S. and other governments.
(4) The terms of confidentiality under this Agreement shall not be construed to limit either
the Disclosing Party or the Receiving Party's right to independently develop or acquire products
without use of the other party's Confidential Information. Further, the Receiving Party shall be
free to use for any purpose the residuals resulting from access to or work with the Confidential
Information of the Disclosing Party, provided that the Receiving Party shall not disclose the
Confidential Information except as expressly permitted pursuant to the terms of this Agreement.
The term "residuals" means information in intangible form, which is retained in memory by
persons who have had access to the Confidential Information, including ideas, concepts, know-
how or techniques contained therein. The Receiving Party shall not have any obligation to limit or
restrict the assignment of such persons or to pay royalties for any work resulting from the use of
residuals. However, this sub -paragraph shall not be deemed to grant to the Receiving Party a
license under the Disclosing Party's copyrights or patents.
(5) This Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof. It shall not be modified except by a written agreement dated
subsequent to the date of this Agreement and signed by both parties. None of the provisions of
this Agreement shall be deemed to have been waived by any act or acquiescence on the part of
Disclosing Party, the Receiving Party, their agents, or employees, but only by an instrument in
writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver
of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the
same provision on another occasion.
(6) If either Disclosing Party or the Receiving Party employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the
laws of the State of Washington, and the parties further consent to exclusive jurisdiction and
venue in the U.S. Federal Court for the Eastern District of Washington, sitting in Spokane,
Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent
to the exclusive jurisdiction and venue in the Superior Court of Yakima County, Washington.
Entity waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process
may be served on either party in the manner authorized by applicable law or court rule.
(7) This Agreement shall be binding upon and inure to the benefit of each party's
respective successors and lawful assigns; provided, however, that neither party may assign this
Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in
whole or in part, without the prior written approval of the other party. Any attempted assignment
in violation of this Section shall be void.
Form last revised 19 Aug 2004 Page 3 at Exhibit C
(8) If any provision of this Agreement shall be held by a court of competent jurisdiction to
be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
(9) Either party may terminate this Agreement with or without cause upon ninety (90)
days prior written notice to the other party. All sections of this Agreement relating to the rights
and obligations of the parties concerning Confidential Information disclosed during the term of the
Agreement shall survive any such termination.
(10) Host and its employees do not accept or consider unsolicited ideas, including ideas
for new advertising campaigns, new promotions, new products or technologies, processes,
materials, marketing plans or new product names, any original creative artwork, samples, demos,
or other works. If Entity sends Host any such ideas or materials, Host will not consider nor treat
such ideas and materials as confidential or proprietary under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ENTITY: City of Edmonds YAKIMA COUNTY TECHNOLOGY SERVICES
Address: 128 North 2nd Street
Yakima, WA 01
By: By:
Name: 'Dave Earling me: Geor Helton
Title: Moor Tit: Director Technology Services
Date:Date:
Form last revised 19 Aug 2004 Page 4 at Exhibit C
EXHIBIT D
INSURANCE REQUIREMENTS AND CERTIFICATE
This Exhibit "D" is a continuation of that certain MASTER SERVICES AGREEMENT between the
Yakima County Technology Services ("Host"), and City of Edmonds ("Entity"), and specifies the
insurance requirements of Entity under the Agreement.
1. INSURANCE.
(a) General. Prior to the commencement of this Agreement, and throughout the
entire Term of this Agreement, Entity shall procure and maintain the insurance described below.
Such insurance shall be in a form and with insurers acceptable to Host and shall comply with the
following minimum requirements.
(b) Commercial General Liability. Entity shall obtain and maintain a commercial
general liability insurance policy with reputable insurers reasonably acceptable to Host with policy
limits of not less than $2,000,000 each occurrence for bodily injury and $2,000,000 each
occurrence for damage to property, or, alternatively, $2,000,000 combined single limit each
occurrence for bodily injury and property damage combined. The policy shall be the "occurrence"
form and shall include coverage for premises and operations, contractual liability (including
insurable contractual liability assumed in this Agreement), broad form property damage, and
products and completed operations. The policy shall name Host as an additional insured to the
extent of the contractual liability assumed by Entity in this Agreement, and shall contain a
severability of interests provision in favor of the additional insureds.
(c) Automobile Liability. If licensed vehicles will be used by Entity during the Term
of this Agreement, and at all times when such vehicles are operated on the premises of, or on
behalf of, Host, Entity shall maintain automobile liability insurance covering all owned, rented, and
non -owned vehicles with policy limits of not less than $1,000,000 combined single limit for bodily
injury and property damage combined, or, if limits are obtained on a per person and per accident
basis, not less than $1,000,000 per person and per accident for bodily injury, and $500,000 per
accident for property damage.
(d) Workers' Com ensation. Entity shall at all times comply fully with all applicable
workers' compensation, occupational disease, and occupational health and safety laws, statutes,
and regulations, if any. Such workers' compensation and occupational disease requirements
shall include coverage for all employees of Entity suffering bodily injury (including death) by
accident or disease, which arises out of or in connection with the performance of this Agreement
by Entity. Except to the extent prohibited by law, Entity's program(s) for compliance with workers'
compensation and occupational disease laws, statutes, and regulations shall provide for a full
waiver of rights of subrogation against Host, its subsidiaries, officers, and employees.
If Entity, or any subcontractor retained by Entity, fails to effect and maintain a
program of compliance with applicable workers' compensation and occupational disease laws,
statutes, and regulations, and Host incurs liability or fines or is required by law to provide benefits
to such employees or to obtain coverage for such employees, Entity shall indemnify Host for such
fines, payment of benefits to Entity's or subcontractors' employees or their heirs or legal
representatives, and/or the cost of effecting coverage on behalf of such employees. Any amount
owed to Host by Entity pursuant to this indemnity may be deducted from any payments owed by
Host to Entity for performance of the Agreement.
(e) Employers Liability. Entity, in addition to complying with the provisions of
Section (d) above, shall maintain coverage for employers' liability with a policy limit of not less
than $1,000,000 per accident. In jurisdictions where commercial insurance of workers'
compensation is not permitted, this requirement may be fulfilled through addition of an
Page 1 at Exhibit D
"Employers Stop Gap Liability" endorsement to the comprehensive general liability policy required
in Section (b) above.
(f) Professional LiabilitylErrors & Omissions Liability. Entity shall maintain
policy limits of not less than $2,000,000 each claim. Such insurance shall include coverage for
infringement of proprietary rights of any third party, including without limitation copyright, trade
secret and trademark infringement as related to Entity's performance under this Agreement.
Throughout the Term of this Agreement, the Professional Liability/Errors & Omissions Liability
insurance's retroactive coverage date will be no later than the Effective Date of this Agreement.
Upon expiration or termination of this Agreement, Entity will either maintain active policy
coverage, or an extended reporting period, providing coverage for claims first made and reported
to the insurance Entity within two years after the end of the Agreement.
(g) General Requirements Applicable to Above Coverages. The following
general requirements shall be applicable to all coverages referenced anywhere in this Section:
(1) The above -referenced insurance policies shall be primary and not
contributory to any insurance or program of self-insurance maintained by Host.
(2) Any deductible or retention in excess of $100,000 per occurrence or
accident under any of the above -required coverages shall be subject to the approval of Host prior
to the commencement of the Agreement.
(3) All deductibles and premiums associated with the above coverages shall
be the responsibility of the Entity.
(4) If, in the opinion of Host, the amount of liability coverage is not adequate
by reason of inflationary pressures or experience or the nature and content of Entity's activities,
Entity shall increase the amount of insurance coverage as reasonably required by Host.
(5) At the request of Host, Entity shall provide to Host, or make available for
Host's review, copies of the insurance policies required herein. Entity reserves the right to delete
certain proprietary information not directly related to the provisions of insurance coverage
required under this Agreement.
(6) The above referenced insurance limits shall not in any way limit the
liability of Entity or the liability of any Entity subcontractor during their performance under this
Agreement. Where any subcontractor is retained by Entity as may be authorized by Host in
writing, Entity shall either require such subcontractor to assume the same insurance obligations
on behalf of Host as are required of Entity herein, or extend its insurance to cover any
subcontractor retained by Entity.
(h) Certificates of Insurance. Prior to the inception of this Agreement, Entity shall
provide to Host certificates of insurance evidencing full compliance with the insurance
requirements contained herein. Such certificates shall be kept current throughout the entire
period of the Agreement, and shall provide for at least thirty (30) days advance notice to Host if
the coverage is to be canceled or materially altered so as not to comply with the foregoing
requirements. Where such insurance is to waive rights of subrogation, the certificate shall
expressly reflect in writing the insurers' acceptance of such requirements. Failure by Entity to
furnish certificates of insurance or failure by Host to request same shall not constitute a waiver by
Host of the insurance requirements set forth herein. In the event of such failure on the part of
Entity, Host expressly reserves the right to enforce these requirements.
Page 2 at Exhibit D
(i) Self -Assumption. Any self-insured retention, deductibles and exclusions in
coverage in the policies required under this article shall be assumed by, for the account of and at
the sole risk of Entity or the subcontractor which provides the insurance and to the extent
applicable shall be paid by such Entity or subcontractor. In no event shall the liability of Entity or
any subcontractor thereof be limited to the extent of any of the minimum limits of insurance
required herein.
2. NOTICE OF LOSS, INJURY OR DAMAGE.
In the event of any "significant" injury to persons or damage to property that occurs on the
premises of Host during the performance of this Agreement by Entity or any subcontractor
thereof, Entity shall notify Host as promptly as reasonably practical after the occurrence of such
injury or damage, and shall provide adequate details to enable Host to investigate the cause of
such injury or damage. For the purposes of this provision, the term "significant" shall mean injury
to persons that results in hospital treatment of such injury, and for damage to property, any
damage or loss of property in excess of Ten Thousand and 00/100 Dollars ($10,000.00).
3. RISK OF LOSS.
Entity assumes, and shall ensure that all subcontractors thereof and their respective
employees assume, the risk of loss due to its actions which impact the operation of Host's facility
or operation of other party's equipment located in Host's facility, or destruction of or damage to
any property of Host or other parties whether owned, hired, rented, borrowed or otherwise. Entity
waives, and shall ensure that any subcontractor thereof and their respective employees waive, all
rights of recovery against Host, its subsidiaries and their respective directors, officers, employees
and agents for any such loss, or against loss due to destruction of or damage to any property of
Entity, any subcontractor or their respective employees, unless the destruction of the property
was due to Host negligence.
Page 3 at Exhibit D
EXHIBIT E
YAKIMA COUNTY TECHNOLOGY SERVICES - SDC PRIVACY POLICY
This Exhibit "E" is a continuation of that certain MASTER SERVICES AGREEMENT between the
Yakima County Technology Services ("Host"), and City of Edmonds ("Entity"), and specifies
Host's Privacy Policy under the Agreement.
1. Information About Privacy.
The Yakima County Technology Services, a governmental entity of the State of
Washington ("Host") providing services in the Secure Data Center, is committed to protecting the
privacy of any user accessing its website and Entity contracting for hosting or colocation services
within its Secure Data Center subject to a Master Services Agreement with Host ("Services").
User or Entity may visit most pages on Host's website without giving any information about itself.
Sometimes, however, Host may need information to provide Services that User or Entity
requests, and this privacy statement explains data collection and use in those situations. This
privacy statement only applies to the Services provided by Host and it does not apply to other
online or offline Host sites, products or services.
2. Collection and Use of Personal Information.
2.1 Host collects certain information about User's or Entity's computer hardware and
software. This information may include, but not be limited to, Entity's IP address, browser type,
operating system, domain name, access times and referring Web site addresses. This
information is used to help diagnose problems with Host's server, to maintain quality service, and
to provide general statistics regarding use of Host's website. Although IP addresses are logged
to track Entity's sessions, they are not linked to anything personally identifiable, and User and
Entity shall remain anonymous.
2.2 If subscribing on-line, the site's registration form requires User or Entity to
provide contact information (e.g. name, e-mail address, telephone number); however, the
information gathered is used only to contact User or Entity when necessary and is never shared
with any party outside of Host. Other information may be required in the formulation of a Master
Services Agreement, however that information shall be protected by the terms and conditions of
that agreement.
2.3 Host's website may contain links to other sites. Host is not responsible for the
privacy practices or the content of other websites or Internet services providers.
2.4 Host's website may use cookies to deliver content specific to User's or Entity's
interests and needs. If User or Entity chooses to not have its browser accept cookies from Host's
website, Entity will be able to view the text on its screens; however, User or Entity will not
experience a personalized visit nor will User or Entity be able to subscribe to service offerings on
this site.
2.5 Host's website may use outside advertising companies to display ads on its site.
These ads may contain cookies that collect information by the advertising Entity, and Host will not
have access to this information.
2.6 Any personal information collected by Host that identifies User or Entity
personally will not be shared with any third parties.
Page 1 at Exhibit E
2.7 Host's website has security measures in place to protect the loss, misuse, and
alteration of information under Host's control. However, Host shall not be liable for any loss,
misuse, and alteration of information that was not under its control at the time of such event.
3. Protection of Children's Personal Information.
Host's website is a publicly available general audience site intended for providing
information regarding services provided by Yakima County as well as other information related to
the region. Host will not knowingly collect any personal information from or about minors or
children. Any information unwittingly collected by Host will be treated in the same manner as set
forth under section 2 of this statement.
4. Contact Information.
Any questions about this privacy statement, the practices of this site, or dealings with this
website, please contact the Yakima County SDC, helpdesk@co.yakima.wa.us.
5. Changes to this Statement.
Host will occasionally update this privacy statement at its sole discretion. Updates will be
posted on Host's website under the "Privacy Policy" link. Host is not required to notify User or
Entity of any such changes to this statement.
Page 2 at Exhibit E
EXHIBIT F
YAKIMA COUNTY TECHNOLOGY SERVICES - SDC TERMS OF USE
This Exhibit "F" is a continuation of that certain MASTER SERVICES AGREEMENT between the
Yakima County Technology Services ("Host"), and City of Edmonds ("Entity"), and specifies
Host's Terms of Use under the Agreement.
1. Terms of Use.
1.1 The use of any website hosted by the Host, the Host's website, or any coloration
service provided by Host subject to a Master Services Agreement for such services (the
"Services") by Entity within Host's Secure Data Center facility (the "SDC") are subject to the
following terms of use ("Terms of Use").
1.2 Host reserves the right to update these Terms of Use at any time without notice
to Entity. By using the web site, Entity agrees to all of the provisions contained or referred to in
these Terms of Use. Entity's use of the web site after any changes are posted to the web site
constitutes Entity's acceptance of the changes. The most current version of the Terms of Use
can be reviewed by clicking on the "Terms of Use" hypertext link located at the bottom of the Web
pages. Noting however that the Terms of Use published on Host's website may include
additional terms and conditions.
1.3 Questions or comments regarding Terms of Use should be forwarded to Host at
the following address:
helpdesk@co.yakima.wa.us
Tel: (509) 574-2000 Fax: (509) 574-2001
2. Compliance with Law.
2.1 Entity shall not post, transmit, re -transmit or store material on or through any of
Services which, in the sole judgment of Host (i) is in violation of any local, state, federal or non -
United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that
otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii)
violates the rights of any Person, including rights protected by copyright, trade secret, patent or
other intellectual property or similar laws or regulations including, but not limited to, the
installation or distribution of "pirated" or other software products that are not appropriately
licensed for use by Entity.
2.2 Entity agrees to indemnify and hold harmless Host from any claims resulting from
the use of the Services that damages Entity or any other party, except to the extent the damages
result solely from the Host's negligence. Entity shall be responsible for determining what laws or
regulations are applicable to its use of the Services.
Prohibited Uses of Services.
In addition to the other requirements of these Terms of Use, Entity may only use the
Services in a manner that, in Host's sole judgment, is consistent with the purposes of such
Services. If Entity is unsure of whether any contemplated use or action is permitted, Entity must
first contact Host as provided above. By way of example, and not limitation, uses described below
of the Services are expressly prohibited:
3.1 General Uses.
Page 1 at Exhibit F
3.1.1 Unauthorized resale of any of the Services.
3.1.2 Pornography and pornographic related merchandising are prohibited
under all Host's Services. This includes sites that include links to pornographic content
elsewhere. Further examples of unacceptable content or links include pirated software, "hacker"
programs, archives of "Warez Sites", game rooms or MUDs, Chat Rooms, IRC Bots, Egg Drop
programs, programs designed to send unsolicited advertisements (i.e. "spamware", "spyware",
etc.) through email, pop-up ads, or other means, or any kind of illegal software or shareware.
3.1.3 Violations of the rights of any Person protected by copyright, trade
secret, patent or other intellectual property or similar laws or regulations, including, but not limited
to, the installation or distribution of "pirated" or other software products that are not appropriately
licensed for use by Entity.
3.1.4 Actions that restrict or inhibit any Person, whether a customer of Host or
otherwise, in its use or enjoyment of any of Host's Services.
3.2 System and Network Uses.
3.2.1 Upload files that contain viruses, Trojan horses, worms, timebombs,
cancelbots, corrupted files, or any other similar software or programs that may damage the
operation of another's computer or property of another.
3.2.2 Effecting security breaches or disruptions of Internet communication.
Security breaches include, but are not limited to, accessing data of which Entity is not an intended
recipient or logging into a server or account that Entity is not expressly authorized to access. For
purposes of this Section 3.2.2., "disruption" includes, but is not limited to, port scans, flood pings,
packet spoofing and forged routing information.
3.2.3 Executing any form of network monitoring which will intercept data not
intended for Entity's server.
3.2.4 Circumventing user authentication or security of any host, network or
account.
3.2.5 Interfering with or denying service to any user other than Entity's host (for
example, denial of service attack).
3.2.6 Using any program/script/command, or sending messages of any kind,
designed to interfere with, or to disable, a user's terminal session, via any means, locally or via
the Internet.
3.2.7 Creating an "active" full time connection on a Host -provided account by
using artificial means involving software, programming or any other method.
3.2.8 Any attempt to circumvent or alter monitoring, bandwidth tracking or
utilization reporting, or other actions which have the effect of complicating the normal operational
procedures of Host, including but not limited to altering, removing or in any way modifying or
tampering with Host created log files.
3.2.9 Any action which Host determines, in its own judgment, will reflect poorly
on Host or negatively impact its operations.
3.2.10 Any action which Host deems to be an unacceptable use of resources,
business practice or otherwise unacceptable to Host.
Page 2 at Exhibit F
3.3 Billing Uses.
3.3.1 Furnishing false or incorrect data on the order form, contract or online
application, including fraudulent use of credit card numbers.
3.3.2 Attempting to circumvent or alter the processes any billing procedures or
procedures to measure time, bandwidth utilization, or other methods to document "use" of Host's
Services.
3.4 Mail Uses.
3.4.1 Sending unsolicited commercial email messages (UCE), including the
sending of "junk mail" or other advertising material (including, but not limited to, surveys, contests
or any duplicative or unsolicited messages) to individuals who did not specifically request such
material, who were not previous customers of Entity or with whom Entity does not have an
existing business relationship ("email spam").
Host.
3.4.2 Sending UCE referencing an email address for any domain hosted by
3.4.3 Sending UCE referencing a domain hosted by Host.
3.4.4 Sending UCE referencing an IP address hosted by Host.
3.4.5 Posting advertisements on IRC, ICQ, or any other public chat system.
3.4.6 Harassing, stalking, threatening, defaming or other abuses, whether
through language, frequency or size of messages, which violate the legal rights (such as rights of
privacy and publicity) of others.
3.4.7 Unauthorized use, or forging, of mail header information.
3.4.8 Solicitations of mail for any other E-mail address other than that of the
poster's account or service with the intent to harass or to collect replies.
3.4.9 Creating or forwarding "chain letters" or other "pyramid schemes" of any
type.
3.4.10 Use of unsolicited email originating from within Host's network or
networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by
Host, or connected via Host's network.
3.4.11 Activities deemed to be unsolicited marketing efforts or otherwise
harassing in any way.
3.5 Usenet Newsgroups Uses.
3.5.1 Posting the same or similar messages to large numbers of Usenet
newsgroup ("Newsgroup spams").
that purpose.
3.5.2 Posting chain letters of any type.
3.5.3 Posting encoded binary files to newsgroups not specifically named for
Page 3 at Exhibit F
3.5.4 Cancellation or superseding of posts other than your own.
3.5.5 Forging of header information.
3.5.6 Solicitations of mail for any other E-mail address other than that of the
poster's account or service, with intent to harass or to collect replies.
3.5.7 Use of unsolicited E-mail originating from within Host's network or
networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by
Host, or connected via Host's network.
4. Security/Software
4.1 Entity agrees to take all steps reasonable, necessary, and prudent to protect
Entity's login ID and password
4.2 Entity agrees not to attempt to undermine or cause harm to any server, software,
system or Entity of Host
4.3 Entity agrees to maintain Entity's computing equipment responsibly, including
running virus software
4.4 Uploading a virus to a Host server will result in account termination, service
charges and/or prosecution
4.5 Entity acknowledges that Host cannot provide technical support for any software
and/or script that the Entity installs, other than variable name changes. Entity also acknowledges
that Host does not supply technical support for browser or development tools. Host supplies
technical support for Web hosting issues only. Host shall be the sole arbiter as to what constitutes
a "Web host" issue.
5. Violation.
Any attempt to undermine or cause harm to Host server or another Entity's Web
presence is strictly prohibited. Any violation of the above Terms of Use will result in grounds for
account termination, with no refunds given; Host reserves the right to remove any account without
prior notice. Violation of these Terms of Use may result in legal action, service charges or a
combination thereof
6. Refusal of Service.
6.1 Host reserves the right to refuse or cancel service in its sole discretion with no
refunds in accordance with Section 3 of the Master Services Agreement.
6.2 Failure to follow the Terms of Use may result in immediate account termination.
7. Links to Third -Party Sites.
Host is not responsible for the contents of any linked site or any link contained in a linked
site, or any changes or updates to such sites. Host is not responsible for webcasting or any other
form of transmission received from any linked site. Host is providing links on its website only as a
convenience, and the inclusion of any link does not imply endorsement by Host of that website.
Page 4 at Exhibit F