ThinkOn Terms of Service

Terms of Service – USA

Last Updated: August, 2024

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These Terms of Service (“Agreement”), from ThinkOn Inc., with its principal place of business at 5080 Old Ellis Point, Roswell, Georgia 30076 USA, (“ThinkOn”), set out ThinkOn’s provision of Services to the “Subscriber” as set out herein. By purchasing (or otherwise taking receipt of any or all of) the Services, the Subscriber is accepting these Terms of Service for the entire period of use. ThinkOn and Subscriber hereinafter may be referred to individually as a “Party” and collectively as the “Parties”.

1. Definitions.

“Services” means the current or future ThinkOn Services and Software that Subscriber ordered.
“Software” means any software provided to the Subscriber by Supplier and used in connection with using the Services.
“Subscriber” means the recipient of Services, and for the purposes of the ThinkOn Acceptable Use Policy, the ThinkOn Privacy Policy, the Service Level Agreements and other applicable provisions of this Agreement, including Section 8, Section 9 and Section 15(g), shall be deemed to include individuals who have access to the Services, including, without limitation, customers and employees, independent contractors, authorized representatives, and agents of a Subscriber and/or its customers.

“Supplier” means ThinkOn or its reseller selling ThinkOn Services to the Subscriber.
“ThinkOn Group” means ThinkOn, its affiliates, and all of their respective directors, officers, employees and agents.
“ThinkOn Service Delivery Infrastructure” means the Services provided by ThinkOn to the Subscriber.

2. Provision of Services.

(a) Description of Services. Subject to and in accordance with the terms of this Agreement, ThinkOn hereby agrees to provide to Subscriber the Services described in one or more Service Order Forms (each, a “Service Order”) corresponding to the Subscriber, as resold to Subscriber by Supplier. The Parties acknowledge and agree that all Service Orders are governed by this Agreement.

(b) Implementation of the Services. ThinkOn agrees to implement the Services in accordance with the applicable Service Order and this Agreement.

(c) Scope. ThinkOn grants to Subscriber an exclusive license to use the Services during the term set out in a Service Order. For EdgeConnect services that are included in the Services, this license includes (i) the installation, maintenance, repair, and operation of Subscriber equipment; (ii) the use and receipt of such EdgeConnect Services; and (iii) the provision and use of electrical power and Internet bandwidth within the EdgeConnect services, subject to and by the terms and conditions of this Agreement.

(d) Subcontractors. Subscriber agrees that ThinkOn may delegate the performance of any of its obligations hereunder to its corporate affiliates or agents or subcontractors without the prior consent of Subscriber. ThinkOn shall not be relieved of any of its obligations as a result of any such delegation.
3. Billing and Payment.

(a) Fees. Unless otherwise expressly provided in a Service Order, fees for Services set forth on a particular Service Order will begin accruing on the commencement date set forth on such Service Order. During the term of a Service Order, Subscriber will pay, without deduction or offset, the fees set forth on such Service Order. Subscriber is also responsible for paying for any and all applicable federal, state, provincial and local sales, use, value-added, excise, duty, and other taxes of any nature (except taxes based on Supplier net income) assessed or imposed upon the Services or the fees charged therefor. Suspension of the Services in accordance with this Agreement (other than in the case of force majeure or for any reason not due to Subscriber’s breach) shall not relieve Subscriber of its obligation to pay the fees in full as if no suspension had occurred.

(b) Suspension of Services. In the event the Supplier is required by law or court order, or in the event the Subscriber is in default of its obligations under this Agreement, ThinkOn may (i) suspend the Services; or (ii) deny the Subscriber access to the Services.

(c) Service Level Agreements and Overdue Amounts. If the Subscriber fails to pay any invoiced amount when due (other than a properly disputed amount), no Service Level Agreements credits will be applied to the Subscriber account.

4. ThinkOn Acceptable Use and Privacy Policies.

Subscriber shall be bound by and subject to (i) the ThinkOn Acceptable Use Policy (the “ThinkOn AUP”) available at
https://thinkon.com/acceptable-use-policy/; and (ii) ThinkOn’s Privacy Policy (the “ThinkOn Privacy Policy”) available at
https://thinkon.com/privacy-policy/.

The ThinkOn AUP and the ThinkOn Privacy Policy, as amended by ThinkOn from time to time as described in Section 16(n), are incorporated by reference into this Agreement.

5. ThinkOn Service Level Agreements.

ThinkOn’s sole obligation concerning the availability or performance of a particular Service and Subscriber’s sole and exclusive remedy against ThinkOn (and ThinkOn’s sole liability) for performance or outage issues shall be the remedies available at https://thinkon.com/service-level-agreement/ (the “Service Level Agreements”). The Service Level Agreements, as amended by ThinkOn from time to time as described in Section 16(m), are incorporated by reference into this Agreement.

6. Confidential Information.

All information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement (“Confidential Information”) shall be treated as confidential and (a) Receiving Party shall hold such Confidential Information in confidence using the same standard of care as it uses to protect its own confidential information but not less than reasonable care; (b) Receiving Party shall not use or disclose such Confidential Information for any purpose except (i) as necessary to fulfill its obligations or exercise its rights under this Agreement, provided that Receiving Party shall limit access to such Confidential Information to such of its employees, agents and subcontractors who need such access for such purposes and Receiving Party shall require such persons to abide by the provisions of this Section; or (ii) as required by law, court order or request by any government or regulatory authority, provided, unless prohibited by law, the Disclosing Party is given a reasonable opportunity to obtain, at its expense, a protective order. Confidential Information shall not include information which (c) is now, or hereafter becomes, publicly known or available through lawful means; (d) is rightfully in Receiving Party’s possession prior to disclosure by the Disclosing Party, as evidenced by Receiving Party’s records; (e) is disclosed to the Receiving Party without confidentiality restriction by a third party who rightfully possesses and rightfully discloses the information; (f) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (g) is the subject of a written permission to disclose provided by the Disclosing Party.

7. Indemnification.

(a) ThinkOn Indemnification. ThinkOn will indemnify, defend and hold harmless Subscriber from and against all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys’ fees) (collectively, “Losses”) asserted against, resulting to, imposed upon or incurred by Subscriber to the extent arising from allegations by a third party that the Services infringe any intellectual property rights of a third party. In case such an allegation is made, ThinkOn may, in its sole discretion, make the Services non-infringing or arrange for Subscriber’s continued use of the Services by license or otherwise, but if neither of the foregoing options is commercially practicable, ThinkOn may, in ThinkOn’s sole discretion, upon written notice to Subscriber, cancel the directly affected Services, refund to Subscriber any prepaid fees for such canceled Services and, if applicable, adjust Subscriber’s ongoing monthly fees for the continuing Services to account for such canceled Services. Notwithstanding the foregoing, ThinkOn will have no indemnification obligation to Subscriber for any infringement arising from (i) any modification of the Services by Subscriber on its behalf; (ii) Subscriber’s combination of the Services with any intellectual property not developed or owned by ThinkOn if the infringement would not have occurred but for such combination; or (iii) Subscriber’s failure to install updates, patches or other similar items provided by ThinkOn or the licensor of the intellectual property that is the subject of such a claim. In addition, ThinkOn will indemnify, defend, and hold harmless Subscriber from and against all third-party claims against Subscriber to the extent arising from any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of ThinkOn or its employees, agents or subcontractors.

(b) Subscriber Indemnification. Subscriber will indemnify, defend and hold harmless ThinkOn Group from and against all third party claims against ThinkOn Group (or any member thereof) to the extent arising from (i) for infringement of any patent, copyright or other proprietary right which infringement is attributable to the data or content of Subscriber or to any hardware, software or other equipment or intellectual property utilized by Subscriber in connection with the Services, whether supplied by Subscriber or any third party provider of Subscriber (but excluding any such materials provided by ThinkOn or its third-party providers in connection with the Services) (collectively, “Subscriber-Provided Materials”); or (ii) any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of Subscriber or its employees, agents or subcontractors.

(c) Network Security and Malicious Events; Criminal Activity and Theft.

Unless specifically otherwise agreed to in an applicable Service Order, it is Subscriber’s sole responsibility to determine whatever actions deemed necessary to make Subscriber’s data and voice networks and circuits secure from unauthorized access, including firewalls being in place and wireless data traffic in the environment being securely encrypted.
ThinkOn is not responsible for the security of Subscriber’s network and circuits from third parties, or for any damages that may result from any unauthorized access to Subscriber’s network. Subscriber has an affirmative obligation to protect Subscriber’s network environment and to train its employees for spam, malware, phishing, virus protection, and prevention from criminal acts of third parties.

ThinkOn is not responsible for criminal acts of third parties, including but not limited to hackers, phishers, crypto- locker, and any network environment subject to ransom. If a security system for the Subscriber’s network is included within the ThinkOn Service Delivery Infrastructure, ThinkOn agrees to use commercially reasonable efforts to protect the Subscriber’s network from malicious attack by computer viruses, computer worms and/or computer hackers (collectively, “malicious activities”). However, the Subscriber understands that no security system can guarantee complete protection against malicious activities as such attacks often involve the intentional action of third parties to invade and injure computer systems.
SUBSCRIBER AGREES TO HOLD THINKON GROUP HARMLESS FROM ANY LOSS, INJURY OR DAMAGE TO SUBSCRIBER OR ANY HARDWARE, SOFTWARE, AND/OR COMPUTER DATA OF SUBSCRIBER CAUSED BY SUCH MALICIOUS ACTIVITIES UNLESS THE APPLICABLE SUBSCRIBER ACQUIRED THE THINKONSECURITY SERVICE DELIVERY INFRASTRUCTURE.

ThinkOn is not responsible for criminal acts of third parties, including but not limited to intrusions or unauthorized access of any kind, hackers, phishers, crypto-locker, and any network environment subject to ransom. SUBSCRIBER AGREES TO HOLD THINKON GROUP HARMLESS FOR ANY ACTIVITY AFFECTING NETWORK SECURITY ON SUBSCRIBER’S ENVIRONMENT RELATED TO THIRD-PARTY CRIMINAL ACTIVITY, NETWORK SECURITY OR PRIVACY. Any costs or fees to rebuild or service machines will be billed at ThinkOn’s then prevailing hourly rates.

Subscriber shall notify ThinkOn immediately, in writing, by electronic mail or by calling the ThinkOn customer support line, if Subscriber becomes aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges billed to Subscriber. Subscriber will be liable for all use of any stolen Service or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any equipment. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of Subscriber’s internal/corporate procedures. ThinkOn will not issue credit for invoiced charges for fraudulent use resulting from Subscriber’s negligent or willful acts or those of a user of Subscriber’s service.

THEREFORE, SUBSCRIBER AGREES TO HOLD THINKON GROUP HARMLESS FROM ANY LOSS, INJURY OR DAMAGE TO SUBSCRIBER OR ANY THEFT OF SERVICE AND OR SUBSCRIBER CAUSED BY SUCH THEFT OF SERVICE.

(d) Indemnification Procedures. An indemnifying Party shall have no obligation for indemnification unless the other Party promptly gives written notice to the indemnifying Party after any applicable matter arises and allows the indemnifying Party to have sole control of the defense or settlement of any underlying claim; provided, however, that the indemnifying Party may not settle a claim on any basis other than financial payment without the other Party’s prior written consent. Notice will be considered prompt if there is no material prejudice to the indemnifying party because of the timing of delivery of such notice.

8. Ownership of Intellectual Property.

The ThinkOn systems are protected by copyright, trademark, and other laws of Canada, the United States, and foreign countries. The Subscriber may not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the ThinkOn systems. The Subscriber shall not acquire any right, title or interest in or to the ThinkOn systems, except the right to use them in accordance with this Agreement.

9. Microsoft Software & Microsoft License Mobility.

In addition to this Agreement, the ThinkOn AUP and the terms of any Service Order, the Subscriber’s use of any Microsoft software is governed by Microsoft’s license terms that appear at https://thinkon.com/privacy-policy/microsoftlicense.
If the Subscriber makes use of Microsoft software on the Services that is not relicensed to the Subscriber by Supplier under its Microsoft Service Provider License Agreement (“Microsoft SPLA”), then the Subscriber represents and warrants that it has a written license agreement permitting the Subscriber to use the Microsoft software in conjunction with the Services. While utilizing the Services, the Subscriber rights and obligations relating to the software licensed by Microsoft to Subscriber are identical to those imposed on Subscriber under this Agreement if the Subscriber utilized software relicensed to it by Supplier under the Microsoft SPLA. The Subscriber agrees that it will provide Supplier with the proper evidence of such licensing as Supplier may reasonably require prior to the commencement of the Services, and from time to time as necessary to verify and update the status of the license. If the Subscriber fails to provide the required evidence of licensing, Supplier may, at its option, either (a) suspend the ordered Services that included such Microsoft software until the evidence is provided; (b) provide the Services in reliance on Supplier’s licensing agreement with Microsoft, and charge the Subscriber its standard Microsoft SPLA fee for the use of the software until such time as the required evidence is provided; or (c) suspend or terminate the Subscriber’s use of the Services.

If Subscriber elects to exercise Microsoft’s License Mobility through Software Assurance rights, the Subscriber must execute the Mobility Verification Form located at http://www.microsoft.com/licensing/software-assurance/license-mobility.aspx or at its successor site, and submit it to Microsoft for verification within ten (10) days of the Subscriber’s deployment of such Microsoft software. Licenses under Microsoft’s License Mobility through Software Assurance program must remain on Supplier’s service delivery infrastructure within a single data centre for no less than ninety (90) days. The Subscriber may not reassign a particular license within ninety (90) days of the last assignment.

The Subscriber must cooperate with Supplier in the event that Microsoft requests Supplier’s participation in an audit of the software services. The Subscriber agrees that Supplier can provide Microsoft with (d) the number of Windows Virtual Machine instances provided to the Subscriber by Supplier; (e) a list of the Microsoft software products which run in such Windows Virtual Machine instances that are licensed to the Subscriber by Supplier; and (f) all copies of the Subscriber’s validated Mobility Verification Forms. If Microsoft determines that the Subscriber is non-compliant with the program requirements for Microsoft’s License Mobility through Software Assurance and the Subscriber does not cure the non-compliance within a time period specified by Microsoft, then Supplier may terminate the provision of any or all Services to the Subscriber.

10. Software License Compliance Verification.

The Subscriber agrees that ThinkOn has the right to require an audit (electronic or otherwise) of access to, consumption, and usage of Software and any Software rental licenses from time to time. As part of any such audit, ThinkOn or its authorized representative will have the right, on fifteen (15) days’ prior notice to the Subscriber to inspect the Subscriber’s records, systems, and facilities, including machine IDs, serial numbers and related information, to verify that the use of any and all Software and Software licenses is in conformance with this Agreement. It is acknowledged and agreed that the audit may require automatic reporting by way of Subscriber-installed Software auditing tools (both periodic and ad-hoc). The Subscriber shall ensure that the Subscriber provides full cooperation to enable any such audit. If ThinkOn determines that the Subscriber’s use is not in conformity with this Agreement, the Subscriber will obtain immediately and pay for valid license(s) to bring its use into compliance with this Agreement and other applicable terms and will pay the reasonable costs of the audit. In addition to such payment rights, ThinkOn reserves the right to seek any other remedies available at law or in equity, whether under this Agreement or otherwise. If ThinkOn determines that the Subscriber has failed to comply with this Section (which non-compliance may include not providing timely reports, uninstalling mandatory Software auditing tools and/or blocking or disabling any such tools), ThinkOn may, at its sole discretion and upon notice to the Subscriber immediately revoke the Software licenses granted to the Subscriber.

11. Modification of Any of the Services.

ThinkOn reserves the right to modify the features and functions of any of the Services with the objective of providing the Subscriber with equal or enhanced service. These updates shall include a subsequent release or version of the Service containing functional enhancements, error corrections, or fixes that are generally made available free of charge to Subscriber that have an in-force agreement for such Service. Updates shall not include any release, option, or future product which ThinkOn licenses separately or which is not included as part of the Services.

12. Limitations of Liability; Warranties.

(a) General Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SUBSCRIBER OR ANY MEMBER OF THE THINKON GROUP BE LIABLE FOR ANY LOST REVENUES, PROFITS, DATA OR BUSINESS, OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES IS FORESEEABLE OR A PARTY HAS PROVIDED THE OTHER NOTICE THEREOF; PROVIDED, HOWEVER, THAT THIS EXCLUSION SHALL NOT APPLY TO (i) THINKON’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7(a); (ii) SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7(b)(ii) WITH RESPECT TO WILLFUL MISCONDUCT IN REGARDS TO PERSONAL INJURY AND DEATH AND UNDER SECTION 7(b)(i) OR SECTION 7(c); OR (iii) EITHER PARTY’S LIABILITY FOR BREACH OF SECTION 6. SUBSCRIBER AGREES THAT FOR THE PURPOSES OF THIS SECTION 12(a), “LOST REVENUES” AND “LOST PROFITS” DOES NOT INCLUDE ITS PAYMENT OBLIGATIONS TO THINKON PURSUANT TO THIS AGREEMENT. ALL IMPLIED CONDITIONS, WARRANTIES AND UNDERTAKINGS OTHER THAN THOSE MANDATED BY APPLICABLE LAW ARE EXPRESSLY EXCLUDED TO THE EXTENT PERMITTED BY LAW.

(b) Aggregate Limit of Liability. Except for (i) ThinkOn’s indemnification obligations under Section 7(a); (ii) Subscriber’s indemnification obligations under Section 7(b)(ii) with respect to willful misconduct in regards to personal injury and death and under Section 7(b)(i) and Section 7(c); and (iii) either Party’s liability for breach of Section 6, ThinkOn Group’s total aggregate liability under this Agreement and Subscriber’s total aggregate liability to ThinkOn under this Agreement, in each case, whether in contract, tort (including negligence or strict liability) or otherwise, shall not exceed, as applicable, the actual amount of fees received by ThinkOn or paid by Subscriber to Supplier for Services during the 12-month period immediately prior to the date of occurrence of the event giving rise to such Losses.

(c) Reciprocal Warranties. Each Party warrants to the other Party that it has the power, authority, and legal right to enter into this Agreement and to perform its respective obligations hereunder and under all incorporated provisions.
(d) ThinkOn Warranties. ThinkOn represents and warrants that: (i) the Services will be performed in a good and professional manner, in accordance with industry standards; (ii) the Services will continue to be provided in such a manner to meet all applicable service levels described herein; and (iii) all data collected and stored as part of the Services, including all servers providing backups in support of the Services, are located solely in Australia such that in order to support and respect the Subscriber’s data sovereignty ThinkOn will not move data outside of Australia without the prior consent of the Subscriber. Such warranties shall apply for as long as ThinkOn possesses any Subscriber data, notwithstanding the expiry or termination of this Agreement.

(e) Disclaimer of Warranty. NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN THINKON AND SUBSCRIBER ABOUT OR IN CONNECTION WITH THE SERVICES, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE SERVICE LEVEL AGREEMENTS OR ANY SERVICE ORDER) AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THINKON NOR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS OR LICENSORS MAKE ANY WARRANTIES OR CONDITIONS OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, SECURITY, FREEDOM FROM ERROR, NON-INTERRUPTION, NON-INTERFERENCE OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

13. Intellectual Property.

(a) Representations. The Subscriber represents and warrants that (i) it owns all right, title and interest to, or has appropriate license or other rights to use, all data and content accessed or transmitted using the Services by Subscriber (“Subscriber-Provided Materials”), and (ii) the Subscriber-Provided Materials, will not infringe the intellectual property or other proprietary rights of ThinkOn or any third party.

(b) ThinkOn Intellectual Property. ThinkOn represents and warrants, and Subscriber acknowledges, that all right, title and interest in any and all technology, including without limitation the hardware and software provided or made available by ThinkOn in connection with the Services and any trademarks or service marks of ThinkOn or third parties whose products or services are utilized in connection with ThinkOn’s provision of the Services (other than Subscriber-Provided Materials) (collectively, the “ThinkOn Intellectual Property”) is vested in ThinkOn and/or in ThinkOn’s licensors. Subscriber shall have no right, title, claims, or interest in or to the ThinkOn Intellectual Property, and Subscriber may not use the ThinkOn Intellectual Property or related documentation except as expressly provided herein, nor copy, modify, or translate the ThinkOn Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the ThinkOn Intellectual Property, or grant any other person or entity the right to do so. Unless otherwise expressly stated in this Agreement, Subscriber is not authorized to distribute or to authorize others to distribute the ThinkOn Intellectual Property in any manner without the prior written consent of ThinkOn.

(c) Subscriber Intellectual Property. ThinkOn acknowledges that all right, title or interest in any and all technology that is part of or provided with the Subscriber-Provided Materials, and any and all trademarks or service marks of Subscriber or third parties whose products or services comprise all or a part of the Subscriber-Provided Materials (collectively, the “Subscriber Intellectual Property”) is vested in Subscriber and/or in Subscriber’s licensors. Unless otherwise expressly stated in this Agreement, ThinkOn shall have no right, title, claims or interest in or to the Subscriber Intellectual Property. Other than to the extent necessary or appropriate to provide the Services or as otherwise permitted under this Agreement, ThinkOn shall not use, copy, modify, distribute or translate Subscriber Intellectual Property or related documentation, or decompile or disassemble or reverse engineer the Subscriber Intellectual Property, or grant any other person or entity the right to do so. Unless otherwise expressly stated in this Agreement, ThinkOn is not authorized to distribute or to authorize others to distribute the Subscriber Intellectual Property in any manner without the prior written consent of Subscriber.

(d) Limited Reciprocal Rights. For the term of a Service Order only, ThinkOn hereby grants Subscriber a non-exclusive, transferable, worldwide, royalty-free license to use such ThinkOn Intellectual Property as is required to access and use the Services set forth on such Service Order, solely for such access and use as defined in such Service Order.

14. Certain Obligations of the Parties.

(a) Maintenance Notification. ThinkOn will notify Subscriber of any required Scheduled Maintenance to the ThinkOn Service Delivery Infrastructure a minimum of fourteen (14) days prior to the date identified to perform the Scheduled Maintenance, except in the event of an emergency upgrade (which ThinkOn will make as promptly as practicable as part of Emergency Maintenance). ThinkOn will perform all Scheduled Maintenance during the Maintenance Window. ThinkOn will use reasonable efforts to contact the Subscriber’s technical personnel prior to performing any Emergency Maintenance to the ThinkOn Service Delivery Infrastructure. It is the responsibility of the Subscriber to ensure that all parties who require maintenance notifications are kept up to date in the ThinkOn portal. As used herein the terms “Scheduled Maintenance”, “Emergency Maintenance” and “Maintenance Window” have the meanings ascribed to them in the Service Level Agreements.

(b) Access to Services Administration. ThinkOn will manage all system administration and device passwords for the ThinkOn Service Delivery Infrastructure; Subscriber will have no access to such infrastructure.

(c) Security. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES (INCLUDING AS DESCRIBED IN THIS AGREEMENT) DO NOT GUARANTEE 100% NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE SERVICES FOR WHICH THINKON LIMITS ITS LIABILITY AND DISCLAIMS WARRANTIES TO THE EXTENT PROVIDED IN THIS AGREEMENT.

(d) Subscriber-Provided Materials. Except as expressly provided in this Agreement, ThinkOn will not have any responsibility for any content, data, or Subscriber-Provided Materials. Subscriber will not be permitted to locate any equipment at the ThinkOn data centre without purchasing ThinkOn’s EdgeConnect services. Subscriber agrees that it will make and maintain current backup copies of all of its content and data.

(e) Use of Software. Subscriber properly trains its personnel in the usage of the Software and agrees to use the Software only in connection with the permitted use of the Services and only in accordance with the end user license agreement applicable to such Software. Subscriber is solely responsible for any damage to the Software and any degradation in or outage of the Services due to acts or omissions of Subscriber, its agents, or third-party providers, including, without limitation, any such issues arising in connection with the installation of any Software or upgrades, patches, hotfixes and other updates to the Software, or the addition, deletion or modification of any Subscriber-Provided Materials. Any degradation in or outage of the Services as a result of the foregoing acts or omissions shall be excepted from measurement under any applicable Service Level Agreements.

(f) Bandwidth Usage. ThinkOn’s internet Services provide Subscriber with a dedicated IP connection of committed data transfer capacity as defined in a Service Order. Monthly charges are based on contracted Service and overage charges incurred during the prior billing period. Overage charges are determined using data transfer measurements taken every five (5) minutes over the course of a month. The actual overage charges will be based on the 95th percentile measurement of actual usage minus the contracted transit charges.

(g) IP Numbers and Addresses. ThinkOn shall maintain and control ownership of all IP numbers and addresses that may be assigned to Subscriber by ThinkOn and ThinkOn reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses; provided, however, that (i) ThinkOn will provide Subscriber with at least thirty (30) days prior written notice of any such change or removal; and (ii) Subscriber agrees to provide ThinkOn with all reasonably requested assistance to effect any such change or removal.

(h) Authorized Personnel and Escalation. Subscriber shall also provide to ThinkOn (and keep current) via the ThinkOn portal (i) a list of personnel that are authorized to act on behalf of Subscriber in connection with the Services (the “Authorized Access List”), including requesting any changes to or any support in connection with such Services; and (ii) escalation procedures and information within Subscriber’s organization for resolving matters related to the Services. Only persons on the Authorized Access List may open trouble tickets with respect to the Services or otherwise obtain support or other information from ThinkOn support concerning such Services. If ThinkOn’s personnel or systems are unable to reach the contacts as set forth in the Authorized Access List, ThinkOn will escalate its notification according to instructions set forth in the Subscriber-provided escalation procedures.

(i) Service Failure Reporting and Device Changes. Subscriber shall make commercially reasonable efforts to report to ThinkOn support all suspected failures of the Services. At the time of such reporting, ThinkOn support may require Subscriber to provide information to aid ThinkOn’s diagnosis and resolution efforts, including without limitation (i) the name and contact information of the reporting person; (ii) symptoms of the suspected failure; (iii) any testing done by Subscriber with respect to the suspected failure; and (iv) whether the affected Services may be temporarily suspended by ThinkOn for testing purposes. Subscriber shall promptly notify ThinkOn if Subscriber makes any changes to its device(s) operating within ThinkOn’s Services delivery infrastructure that may require ThinkOn to modify any then present configurations of such Services. ThinkOn shall be entitled to invoice Subscriber, and Subscriber hereby agrees to pay, additional charges associated with all such ThinkOn modifications.

(j) Post Termination Data Access. A Subscriber may elect to store its data within the ThinkOn Service Delivery Infrastructure for a time period that exceeds the contractual term. This data will be retained in immutable form for so long as the Subscriber continues to pay for the fees associated with storing this data and the access mechanism used to reach it. In the event the Subscriber defaults under any of its contractual obligations, a remediation period of sixty (60) days will be presented to the Subscriber during which time the associated data will continue to be accessible in a read-only format. If the default is not rectified by Subscriber within the sixty (60) day period, ThinkOn reserves the right to delete the data on its systems.

(k) Data Destruction. After thirty (30) days following expiration or termination of a Service Order for any reason, ThinkOn shall have no obligation to maintain or provide the Subscriber data and shall thereafter, unless legally prohibited, be permitted to delete the applicable Subscriber data on its systems or otherwise in its possession or under its control. ThinkOn will dispose of all Subscriber data using a process consistent with the NIST standard. Except as described in this Agreement, prior to any data being destroyed ThinkOn will secure written approval from the Subscriber. The Subscriber can determine the overall retention period of the data in accordance with the terms outlined above.

(l) Subscriber Provided Encryption. Subscriber is responsible for maintaining all Subscriber-provided data encryption technology and protecting all data encryption keys used to encrypt Subscriber data with the Subscriber-provided encryption technology. ThinkOn will aid a Subscriber that has lost an encryption key but at no time is ThinkOn responsible for the recovery of a lost encryption key.

(m) License Grant for Rented Appliance. If the Services include a dedicated, rented appliance, as described on an applicable Service Order, ThinkOn grants to Subscriber a non-exclusive, non-transferable license for the term of the Service Order to use the rented appliance in accordance with the terms set out in the Service Order. ThinkOn or its vendors retain all right, title and interest to the rented appliance and related documentation and reserve all rights not expressly granted to Subscriber. Effective upon ThinkOn’s shipment of the rented appliance to the Subscriber, Subscriber will bear the risk of and shall be responsible for any loss, theft or destruction of or damage to the appliance, except for normal wear and tear. The appliance will remain the property of ThinkOn or its vendors, will not become a fixture or realty, and Subscriber shall return the appliance to ThinkOn or its vendor within thirty (30) days following the expiration or termination of the applicable Service Order.

(n) Responsibility for Subscriber Backup Integrity. The Subscriber is solely responsible for the integrity of the data that is being stored on the ThinkOn infrastructure and ThinkOn makes no guarantees as to the recoverability or useability of the data. In the event that the Subscriber maintains the backup jobs, including schedule, applications and systems, the Subscriber acknowledges that it is solely responsible for ensuring that backups are meeting the appropriate recovery point objectives and recovery time objectives.

(o) Immutability/Non-Deletable Data. In the event that the Subscriber uses a ThinkOn Service which provides the ability for the Subscriber to define a period of immutability or otherwise prevents the deletion of Subscriber data, the Subscriber agrees to keep current with all fees related to data storage until such period of immutability/non-deletion expires.

Subscriber acknowledges that this may automatically extend the service contract between Subscriber and ThinkOn beyond the initial or renewal period. In the event that the immutability time period is set by ThinkOn staff, Subscriber is only responsible for the agreed upon service contract duration definition.

(p) Migrated Data. The Subscriber agrees that any data migrated from another non-ThinkOn service may or may not be accessible in the same format as other ThinkOn Services and therefore may have differing access requirements falling outside the scope of the Service Level Agreements. Subscriber agrees to hold ThinkOn harmless from data quality, consistency and recoverability of migrated data.

15. Compliance with Laws.

Each Party shall obtain and maintain all permits, licenses, or certificates required by any regulatory body for the provision or use, as applicable, of the Services. Each Party will comply with all applicable international, national, provincial, state, regional and local laws, rules and regulations in performing its obligations hereunder and, including, without limitation, all applicable export control, data protection, intellectual property and consumer protection laws. Subscriber acknowledges that Subscriber is responsible for the security of any credit card numbers and related Subscriber information to which Subscriber may have access as a result of conducting electronic commerce transactions on the Internet, subject to ThinkOn’s ongoing warranty obligations hereunder.

16. Miscellaneous.

(a) Governing Law. These terms are governed by and construed in accordance with the laws of the State of New South Wales and the Commonwealth of Australia (as the context requires or permits), and each Party must submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Commonwealth of Australia. Subscriber further acknowledges and agrees that the pricing provided to Subscriber is based in large measure on the Parties’ respective rights, obligations, and limitations thereto set forth in this Agreement. The United Nations Convention on Contracts for International Sale of Goods shall not apply.

(b) Enforcement. Each Party acknowledges that (i) the provisions of this Agreement regarding each Party’s use and access to the Confidential Information of the other Party are reasonable and necessary to protect the other Party’s business interests; and (ii) any breach of such provisions may result in irreparable harm to the other Party for which money damages may not be adequate compensation. Thus, if there is a breach of such provisions, the injured Party shall be entitled, in addition to all other rights and remedies that it may have at law or in equity, to seek a decree of specific performance or injunctive relief against the breaching Party.

(c) References. Neither Party will, without the prior written consent of the other Party, (a) use the trademark, logo or other identifying marks of the other Party in any news releases, articles, brochures, marketing materials, advertisements, or other publicity or promotions, or (b) issue any press release or other public statement regarding this Agreement; provided, however, that either Party may publicly refer to the other Party by corporate name as a vendor or Subscriber and may publicly disclose the existence and general nature of this Agreement (but not the specific terms thereof or any detailed information concerning the performance thereof).

(d) Waiver. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any Party of the time for the performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

(e) Assignment. This Agreement shall be binding upon and inure to the benefit of Subscriber and ThinkOn and their respective successors and permitted assigns. ThinkOn may assign and transfer all ThinkOn’s rights and benefits in, to, and under this Agreement, including without limitation all rights and benefits in and to the fees due to ThinkOn, to another person or entity (“Assignee”). Subscriber hereby represents and agrees that there is no reason for Subscriber to refuse to make payment of any fees to any such Assignee, as Assignee may direct from time to time. Assignee may, with or without notice to or consent of Subscriber, pledge, encumber, transfer, or assign to third party(ies) all or any part of Assignee’s right, title, and interest in, to, or under this Agreement and/or the fees. Subscriber acknowledges that Assignee has not assumed and agrees that Assignee is not obligated to perform any of ThinkOn’s obligations or provide any Services to Subscriber with respect to this Agreement or otherwise.

(f) Section References; Severability. Unless otherwise specifically indicated herein, all references to a “Section” herein refer to the applicable Section of this Agreement. Any provision in this Agreement which is held to be illegal or unenforceable in any jurisdiction shall be severed to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law.

(g) Regulations. Some of the Services are designed to help the Subscriber comply with various regulatory requirements that may be applicable to the Subscriber. However, the Subscriber is solely responsible for understanding the regulatory requirements applicable to its business and for selecting and using those Services in a manner that complies with the applicable requirements. The Subscriber is solely responsible for determining the suitability of the Services for its use in light of any applicable regulations or other applicable data privacy laws.
(h) Notices. All notices, requests, consents, and other communications required or permitted under this Agreement (“Notices”) by or from ThinkOn may be given by way of email or by way of repostings of this Agreement or postings of notifications to this Agreement. Any Notices by or from the Subscriber shall be given to ThinkOn by email to contractnotice@ThinkOn.com.

(i) Entire Agreement. This Agreement (including the documents incorporated by reference herein) and the Service Orders states the entire agreement between the Parties and supersedes all previous proposals, negotiations and other written or oral communications between the Parties with respect to the subject matter hereof.

(j) Survival. The rights and obligations of the Parties in this Agreement that would by their nature or context be intended to survive the expiration or termination of any Service Order or this Agreement shall so survive, including, without limitation, the rights and obligations under Sections 3 (Billing and Payment), 6 (Confidential Information), 7 (Indemnification), 12 (Limitations of Liability; Warranties), 14 (Certain Obligations of the Parties) and 16 (Miscellaneous).

(k) Order of Precedence. If there is a conflict between the terms and conditions of this Agreement (including the documents incorporated by reference herein) and a Service Order, the order of precedence shall be as follows: (i) the Service Order; (ii) the terms and conditions of this Agreement.

(l) No Third-Party Beneficiary. No person or entity other than the Parties and their respective successors and assigns is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the Parties.

(m) Relationship of the Parties. The Subscriber and ThinkOn are, and shall remain, independent contractors. This Agreement does not create any agency, partnership, joint venture, or employment relationship between the Parties. Neither Party will have the authority to make any representations, claims or warranties of any kind on behalf of the other Party or on behalf of such Party’s affiliates, agents, subcontractors, licensors or third-party suppliers.

(n) Amendments to Agreement. ThinkOn reserves the right to change this Agreement (including the documents incorporated by reference herein) from time to time at its sole discretion upon notice provided to Subscriber by ThinkOn (which notice may include the reposting of this Agreement or any such document with a new reference date, or postings of notifications to this Agreement or any such document). The Subscriber’s continued use of the Services indicates its acceptance of the changes. If the Subscriber does not agree to the changes, it must stop using the Services immediately.