Managed Services Agreement

II. Definitions 

For the purposes of this Agreement, the following definitions apply and any undefined terms have the meaning ascribed to them in the context in which they are used in this Agreement:

 

• AWS, Amazon or Amazon Web Services refers to Amazon Web Services, Inc.
• IBM Cloud or IBM  refers to International Business Machines, Inc
• Service Guide means the document containing the Service descriptions that are available under this Agreement and the proposed guidelines regarding the use of those services.
• Services Addendum refers to a separate document detailing agreed upon work outside those services, the Services Addendum is incorporated herein by reference.
• Cost and Fees Addendum refers to a separate document detailing agreed upon pricing.
• Content refers to all data and materials, including, but not limited to code, text, links, images, photographs, messages, graphics, music, sounds, video, files, data, software, applications and any other materials that are provided to AWS, IBM Cloud, or Fastcomcorp Hosting Services by, or on behalf of you through use of the Service.
• Infrastructure includes AWS instances, AWS networking, IBM Cloud instances, IBM Networking, and any configuration of the AWS or IBM Cloud platform.
• AWS VM or EC2 Instance means the virtual machines deployed on AWS for which you have purchased support from Fastcomcorp Hosting Services.
• IBM Compute or Cloud Foundry deployed on IBM Cloud which for which you have purchased support from Fastcomcorp Hosting Services.
• Support Fee means a separate fee outside of AWS or IBM Cloud usage for support services paid to Fastcomcorp Hosting Services, as detailed below.
• Support Services Request means an internal ticket created by Customer either via email or via Fastcomcorp Hosting Services ticketing system.
• Business Hours means the hours between 8:00 a.m. to 6:00 p.m. Central Standard Time, Monday through Friday, excluding nationally recognized holidays.
• Monitoring Alarms means the alarms setup for monitoring Customer’s Infrastructure.
• Master Account means Fastcomcorp Hosting Services master AWS and IBM account, under which customers’ member AWS & IBM accounts are consolidated for the purposes of management and billing.
• Member Account refers to the AWS and IBM customer account(s) managed by Fastcomcorp Hosting Services via the Service, which is consolidated under the Master Account throughout the use of the Service.

III. Description of Services

 

The Service, including the various service levels, are designed to assist you with your cloud computing services by leveraging Fastcomcorp Hosting Services human expertise, tooling, and automation. Infrastructure designed by us are built on and integrated with Amazon Web Services and the IBM Cloud Services. 

Fastcomcorp shall provide all the services described in the executed Statement(s) of Work (“SOW”). Additional consulting services may be contracted through Fastcomcorp by means of a subsequent SOW executed between Fastcomcorp Hosting Services and the Customer. All work performed under any SOW is subject to the terms of this Agreement unless otherwise explicitly indicated in the SOW. 

Statement of Work is an Estimate

Each SOW will include Fastcomcorp Hosting Services estimate of the cost to complete the project. Fastcomcorp Hosting Services does its best to accurately estimate project costs upfront based on the scope as it is defined in the Customer work request. The estimate is based upon the list of features documented in the SOW. Any feature not specifically referenced and estimated in the SOW is not included in the current scope of the project. All costs listed in the SOW are an ESTIMATE and NOT a FIXED BID.

For each associated SOW, as soon as Fastcomcorp Hosting Services identifies that a task or deliverable may go over the estimate, the Customer will be alerted, and the parties will mutually agree in writing to proceed before any additional work is done which exceeds the approved estimate. 

 

Support

You must submit all Support Services Requests directly to Fastcomcorp Hosting Services at the contact information provided in your Account. You agree not to submit requests directly to IBM or Amazon.

 

Third Party Vendors & Suppliers

For issues involving your third-party suppliers and vendors, any communication Fastcomcorp Hosting Services has must be coordinated by you. You also acknowledge and agree that Fastcomcorp Hosting Services is not liable for services or support provided by or to any third-party supplier or vendor. Fastcomcorp Hosting Services has no obligation to communicate with third-party suppliers. If this service is available, additional fees may apply.

 

Database Enhancements, IT, and Programming Services

If you experience issues with your database or your applications, at an additional charge, Fastcomcorp Hosting Services may provide consulting services. The time spent investigating and providing advice will be billed hourly. Fastcomcorp Hosting Services does not guarantee any specific outcome. 

 

III. Billing

Fastcomcorp Hosting Services bills for the AWS and IBM Cloud usage associated with the Service, in addition to Fastcomcorp Hosting Services Support Fee and any other services.

Billing for Fastcomcorp Hosting Services Managed Services begins on the day of the onboarding call, at which point Customer’s debit or credit card on file in the Account Center will be charged, unless payment by wire has been arranged in advance, which is subject to additional terms, including your sole responsibility for payment of the transfer fee. Payment terms may also be subject to additional verification, including but not limited to a credit check, as solely determined by Fastcomcorp Hosting Services.

Billing generally runs on a 30-day cycle. Customer’s first payment shall be the greater of either a minimum Support Fee or a percentage of the expected AWS and IBM Cloud usage. The onboarding date will be the service anniversary and in each subsequent month the Support Fee will be collected on or about this date. Services, such as the Support Fee, AWS & IBM Cloud usage, may be billed separately. Any projected billing usage is a projection only and may not reflect the actual balance.

Billing statements become available around the Service’s anniversary date and may be retrieved via: (1) the Account Center; (2) email; or (3) postal mail. Fastcomcorp Hosting Services has the right, but not the obligation, to email a copy of the billing statement to at least the Account Owner. Customer is responsible for setting and maintaining billing preferences. All fees are subject to change at any time, and such changes shall be posted online and effective immediately without need for further notice to you.

 

Billing Commitments

If you wish to change your billing commitment, you may request to change the billing term by creating a support request. If an annual term has been purchased, it may only be converted into monthly once the term commitment has ended. Additional restrictions may apply.

 

Past Due Billing

Payment is due upon Fastcomcorp Hosting Services generating the initial invoice in the Account Center. The Fastcomcorp Hosting Services Account is considered past due if Fastcomcorp Hosting Services does not receive payment within ten (10) days of the billing date of any Service. The Fastcomcorp Hosting Services Account may be suspended or closed if the Fastcomcorp Hosting Services Account remains past due beyond ten (10) days from the billing date. To reinstate the Fastcomcorp Hosting Services Account, full payment of any balance must first be received by Fastcomcorp Hosting Services.

 

Payment Methods

Fastcomcorp Hosting Services accepts the following methods of payment (each, a “Payment Method”): Visa, MasterCard, American Express, Discover Card and wire transfer. The Payment Method you first specify will be set as the Payment Method for the Fastcomcorp Hosting Services Account, unless you change it in the Account Center. We will not honor any limiting, modifying or conditional notation you make with your Payment Method. You agree that you will be responsible for all wire transfer fees, both incoming and outgoing, associated with your Account. You hereby expressly authorize Fastcomcorp Hosting Services to reduce your Account by the amount of wire transfer fees Fastcomcorp Hosting Services incurs in order to receive your funds.

You are responsible for ensuring that the Payment Method on file is up-to-date at all times and that the Fastcomcorp Hosting Services Account balance is kept current. If the Payment Method for the Fastcomcorp Hosting Services Account is credit or debit card, Fastcomcorp Hosting Services and/or our payment processor may store the credit or debit card(s) in a database for future renewals. We may automatically attempt to collect payment from any Payment Method left on file, without notice, when a balance comes due.

 

Credits and Refunds

Credit issued to the Fastcomcorp Hosting Services Account (“in-store credit”) by Fastcomcorp Hosting Services is not redeemable for cash and may not be transferred. Any amount of in-store credit that you do not use will remain on the Fastcomcorp Hosting Services for two years or until the Account is closed. The issuance of in-store credit is solely within Fastcomcorp Hosting Services discretion.

Fastcomcorp Hosting Services may, in its sole discretion, issue the refund either (1) in the form of an in-store credit, (2) via PayPal, or (3) via check. Fastcomcorp Hosting Services also has the right, but not the obligation, to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the payment provider, payment processor or individual issuing bank associated with your Payment Method. If we issue a refund to your bank account, PayPal account, or debit/credit card, it may not show up in your account immediately. It may take up to 7-10 business days.

 

Unauthorized Transactions

It is at Fastcomcorp Hosting Services sole discretion, upon receipt of sufficient documentation from an unlisted contact, requests to remove a stored Payment Method from the Fastcomcorp Hosting Services Account may be honored. In such a case, Fastcomcorp Hosting Services may refund unauthorized charges collected from the Payment Method on behalf of the Fastcomcorp Hosting Services Account. Refunds issued in connection with such a request will result in the account immediately becoming past due and the refunded amounts will be reassessed to the Fastcomcorp Hosting Services Account. To avoid an interruption in service, you must remit payment of the past due balance and any related fees within 72 hours of our notice to you. If you don’t, the Fastcomcorp Hosting Services Account may be suspended or closed for nonpayment.

 

Promo Offers

Discount and coupon codes are applicable only to the Service to which they are applied. Discount and coupon codes are valid only towards the initial purchase and shall not affect the renewal or recurring price of any service. Discount and coupon codes do not have cash value. Fastcomcorp Hosting Services reserves the right to discontinue any discount code or promotion at any time, without notice.

 

Fees

You agree to pay all prices and fees due for Services purchased or obtained at the time you order the Service, in addition to any recurring fees. We may assess any related charges to the Fastcomcorp Hosting Services Account and suspend the Fastcomcorp Hosting Services Account until full payment of the outstanding balance has been received. We may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Method on file for the Fastcomcorp Hosting Services Account.

We expressly reserve the right to change our fees and prices at any time. Further, we reserve the right to adjust the amount of resources given to plans at any time. In the event of any change in price or fees, notice shall be posted online at this Website and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.

 

Chargebacks

Regardless of the reason why a credit, debit, Bitpay, or PayPal payment is retracted by a financial institution, a $25.00 NON-REFUNDABLE chargeback fee will be assessed to the Fastcomcorp Hosting Services Account for each chargeback we receive. This fee is in addition to any monies owing on the Fastcomcorp Hosting Services Account, and any fees assessed by the financial institution. Upon receipt of any chargeback, we will immediately, re-assess the related charges and suspend the Fastcomcorp Hosting Services Account and all Service(s) until such time as you have fully complied with the instructions set forth in our notice to you regarding the chargeback. We may refuse to allow credit or debit, PayPal, Bitpay, or automated payment from you in the future. Upon our receipt of any third chargeback, we may close the Fastcomcorp Hosting Services Account without notice; we may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Methods on file for the Fastcomcorp Hosting Services Account.

 

Other Billing Provisions

In the event there is a billing dispute that arises, either brought by you or us Fastcomcorp Hosting Services, the dispute must be given in writing to the other party within thirty (30) days of the disputed transaction occurring.

All monies are payable to Fastcomcorp Hosting Services in U.S. dollars (“USD”) only. In our sole discretion, we may reject or convert into USD any non-USD payment, using the exchange rate in effect at the time of the conversion used by our payment processor.

If, in our judgment, your purchase constitutes a high risk transaction, we may require you to provide additional documentation to validate the purchase.

If our attempts to collect payment from the credit or debit card(s) on file are unsuccessful and any of the Services in the Fastcomcorp Hosting Services Account lapses into a past due status as a result of our inability to collect payment from your Payment Method, the Fastcomcorp Hosting Services Account may be suspended or closed for nonpayment. In no event shall Fastcomcorp Hosting Services be held liable for any action we may take against you as a result of our inability to collect payment from your Payment Method. Any Communications we may send you concerning our inability to collect payment from your Payment Method are sent as a courtesy only. We reserve the right to collect.

You agree that Fastcomcorp Hosting Services shall not be liable for costs or expenses you may incur, including, but not limited to, overdraft and insufficient funds fees you may incur from any financial institution or other third party as a result of our attempts to collect payment from your Payment Method. You agree to assume complete responsibility for any third party costs or expenses you may incur as a result of our billing actions.

No credits or refunds will be issued for non-usage of the Service or cancellation of the Service.

 

Auto Renewal

Unless otherwise noted, Fastcomcorp Hosting Services automatically renew the applicable service for a renewal period equal in time to the most recent service period. If you would like to change the term. Please open a support ticket request.

 

IV. Customer Obligations

Your Account

Before initiating your new Service with Fastcomcorp Hosting Services, you must register for a Fastcomcorp Hosting Services Account thru our Website. During the registration process, Fastcomcorp Hosting Services will also create an AWS or IBM Cloud Member Account for you, which is consolidated under Fastcomcorp Hosting Services AWS and IBM Cloud Master Account. For our purposes, the lawful owner of the Member Account is the Fastcomcorp Hosting Services Account Owner, and all other provisions set forth in the Terms of Service Agreement shall apply to the AWS and IBM Cloud Member Account as if that entity is the Fastcomcorp Hosting Services Account Owner, unless stated otherwise herein. Fastcomcorp Hosting Services will provision these accounts as described in the Service Guide. Upon consolidation, you will be unable to access the billing console functionality in the AWS or IBM Cloud console.

 

Services and Deployment

Fastcomcorp Hosting Services builds new virtual environments based on custom architecture and opinionated guidance. For Customers with existing AWS or IBM Cloud environments hosted on AWS and the IBM Cloud. Fastcomcorp Hosting Services will work with Customers to re-architect and migrate the existing platform to a Fastcomcorp Hosting Services supported one. Fastcomcorp Hosting Services will make a good faith effort to build an environment for the Service centered around Customer’s business needs. Fastcomcorp Hosting Services makes no guarantees that this environment will fully conform to Customer’s desired goals.

 

Reasonable Requests

You agree that all requests will be reasonable in nature and within the scope of the Service purchased. Failure to maintain your Account in good standing may result in termination of any outstanding or pending services without refund or credit.

 

Provision and Timing

An onboarding call will generally be set within two weeks of the contract sign date. The date of the onboarding call is the commencement date of the provisioning and start of the Service.

 

Submission of Information and Content

You are responsible for submitting all Content. You agree to respond to any request for additional information, material, credentials, feedback or approval within a mutually agreed time frame.

 

Account Security

You are solely responsible for the security of your Fastcomcorp Hosting Services Account and any other applications, plug-ins, or add-ons. You must keep your Account information and passwords secure. You are also responsible for maintaining the security of the Account, pursuant to the Terms of Service Agreement. We expressly disclaim any responsibility or liability for any unauthorized use of or access to your Account or any Peripherals.

V. Termination

Unless otherwise noted herein, this section shall supersede section of the Fastcomcorp Hosting Services Terms of Service Agreement and all terms and provisions included in that section. For any other applicable term or provision not noted herein, the terms and provisions in the Terms of Service Agreement shall apply.

As long as the Fastcomcorp Hosting Services Account is open, this Agreement shall be effective, and certain terms continue even after the Fastcomcorp Hosting Services Account is closed. The terms set forth herein that govern the Fastcomcorp Hosting Services Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the Fastcomcorp Hosting Services Account.

 

Your Rights to Close Account

If Customer wishes to close the Service or the Account, the listed Account Owner must submit a Request to Close thru the Account Center. Requests to expedite Service or Account closure may be honored in some cases, at Fastcomcorp Hosting Services sole discretion. Any request to expedite closure must be submitted via a written Support Services Request. Additional restrictions may apply.

 

Support Services Termination

Customer wholly owns the Member Account and should Customer no longer wish to utilize Fastcomcorp Hosting Services to support that Member Account, notwithstanding any obligations to term commitments or outstanding delinquencies, Customer may request to separate it from the Master Account at any time by submitting a written Support Services Request. Customer may be required to complete an assignment agreement with AWS or IBM Cloud in order to complete the legal transfer. If Customer fails to submit a request via the Account Center, the Service will remain open and Customer is responsible for any charges that occur during that time, even if Customer is no longer using the Service.

 

Our Right to Terminate Service or Account

Fastcomcorp Hosting Services has the absolute right and power, in its sole discretion, to terminate your Service or Account under any of the following circumstances: (1) we are required to do so by law; (2) you, or any of your Account Contacts, violate any provision of the Fastcomcorp Hosting Services Terms of Service Agreement, AWS Customer License Terms, IBM Cloud Customer License Terms, or any other agreement incorporated herein or into the Service; (3) we receive notice of any insolvency proceedings; (4) if, in our judgment, your use of the Service has the potential to pose any harm to Fastcomcorp Hosting Services, any of our affiliates, partners, service providers or customers; or (5) excessive complaints about a Website hosted through Fastcomcorp Hosting Service are received. In the event of any such closure of the Fastcomcorp Hosting Services Account, you will not be eligible for a refund of any fees and you may be prohibited from reopening the Fastcomcorp Hosting Services Account, opening a new Fastcomcorp Hosting Services Account or accessing any existing account. You agree that Fastcomcorp Hosting Services shall not be liable, in any way, for any closure pursuant to this section of this Agreement.

 

Termination of Service

Within ten (10) business days of Customer’s termination of the Service and upon Customer’s written request, Fastcomcorp Hosting Services will transfer ownership of Customer’s Member Account to Customer. Fastcomcorp Hosting Services will remove all non-customer AWS Identity Access Management (IAM) or IBM Cloud Identity Access Management (IAM) accounts, groups, roles, and federation prior to transfer of account ownership. AWS or IBM Cloud root account credential transfer will occur via an encrypted data transfer. Fastcomcorp Hosting Services is not responsible for any breaches as a result of the transfer. Billing will be reconciled following termination due to AWS or IBM Cloud billing usage in arrears. Customer is liable for any outstanding balance and must pay this balance pursuant to the terms of this Agreement.

 

Suspension Effects

Upon any suspension of the Fastcomcorp Hosting Services Account or Service, the Service may become unavailable until all issues are resolved by you, to our satisfaction.

 

Reopening Account or Service

Once closed, the only services that may be reopened are unexpired domain name registrations and SSL certificates, if the Fastcomcorp Hosting Services Account is open and in good standing. The Account Owner is the only person authorized to re-open the account. If the Account Owner is unable to authenticate to Fastcomcorp Hosting Services satisfaction, the Owner of the Account must complete a verification process, which may include completing a form and submitting government-issued identification. Any unpaid or otherwise outstanding balance must be paid before we will complete any re-opening. Re-opening an account does not mean that we are willing or able to restore your Content.

 

Miscellaneous

Terms set forth herein that govern the Fastcomcorp Hosting Services Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the Fastcomcorp Hosting Services Account. This Agreement and all Services on the Fastcomcorp Hosting Services Account will automatically renew and you will be charged for additional terms until the Fastcomcorp Hosting Services Account is closed by you or Fastcomcorp Hosting Services in accordance with this Agreement. All monies and fees due through the closure date are completely NON-REFUNDABLE. You agree to hold Fastcomcorp Hosting Services harmless from and against any claims, losses or damages arising from any suspension or closure of the Account or the individual Service.

VI. Limitations

Limitations of Services

We are not responsible for any outages due to Amazon, IBM, or any other third party.

 

Delay

Our ability to offer the Service and provide successful support depends upon your timely feedback and approval. We are not responsible for additional fees, time, or expenses incurred because of delays caused by your lack of or untimely response, account access, asset delivery, feedback or approval.

 

Modules/Plug-ins

We are not responsible for the maintenance on any third-party add-ons or plug-ins added to your website. You are solely responsible for ensuring your add-ons or plug-ins remain current, secure and are functional. Media Temple may, at its own discretion, choose to provide support for third-party plug-ins or add-ons. Such support should not be construed as an ongoing part of the Service, unless expressly agreed in a written Services Addendum.

 

Rollback

In the event that an update fails, Fastcomcorp Hosting Services will switch back to an earlier Amazon Machine Image (AMI) or IBM Cloud Virtual Machine Image or revert the configuration to an earlier working state. Fastcomcorp Hosting Services is not responsible for any for any loss of Content or any other issues that may arise.

 

VII. Misellanious Provisions

Acceptable Usage

You acknowledge and agree that you shall not use the Service in any manner that violates the Terms of Service Agreement, AWS Customer License Terms, IBM Cloud Customer License Terms, Fastcomcorp Hosting Services DMCA Policy, or any other agreement incorporated herein, as determined by us in our sole discretion.

 

Intellectual Property

Customer owns all data submitted to Fastcomcorp Hosting Services to be included with the Service, in addition to the AWS architecture, IBM Cloud architecture, and configuration built by Fastcomcorp Hosting Services for Customer’s utilization.

 

Authority

You authorize Fastcomcorp Hosting Services to manage your AWS, IBM Cloud Account and perform work on your behalf. In no event shall Fastcomcorp Hosting Services be liable to you, or any other person or party, as a result of any work we perform on your behalf.

 

Third Party Software

We may install third party software (for example, from AWS marketplace or IBM Cloud Partners) as part of the Service. Where such activity requires the acceptance of an End User License Agreement (or similar terms), you hereby authorize Fastcomcorp Hosting Services to accept such terms on your behalf, agree to be bound by and adhere to such terms, and acknowledge that you, and not Media Temple are bound by such terms.

 

Indemnification

You acknowledge and agree that you will protect, defend, indemnify and hold harmless Fastcomcorp Hosting Services from and against any and all claims imposed upon or incurred by us directly or indirectly arising from your use or misuse of the Service, any third-party applications, software or files. You acknowledge and agree that any third-party providers are third-party beneficiaries to this Agreement for purposes of enforcing only their rights under this Agreement. Fastcomcorp Hosting Services is not responsible for any service interruptions or other changes done by Amazon, IBM, or any other third party.