Terms of Service for Upsun Services purchased on the IBM Cloud Catalog

These Terms of Service  for Upsun Services purchased on the IBM Cloud Catalog are entered into by Upsun and the entity or person agreeing to these Terms of Service (the “Customer”). They govern the Customer’s subscription for Upsun services and the use of said services when purchased by Customer to International Business Machines Corporation, (“IBM”) on the IBM Cloud Catalog. 

For the avoidance of doubt, Upsun has appointed IBM as vendor of record. Customer and IBM will agree on subscription terms, prices, billing schedule, payment terms, and credit or refund policy in a separate agreement.

If you are entering into this Agreement (as defined below) on behalf of a company or other legal entity, you represent and warrant that (i) you have the legal capacity to bind such entity to this Agreement,  (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. 

1. Scope, definitions and interpretation

1.1. These Upsun Terms for IBM Cloud Catalog set forth the terms and conditions applicable to the Upsun services procured by Customer (as defined below) through the IBM Cloud Catalog. 

1.2. Upsun Product Listing eventually made available by Upsun through the IBM Cloud Catalog and Customer’s purchase of the corresponding Services, constitutes each Party’s respective acceptance of these Terms and their entry into this Agreement (as defined below). This Agreement will become effective on the date of Customer’s purchase of the corresponding subscription to the Upsun Services (as defined below).

1.3.Capitalised terms used but not defined in these Terms of Service shall have the meaning given to them in any other document incorporated by reference into the Agreement. 

1.4. In these Terms of Service:

• “Agreement” means these Terms of Service, the Product Terms, the SLA & Support Policy and any documents referred to therein.
• “Acceptable Use Policy” means the acceptable use policy available at https://upsun.com/trust-center/legal/aup/.
• “Account” means a Customer account on the Platform. 
• “Affiliates” means an entity that controls, is controlled by, or is under common control with a Party, where “control” means control of more than fifty percent (50%) of the voting shares of such entity.
• “Beta Feature(s)” means any beta or pre-release features still undergoing testing that are not generally available.
• “Confidential Information” means: (i) any non-public technical or business information of a Party, including without limitation, any information relating to a Party’s techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customers, business forecasts and marketing plans; (ii) the terms but not the existence of this Agreement; and (iii) any other information that is designated as “confidential” or that should reasonably be understood by the receiving Party to be Confidential Information. Confidential Information will not include any information that (i) is or becomes generally known to the public through no fault or breach of this Agreement; (ii) the receiving Party can demonstrate was rightfully in its possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by the receiving Party without the use of or access to the disclosing Party's Confidential Information; or (iv) the receiving Party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure.
• “Console” means the web administration console in Customer’s Account through which Customer manages its Projects. 
• “Content” means all information and content relating to a Customer’s Projects, including without limitation related data files, written text, software or program source code, pictures, music, audio or video files, or other images or materials.
• “Customer” means any individual or entity subscribing to the Upsun Services through the IBM Cloud Catalog.
• “Data Processing Agreement” or “DPA” means the data processing agreement at https://upsun.com/trust-center/privacy/dpa/.
• “Documentation” means the documentation at https://docs.upsun.com/.
• “Fees” means the fees for the Services as agreed between Customer and IBM.
• “IBM Cloud Catalog” means the online marketplace and service management platform operated by IBM which is currently located at https://cloud.ibm.com/catalog/, as it may be updated or relocated from time to time.
• “Managed Services” means third party services, components or tools which are provided to Customer by Upsun as a managed service.
• “Order Form(s)” means any document approved by Customer as confirmation of Customer’s subscription to the Services in accordance with the Product Listing.
• “Party” means the Customer or Upsun, collectively the “Parties”.
• “Platform” means the Upsun PaaS-Platform-as-a-Service,which enables Customers to host their Content using hosting regions operated by IBM.
• “Privacy Notice” means the privacy notice available at https://upsun.com/trust-center/privacy/privacy-notice/.
• “Product Listing” means the description of the Services and other information related to the Services listed on the IBM Cloud Catalog.
• “Product Terms” means the product terms in Exhibit 2
• “Projects” means Customer applications developed and/or hosted on the Platform. 
•  “Renewal Term” means the Renewal Term set out in the Order Form (if any). 
• “Representatives” means the Users, employees, agents, legal affiliates, consultants, or professional advisors of a Party.
• “Services” means the provision of the Platform to help Customer develop, deploy, host, monitor, and maintain its Projects and related services as further set out in the Order Form. 
•  SLA and Support Policy” means the Service Level Agreement and Support Policy in Exhibit 1. 
• “Subscription Term” means the Subscription Term agreed between Customer and IBM.
• “Third Party Services” means all third party tools and websites accessed through the Platform or used by the Customer with the Platform but excluding Managed Services.
• “Upsun” means Platform.sh SAS doing business as Upsun, a company registered with the Trade and Company Register of Paris (France) under number 521 496 059 with a registered address located at 22 rue de Palestro 75002 Paris (France).
• “User(s)” means any individual accessing or using the Services on behalf of Customer.

2. Provision of the Services

2.1. Upsun will provide the Services ordered by Customer for the Subscription Term in accordance with the Product Listing. 

2.2. The Services ordered may come with resources and usage limits as further detailed in the Product Listing. Usage in excess of the contracted scope and/or capacity may be allowed and billed as overages.

2.3. Customer Content will be hosted on the IBM region selected by Customer on a per Project basis. For the avoidance of doubt, Customer is not allowed to use the IBM hosting regions made available through the Platform separately from the Platform. 

3. Data protection

3.1. Each Party shall comply with the Data Processing Agreement.

3.2. Upsun may collect personal data from Customer’s Users and/or employees, consultants, directors, or agents in connection with the Services. The Privacy Notice describes how Upsun collects, uses, and discloses such personal data.

4. Security

4.1. Upsun will maintain the technical and organizational security measures set out in the DPA. 

4.2. Security and backups are a shared responsibility between Upsun and Customer, as further described in the Documentation. Customer is solely responsible for the security of any Project Customer deploys on the Platform. Upsun will regularly schedule automated backups of Customer production environments, as further described in the Product Terms. Upsun may notify Customer of security vulnerabilities relating to elements under Customer’s control and responsibility (e.g. application code, configuration of application, and routes managed through YAML files), but has no obligation to review or advise Customer of any security vulnerabilities. Customer must patch any notified vulnerabilities as soon as possible. Failure to do so may result in the immediate suspension of Customer Projects, at Upsun’s sole discretion. Upsun is not responsible for any vulnerabilities relating to elements under Customer’s control.

4.3. Upsun may provide templates and code examples in the Documentation, public repositories, and support interactions. It will make reasonable efforts to make sure these examples respect secure coding standards, but example code may not be ready for production settings. It is the Customer responsibility to make sure any application code Customer runs is up to date and secure, even when originally provided by Upsun.

5. Beta Features

5.1. Upsun may allow Customer to try certain Beta Features. Beta Features are provided for evaluation purposes and are not intended for production use. Beta Features do not come with any uptime commitment, or support obligation. Any Beta Features may be modified, removed, or discontinued, or made generally available to all Upsun customers for production use (including for a fee) at Upsun’s sole discretion and without any liability to Customer. All Beta Features are provided "AS IS,'' without warranty or representation of any kind. Notwithstanding section 15 Liability, Upsun’s liability for any damage arising out of or in connection with any Beta Feature is excluded in its entirety, including any obligation or liability with respect to Customer Content, except to the extent liability cannot be excluded or limited under applicable law. Customer assumes all risks associated with Customer use of a Beta Feature.

6. Third-party services and Managed Services

6.1. Upsun may provide Customer with direct access to, integrations, or connections with Third Party Services. Upsun is not responsible for evaluating such Third Party Services. Access to Third Party Services is “as is” and “as available,” without any warranties or representations of any kind and without any endorsement. Upsun shall have no liability for any harm or damages related to Customer’s use of optional Third Party Services. In the event that Customer or any Customer User consents to a third-party integration, Customer shall be deemed as agreeing to the passage of data to the third party integration partner for the purposes agreed upon between Customer and Upsun.

6.2. Upsun will make reasonable efforts to maintain integration with Third Party Services and Managed Services. However, Upsun cannot guarantee the continued availability of any integrated or managed features and may cease to provide these without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a third-party service, tool, or component ceases to make its service, tool, or component available for integration with the Services in a manner acceptable to Upsun or changes the terms of the third-party services in a manner that no longer allows Upsun to provide said integration feature. 

7. Changes to the Services

7.1. Upsun reserves the right to modify, add, or remove portions and/or functionality of the Services on a temporary or permanent basis, without liability to Customer. Except where an urgent change is required for security reasons, Upsun will notify Customer ahead of any material change by displaying a prominent notice within the Platform and/or by sending Customer an email. Except for changes that are implemented by Upsun for legal, regulatory or security reasons, if and to the extent a change introduced by Upsun has a material adverse effect on Customer’s use of the Services, Customer may, as its sole and exclusive remedy, terminate any active subscription. Customer’s failure to exercise its right to terminate within thirty (30) days from the day the change is released by Upsun will be deemed to be Customer’s acceptance of the revised Services. 

8. Customer’s obligations 

8.1. Customer must comply, and shall ensure that its Users comply, with the Acceptable Use Policy, applicable laws and this Agreement.

8.2. Customer will ensure that its Users’ login details are kept confidential, are individual, and are not shared between several individuals. 

8.3. Customer is liable for its Users’ acts and omissions as if they were acts and omissions of Customer. Customer will notify Upsun immediately and terminate the relevant User(s)’s access to the Services should Customer become aware of (i) any breach of this Agreement by a User or (ii) any possible misuse of a User’s login details.

8.4. Customer is solely responsible for the use and submission of Content. Customer must make sure such Content is validly licensed to Customer for the intended use and Customer is solely liable for complying with any third party intellectual property rights or licenses over any software or programs included in its Content.  If Customer’s Projects developed or hosted on the Platform allow for third parties (including but not limited to end users of the Customer’s applications) to publish, transmit, or host Content, Customer is solely responsible for any Content which breaches this Agreement or applicable law. 

8.5. Customer agrees to immediately remove any Content that breaches this Agreement upon first request of Upsun or upon becoming aware of any such breach. 

9. Customer Affiliates

9.1. Customer may enter into this Agreement on behalf of itself and Affiliates and may enable Affiliates to use the Services under Customer’s Account. Customer will remain liable for all obligations under this Agreement and any act or omission of any Affiliates will be deemed to be an act or omission of Customer. Any claim under this Agreement will be brought by or against Customer and not the Affiliate. 

10. Representations and Warranty

10.1. Upsun warrants that it will provide the Services using commercially reasonable care and skills and as described in the Product Terms. 

10.2. This warranty will not apply if the error or non-conformity was caused by: (i) Customer’s breach of the Acceptable Use Policy, (ii) incidents caused by Customer’s Projects (e.g. Project that exceeds the allocated resources, contains a programming error, failure to apply updates) and/or caused by failure of TLS certificates provided by Customer, (iii) any services or hardware of Customer or any Third Party Services or Managed Services used by Customer. 

10.3. No implied warranty. Except as expressly provided in this Agreement and to the fullest extent permitted by applicable law, the Services are provided on an “as-is” and “as available” basis, and neither Upsun nor Upsun’s third party supplier  makes any warranties of any kind, whether express, implied, statutory, or otherwise, and all implied warranties, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose are hereby excluded.

11. Intellectual Property

11.1. Upsun, and where applicable its licensors, are the sole and exclusive owners of all right, title, and interest in and to the Services. 

11.2. Upsun hereby grants Customer a limited in time, worldwide, royalty-free, non-transferable, non-assignable, non-sublicensable, and non-exclusive right to use the Services as permitted by this Agreement and subject to the usage restrictions in the Acceptable Use Policy, Product Terms, and Documentation. 

11.3. Customer may not, and shall procure that Users, or others within Customer’s control do not copy, republish, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; modify, translate, or create derivative works based on the Services; rent, lease, distribute, sell, resell, assign, or otherwise transfer intellectual property rights of the Services; use the Services for time-sharing or service bureau purposes, or otherwise for the benefit of a third party; or remove any trademark or proprietary notices from the Services. 

11.4. Customer, and where applicable, Customer licensors, are and will remain the sole and exclusive owners of all rights and title to and interest in the Content. Customer hereby grants to Upsun a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to host, reproduce, distribute, use, publicly perform, publicly display, and digitally perform the Content only as necessary to provide the Services. 

11.5. Upsun may state publicly that Customer is a Upsun customer by displaying Customer’s name and logo in online or offline promotional materials, or on Upsun websites.

11.6. The Services provide Customer with ways to share feedback with Upsun. Customer has no obligation to provide feedback. However, if Customer submits feedback, Customer acknowledges that such feedback is free from any confidentiality restriction and Customer hereby grants Upsun a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, translate, create derivative works of, and otherwise commercially exploit such feedback. The foregoing grant of rights is made without any duty to account to Customer or Customer Users for the use of such feedback. No feedback will be considered Customer Confidential Information, and nothing in this Agreement limits Upsun’s right to independently use, develop, evaluate, or market products or services, whether incorporating feedback or otherwise.

11.7. Any open-source software available through the Services is provided as-is and is not subject to the terms and conditions of this Agreement. Each item of open-source software is licensed under the end-user license that accompanies it.

12. Confidentiality

12.1. Each Party will, during the term of this Agreement and for a period of three (3) years after its termination or expiry, maintain in confidence all Confidential Information of the other Party and will not use such Confidential Information for any purpose, except as expressly permitted herein. 

12.2. Each Party will limit the disclosure of such Confidential Information to those of its Representatives who need to access such Confidential Information and are subject to binding use and disclosure restrictions at least as protective as those set forth herein. The receiving Party will be liable for any act or omission of such Representatives that, if taken by the receiving Party, would constitute a breach of this Agreement. The receiving Party will notify the disclosing Party of any actual or suspected breach of this Confidentiality section.

12.3. The receiving Party may make disclosures to the limited extent required by law or court order, provided the receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the disclosing Party to participate in the proceedings (to the extent legally permitted). 

12.4. In the event of a breach or threatened breach of this section by either Party, the other Party shall be entitled to seek preliminary and permanent injunctive relief (in addition to monetary damages and other remedies at law) to enforce the provisions hereof and shall be entitled to recover attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in this section shall in no way be considered the exclusive remedies of a breach of this section by either Party.

13. Indemnification

13.1. Upsun hereby agrees to defend, indemnify, and hold Customer harmless from and against any and all liabilities, losses, damages, or expenses incurred by Customer arising out of or relating to any claim, suit, action or proceeding by a third party alleging that Customer’s use of the Services in compliance with the terms of this Agreement infringes upon such third party’s intellectual property rights. Upsun indemnification obligation does not apply to the extent the third-party claim arises out of or relates to (i) Customer breach of the Agreement, including the Acceptable Use Policy or Documentation, (ii) Customer Content, (iii) the use of the Services in connection with materials, including third-party materials, not provided by Upsun, and (iv) Beta Features, or free trials.

13.2. Customer hereby agrees to defend, indemnify, and hold harmless Upsun and Affiliates against all claims, settlements, procedures, expenses, damages, or suits (including attorneys’ fees and expenses) resulting from Customer Content and Customer’s use of the Services in breach of the Acceptable Use Policy or this Agreement.

13.3. The above indemnification obligations are subject to the following: (i) the indemnified Party will promptly inform the indemnifying Party of the applicable claim, (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the claim, provided the Indemnifying Party may not settle the claim unless it unconditionally releases the indemnified Party of all liability or such settlement receives the indemnified Party prior approval, and (iii) the indemnified Party will, to the necessary extent and upon request of the indemnifying Party, fully cooperate to the claim investigation, defense, and trial. 

14. Liability

14.1. Neither Upsun nor Upsun’s third party supplier will be liable to the Customer for any indirect, punitive, exemplary, special or consequential damages, including without limitation damage to reputation, loss of (a) profit, (b) business, (c) value, (d) revenue, (e) goodwill, (f) anticipated savings, business interruption, procurement of substitute products or services, or other pecuniary loss arising out of the use or inability to use the Services, even if such Customer has been advised as to the possibility of such damages.

14.2. In no event will the aggregate and collective liability of Upsun and Upsun’s Affiliate, contractors and third party suppliers arising out of or related to this Agreement exceed the actual amount of Fees paid by Customer to IBM for the Service subject to the claim during the twelve (12) months immediately preceding the date the liability arose. 

14.3. The limitation set forth in section 14.2 will not apply (i) in matters for which liability cannot be excluded under applicable law, and (ii) to the indemnification obligations under section 13 “Indemnification”. 

14.4. The exclusions and limitations of liability in this section 14. apply to the fullest extent permitted by law, in all actions of any kind, whether based on contract, tort or any other legal or equitable theory.

15. Suspension

15.1. Upsun may immediately suspend Customer access to Customer Account and/or suspend Customer Project(s) if Customer or any User(s) breach the Acceptable Use Policy or applicable law or as reasonably deemed necessary by Upsun to prevent any harm to the Platform, to Upsun’s customers, or to the underlying infrastructure.

15.2. Suspension will be lifted when the circumstances giving rise to the suspension have been resolved. Suspension does not relieve Customer from its payment obligations or prevent Upsun from exercising any right to terminate this Agreement under section 16 below. 

16. Termination

16.1. Either Party may terminate this Agreement immediately on written notice to the other if the other Party is in breach of the Agreement and fails to cure that breach within thirty (30) days of receipt of written notice of the breach.

16.2. Upsun may terminate this Agreement immediately on written notice to Customer, if Customer’s use of the Services breaches the Acceptable Use Policy or applicable law.

16.3. Upon termination or expiry of this Agreement, Customer rights and access to the Services will be terminated, and Upsun will delete all Customer Projects and Content without undue delay, unless otherwise required by applicable law or as reasonably necessary for the establishment, exercise, or defense of legal claims. It is Customer’s sole responsibility to carry out any action necessary for the conservation or transfer of its Content. 

16.4. All sections of this Agreement, which, by their nature, extend beyond termination of this Agreement, shall survive the expiration or termination of this Agreement to the fullest extent necessary for their enforcement and for the protection of the Party in whose favor they operate, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability.

17. Force Majeure

17.1. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism, riot; strike or sabotage; an act of God, like epidemic, fire, or floods; energy crisis or electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions or embargoes; or other event outside the reasonable control of the obligated Party. Such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than sixty (60) days, the other Party may terminate this Agreement upon fifteen (15) days’ prior written notice. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.

18. Export control

19.1. Customer represents and warrants that Customer is not a restricted party (e.g., individual or entity that has been denied import or export privileges) and will comply with all applicable export control laws, regulations, and trade sanctions, including those emitted by the United Nation Security Council (UNSC), the US Government, the European Union or its Member States, the UK Government, the Government of Canada, and the Government of Australia. Customer further represents and warrants that: (i) Customer will not directly or indirectly use or allow Users to use the Services in a prohibited country (e.g., Cuba, Iran, North Korea, South Sudan, and Syria) or engage in any export or re-export activity with any entity or individual who Customer knows or has reason to know is engaging in the design, development, or production of nuclear, chemical, or biological weapons, or missile technology, and (ii) none of Customer, Customer’s affiliates, nor any of Customer’s directors, officers, employees, and none of the Users of the Service is a sanctioned person.

19. Anti-bribery

19.1. Each Party shall comply with applicable laws concerning anti-bribery and anti-corruption, which may include the US Foreign Corrupt Practices Act of 1977, the French law of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life, known as "Sapin 2," and the UK Bribery Act 2010.

20. Notices

20.1. Notices concerning the day-to-day operation of this Agreement shall be sent to:

20.1.1.1. Upsun via email through the Upsun support portal; and 

20.1.2. Customer by posting notices within the Platform or by email to the Customer Account owner listed in the Platform or to the relevant Customer contact(s) set out in the Order Form.

20.2. All other notices must be sent by email to the Customer contact(s) set out in the Order Form and to legal@upsun.com, unless applicable law requires notice to be provided by an express courier (with confirmation) to the registered or main business address of a Party.

20.3. The Parties may use emails to satisfy written notice or consent requirements under this Agreement. 

21. Non-consumer service

21.1. The Services are not designed primarily for personal, family, or household use, but rather are designed for purposes which are inside Customer’s trade, business, craft, or profession. As such, and to the fullest extent allowed by applicable law, Customer understands and agrees that this Agreement is primarily deemed to be entered into between two professionals. Nonetheless, if Customer qualifies as a consumer under applicable law, and applicable law provides consumers with consumer-specific, statutory and non-waivable rights, then any such statutory provision will prevail over any conflicting terms of this Agreement. 

21.2. If Customer is a UK or European Union resident: by agreeing to these Terms of Service, Customer consents to the immediate performance of this Agreement and acknowledges that it will lose its right of withdrawal from the Agreement once the ordered Services have been made available to Customer by Upsun.

22. Changes to this Agreement

22.1. Upsun may, in its sole discretion, modify these Terms of Service, the Product Terms or the SLA & Support Policy and any documents referred to therein from time to time. When Upsun makes a material change to these documents, Upsun will provide Customer with prominent notice of that change by displaying prominent notice within the Platform and/or by sending Customer an email. To the extent any material change introduced by Upsun is materially less favorable to the Customer than the original term, Customer may, as its sole and exclusive remedy, terminate this Agreement. Customer’s failure to terminate this Agreement and to request a pro-rata refund within thirty (30) days from the day Customer is informed about the change will be deemed acceptance of the revised terms.

23. Governing Law adn jurisdiction

23.1. The Parties undertake to take all steps to reach a mutual agreement to any dispute arising in relation to the validity, interpretation, or fulfillment of this Agreement.

23.2.The Parties agree that this Agreement will be governed by and construed under the laws of France, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. The Parties agree that all disputes and any claims arising out of or in connection with this Agreement and its subject matter shall be exclusively settled by the Commercial court of Paris or any court of competent jurisdiction in Paris (France). The Parties agree that articles 1222 and 1223 of the French Civil Code are not applicable.

24. Miscellaneous

24.1. This Agreement is in English. Any translations produced in other languages are for convenience only. The English language version of this Agreement shall be controlling in all respects and shall prevail in the event of any inconsistencies with translated versions.

24.2. Except where expressly provided herein, no failure or delay by either Party in exercising any right or remedy under this Agreement will constitute a waiver of that right or remedy or any other right or remedy. 

24.3. The Parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties. Neither Party nor its employees has the authority to bind or commit the other Party in any way or to incur any obligation on its behalf.

24.4. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the Parties, and the remainder of this Agreement will remain in full force and effect.

24.5. This Agreement shall constitute the entire agreement and understanding between Customer and Upsun and govern Customer’s use of the Services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Customer and Upsun.

24.6. To the extent of any inconsistency in this Agreement, the DPA or BAA (if applicable) will have priority, followed by Product Terms, followed by these Terms of Service, followed by the other documents incorporated by reference into these Terms of Service.

24.7. Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement without the prior written consent of the other Party, (i) to any of its Affiliates, (ii) in connection with a corporate reorganization, merger or consolidation of its business, or (iii) pursuant to the sale of all or substantially all of its assets. Notwithstanding the foregoing, for the purposes of verification and registration, if a Party assigns this Agreement in accordance with (i)-(iii) above, it will provide the other Party with prompt written notice and will together with its assignee provide and/or execute such additional documents and take such other actions as reasonably required by the other Party to register the assignment. 

24.8. Except as expressly set out herein, there are no third-party beneficiaries under this Agreement.

EXHIBIT 1 - SLA and Support Policy

This SLA and Support Policy applies to Enterprise and Elite tier services only. 

Capitalized terms not defined in this SLA & Support Policy have the meaning given to them in the Order Form or Terms of Service for Upsun Services purchased on IBM Cloud Catalog.

1. Service Level Agreement

1.1.Definitions 

• “Monthly Uptime Percentage” means the percentage derived by subtracting from 100 the percentage of Service Unavailability minutes during the month. 
• “Service Levels” means the service levels set out in 1.2 below.
• “Service Unavailability” means the unavailability of the hosting infrastructure of Customer’s Projects on production environment, due either to errors or failures in the hosting stack or lack of network connectivity to the Internet. 

1.2. Service Levels

• Grid Projects : 99.90 %
• Dedicated Projects : 99.99 %

1.3.Service Level exclusions

1.3.1. The Service Levels identified above do not apply to any Service Unavailability, suspension or termination of the Services caused by any of the following: 

1.3.1.1. Factors outside of the reasonable control of or not directly imputable to Upsun, including but not limited to any force majeure event listed in this Agreement, internet access, or related problems beyond the software and server instances directly maintained by Upsun; 

1.3.1.2. Problems resulting from any act or omission of Customer, including errant or problematic application code deployed into an environment; 

1.3.1.3. Issues resulting from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third-party equipment directly maintained by Upsun); 

1.3.1.4. Issues that affect non production environments (e.g.development and/or staging related environments, etc);

1.3.1.5. Services that are not essential to the uptime of the hosting infrastructure of the Project in production environment (e.g. Console, CLI, APIs for the control plane, user authentication, etc);

1.3.1.6. Issues that result from any act or omission of the Upsun support team at the request of Customer (e.g. downtime caused by the refusal of Customer to increase the resources allocation on a Customer Project);

1.3.1.7. Issues arising from suspension and/or termination of Customer’s right to use the Services in accordance with this Agreement;

1.3.1.8. Customer-caused unavailability such as missing content, errors caused by Customer code or application configuration errors, or usage capacity in excess of the Customer purchased amount;

1.3.1.9. Service Unavailability due to maintenance operations. Upsun reserves the right to interrupt part or all of the Services to perform a technical intervention for the purpose of ensuring the proper operation of the Services, and the safety and stability of the infrastructure behind the Services. Upsun will make commercially reasonable efforts to limit the occurrence and duration of the interruption and, where feasible, will publish notifications of upcoming scheduled maintenance operations on https://status.upsun.com/ at least 5 calendar days ahead of the maintenance date. Customer can also subscribe to updates and be notified by email on upcoming and ongoing maintenance operations.

1.3.2.Unavailability of some specific features or functions within a Project in production, while others remain available, will not constitute Service Unavailable status, so long as the affected features or functions are not, in the aggregate, material to the Project or the Services as a whole. 

2. Support terms

2.1. Procedures and Response Times 

2.1.1. Login. Users will be granted access to the support ticketing and issue management system (“Support Portal”). 

2.1.2. Initiation of Support Tickets and Ticket Workflows. Tickets are initiated by the Users through the Support Portal and must be submitted separately for each Project and/or issue. They should include: 

2.1.2.1. Description of the issue or request, including identification of Supported Modules;

2.1.2.2. Description of the desired state or outcome;

2.1.2.3. Steps necessary to demonstrate or reproduce the issue;

2.1.2.4. Initial Indication of Priority Level (see descriptions of P1 Urgent, P2 High, P3 Normal or P4 Low in 2.4.4. below) 

2.1.3.Ticket status. Through the Support Portal, Upsun will provide updates on investigation progress and any change of status. Statuses include: 

2.1.3.1. New. Tickets not yet reviewed. 

2.1.3.2. Open. Analysis in process. 

2.1.3.3. Pending. Tickets that are awaiting feedback or other progress from Customer based on information required, or recommendations made, by Upsun. 

2.1.3.4. Solved. Tickets that have reached a conclusion either through resolution of the issue or determination that no further work is warranted. 

2.2. Included Services

2.2.1. Support is available for all Customer environments hosted on Upsun (production, staging and development environments) as set out in this SLA & Support Policy (see exclusions in Section 2.3, below). P1 Tickets are only applicable to live, production environments. Support is only available for repeat or systemic issues or errors.

2.2.2. Support includes the following: 

2.2.2.1. Response. Upsun will respond to and make commercially reasonable efforts towards resolving submitted support tickets. Responses will be addressed within the timeframes and allowances corresponding to the Customer’s purchased subscription level and Support Tier. 

2.2.2.2. Post-Issue Analysis. For Enterprise and Elite support services, Upsun will use commercially- reasonable efforts to provide post issue analysis upon request following the conclusion of Upsun specified Priority 1 (“P1”) tickets only. Customers must so request within 14 calendar days of the ticket being closed, via an update to the original Priority 1 ticket. Customers will be provided a written summary of no more than 500 words in an attachment to the original ticket. Code samples, when included, are not counted towards such limits. The summary will include, as applicable, an explanation of the circumstances, change, or context that caused the issue, or business practices that resolved the issue, and recommendations for prevention of future instances. Depth of analysis is at the discretion of Upsun. No additional efforts on the issue will be undertaken. 

2.3. Excluded services

2.3.1. Except as expressly agreed in writing by Upsun, the following are excluded from Support: 

2.3.1.1. P1 Support excluded for Non-Production, Development or Preview environments or other functionalities. Staging environments, “sandbox” Projects, and other sites related to the development of a production Project are not eligible for P1 Support. 

2.3.1.2. No support to  end-users of Customer’s application. Support for end-users of Customer’s applications hosted on Upsun will be provided exclusively by Customer. 

2.3.1.3.Training and Consulting. Support related to the application implementation, standard usage, and project consulting is not provided unless specifically identified and itemized on the Order Form or specific statement of work. 

2.3.1.4. Hardware, operating system, third-party software, databases, and networks. No support relating to installation, configuration, use, maintenance, or functionality of non-Service hardware, operating systems, third-party software, databases networks, or other enabling technologies is provided.

2.4. Support Hours and response times

2.4.1. Support hours. Support begins on the Subscription start date  as stated in the Order Form, or another date as mutually agreed to by both Parties, and will expire on the last day of the Subscription Term or the then current Renewal Term. Support tickets will be addressed 24/7/365 in order of the  priority level and support tier.

2.4.2. Response times: Support tickets will be addressed according to the response times for the relevant support tier as set forth in the table below:

2.4.3. Regular Support Hours are as follows: from 00:00 UTC to 23:59 UTC Monday to Friday.

2.4.4. Priority Level: Priority levels referred to in this SLA and Support Policy are are defined as follows: 

2.4.4.1. Priority 1 Urgent (P1) - P1 is a catastrophic production problem that severely impacts the Customer’s production systems, or because of which Customer’s production systems are down or not functioning, or that results in a loss of production data and no workaround exists. Upsun will make continuous efforts, with appropriate escalation to senior management, to provide a resolution. 

2.4.4.2. Priority 2 High (P2) - P2 is a problem in which the Customer’s system is functioning but in a reduced capacity, or the problem is causing significant impact to portions of business operations and productivity, or the software is exposed to potential loss or interruption of service. Upsun will make continuous efforts to provide a resolution. 

2.4.4.3. Priority 3 Normal (P3) - P3 is a medium- to low-impact problem that involves partial and/or non-critical loss of functionality, or that impairs some operations but allows the Customer’s operations to continue to function. Problems for which there is limited or no loss of functionality or impact to the Customer’s operation and for which there is an easy workaround qualify as P3. Upsun will use reasonable efforts to provide a resolution in time for the next minor release of the software.

2.4.4.4. Priority 4 Normal (P4) - P4 is a low- to very-low impact problem, or general question that does not impair the Customer’s operations.

2.4.4.5. Blackfire support tickets will be treated as Priority 3 Normal (P3) tickets.

2.4.5. Customer acknowledges that response targets for the relevant support tier as per the table above are response targets only and not resolution targets. Upsun sets no target and makes no guarantee or representation to the Customer regarding resolution times of support tickets.

3. Assistance and professional services

3.1 Onboarding 

3.1.1.Upsun is not traditional managed hosting. It is an entirely new way of developing and maintaining Customer's applications. By definition it brings workflow and process changes to the customer’s organizations. These changes can be minor or major depending on how success is defined during the sales process, but it is during the onboarding period that these workflow and process changes are put into practice. Onboarding is mandatory for Dedicated plans and for new Enterprise and Elite customers. 

3.1.2. It includes the following:

3.1.2.1. Training and Orientation, lasting 2 weeks beginning at contract signing:

• 30 minute welcome meeting consisting of a Question and Answer session on training materials, onboarding processes, and introduction to Upsun onboarding team
• 4 total twice-weekly meetings for any further hands on assistance with setup or training. These will be scheduled in the initial welcome meeting.
• Note: this phase may be skipped for existing customers.

3.1.2.2. Project development or migration:

• This period can last anywhere from a few days to several months depending on the project.
• Upsun onboarding staff does not migrate Customer applications. Rather, this is the period used for more in depth training and (re)definition of Customer workflows and processes. To this end, it is imperative that sufficient Customer development staff time is allocated. If in doubt, budget more time for this phase.
• During this phase communication with Upsun onboarding team will be conducted via biweekly (every two weeks) meetings with ad hoc questions and assistance conducted via the Ticketing System.
• In the case of applications undergoing a longer development cycle prior to Go Live, the Customer must notify onboarding staff a minimum of 45 days prior to Go Live that the Provisioning and Go Live process should commence. This period ends when migration to Upsun development project is complete or development of a new application is ready for integration testing.

3.1.2.3. Provisioning and Go Live:

• This period will begin approximately 45 days prior to DNS cutover to Upsun. Customer must notify Upsun onboarding staff a minimum of 45 days prior to Go Live.
• During this time staging and production environments are provisioned and configured for Customer application(s). This is a collaborative process with lots of involvement from both Customer development staff and Upsun onboarding team.
• After hardware provisioning and configuration, CDN services are provisioned and configured (approximate 1 week prior to Go Live) After CDN is configured Upsun onboarding is largely complete and Customer may begin User Acceptance Testing.
• Go Live consists of final migration of data and content and cutting over of DNS.
• Customer must inform Upsun onboarding staff of the exact date and time of planned Go Live.
• Note: the onboarding service is provided during the customer business hours. Go Live should be planned accordingly on customer business hours.
• After Go Live, uptime monitoring and high SLA alerting is activated, so it is critical that Customer informs Upsun of the Go Live schedule.

3.1.2.4. Post Go live debriefing: 

• Approximately 2 to 4 weeks after Go Live, a 30 minute review of the onboarding process will be scheduled with a Upsun Customer Success Manager and relevant staff from the development team.

3.2. Customer Success Manager (“CSM”)

3.2.1. Customer Success Managers partner with customers to ensure they are getting the most value possible from the Platform. The CSM’s support the customer’s growth and provide a knowledgeable, responsive, and personable point of contact during their entire lifecycle. In conjunction with the Account Managers, they deliver quarterly business reviews (QBR) that include detailed information about Platform use, site health, best practices, and opportunities for early access to Platform features. The Customer Success Managers responsibilities include but are not limited to:

3.2.1.1. Ensures an exceptional experience for customers and partners by understanding their business objectives and helping to drive the adoption of core functionality

3.2.1.2. Establishes a trusted/strategic advisor relationship with customers by building a program vision and providing value throughout the customer partnership as they deliver on their program roadmap

3.2.1.3. Diagnose risks – takes action to solve or mitigate such risks.

3.2.2.Enterprise and Elite tier includes the CSM services listed below: 

3.3. Technical Account Manager (“TAM”)

3.3.1. Successful Upsun engagements are measured in years for our customers, and quite often the customer will have needs for larger and more strategic technical change management. The Upsun Technical Account Manager (TAM) team can assist with scoping and planning activities such as:

3.3.1.1. Major version upgrades of existing Upsun hosted projects. Any major version upgrade to underlying software frameworks such as Drupal, Magento, Wordpress, and so on bring with them an opportunity to ensure that the underlying hosting stack is as modern and optimized as possible.

3.3.1.2. Any technical change management for which Customer would like to consult with a technical member of the Upsun Customer Success team.

3.3.1.3. Should any of these scenarios present themselves, please reach out to the Customer Success Manager (CSM) to schedule a consultation with a technical team member. 

3.3.2. Out-of-scope Activities:  TAMs are expert-level advisors and guides to Upsun products and services. TAMs are not development resources and thus certain activities are out of scope for TAM:

3.3.2.1. Write code, or modify existing code of any kind: including but not limited to any code in a website codebase, webpage authoring, shell scripts, or utility scripts.

3.3.2.2. Build or modify projects for Customer, including but not limited to website building, website administration or configuration, content authoring, editing, or administration.

3.3.2.3. Install, maintain, or configure software on Customer-maintained infrastructure.

3.3.2.4. Work on-site at a Customer’s business, outside of onsite visits described above.

3.3.2.5. Act as first responders for project emergencies. Customers should open a Urgent ticket with global Support as a first measure in an emergency.

3.4. Compliance assistance

3.4.1. Enterprise Tier do not include Compliance Assistance, which must be subscribed to as a paid engagement.

3.4.2. Compliance Assistance is included in Elite Tier and includes, for instance. 

3.4.2.1. Completing security questionnaires shared by Customer, 

3.4.2.2. Making custom edits to the Upsun DPA or BAA,

3.4.2.3. Reviewing and signing Customer’s DPAs, BAAs,

3.4.2.4. Working directly with Customer’s auditors to assist in compliance audits,

3.4.2.5. Giving additional information about how Upsun shares the data; data flow, etc. (unless the information is already publicly available in Upsun’s  Privacy Policy or public documentation).

4. Disaster Recovery & Business Continuity Plan

4.1. Upsun is responsible for establishing and maintaining an effective business continuity plan, including disaster recovery and crisis management procedures ( “Business Continuity Plan”). The Business Continuity Plan covers the hosting infrastructure of production environments that are under Upsun’s control, to the exclusion of all applications that are under Customer’s control and are built upon the Platform. For the avoidance of doubt, recovery as used in this section refers to the process of restoring infrastructure systems, data, and services to a functional and secure state following an incident. It specifically pertains to the restoration of the infrastructure managed by Upsun, as the Customer is responsible for their own applications and their recovery. 

4.2 At a minimum, Upsun will: 

4.2.1. back up, archive and maintain duplicate or redundant systems that can fully recover the Services and any data required to perform such Services on a daily basis; 

4.2.2. establish and follow procedures and frequency intervals for transmitting backup data and systems to an alternate location; and 

4.2.3. demonstrate that the Services, products, and/or support capabilities can be recovered within the agreed Recovery Point Objective (“RPO”) timeframe;

4.2.4. not less than annually following adoption of the Business Continuity Plan, conduct a test of the Business Continuity Plan.

4.3. Upsun will use reasonable efforts to restore the Services as follows: 

4.3.1. The Recovery Time Objective (“RTO”) is subject to variability, contingent upon factors such as the size and complexity of the data being recovered, as well as the Customer's application configurations necessary for the complete recovery of the Customer Project.

4.3.2. The RPO is contingent upon the backups scheduled by both Upsun and the Customer, in accordance with the guidelines outlined in the Documentation accessible at https://docs.upsun.com/anchors/fixed/security/backup-restore/. 

EXHIBIT 2 - Product Terms

Capitalized terms used and not defined in these Product Description and Product Terms (“Product Terms”) have the meanings given to them in the Order Form or the Terms of Service for Services purchased on the IBM Cloud Catalog.

1.Upsun Organizations

1.1.  “Organization” is a structured entity created by Customer in Customer Account to group Customer’s Projects for managing resources, access, and billing.

1.2 The Enterprise or Elite tier is attached to an Organization. All Projects included under an Enterprise or Elite tier Organization will be referred to as Enterprise or Elite Projects.

1.3  Enterprise and Elite Projects can only be created within a “Fixed Organization”, meaning an Organization which includes Project(s) operating with fixed billing plans including predetermined resource limits.

2. Upsun Plans

Hosting regions. Dedicated and Grid Projects can be deployed on any IaaS provider regions that Upsun supports. The list of all available regions is listed here: https://docs.upsun.com/anchors/fixed/regions/

Supported languages and frameworks. The list of supported languages and frameworks is available in the Documentation:

• Languages: https://docs.upsun.com/anchors/fixed/languages/
• Frameworks: https://docs.upsun.com/anchors/fixed/stacks/

Backups. Enterprise and Elite Projects (Grid and Dedicated Gen 3) are provisioned with the Advanced backup policy. Enterprise Projects can be upgraded to the Premium backup policy for an additional fee (SKU GRID-BACKUPS-PREMIUM) and Elite Projects are eligible for the Premium backup policy at no extra cost upon request. For more information on the available backup policies is available here:https://docs.upsun.com/anchors/fixed/security/data-retention/. Dedicated Gen2 backups are handled by a different policy described here: https://docs.upsun.com/anchors/fixed/security/data-retention/dedicated-gen-2-backups/

Customer is responsible for creating backups of its production environments before merging a different environment into it or each time Customer changes any resource allocations on a Customer production environment.

2.1 Grid Plans

Each Grid Plan includes:

● 99,9% hosting infrastructure SLA

● A total of 4 Environments: 1 Main; 3 Preview

● A set of resources defined by the plan size for the production environment dispatched between the different containers. Based on the Customer applications and services topology, the project may not be able to allocate all the plans resources to the containers

● Three concurrently running preview environments. Containers for preview environments are sized with the following set of resources by default: Application (0.4 vCPU / 128MB of Memory), Balanced service (0.05 vCPU / 32MB of Memory), High memory service (0.25 vCPU / 128MB of Memory)

● 1TB (Terabyte) of monthly egress bandwidth from the origin (aggregated across all the environments included in the plan)

● 5GB of storage for each environment (used for files, databases and other services)

● Observability Suite

2.1.1.   Available Grid Plans

2.1.2. Available Grid plans Add-ons

● ADDON-UPTIME-9999: Adds a 99.99% Uptime SLA upgrade for a specific Grid Plan

● ADDON-HIPAA: Enable HIPAA compliance on a specific project. An additional agreement needs to be validated by the Customer and Upsun before-hand. HIPAA projects are restricted to specific regions.

2.2.   Dedicated Plans

Each Dedicated Plan includes:

• 99.99% hosting infrastructure SLA
• A total of 5 Environments : 1 Main; 3 Preview; 1 Staging
• A cluster of three redundant virtual machines (Plan resources are dispatched on these 3 machines) for the Customer production environment. Resources on the production environment are allocated to the different production containers and the router component.
• A Grid plan with a staging environment with a redundant setup and three concurrently running preview environments. Containers for preview environments are sized with the following set of resources by default: Application (0.4 vCPU / 128MB of Memory), Balanced service (0.05 vCPU / 32MB of Memory), High memory service (0.25 vCPU / 128MB of Memory)
• A CDN service (based on Fastly) including 1TB (Terabyte) of monthly egress bandwidth and 50 millions ingress requests.
• 1TB (Terabyte) of monthly egress bandwidth from the origin (aggregated across all the environments included in the plan).
• 50GB of storage for each environment (used for files, databases and other services).
• Observability Suite

2.2.1  Available Dedicated Plans:

2.2.2.   Available Dedicated plans Add-ons

• ADDON-HIPAA: Enable HIPAA compliance on a specific project. An additional agreement needs to be validated by the Customer and Upsun before-hand. HIPAA projects are restricted to specific regions.
• DEDICATED-MULTIAZ: The Multi-AZ add-on guarantees that the three machines of the project production environment are set up in different availability zones of the IaaS provider. Some region restrictions may apply.
• DEDICATED-NODE: Split architecture is available upon requests. The Dedicated cluster will be split in two different layers composed of 3 machines each. One layer is assigned to the stateless containers and can be scaled horizontally while the other layer stores all the stateful containers and will be scaled vertically.

2.3.  Observability Suite

The Observability suite is an included add-on for all Enterprise and Elite plans. It is composed of the following components:

2.3.1. Infrastructure Metrics

Infrastructure metrics are available on the console for the production environment of selected projects. The retention period is 30 days for grid based projects and dedicated clusters.

Infrastructure metrics are subject to availability in the project region.

2.3.2. Blackfire Monitoring

The Blackfire Monitoring will be configured for the production environment of the selected projects. In order to get access to the Blackfire Monitoring dashboard, users are required to have a Upsun account and have access to said production environment.

Each Upsun plan that bundles the Observability suite includes fair usage of traces up to an amount of 10 000 000 monthly traces based on the resources available.

Custom sized clusters will have their limit defined by the number of CPUs matching the above classification. The Blackfire Monitoring data retention period is set at eight (8) weeks.

2.3.3. Blackfire Profiling

The Blackfire Profiler will be available on all environments of the selected projects. In order to get access to the Blackfire Profiler dashboard for a specific environment, users are required to have a Upsun account and access to said environment.

All plans include a limit of 1000 profiles generated per day. Auto profiles generated by Blackfire Monitoring count against that limit.

2.3.4. Blackfire Continuous Profiling

The Blackfire Continuous Profiling is available on all environments of the selected projects. In order to get access to the Blackfire Continuous Profiling dashboard, users are required to have a Upsun account on the selected project.

All plans include 1GB of Continuous Profiling data ingested per month.

2.3.5. Blackfire Builds

The Blackfire Builds are available on all environments of the selected projects. In order to get access to the Blackfire Builds dashboard, users are required to have a Upsun account on the selected project.

All plans include a limit of 350 builds generated per day.

2.4. Grid and Dedicated Plans Options

2.4.1. Additional storage/IOPS

Additional storage can be bought by pack of 5GB (DSK-5). One unit is needed per environment. The maximum of a single environment is 1024GB.

 2.4.2. Additional preview environments

Additional and larger packs of 3 concurrently running preview environments can be bought on specific projects. The available sizes are listed below:

Adding or upgrading the preview environments may require additional storage.

2.4.3.  Premium containers

License based versions of some services are available as an upgrade. These upgrades are subject to an external agreement that needs to be signed between the Customer and Upsun. The premium containers are billed based on the amount of memory these containers are using on all environments of the project.

ElasticSearch Premium Container is subject to the Elastic Service Terms set forth in Annex 1.

 2.4.4. Edge: Additional Fastly CDN service

The Customer can add an additional Fastly service (EDGE-SERVICE) to a project if needed. The add-on includes:

• 1 CDN service with up to 5 hostnames
• 1TB of outgoing bandwidth from Fastly per month
• 50M ingress requests per month

2.4.5. Edge: Web Application Firewall (requires a Fastly service)

The Customer can elect a Web Application Firewall add-on on a specific project. Each level comes with a required onboarding and a set number of prepaid Requests per second averaged per month. A project generating 3 Millions requests per month will require a monthly usage of 1.15 RPS (3,000,000 / 86400 seconds per day / 30 days).

This service will be prepaid on an annual basis based on the estimated monthly average traffic (Requests per Second, RPS). Traffic in excess of the prepaid amount on any given month will be billed as overage, as set forth in section 3.2. below.

2.4.6. Edge: Fastly Images Optimization (requires a Fastly service)

Upsun can enable the Fastly Image Optimization on Customer’s production environment(s). Such additional services will be prepaid on an annual basis based on the estimated volume of images delivered per month. Images delivered in excess of the prepaid amount on any given month will be billed as overage, as set forth in section 3.3. below.

2.4.7. Edge: Prepaid extra bandwidth

The Customer expecting high traffic volumes on their application can increase the bandwidth allowance and define a set amount of monthly prepaid bandwidth amount. For the avoidance of doubt, any usage in excess of the prepaid amount will be billed as overage, as set forth in section 3.2. below.

2.4.8. Edge: Extra CDN TLS hostnames and certificates (requires a Fastly service)

In addition to the provided bundled certificates (apex domain and wildcard), at Customer’s option, Upsun may provide additional Fastly TLS certificates or use Customer’s own certificate on the CDN edge servers. In such a case, Customer is responsible for managing and renewing its certificate to prevent any service interruption or security risks resulting from expired certificate.

2.4.9. Edge: Edge DDoS surge protection (requires a Fastly service)

Upsun can provide a monthly insurance plan (EDGE-DDOS-PROTECTION) to prevent DDoS attacks related CDN traffic to be billed as CDN bandwidth overages.

2.4.10. Edge: Rate Limiting (requires a Fastly service)

The Rate Limiting feature can be enabled on any Fastly Service (EDGE-RATE-LIMITING)

3.Upsun Plans overages

3.1. Temporary upsizes

Grid and Dedicated Plans can benefit from temporary Upsizes to a larger size. If Customer’s servers have or will become overloaded due to greater than normal usage, Upsun will take reasonable measures to increase the server resource capacity in an effort to maintain the performance of the Customer’s Project. On the grid, upsizes of capacity require a deployment. Customer will keep the production branch of its Project in a deployable state and acknowledges that a deployment will cause downtime equal to the length of the deploy hook. Customer agrees that Upsun can unilaterally elect to add capacity for additional storage and computing power up to four times the contracted capacity (as long as a plan four times the capacity of the original exists as a generally available product offer) and that the excess capacity will remain provisioned for a minimum of seven (7) days. Such additional capacity will be billed at then-current rates in daily increments, with a minimum of seven (7) days. Upsun will also make reasonable efforts to contact the Customer and create a support ticket when it is determined that a server upgrade is needed. For server upgrade needs longer than 4 weeks, the increased server capacity will become permanent, and the Subscription Fee will be adjusted accordingly for the rest of the Subscription Term. An additional Order Form may be executed upon Upsun or Customer’s request. Upsun reserves the right not to provision additional server capacity if it determines that additional capacity is unlikely to significantly improve performance, including, without limitation, when the overload is caused by an error in Customer's software (e.g., PHP code), or during a denial-of- service attack.

 3.1.1. Temporary upsizes Grid Plans

3.1.2. Temporary upsizes Dedicated Plans

3.2. Bandwidth, monthly ingress/egress and RPS overage

Customer’s Application receiving and sending more monthly traffic than the contracted bandwidth allowance (origin and/or Fastly) will be billed as follows:

3.3. Edge: Fastly Images Optimization overage

Images delivered in excess of the prepaid monthly volume of images will be billed as follows: 

Annex 1 - Elastic Service Terms

1.Definitions

1.1. As used in this Elastic Service Terms, the following terms shall have the following meanings, and other defined terms shall have the meanings set forth where such terms are first used: 

• “Elastic Software” means the software that is made available for use on Upsun’s PaaS Infrastructure, including all updates thereto and new releases thereof, that are made generally available by Elastic to its customers. 
• "Software Agent" means the object code version of the Elastic Software agent that Upsun or Customer may install on a Customer endpoint to facilitate the ingestion of Customer content into the Software as part of the Services.
• “Documentation” means the end user documentation published at https://www.elastic.co/guide/index.html  by Elastic.
• “Elastic” means Elastic International BV , Keizersgracht 281, 1016 ED AmsterdamNetherlands.
• “Agreement”,“Services” ,and “Customer” shall have the meaning set forth in the Order Form.

1.2. Any restrictions or provisions in these Elastic Service Terms conflicting with a provision of the  Terms of Service or Product Terms prevail over such conflicting provision.

2. Minimum Terms

2.1. Customer acknowledges that Elastic has required Upsun to agree to the provisions below with Customer: 

2.1.1. Customer shall look solely to Upsun to satisfy any obligations under the Agreement.

2.1.2. Customer shall comply with all laws applicable to its use of the Services, including data privacy laws and U.S. export control and sanctions laws. 

2.1.3. Customer shall not sell, resell, rent, lease, offer any time-sharing arrangement, service bureau or any service based upon the Services.

2.1.4. Customer shall not make available to any third party any analysis of the results of operation (including benchmarking results) of the Elastic Software, as accessed or used via the Services. 

2.1.5. Customer shall not use the Elastic Software in high risk activities, where their use or failure could reasonably be expected to lead to death, personal injury, or environmental or property damage (such as but not limited to the creation or operation of nuclear facilities, aircraft, autonomous vehicles, weapon systems or life support systems).

2.1.6. The Software Agent is licensed, not sold, as a component to be managed by Customer as part of the Services, and is not licensed on a stand-alone basis.

2.1.7 Title to the Software Agent does not pass to the Customer, and Upsun and its licensors own and retain all intellectual property rights in the Software Agent except those rights expressly granted by Upsun under the Agreement.

2.1.8. No direct warranties from Elastic to or for the benefit of the Customer.

2.1.9. Any license granted to Customer shall be a non-exclusive, limited in time license to install and use, in object code form, the Software Agent, solely to the extent necessary for the Software Agent to be managed by Upsun as part of the Services.

2.1.10. Export Control. Customer is informed that the Elastic Software, Support Services, and technology acquired by Upsun from Elastic are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. Parts 120130 (2010)); the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended.  Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Elastic goods, Elastic Software or technology or disclose any Elastic Software or technology to any person contrary to such laws or regulations.  Customer acknowledges that remote access to Elastic Software may in certain circumstances be considered a re-export of Software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. 

2.1.11. Product Metadata. The Elastic Software may provide Product Metadata (defined below) to Elastic. Product Metadata does not include any Upsun or Customer personal data or any content that Upsun or Customer  processes or stores in the Software in connection with use by Upsun of the Software. Elastic uses Product Metadata for security, support, product and operations management, and research and development. “Product Metadata” is statistical and other information about users configuration and use of the Elastic Software, such as type and version, operating systems and environment, cluster statistics (e.g., node type and counts), performance (e.g., uptime and response times and/or endpoint sensor detection events) and feature usage. 

2.1.12. Upsun and Customer will not (i) access or use the Elastic-hosted infrastructure ("Elastic-Hosted Infrastructure") that stores and processes the Product Metadata for the purposes of monitoring its availability or performance or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; or (ii) interfere with or disrupt the integrity or performance of any Elastic Hosted infrastructure. 

3. Restrictions

3.1 Customer agrees not to:

3.1.1. reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software Agent or any portion thereof, in either case, that has not been licensed in source code form by Elastic, to human-readable form except and only to the extent any such restriction is prohibited by applicable law, 

3.1.2. deploy or use the Software Agent on a stand-alone basis or for any purpose other than as a component to be managed by Upsun as part of the Services; 

3.1.3. prepare derivative works from, modify, copy or use the Software Agent in any manner except as expressly permitted in the Agreement; 

3.1.4.transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software Agent in whole or in part to any third party; 

3.1.5. alter or remove any marks and notices in the Software Agent; or 

3.1.6. access or use any Elastic-hosted infrastructure or related data, systems, or networks (collectively, “Elastic-Hosted infrastructure”) that interface with the Software Agent to monitor the availability or performance of such Elastic-Hosted infrastructure or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; or 

3.1.7. Interfere with or disrupt the integrity or performance of any Elastic-Hosted infrastructure.