This Service Order For Neustar Web Performance Service (“Service Order”) is entered into by and between the customer named above (“Customer”) and Neustar, Inc., a Delaware corporation, located at 46000 Center Oak Plaza, Sterling, Virginia 20166 (“Neustar”) (each a “Party” and collectively the “Parties”). This Service Order is subject to Neustar’s General Terms between the Parties and available at www.neustar.biz/web-performance/general-msas (“General Terms”), the terms and conditions of which are incorporated as if fully set forth herein. The effective date shall be the date of the Order Form (as defined below) (“Service Order Effective Date”). Capitalized terms not defined herein, shall have the meaning set forth in the General Terms.
1. SERVICE DEFINITIONS
The following definitions shall apply to the services set forth on the order form incorporating these terms (the “Order Form”).
1.1 “Endpoint” shall mean Customer’s website, web-based software application, TCP/IP based service or other service as designated by Customer via the account management portal.
1.2 “Events” shall mean events such as errors, downtime or performance degradation as designated by Customer.
1.3 “Services” shall mean monitoring one (1) or more Endpoints as more specifically defined in the Order Form.
2. PROVISION OF SERVICES
2.1 Subject to the terms and conditions set forth herein, Neustar shall monitor the Endpoints and shall notify Customer upon the occurrence of Events. During the Term (as defined below), Neustar shall maintain performance reports and log data related to Events which Customer may access via an account management portal or by application programming interfaces (APIs). Neustar hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Services. Except as set forth herein, Neustar grants no other rights or licenses to Customer with respect to the Services.
2.2 Neustar shall perform the Services remotely via the Internet utilizing applications hosted on Neustar’s servers. Neustar shall not require physical access to Customer’s premises and Customer shall not download any Neustar software application(s). In the event that provision of enhanced or supplemental services requires the download of any software module, such software shall be delivered pursuant to separate license.
2.3 Customer shall provide Neustar with: (i) information on the Endpoints that are to be monitored and such other information that Neustar requires in order to provide the Services; (ii) the test data which is submitted to the Endpoint in order to perform the Services; and (iii) access to the Endpoint in order to perform the Services. Customer acknowledges that operation and performance of the Services involves repeated access to, and monitoring of, the Endpoints and Customer expressly consents to the same. Customer hereby grants Neustar, for the Term, a non-exclusive, non-transferable, and royalty-free license to access and use the Endpoint and any applications contained therein for the sole purpose of performing such Service.
2.4 Customer shall receive the level of support services as identified on the Order Form. The services associated with each support level are set forth at https://www.neustar.biz/web-performance/support-packages.
3. TERM AND TERMINATION. The Service Order shall commence on the Service Order Effective Date and shall continue for the Term set forth in the Order Form. In the event that Term expires and Customer continues to have access to Neustar’s purchasing systems this Service Order may be legally revived upon the purchase by Customer of additional Services. Unless otherwise indicated in the Order Form, Customer may terminate the Service Order for breach only.
4. PAYMENTS AND FEES. Customer shall pay Neustar the service fees set in the Order Form (“Service Fee”).
5. OWNERSHIP. Customer shall own all data and reports delivered to Customer by Neustar regarding the Endpoints (“Customer Data”) and such Customer Data shall be considered Confidential Information unless disseminated or shared with third parties via by the Customer using the account management portal or API. Customer grants to Neustar a perpetual, transferable, non-exclusive, royalty-free and worldwide license to use the Customer Data in the aggregate for the sole purpose of reporting on aggregate, long-term web site usage trends and analyses and such use shall not be deemed to be disclosure of Confidential Information. In such instance, such aggregate data shall not be specific to the Endpoints monitored and shall not be individually identifiable with Customer.
6. REPRESENTATION AND WARRANTIES
6.1 Customer represents and warrants that: (a) Customer has all right, title and interest or is the licensee with right to use and/or access all of the Endpoints, applications and/or content Customer provides to Neustar to perform the Services and all of the content accessed by Neustar at Customer’s direction to perform the Services (collectively, “Content”); (b) Customer has the right to grant Neustar the access rights and licenses set forth herein and has obtained or will obtain prior to NeuStar’s performance of Services all rights, authorizations or permissions required for Neustar to perform the Services; and (c) it shall provide accurate, and current information as is necessary for Neustar to perform the Services and shall update this information during the Term to keep all such information complete, accurate, and current
7.1 Subject to the of the General Terms, Neustar will defend at its own expense any action brought against Customer, or Customer’s directors, officers, or employees by a third party to the extent that the action is based on a claim, suit, or proceeding that the Services infringe such party’s copyright or trademark rights (“Infringement Claim”). In the event of any such Infringement Claim or a claim that the Services violate that party’s intellectual property rights, Neustar may, at its option: (a) purchase a license to permit Customer to continue using the Services; (b) modify or replace the relevant Services with non-infringing services of substantially equivalent performance within a reasonable period of time; or (c) terminate this Service Order immediately and reimburse Customer for any fees paid in advance for Services that will not be performed due to such termination. Notwithstanding the foregoing, Neustar will have no obligation under this Section or otherwise with respect to any Infringement Claim based upon (i) any use of the Services not in accordance with this Service Order, or (ii) any modification of the Services by any person other than Neustar or its authorized agents or subcontractors. This Section states Neustar’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for an Infringement Claim.
7.2 Subject to the General Terms, Customer will defend at its own expense any action brought against Neustar, its directors, officers, or employees by a third party to the extent that the action is based on a claim, suit, or proceeding arising from or relating to (i) the breach of any representation or warranty set forth herein; (ii) any third party claim that Neustar’s monitoring or use of the Endpoints designated by Customer in connection with performing the Services for Customer is not authorized or a claim that Neustar has infringed upon any third party’s intellectual property rights in the Content.
8. ACCOUNT MISUSE. Customer shall maintain security and confidentiality with respect to Customer’s account number or password. In no event will Neustar be liable for the fees associated with any unauthorized use or misuse of Customer’s account number or password except to the extent such unauthorized use or misuse arises out of any negligence on the part of Neustar. In the event that Customer learns or believes that Customer’s password has been inadvertently disclosed to unauthorized third parties, Customer shall immediately change the password and immediately notify Neustar of such possible breach of security.
9. ACCEPTABLE USE POLICY
9.1 Customer will neither use nor permit others to use the Service (a) to direct volume to any website that Customer does not own or operate, such as a website of a competitor, (b) for any unlawful, invasive, infringing, defamatory, fraudulent, or obscene purpose, (c) to send spam or other types of unsolicited communications of any kind, regardless of the content or nature of the messages, (d) to send any virus, worm, Trojan horse, or harmful code or attachment, or (e) to alter, steal, corrupt, disable, destroy, trespass, or violate any security or encryption of any computer file, database, website, or network. If Customer violates any of the foregoing prohibitions, or if Customer’s use of the Services threatens the stability of Neustar’s network, Neustar may immediately suspend or terminate your use of the Services without refund of pre-paid Service Fee.
9.2 Neustar may suspend Services immediately and without prior notice in the event of any third party claim that the Services are being used to violate the rights of that party.
10. MISCELLANEOUS. The provisions of Sections 5 (Ownership) and 7 (Indemnification) shall survive any termination of this Service Order. This Service Order and the General Terms represents the entire agreement between Neustar and Customer with respect to its subject matter, and there are no other representations, understandings, or agreements between Neustar and Customer relative to such subject matter.