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IWCP, LLC TERMS AND CONDITIONS OF USE
Last Update: December 2017
Applicability and Scope.
The Terms and Conditions (“Terms”) set forth herein constitute the full and complete agreement between you and IWCP, LLC (“we” “our” or “us”). By visiting or using our website (“Website”), online services, or any of our software or any other products or services which includes infrastructure as a service (IaaS) and software as a service (SaaS) (collectively, “Services”), you agree to be bound by these Terms.
We are the Country Partner of the Services for Interworks S.A. within the United States and Canada. Your use of the Services is subject to the End User License Agreement between you and Interworks S.A. (“EULA”) together with any and all applicable licenses and other agreements governing the third party software and services (collectively, “License Agreements”). If you disagree or reject any portion of the Terms, the EULA or the License Agreements, you must immediately discontinue use of this Website and Services and notify us of your termination as set forth in Section 12. Each person who has agreed to use the Services in accordance with these Terms is an “Authorized User.” If you access this Website and the Services on behalf of an entity, you bind such entity to these Terms.
By using the Website and Services to provide other services to your clients or customers, you and the entity you represent have the responsibility of ensuring that any service you provide fully complies with these Terms. Should you provide access to the Services to any third party, a violation of these Terms by such third party shall be deemed to be your violation of these Terms. You have the responsibility to ensure that any third parties who have been provided access to the Services are in compliance with these Terms.
Limitations on Access and Use.
YOU MAY NOT ACCESS THE WEBSITE OR THE SERVICES IF YOU OR YOUR AFFILIATES ARE OUR COMPETITOR, UNLESS YOU RECEIVE EXPLICIT WRITTEN CONSENT FROM US. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
Website and Services.
Services and Site Implementation. Subject to the terms and conditions of this Agreement, we shall provide the Services to you. To begin, you must contact us at [email protected] to create an account (“Account”). The Services shall be provided substantially as specified at the prices set forth on the Website, which may be changed from time to time.
Services Provided. The Services are available to you and accessible with your equipment when it is within the operating parameters of our network and when connectivity is available through established telecommunication providers.
Nonexclusive Services. You understand that we will provide the Services on a nonexclusive basis, even if the Services has been customized for your use, and that we have customized and provided, and will continue to customize and provide, software and technology to other parties for use in connection with a variety of business applications. Notwithstanding the foregoing, we will not reveal any of your data, or use any of your trademarks or tradenames, in providing its Services to third parties, or as part of its advertising campaigns unless specifically authorized by you in writing.
Ownership. You acknowledge that we, in coordination with Interworks S.A. owns all right, title and interest in and to the Website and Services. If we make any customizations for you with respect to the Services, you acknowledge that we remain the owner of any and all customizations, tools, source code, libraries, scripts, graphics (other than graphics you specifically provide) and other resources used in customizing the Services.
Servers and Data Location. The Website and Services provided under these Terms are provided through servers located within the United States and all data related to the Services are stored within the United States, even if you access the Website and Services from outside of the United States. We will comply with all United States data security, privacy and other applicable laws. If you do not wish your data to be stored within the United States or if your local laws require a higher standard that those within the United States, you should contact interworks.cloud to for services from other Interworks.cloud country partners.
Service Level Commitment
Uptime. We warrant that during the term of this Agreement, the Services will be available to Authorized Users 99.95% of the time, subject to the following exceptions: (i) periods of Scheduled Downtime, (ii) downtime resulting from Client-Side Occurrences or (iii) Minor Outages, or (iv) outages or issues arising from or related to a Force Majeure Event.
“Scheduled Downtime” shall mean those hours, as determined by us during which time we shall perform scheduled maintenance or adjustments to our network or infrastructure. We shall endeavor to avoid having Scheduled Downtimes between the hours of 6:00 AM and 7:00 PM Eastern Time, Monday through Friday, unless we receive your prior authorization or unless exigent circumstances exist.
“Client-Side Occurrences” shall mean delays and/or deficiencies in the Service arising or caused by your actions or omissions, your inability or your equipment.
“Force Majeure Events” means any cause(s) which render us wholly or partly unable to provide the Services or perform its obligations under this Agreement, and which are neither reasonably within our control nor the result of our fault or negligence. Force Majeure Events shall include but are not limited to: acts of god, war, riots, civil insurrections, upon which the Services rely, extreme weather, campaigns of terrorism, sabotage, severe disruptions of basic infrastructure; trade restrictions and acts of government.
“Minor Outages” shall mean disruptions of the Service lasing less than sixty (60) seconds.
Notifications. We shall use best efforts to provide you with at least twenty-four (24) hours of notice prior to a Scheduled Downtime and timely notification of any Force Majeure Events that may lead to interruption with (or is currently interrupting) the Services. Notices shall be posted in the Support Portal and supplemented with e-mail notifications.
Claims Reporting. Unscheduled downtime or missed Service Levels must be reported to us within fourteen (14) days following such incident(s). All such reports must be submitted as a “Trouble Ticket” through the Support Portal. Failure to submit a timely report through the Support Portal shall result in a waiver of such claims.
Remedies; Limitations. If we fail to meet the Service Levels during a given calendar month and such failure is timely reported to us, then upon written request from you, we shall issue to you a credit of ten percent (10%) of the then-monthly Platform License, Reseller and Internal User Fees (but excluding all other per month transaction fees) for each block of four (4) hours (pro-rated for blocks of time less than four hours) in which we failed to meet the Service Level, up to a maximum discount of one hundred percent (100%) in a calendar month. The remedies contained in this Section are in lieu of and are to the exclusion of any and all other remedies that might otherwise be available to you for failures to meet any service level commitment during the term of this Agreement.
Start-up Exemption. The Service Level Warranty under this Section does not apply until expiration of a ten (10) day period following the initiation of Services. The parties acknowledge that there will be unanticipated downtimes, delays and interruptions during the customization and initial start-up period.
Access Passwords and Keys. You are solely responsible for the security of the user names, passwords and other pass keys (“Authentication Information”) with which you access the Website and Services, including any Authentication Information you may create and pass on to any of your employees, officers, directors, managers, members, agents, accounting professionals, representatives or other agents. If any of your representatives or agents should leave your employ, you are advised to remove their access to the Services by going to the Website, logging into your Account, and deleting such user or contacting support for assistance if need be. Your responsibility includes ensuring the secrecy and strength of your passwords. We shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your data has been accessed by unauthorized parties, it is your responsibility to notify us immediately to request the login information be reset or unauthorized access otherwise be prevented. We will use commercially reasonable efforts to implement such requests as soon as practicable after receipt of notice. If you suspect any third party intrusion into your Account or into the Services, you may request assistance from us by sending an e-mail to [email protected]
Data Access. You are solely responsible for the content of any and all data entered on and stored via the Services (e.g. any credit card or other payment information, any social security numbers or other personally identifiable information, trade secrets and other confidential information) and for any access you may grant to your Authorized Users.
Configurations and Backups. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backups of your data.
PCI Compliance. The Services can facilitate PCI compliance, but the Services are not PCI compliant by default. You have the sole responsibility for ensuring the Services and your own systems are properly configured for PCI compliance. You can find out more about the PCI Security Standard and your obligations for compliance at https://www.pcisecuritystandards.org/.
Ownership and Access to Data
The data stored on the Services are owned by their respective owners regardless of the identity of the party who paid for the Services. However, we do not know and have no ability to confirm the ownership of data stored on the Services. Therefore, we will only provide Authorized Users with access to the Services. If you use the Services on behalf of a third party or store any data of any third party on the Services, you agree to provide a copy of such data to their respective owner at their written request as soon as practicable after receipt of such request.
Service Fees; Payments
Unless other payment methods or arrangements are agreed upon in writing by the parties, You hereby authorize us to charge service and other fees on a recurring basis on the first day of each month via the credit or debit card (e.g. American Express, Visa, MasterCard, and Discover) which you have provided to us, in accordance with the specific pricing and payment procedures set forth on the Website. All credit card payments are processed via a third party credit payment processor
All payments, regardless of the method of payment, must be made in United States Dollars and are subject to the following terms:
Data and Data Security.
Data Location and Data Privacy. In order to ensure the worldwide accessibility of your data and to provide redundancy and scalability for the Services provided, portions of the Services are supplied by service providers outside of the United States and your data could be stored in any number of datacenters and colocation centers around the world. Furthermore, your data will be transmitted across and through internet infrastructure not operated by us. As a result, your data could be subject to intercept by various third parties, including governmental entities. Although your data will be encrypted, no encryption is absolutely secure. We cannot and does not guarantee the privacy of your data.
Use of the Services.
Right to Use. Subject to your acceptance of these Terms and the EULA, we hereby grant you, and any Authorized Users, the right to access and use the Services. You agree to use the Services in full compliance with the terms set forth below as well as the interworks.cloud End User License Agreement.
No Monitoring. We do not monitor the data you may store using the Services nor do we intend to implement any programs or tools to monitor such data. However, if we discover any violations of these Terms, we reserve the right to discontinue your Account and your access to the Services.
Intended Use. The Services are provided to facilitate the creation and sale of IaaS and SaaS services by and among you and your customers and clients.
Prohibited Use. By accessing the Website, creating an Account or using the Services, you agree not to:
Software Used as Part of the Services. All software that is made available for your use as part of the Services is a copyrighted work of their respective software suppliers, as applicable. Use of such software is governed by the license terms, if any, which accompanies or is included with such software. You may not be able to use the Services unless and until you first agree to such licenses. Any reproduction or redistribution of such software supplied as part of the Services not in accordance with their respective software licenses is expressly prohibited.
License Keys and Numbers. You may be required to enter license keys or other license information before you may use software Microsoft and other software suppliers as part of the Services. You grant us the right to share such information with the software license owner for authentication and other related purposes.
Local Software Licenses. You represent and warrant that you have valid licenses to use versions of any software used in connection with the Services. If you do not own such software licenses you may lease or purchase the required licenses through us.
Confidentiality of Data
The information and documents you store on the Website and Services could contain sensitive information. All such information is deemed to be “Confidential Information.” We shall make no use of any Confidential Information directly or indirectly, for its own benefit or that of any third party, nor disclose, deliver, or otherwise make the same known or available to any third party except as expressly intended pursuant to these Terms, or in compliance with any court or administrative order from a governmental entity.
Termination and Suspension of Services.
Termination by Us. Your access and use of the Services may be terminated upon (i) the failure to timely make payments for the Services and the payment is more than seven (7) days overdue; (ii) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party; (iii) immediately, in the event of any breach of this Agreement that, in ours reasonable opinion, that may result in immediate harm to us, Interworks, the Website, or the Services.
Termination by You. This Agreement may be terminated by you upon thirty (30) days prior notice to us.
Major Corporate Events. We may terminate this Agreement in the event we or our owners engages in any merger, acquisition, reorganization, sale of all or substantially all of its assets, bankruptcy, insolvency or elects at its sole discretion to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever (“Major Corporate Event”). If you are taking advantage of any of our offers for free or discounted services or any other services that were intended to go beyond the date of termination, you may not recover any damages from us (or from any of our affiliated entities) in the event that you incur costs and expenses related to the termination of the Services, nor do you have, nor may you bring, any claim for repayment or reimbursement of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any Services.
Effect of Termination. In the event of termination, you take full responsibility for retrieving your data from the our system during the period provided you for retrieval. We will provide a reasonable amount of support to assist you in copying your data from the Services. We may delete your data upon the effective date of termination of your service.
DISCLAIMER OF WARRANTIES
YOUR USE OF THIS WEBSITE AND SERVICES IS AT YOUR OWN RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. EXCEPT FOR SERVICE LEVEL COMMITMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THE WEBSITE OR SERVICES OFFERED. WE PROVIDE THIS WEBSITE, SERVICES AND THIRD PARTY SOFTWARE “AS IS, WITH ALL FAULTS.”
EXCEPT FOR THE SERVICE LEVEL COMMITMENT, WE EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE ACCURACY, COMPLETENESS, IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY CONTENT OFFERED ON OR THROUGH THE WEBSITE OR SERVICES. THE FOREGOING EXCLUSION OF WARRANTIES DOES NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
LIMITATIONS OF LIABILITY
NEITHER WE, NOR ANY OF OUR MANAGERS, OFFICERS, MEMBERS, EMPLOYEES, SUCCESSORS AND ASSIGNS WILL BE LIABLE FOR ANY DAMAGES TO YOU OR ANYONE ELSE FOR ANY LIABILITY, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOSS OF OR DAMAGE TO PROPERTY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEBSITE OR THE SERVICES, ANY SOFTWARE PROVIDED AS PART OF THE SERVICES, ANY WEB SITES LINKED TO OR FROM THE WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEB SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
LIMITATION OF REMEDIES
IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR THE SERVICES OR ANY CLAIMS ARISING THEREFROM, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEBSITE AND SERVICES, AND TO REQUEST A REFUND FOR THE AMOUNT PAID FOR SUCH SERVICES UNDER OUR SERVICE LEVEL COMMITMENT. IN THE EVENT OF ANY PROBLEM WITH THE THIRD-PARTY SOFTWARE THAT YOU HAVE USED ON OR THROUGH THIS WEBSITE AND SERVICES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OR CREATOR OF SUCH SOFTWARE, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR CREATOR’S WARRANTY, IF ANY.
This indemnification provision shall survive termination or discontinuation of your use of the Website and Services.
You shall indemnify, defend and hold us, our owners, affiliates and subsidiaries, and their respective officers, managers, members, employees, contractors, representatives, and agents and their successors and assigns, harmless in respect of any and all claims, losses, damages, liabilities and expenses, including, without limitation, settlement costs, and all legal, accounting, and any other expenses in connection therewith (collectively “Damages”) incurred in connection with or related to your use, your Authorized User’s use, or your client(s) use of the Website and Services, including any use which breaches these Terms.
Notice and Defense of Claim
Whenever any claim shall arise for indemnification hereunder, we shall provide written notice to you within thirty (30) days of becoming aware of the right to indemnification and, as expeditiously as possible thereafter, the facts constituting the basis for such claim. You, at your sole cost and expense may undertake the defense of any such claim or legal proceeding with counsel reasonably satisfactory us. We shall be entitled to participate in the defense of any such action, with its counsel and at its own expense. If you do not assume the defense of any such claim or litigation resulting therefrom, we may, but shall not be obligated to, defend against such claim or litigation as they relate in our interests and in such manner as we may deem appropriate including, but not limited to, settling such claim or litigation and on such terms as we may deem appropriate. No action taken by us in accordance with such defense and settlement shall relieve you of your indemnification obligations in this Agreement, nor relieve you from your obligation to pay for any damages resulting from your breach of this Agreement or otherwise caused by your actions.
We shall be excused from any delay or failure in performance hereunder caused by reason of any Force Majeure Events. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
While you are using any of the Services we provide and for a period of twenty-four (24) months after the expiry or termination of your use of such Services, you will not directly or indirectly employ or solicit our employees, officers, subcontractors or agents (“Personnel”). In the event you solicit any of our Personnel in breach of this Section 17, then in addition to any other remedies available in this Agreement, other agreement, or at law, you shall reimburse us for an amount equal to the salary and commissions, if any, earned by such employee during the last twenty-four (24) months while such Personnel was employed by us. The parties acknowledge that such reimbursement is a genuine estimate of the lost revenue and the costs of recruiting and training of a replacement.
Governing Law. These terms shall be governed and interpreted by the laws of the state of Washington without reference to its conflicts of law provisions.
Attorneys’ Fees. If either party brings litigation to enforce any terms of this Agreement, the prevailing party shall be entitled to costs and reasonable attorney's fees.
Assignment. You may not assign its rights or delegate its obligations under this Agreement without our prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement.
No Waiver. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
Notices. Any notice required for or permitted by this Agreement, shall be in writing and shall be delivered to the addresses provided by you. You agree that you will notify us of any changes to your contact information with 14 days.
Any notice to us shall be received only upon actual receipt. Notices to us shall be shall be sent as follows:
via email (with e-mail delivery confirmation): [email protected]
by mail or courier (with delivery confirmation) to: 6075 California Ave SW, Seattle WA, 98136;
or by phone at: (855)776-8427.