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Service Agreement

This agreement (the Agreement) is made between myACT! of 4555 Mansell Road Suite 300 Alpharetta, GA 30022 and subscriber client authorized to use this service (Client).

WITNESSETH

WHEREAS, MYACT! is a provider of hosted application solutions, and WHEREAS, Client wishes to contract with MYACT! for such Services. NOW THEREFORE, in consideration of the mutual promises contained herein, MYACT! and Client agree as follows:

1. Description of services

MYACT! shall, in accordance with the terms and conditions of this Agreement, provide Setup, Hosting Services (Services) described in Schedule A attached hereto and made a part hereof. The parties may amend or change the Description of Services only by mutual written agreement.

Database Security and Ownership: Database servers will never be available directly from the web and will have no external (Internet) IP addresses; the database servers will be located in a DMZ area on a background private network within the hosting facility. All MYACT! Firewall Services are hardware/mechanical firewall Services with built-in NAT technology. Databases are only accessible to authenticated users through a web application server that communicates with the databases on the background private network. Client understands and agrees that occasional temporary interruptions of any Internet Services may occur as normal events in the provision of the Internet Services. MYACT! agrees to exercise reasonable care to prevent such occurrences; however, under no circumstances will MYACT! be held liable for any financial or other damages due to such interruptions. Client shall retain ownership at all times of the data and the database structure that constitute the database hosted by MYACT!. MYACT! shall maintain the data and the database in a confidential manner as set forth in Section 9. Upon demand or Termination of this Agreement, MYACT! will, at Client’s direction, either return all copies of the data and the database to Client or certify the destruction of the data and the database. MYACT! will provide a backup copy of the most recently edited version of the database through a standard ACT! Zip File backup. MYACT! will be under no obligation to return Client’s data until all monies owed MYACT! have been paid by Client.

Backup and Maintenance: Backups will be performed nightly by an automated software system. Once these backup files are created they are moved to internal MYACT! backup servers, and then replicated to external MYACT! servers located within a separate hosting facility out of state. Backups are accessible via the web by authenticated users of the database who have permission to access the backup files. As part of the backup routine, databases are compressed and re-indexed nightly.

Version Control and upgrade policy –
a. We support the last version of the previous version of ACT (i.e. ACT! 902 would only be supported until ACT!11 was released)
b. We support only the last two Inline versions of the current version of ACT! ST (i.e. 10.00 and 10.0.1 ) and clients must upgrade to the current inline version before the next inline becomes available. When the next inline becomes available and MYACT! deems it safe to upgrade, we no longer support the older inline previous supported ( i.e. 11 ships, 9.00 is no longer supported)
c. For Clients who wish to use EX, They must upgrade to the latest inline when we schedule it and within 30 days of availability. We do not support multiple inline versions of EX in a hosted environment. This is a privilege that ST users get.
d. Client understands that MYACT! is simply a hosting Service for the Hosted Software and must conform to any changes or modifications within the software or EULA agreement as set forth by the Manufacturer of the product. Should the Software Manufacturer modify any legal or financial agreement, MYACT! reserves the right to change this agreement to reflect those modifications
e. Once the Software Manufacturer releases the next inline release for the current version, all new users will be required to on-board the MYACT! hosting system in that current version. Should a user fail to upgrade to the next inline release, their Service will be interrupted. MYACT! will archive their database and provide it as a backup for downloading purposes.

2. Charges for services

2.1 Service Charges
a) Charges for Hosting Services (Service Charge) are accumulated and calculated for full calendar month periods and paid per the terms of this Agreement. The applicable Service Charge for the Services is listed in Schedule A. Client agrees to pay for all charges attributable to its use of Services from MYACT! pursuant to this Agreement. No other charges will be attributable to client unless the client has approved the charges in writing.

b) Service Charges are contracted at the amount(s) and Term as specificed in Section 3 and according to Schedule A, of this Agreement and only subject to change with Notice per the terms and conditions as provided for herein. Special charges may apply for oversized databases, multi-database systems and instances of non-cancellation/non-use “Parking” fees, per below:

Database “Parking” Fees
Should client want to pause Services, they may choose to park their database for $10 a month per database for a standard sized database (50 GB), with an additional $5 per month for each additional 50 GBs). Client’s Web Access and/or Synchronization will be disabled. The database is backed up to an FTP site or CD/DVD and removed from the active server. When client is ready to resume Services, all databases will be restored to the servers and all users set to active. Client will not pay any setup fees for this resumption of Services.

Multi Masters
Client may request that multiple databases, with some or all of the same users to be hosted by MYACT!. There will be a charge for each additional database and users within the databases. These charges are at a discounted rate. Setup charges for the database, users and remote database creation are not discounted.

Charges are outlined below
Additional Database fees:
Database: $10 per month per additional database
Additional User per database fees:
Web users: $5 per month per user for each additional database (this is in addition to the standard monthly charge per user)
Synchronization Users: $5 per month per user in each additional database (this is in addition to the standard monthly charge per user)
Hybrid Users: $7.50 per month per user in each additional database (this is in addition to the standard monthly charge per user)

Setup Fees:
Setup fees for additional databases and users within the additional databases are not discounted:
Database Setup: $175
User Setup: $35
Remote Database Creation: $125 per remote database
Database Size
Base Size – Databases and their supplemental folders with a total size of 250 MB or less shall be included within the base hosting fees outlined above. The size of client’s database files are monitored, and should they exceed 250 MB, shall incur additional monthly hosting fees as outlined below:
Included within the standard hosting fees:
One (1) database with up to 5 users: Base size not to exceed 250MB
Databases with greater then five (5) users will be allowed an additional 50 MB per user within the standard hosting fees.
Example: 1 database with 30 users would be allowed 1.5 GB of files within the standard hosting fees.
When a client’s database and related files exceeds their allotted quota, there will be an additional charge of $10 per 500 MB of additional space.
Client will be notified of such overages and given 14 days to reduce the files size before incurring the additional charges.

c) MYACT! may also provide consulting, support, and training services for Client on a per request basis.

2.2 Changes to Service Charges
a) Service Charges, as indicated in Schedule A (Hosting Quote) are subject to thirty (30) days prior Notice of change when such change is unrelated to changes in Services delivered (i.e. Users, applications, etc.) as listed in Schedule A or referenced attachments or addendums. Changes would take effect at the beginning of the next calendar Month.
b) Changes in Services delivered under this Agreement may result in changes to Service Charges. Such changes to Service Charges will be applied as follows:
i. An increase in Services that results in an agreed upon increase in Service Charges will be applied and begin in the month in which said changes are implemented.
ii. A decrease in Services that results in an agreed upon decrease in Service Charges will be applied and begin in the following Month.

3. Term

a) The term of this Agreement (Term) shall commence upon the date of first use and shall expire upon the completion of the first full calendar Month following commencement date of Services (Service Date).
b) This Agreement shall automatically renew for additional calendar Months (Subsequent Term(s)) if not otherwise terminated as provided for in this Agreement. All Subsequent Terms are calendar Month periods and requires prior Notice of termination per Section 6 below, to avoid penalties. There are no additional costs incurred by client for Termination of Services.
c) Service Charges and/or any changes in Service Charges at renewal are subject to Notice as provided for in Section 2 of this Agreement.
d) If this Agreement is terminated, MYACT! will stop providing Services subject to the terms of this Agreement.

MYACT!'s liability for damages arising out of this Agreement or MYACT!'s provision of the Services, including but not limited to, mistakes, omissions, interruptions, delays, conduct or errors, or other defects, representations, use of Services or arising out of the failure to provide Services, whether caused by acts of commission or omission, regardless of the form of action, and whether in contract, tort (including negligence), warranty or any other legal or equitable grounds, shall not exceed the aggregate charges paid by client to MYACT! for Services under the Agreement for the most recent consecutive twelve (12) month period. Such amount together with termination pursuant to Section 7 shall be the sole remedies of Client and the sole liability of MYACT! under the Agreement.

12.3 Indemnification by Client

Client shall indemnify, defend and hold MYACT!, its affiliates and their respective officers, directors, employees, agents and subcontractors harmless from all claims, losses, damages, expenses (including attorney’s fees and court costs) or liability arising from (a) any claims made against MYACT! by any person other than Client in any way relating to this Agreement or the Services, other than such claims that result solely from MYACT!'s misconduct or negligence, or (b) the breach of the Agreement by MYACT!.

12.4 Indemnification by MYACT!

MYACT! shall indemnify, defend and hold Client and its officers, directors, employees, agents and subcontractors harmless from all claims, losses, damages, expenses (including attorneys’ fees and court costs) or liability arising from claims by third parties that result solely from MYACT!'s misconduct or negligence, subject to the limitation that the aggregate of all amounts paid by MYACT! pursuant to this Section shall not exceed the aggregate charges paid by Client to MYACT! for Services under the Agreement for the most recent, consecutive twelve (12) month period.

13. NOTICES

Any notice or demand which under the terms of this Agreement or under any statute must be given or made by MYACT! or Client shall be in writing and shall be given or made by email or postage prepaid U.S. Mail addressed to the respective parties as follows:
MYACT!:
myACT! c/o Contactivation
4555 Mansell Road Suite 300
Alpharetta, GA 30022
karldumas@contactivation.com

Either party may change the Notice address or addressee by giving Notice thereof to the other party. Notices may be given by first class U.S. Mail (postage pre-paid, registered and with receipt requested), nationally recognized express courier, confirmed facsimile, email, personally, or by hand. Notices shall be deemed to have been given on the date of delivery when delivered personally, by email, or by facsimile, on receipt if delivered by express courier or by hand, and three (3) business days after delivery to the United States Postal Service if mailed.

14. APPLICABLE LAW

This Agreement shall be construed in accordance with the laws of the State of Louisiana. The parties mutually acknowledge and agree that this Agreement relates solely to the performance of Services (not the sale of goods) and shall not be governed by the Uniform Commercial Code of any State having jurisdiction.

15. FORCE MAJEURE

No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity [or telephone service], and no other Party will have a right to terminate this Agreement under Section 6 (Termination) in such circumstances.

Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.

16. Mediation

In the event a dispute arises in connection with this Agreement, Client and MYACT! agree to submit the dispute to non-binding mediation to be paid for equally by both parties. The choice of Mediator shall be agreed to by both parties.

17. Arbitration

Any dispute or difference arising out of or in connection with this contract shall be resolved by binding arbitration, using a single arbitrator to be agreed upon between the parties. Should the parties fail to agree upon an arbitrator within fourteen days after either party has given to the other a written request to concur in the appointment of an arbitrator, each party shall select an arbitrator, and those two arbitrators shall together select an arbitrator to be used by the parties. It is agreed that the location of the arbitration will be in the county and state of MYACT!’s main office of record.