Hosting Terms

Hosting Service Level Agreement

1. OVERVIEW

This Hosting Service Level Agreement (the “SLA”) governs the use of all Hosting Services provided by Fruition to Client. The terms and conditions of the Master Services Agreement between Fruition and Client are incorporated herein as if fully set forth below. The terms “we,” “us” or “our” shall refer to Fruition. The terms “you,” “your,” “User,” or “customer” shall refer to Client. Other defined terms will have the meaning given to them in the Master Services Agreement, or as set out in Paragraph 2 below. Nothing in this SLA shall be deemed to confer any third-party rights or benefits. This SLA will control in the event of any conflict between this SLA and the Master Services Agreement and/or any terms and conditions of any Third-Party Provider.

2. DEFINITIONS

“Cloud Agnostic” means Hosting Services that are compatible with many types of cloud hosting platforms and/or Cloud Hosting Environments.

“Cloud Hosting Environment” is the procurement of remote/virtual hosting resources from a Third-Party Provider to host data, services and/or solutions.

“Fruition Cloud Hosting Services” are the Hosting Services provided by Fruition to Client.

“Third-Party Provider” means any third-party Cloud Hosting Environment provider that we may contract with from time to time.

3. DESCRIPTION OF SERVICES

Fruition provides Clients with Drupal, WordPress, and/or Magento specific, tuned, cloud deployment and hosting. Fruition Cloud Hosting Services are Cloud Agnostic and Fruition will select, in its sole discretion, the Cloud Hosting Environment for Client’s hosting workload. Cloud Hosting Environments include, but may not be limited to, Google Cloud, Amazon AWS, Microsoft Azure, and other distributed hosting cloud service providers. Your use of Fruition Cloud Hosting Services is subject to the terms and conditions of the applicable Cloud Hosting Environment, which are incorporated herein as if fully set forth below. This SLA will control in the event of any conflict between this SLA and any terms and conditions of any Third-Party Provider.

Google Cloud Terms and Conditions:

Amazon AWS Terms and Conditions:

Microsoft Azure Terms and Conditions:

Fruition will use commercially reasonable efforts to provide Fruition Cloud Hosting Services twenty-four (24) hours a day, seven (7) days a week, except for: (i) periodic maintenance procedures or updates which we may undertake from time to time, and (ii) causes beyond our reasonable control, for example, an act of God, an act of government, Third-Party Provider failure or delay, hostile network attacks, network congestion, or other failures. Unavailability of Fruition Cloud Hosting Services does not constitute a breach of this SLA.

Cloudflare is often used for ddos and Web Application Firewall (WAF). You agree to Cloudflare’s Terms and Conditions even if you do not set up the account and agree to their terms and conditions during the setup process. Cloudflare’s Terms and Conditions are available at: https://www.cloudflare.com/terms/

Fruition provides Distributed Denial of Service (“DDOS”) protection as a complimentary service up to 500 mbs. Over that amount DDOS fees or forced outages may occur. Higher level DDOS protection is available but not guaranteed to protect all down time. DDOS service is not guaranteed and we may blackhole targeted IPs or suspend targeted service if attack traffic bypasses Fruition’s mitigation facilities. We reserve the right to suspend or terminate services that are frequent targets of DDOS attacks.

Fruition Cloud Hosting Services are designed to host most organizations websites, and thus we offer unlimited bandwidth. This means that we do not set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this SLA. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or up-time of your website, data storage, networking or other infrastructure, you may be required to increase resources or we may take action to restrict the resources your website is utilizing.

SSH or SFTP access is not possible with Fruition Cloud Hosting Services. Access to repositories is possible as is Client access for Client driven deployments.

4. HOSTING MIGRATION, BACKUP, TERMINATION

Hosting Migration. If your website is hosted by a third-party, we may, at your request, and upon payment of the applicable Service Fee, attempt to assist you in moving hosting of your website to us (“Hosting Migration”). Fruition does not make any guarantees regarding the availability, possibility, or time required to complete a Hosting Migration. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host. You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration. If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location. We do not perform an archive backup of your data from the legacy hosting provider. We recommend that you backup your third-party hosted website before Hosting Migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during Hosting Migration. By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us. You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account. You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration.

Backups. File and database backups are performed no less than every 24 hours to a different data center than the one in which your website is hosted. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate your site to new datacenters. As a result, even if you have a dedicated IP, you may be assigned a different IP address. We do not warrant that you will be able to consistently maintain your given IP address.

Termination. You acknowledge and agree that upon expiration or termination of your Fruition Cloud Hosting Services, you must discontinue use of Fruition Cloud Hosting Services and relinquish use of the IP addresses assigned to you in connection with Fruition Cloud Hosting Services, including (if applicable) pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of Fruition Cloud Hosting Services, you are responsible for moving your website and/or server content. We will not transfer or FTP your website and/or server content to another provider. If you fail to move your website and/or server content prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content. Fruition may terminate Fruition Cloud Hosting Services at any time without notice for failure to comply with this SLA or the applicable payment terms for Fruition Cloud Hosting Services.

5. CLIENT’S OBLIGATIONS

You acknowledge and agree that your use of Fruition Cloud Hosting Services, including any content, will comply with this SLA and all applicable local, state, national and international laws, rules and regulations. You acknowledge and agree that you may not use your website as a source, intermediary, reply to address, or destination address for mail bombs, internet packet flooding, packet corruption, denial of service, or other abusive activities. Hacking activities or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts that cause load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently if you are in violation of this SLA and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this SLA. In addition, you agree not to use Fruition Cloud Hosting Services in a manner (as determined by Fruition in its sole and absolute discretion) that: (1) Disseminates or transmits any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) Attempts to mislead any person as to the identity, source or origin of any communication; (3) Interferes, disrupts or attempts to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) Engages in any activity deemed by us to be in conflict with the spirit or intent of this SLA or any of our policies; (5) Uses any server as an “open relay” or for similar purposes; (6) Is illegal, or promotes or encourages illegal activity; (7) Promotes, encourages or engages in child pornography or the exploitation of children; (8) Promotes, encourages or engages in terrorism, violence against people, animals, or property; (9) Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking; (10) Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription; (11) Infringes on the intellectual property rights of any other person or entity; (12) Violates the privacy or publicity rights of any other person or entity, or breaches any duty of confidentiality that you owe to any other person or entity; (13) Interferes with the operation of Fruition Cloud Hosting Services; (14) Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or (15) Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Fruition or Fruition’s Cloud Hosting Services.

Unless otherwise agreed to by the Parties in the SOW governing Fruition Cloud Hosting Services, Fruition Cloud Hosting Services are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be used or considered as one. You shall not use Fruition Cloud Hosting Services in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use Fruition Cloud Hosting Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise of your website.

You acknowledge and agree that we shall have the right to seek justification in connection with your use of Fruition Cloud Hosting Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server and/or network environment. You shall be solely responsible for providing, updating, uploading and maintaining your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website content shall also include any registered domain names provided by you or registered on behalf of you in connection with Fruition Cloud Hosting Services.

6. HOSTING RELATED LIMITATION OF LIABILITY

IN NO EVENT SHALL FRUITION, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND/OR AGENTS, BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT OR ANY SOW FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR RELIANCE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, OR DAMAGE RESULTING FROM CYBER SECURITY BREACHES, HOWEVER CAUSED, ARISING FROM (I) THE HOSTING SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (III) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR WEBSITE AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF HOSTING SERVICES, (VI) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED, (VII) ANY CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (VIII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE HOSTING SERVICES, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT CLIENT OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FOR THE AVOIDANCE OF DOUBT, THESE LIMITATIONS OF LIABILITY APPLY TO ANY ACTIONS IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND NEGLIGENT MISREPRESENTATION. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOT WITHSTANDING ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE TOTAL LIABILITY, IN THE AGGREGATE, OF FRUITION AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND/OR AGENTS, AND ANY OF THEM, TO THE CLIENT AND ANYONE CLAIMING BY OR THROUGH THE CLIENT, FOR ANY AND ALL CLAIMS, LOSSES, COSTS OR DAMAGES, INCLUDING ATTORNEYS’ FEES AND COSTS AND EXPERT-WITNESS FEES AND COSTS OF ANY NATURE WHATSOEVER RESULTING FROM OR IN ANY WAY RELATED TO HOSTING SERVICES SHALL NOT EXCEED THE TOTAL COMPENSATION RECEIVED BY FRUITION FOR HOSTING SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. CLIENT AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES PAYABLE HEREUNDER. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THE SLA AND/OR YOUR USE OF THE HOSTING SERVICES. FRUITION MAKES NO WARRANTIES THAT HOSTING SERVICES ARE IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OR THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

7. INDEMNIFICATION

In addition to Client’s indemnification obligations outlined in the Master Services Agreement between Fruition and Client, You shall indemnify, defend, and hold harmless Fruition, it Affiliates and their employees, contractors, and agents from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to (a) any breach of this SLA; (b) any misuse by you of Fruition Cloud Hosting Services; (c) any negligent or willful act or omission by you or any of your invitees, employees, affiliates, contractors, or agents, and/or (d) to the extent you elect not to encrypt any confidential or personal information, including but not limited to, PII or PHI (“Information”), stored on your website or your equipment, any unlawful or unauthorized access, acquisition or use of such Information that would have been prevented by your encryption of the Information.

8. INSURANCE

You agree to procure and maintain the following insurance during the time Fruition provides Fruition Cloud Hosting Services: Network Security and Privacy liability insurance in an amount of not less than $1,000,000 combined single limit to cover civil, regulatory and statutory damages, contractual damage, as well as data breach management exposure, and any loss of income or extra expense as a result of actual or alleged breach, violation or infringement of right to privacy, consumer data protection law, confidentiality or other legal protection for personal information. The above Network Security and Privacy liability policy must list Fruition as additional insured, and must contain provisions providing that such insurance is primary, with any other insurance maintained by Fruition being excess and noncontributing.

9. MODIFICATIONS

We may modify this SLA at any time by posting a revised version here or by sending a message to the email address then associated with your account. Notices we provide by posting will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. By continuing to use Hosting Services after the effective date of any modifications to this SLA, you agree to be bound by the modified terms. It is your responsibility to check regularly for any modifications to this SLA.