SLA

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.

2. DEFINITIONS

“Downtime” means the amount of time the Client experiences a Severity Level 1 outage beyond the threshold tolerated under the applicable SLAs, and is measured beginning after the response target timeframe set forth in Section 4 below.
“Service” means the Managed Server service.

“Severity Level 1” means the type of outage caused by a single event resulting in a complete outage impacting the Client and preventing the Client from reaching any element of its environment. Examples: Power events or equipment failure.

“Severity Level 2” means the type of outage caused by a single event resulting in an outage of a physical or virtual device, but not causing a complete outage and where the environment remains accessible. Example: Server down, but networking components not impacted.

“Severity Level 3” means a non-outage event resulting in performance degradation. Examples: Hosting Services within server halted, CPU or Disk space, Memory, IIS service stopped, database restores and refreshes, or Latency.

“Severity Level 4” means a service request or request for information associated with all other situations.

“Service Availability” means the percentage of time during which the Service is available to Client.

“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

3. DESCRIPTION OF SERVICES

Fruition is committed to providing Hosting Services to you at a standard of excellence commensurate with the best practice in the industry. The following service levels are designed to assure you of ultimate performance.

Web Hosting. If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).

WordPress Hosting. If you purchase WordPress Hosting, you get Web Hosting with the addition of WordPress software.

Drupal Hosting. If you purchase Drupal Hosting, you get Web Hosting with the addition of Drupal software with drush usage.

Magento Hosting. If you purchase Magento Hosting, you get Web Hosting with the addition of Magento software. PCI Compliance is available for an additional fee and is not included with base Magento Hosting Services.

Virtual Private Server (“VPS”). If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.

Dedicated Server. If you purchase a Dedicated Server, an entire server is reserved exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected by traffic and the usage patterns of other customers.

Managed Hosting. If you purchase Managed Hosting, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.

4. OPERATION RESPONSE TARGETS AND SLA CREDITS.

Operation Response Targets. Fruition will make best efforts to respond to outages within the time frames prescribed below. These time frames are measured beginning at the point a trouble ticket is dispatched to a Fruition employee and has accepted the trouble ticket and begins addressing the outage: Severity Level 1 – 95% within 5 minutes; Severity Level 2 – 95% within 15 minutes; Severity Level 3 – 95% within 60 minutes; Severity Level 4 – 95% within 120 minutes.

SLA Credits and Limitations. Client’s sole and exclusive remedy for Severity Level I Outages causing Fruition’s failure to meet the SLAs set forth above is a credit in an amount not to exceed the equivalent of one hour’s pro-rated Hosting Services credit for each cumulative hour of Downtime in any one-month rolling interval (“SLA Credit”). In no event shall the amount of total SLA Credits exceed the equivalent of seven days’ of pro-rated Hosting Services. To be eligible for SLA Credits, Client must contact their Fruition representative at 303-395-1880 and submit the relevant trouble ticket information within 15 calendar days from the date an SLA was not met. SLA Credits will be promptly issued against Client’s invoice. No SLA Credits will be issued for any outages other than Severity Level I outages. SLA Credits will not be available where an SLA is not met as a result of: (A) the negligence, acts or omissions of Client, its employees, contractors or agents or its end users; (B) the failure or malfunction of equipment, applications or systems not controlled by Fruition; (C) circumstances beyond the control of Fruition, including instances of Force Majeure Events; (D) scheduled service, maintenance, alteration or implementation, including announced maintenance; or (E) environments where Client requires full or partial administrative or root-level access for any or all devices within the environment. In the event that Client is entitled to credits under this SLA as well as other applicable service level agreements due to the same event, such credits will not be cumulative and Client will be entitled to receive only the maximum single credit available for such event (e.g., Client will not be entitled to “double credits” under various SLAs in the event of network unavailability).

5. MIGRATION, BACKUP, ACCOUNT TERMINATION

Hosting Migration. If the web hosting associated with your domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”). Hosting Migrations are provided as a courtesy service, and we do not make any guarantee 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 will not perform website backups or archives in connection with a Hosting Migration, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during the migration process. 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. Hosting Migrations are not available for websites with over 10GB of data or more than 100,000 files.

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

Managed Backups. The process of backing up websites and servers is included in every hosting package (“Managed Backups”). Managed Backups include databases, files, and the server OS. Managed Backups are run by Fruition’s employees and utilize the Idera Enterprise Platform. The process of restoring files and databases is not included in the hosting fees if it is a result of a Client error.

Termination of Services. You acknowledge and agree that upon expiration or termination of your Hosting Services, you must discontinue use of the Hosting Services and relinquish use of the IP addresses and server names assigned to you in connection with Hosting Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Hosting Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers 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 this Hosting Agreement at any time without notice for failure to comply with Paragraph 5 of this Hosting Agreement. Upon termination of the Hosting Services, all free products provided as part of the Hosting Services will be cancelled or revoked.

6. CLIENT’S OBLIGATIONS

General Rules of Conduct. You acknowledge and agree that your use of the Hosting Services, including any content, will comply with this Hosting Agreement and all applicable local, state, national and international laws, rules and regulations. You acknowledge and agree that you may not use our servers and 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. Server hacking 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 run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Hosting Agreement 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 Hosting Agreement. In addition, you agree not to use the 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 Hosting Agreement or any of our policies; (5) Uses the 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 the 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 Hosting Services. We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS Hosting Services and reserve the right to remove any servers from the network that violate this restriction.

Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The Hosting Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one. You shall not use the 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 the 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 to your server or account.

Justification. You acknowledge and agree that we shall have the right to seek justification in connection with your use of the 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.

Website/Server Content. 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 or network environment. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server 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 or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Hosting Services.

7. PROVISIONS SPECIFIC TO WEB, WORDPRESS, DRUPAL, AND MAGENTO HOSTING

Storage and Plan Limits. All Hosting Services, including the unlimited plans, unless otherwise specified, are subject to a limit of no more than 250,000 inodes per account for Linux® hosting accounts or 500,000 files and folders per account for Windows® hosting accounts. The plans are also limited to no more than 1,000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the number of inodes, files and folders, tables or gigabytes (as the case may be), or may be temporarily or permanently suspended, in our sole discretion. All Linux hosting plans are subject to the following limitations: no more than a) 25% of one CPU core; b) 512MB of RAM; c) 100 website connections; d) 100 active processes; e) 1 MB/s disk IO. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees. Only a single install of WordPress, Drupal or Magento is allowed per website. All hosting plans may only be used to host the named CMS, platform, or framework. Any account found to be hosting a different CMS, platform or framework than named may be issued a network violation warning and will be required to remove the non-named CMS, platform or framework, or may be temporarily or permanently suspended, in our sole discretion. Additionally, you may be required to purchase an appropriate hosting plan in order to host the unapproved CMS, platform, or framework should you wish to continue hosting on our network. Free Trial hosting credits are subject the following limitations: no more than a) 25% of one CPU core; b) 256MB of RAM; c) 10 website connections; d) 100 active processes; e) .5 MB/s disk IO; f) 50,000 inodes; g) 1 GB diskspace; h) 10 GB monthly bandwith. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added by upgrading to a paid plan. Fruition reserves the right to change the price of Hosting Services based on useage.

Unlimited Disk Space/Bandwidth/Website Plans. Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer unlimited bandwidth and some plans offer unlimited disk space and websites. 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 Hosting Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

8. PROVISIONS SPECIFIC TO VPS, DEDICATED, MANAGED HOSTING

Assisted Service Plan. If you purchase an Assisted Service Plan (“AS Plan”) with VPS, we may install a limited number of applications (“Supported Applications”) on your server at your request. A full list of Supported Applications is available from our support team upon request. If you request the installation of a Supported Application, we will install and configure the Supported Application on our server as long as the server has available resources (e.g., storage, RAM, processing power) to support that particular application. We will then provide the primary (administrator) username and password to you, at which point you will take over the managed and additional configuration of that particular application. We will not be responsible for content, customization, or any other activities associated with the Supported Application, including any repair of the Supported Application should it stop working. We shall limit technical support of an inoperable Supported Application to restoring said Supported Application to its original state (fresh installation, with no data or customization).

Server Access. If you purchase MS SQL, MYSQL, or Managed Backups, you hereby authorize us to log into your server for purposes of installing and configuring the MS SQL, MYSQL, or Managed Backups.
IP Addresses. You acknowledge and agree you are required to begin using at least ninety percent (90%) of your purchased IP addresses within thirty (30) days of assignment of such IP addresses to you. In the event you do not begin using at least ninety percent (90%) of your assigned IP addresses within thirty (30) days of assignment, you acknowledge and agree that we shall have the right to reclaim any unused IP addresses.

FTP Back-Up. We offer an FTP Backup option for an extra fee. You acknowledge and agree that purchasing FTP Backup may require additional down time to install and maintain. You further acknowledge and agree that in utilizing the FTP Backup option, you shall be subject to a maximum disk space and bandwidth usage according to the plan you purchase. Subject to the terms and conditions of this Hosting Agreement, we shall use commercially reasonable efforts to provide FTP Backup services on a twenty-four (24) hours per day, seven (7) days per week basis throughout the term of this Hosting Agreement. You acknowledge and agree that from time-to-time the FTP Backup services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs that we may undertake from time to time; or (3) causes beyond our control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.

Configuration Add-Ons. We offer multiple configuration options (“Configuration Add-Ons”) for an extra fee. The specific Configuration Add-Ons available depend on which hosting package you purchase, but may include a control panel, database, external firewall or RAID. You acknowledge and agree that installing a Configuration Add-On will use some of your available storage, may require additional provisioning time, will require us to install Third Party Software (defined below), third party hardware or internally developed custom software to your server, and, in some cases, may limit the versions of Third Party Software available for use with your server. Third Party Software, third party hardware and internally developed customer software will be supported by us. Except for RAID, you may cancel any of the other Configuration Add-Ons at any time for a prorated refund. If you wish to cancel RAID, you will be required to cancel your server and purchase a new one.

9. THIRD PARTY SOFTWARE

Operating Software. The Hosting Services may be operated in both Linux® and Windows® environments. Each time you commission a server, we will provision the server with the operating system you choose. We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Hosting Services. You may not use the Third-Party Software outside of the Hosting Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Hosting Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

10. HOSTING RELATED LIMITATION OF LIABILITY

IN NO EVENT SHALL FRUITION, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT 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 OUR SERVERS 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 BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT FRUITION IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, SOW OR YOUR USE OF THE HOSTING SERVICES.