Application Service Provider Terms
These Application Service Provider Terms (“ASP Terms”) effective as of the Start Date are subject to the Vendor Master Terms and Conditions located at https://policies.oath.com/us/en/oath/terms/vendor/mastertnc/index.html and are part of the Agreement. Except for terms defined herein, capitalized terms used here are defined in the Vendor MTC.
- ASP SERVICES. Vendor will provide those ASP Services described in a PO or an SOW, including:
- Setup and Configuration. Vendor will implement, configure and set up the ASP Services, as required by Oath, in order for Oath to use the Application(s) and for Vendor to host the ASP Services, as contemplated by the Agreement.
- Training. Vendor will provide such technical assistance and training as provided in a PO, an SOW, and/or as Oath may reasonably request. All training services will be at no additional charge unless a fee for such training services is specified in a PO or an SOW.
- Hosting Services. Hosting Services will be provided from the physical location(s) set forth in a PO or an SOW or at such other location(s) as the Parties may agree upon in writing.
- Updates. Vendor will make available to Oath (at no additional cost) all Updates and any Documentation for such Updates. Vendor will ensure that: (a) new features or enhancements to existing features are synchronized with the previous version; and (b) Updates will not degrade the performance, function, or operation of the Application(s). Oath, in its sole discretion, may elect not to install or delay installation of any Update for any period of time. Vendor will continue to support Oath’s version of the Application(s) so long as Oath is running no more than two (2) major versions behind Vendor’s most current Update. If Oath is responsible for installing the Update, then Vendor will provide written instructions and such other assistance as Oath may reasonably require to complete the installation. Once an Update has been installed and accepted by Oath, the Update will be considered part of the Application(s).
- Technological Improvements. Vendor will develop and make available to Oath through Updates, all modifications and revisions required to enable the Application(s) to operate in compliance with any applicable Law and in conjunction with any new releases of computer equipment, operating systems or middleware used by Oath, provided that the Application(s) formerly operated on the computer equipment, operating systems or middleware being replaced.
- Vendor will provide the Hosting Services and maintain availability of the Application at a level of ninety-nine point ninety-nine percent (99.99%) for each calendar month during the Term of the Agreement (“Availability”). The percentage of Availability is calculated by subtracting the number of hours of Downtime in a calendar month from the number of hours in a calendar month, divided by the number of hours in a calendar month. Vendor will use measuring and monitoring tools to calculate the Availability of the Hosting Services for each calendar month. Vendor will provide a report to Oath detailing such Availability within thirty (30) days of the end of each calendar month. For each tenth of one percent of Availability less than ninety-nine point ninety-nine percent (99.99%) for any calendar month, Oath, at its election will receive: (a) five (5) days of Hosting Services at no additional charge; or (b) a credit equal to the value of five (5) days of Hosting Services. In the event Availability falls below ninety-nine point ninety-nine percent (99.99%) for more than three (3) days in any calendar month, Oath will be entitled to an amount equal to the greater of ten thousand dollars ($10,000) or five percent (5%) of the total amounts paid to Vendor for the preceding twelve (12) month period.
- In addition to those requirements outlined in Section 1.6(a), Vendor will provide ASP Services in accordance with the SLAs outlined in the Service Level Agreement Terms located at: https://policies.oath.com/us/en/oath/terms/vendor/servicelevelagr/index.html, which are incorporated herein by this reference and may be updated from time to time, and such other SLAs as may be outlined in a PO or an SOW.
- GRANT OF RIGHTS
- By Vendor. Vendor hereby grants to the Oath Entities, on behalf of itself and its licensors and suppliers, an irrevocable, nonexclusive, nontransferable (except as set forth in Vendor MTC Section 13.2 (Assignment)), royalty-free, worldwide license, during the period specified in a PO or an SOW, to access, use, display and perform the Application(s) (including all Documentation), in executable format, through the Hosting Services, and to download and keep copies of the distributed components of the Application(s), all in accordance with the applicable Documentation for the Application(s).
- Alterations. Except as provided in these ASP Terms or as required by Laws, Vendor will not materially alter, modify, change, remove or disable access to all or any portion of the Application(s), without providing Oath thirty (30) days prior written notice, or any Oath Data stored on any server for any reason, without Oath’s prior written agreement.
- ASP OPERATIONS
- Advance Notice of Relocation. In the event that any server or Information System used to provide ASP Services is relocated, Vendor will provide at least ninety (90) days advanced written notification of such relocation to Oath, and will use best efforts to ensure the continuity of services.
- Loss Control. Vendor will be responsible for maintaining its facilities and operations in accordance with applicable and prudent safety, security, fire protection, and loss control standards, including redundancy and alternate routing processes. Upon Oath’s prior written request, Vendor will allow Oath and their designated representatives to visit and perform loss control audits of the facility and operations and cooperate in the resolution of recommendations made.
- Business Continuity Plan.
- Vendor will develop and keep current a formal business continuity plan which details strategies for response to, and recovery from, a broad spectrum of potential disasters that could disrupt operations and timely delivery of materials and services required pursuant to these ASP Terms.
- The business continuity plan will include: (i) a baseline material Hazard analysis; (ii) a written recovery plan and documented emergency and incident response procedures; (iii) a mitigation plan to prevent losses or minimize effects of unavoidable ones; and (iv) a crisis communication plan.
- Vendor will conduct an annual test and evaluation of its business continuity plan, which upon request by Oath may be witnessed by Oath, to ensure expected systemic and process responsiveness from Vendor.
- Upon request, Vendor will make its business continuity plan and the annual evaluation available to Oath or its designated representative for review.
- GENERAL PROVISIONS
- Precedence. Except as indicated herein, terms in these ASP Terms supplement, but do not replace, terms in the Vendor MTC. In the case of inconsistency or conflict between the provisions of these ASP Terms and the Vendor MTC or any PO, SOW, SLA, PLSS, or Change Order, the provisions of these ASP Terms will control. Notwithstanding the foregoing, a PO, SOW, or Change Order may amend these ASP Terms only if the amended terms contained in such a PO, SOW or Change Order: (a) apply only to the individual PO, SOW, or Change Order and not to any other PO, SOW, or Change Order; and (b) specifically identify the provision(s) of these ASP Terms they amend.
- SSAE 16 Audits. Vendor represents, warrants, and covenants that it has completed an SSAE 16 Type II audit, within the calendar year prior to the effective date of the applicable PO or SOW for ASP Services, and will provide Oath a copy of the report upon request. During the Term of the Agreement, Vendor will continue to undergo SSAE 16 Type II audits on an annual basis and provide Oath copies of such reports on or before November 30th of each calendar year at no cost to Oath. Notwithstanding the foregoing, if Oath discovers errors in the SSAE 16 report or if the SSAE 16 report is incomplete or delivered after the deadline set forth in this Section 4.2, Vendor hereby grants Oath access to Vendor’s Information Systems, records, and facilities to conduct an audit.
- ADDITIONAL DEFINITIONS
- “Application(s)” means the computer software, in object code form, identified in a PO or an SOW including all Updates, bug fixes, error corrections, changes, enhancements, new versions, new releases, new features, Upgrades, functionality changes, and improvements thereto.
- “ASP Services” means the Services provided by the Vendor, including the Hosting Services, relating to the Application(s) as may be further described in a PO or an SOW.
- “Disaster” means a serious disruption of the functioning of an organization, causing widespread human, business interruption, material, or environmental losses that exceed the ability of the organization to cope using only its own resources.
- “Downtime” means any period of time, scheduled and unscheduled, when the ASP Services are not available for use. Scheduled downtime must: (a) be announced to Oath at least seventy-two (72) hours in advance; (b) occur outside the hours of 6 a.m. to 11 p.m. Monday through Friday Pacific Time; (c) not exceed two (2) hours in any twenty-four (24)-hour period; and (d) not exceed four (4) hours in any calendar month.
- “Hazard” means an existing or unusual occurrence in the natural or human-made environment that may adversely affect human life, property or activity due to a Disaster, including destruction of data storage, retrieval, and processing facilities, hazardous materials release, loss of data systems integrity from breaches of security, power failures, structural failures, telecommunications failures, transportation failures, earthquakes, floods, hurricanes, landslides, tornadoes, tsunamis, volcanoes, wild or forest fires, windstorms, and winter storms.
- “Hosting Services” means Services comprising the hosting, maintenance, and administration of the Application(s) on servers or Information Systems owned, leased, or otherwise used by Vendor and the support of such electronic communications capabilities as Oath and Vendor may agree upon in order to provide Oath with remote access to the Application(s).
- “Update” means and includes the modifications or revisions made to the Application(s) to: (a) improve upon or repair existing features and operations within the Application(s); (b) ensure compatibility with new releases of existing systems (including hardware, operating systems and middleware) and external services through standardized interfaces; or (c) comply with applicable Laws, regulations, industry standards, or market practice.
- “Upgrade” means a new version of the Application(s), which adds major enhancements or modifications to the functionality or features to the Application(s).
These ASP Terms were last updated on January 1, 2018.