This Agreement for CenturyLink Cloud Services ("Agreement") with CenturyLink Communications, LLC and its affiliates (“CenturyLink”) contains the terms and conditions that govern your access to and use of the Services (as defined below). Services may be provided by a local affiliate if you elect to purchase Services from outside of the U.S. and all such affiliates are collectively referred to as “CenturyLink”. The Effective Date is the date/time you click an “I accept” button or check box presented with these terms or, if earlier, when you use any of the Services. As used herein, “you”, “your” or “Customer” shall refer to the entity identified on the Contact Information section of the Website. In consideration of the mutual promises contained in this Agreement, CenturyLink and Customer hereby agree as follows:
- The Services.
1.1 The services covered by this Agreement are the CenturyLink Cloud services provided by CenturyLink to Customer from time to time (collectively, "Services”) and included on www.ctl.io (the "Website") and the Client Management section of the Website (the "Control portal").
1.2 Control portal. Customer may access the Services via an API or the Control portal. CenturyLink may modify the Control portal or the APIs or may transition to new APIs at any time. Customer’s use of the Control portal and/or APIs are governed by this Agreement.
- Term. The term of any individual Cloud Service will commence on the Billing Commencement Date and will remain in effect for so long as Customer continues to access and use the Service (i.e. month to month).
- Rates; Billing; Payment.
3.1 Rates/Charges. CenturyLink Cloud is a pay-for-use service and Customer will pay all applicable rates and fees associated with both the individual Service and the quantity of Services ordered by Customer via an API or the Control portal. Rates and fees associated with the Services are posted on the Website. New Services or new Service features may be added at any time, however, fees for new Services or new Service features will not be effective until purchased by Customer. CenturyLink may materially increase fees for any existing individual Cloud Service or remove any material service offering by providing not less than 60 days’ notice prior to the effective date of such increase and/or removal of material services by posting on the Website.
3.2 Billing Commencement Date. The Billing Commencement Date or BCD for individual usage-based Cloud Services is the date services are activated by CenturyLink and no acceptance period will apply.
3.3 Payment of Invoices and Disputes. Invoices are delivered or made available monthly and due 30 days after the invoice date. Fixed charges are billed in advance and usage-based charges are billed in arrears based on Services purchased/used and in accordance with posted rates. Customer’s payments to CenturyLink must be made via an ACH transfer or any CenturyLink approved payment portal (e.g., CenturyLink Control Center) in the currency stated on the invoice. CenturyLink may charge administrative fees where Customer’s payment and invoice preferences deviate from CenturyLink’s standard practices. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). CenturyLink may charge Customer reasonable attorneys' fees and any third-party collection costs CenturyLink incurs in collecting such amounts. Customer is responsible for all charges regarding the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the invoice. If CenturyLink determines in good faith that a disputed charge was billed correctly, Customer must pay such amounts within 10 days after CenturyLink provides notice of such determination. Customer may not offset disputed amounts from one invoice against payments due on the same or another account.
3.4 Taxes and Fees. Excluding taxes based on CenturyLink's net income, Customer is responsible for all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service. This includes value added, consumption, sales, use, gross receipts, withholding, excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (e.g., regulatory surcharges), whether imposed on CenturyLink or a CenturyLink affiliate (collectively “Taxes and Fees”). Some Taxes and Fees, and costs of administering the same, are recovered through imposition of a percentage surcharge(s) on the charges for Service. If Customer is required by law to make any deduction or withholding of withholding Taxes from any payment due hereunder to CenturyLink, then, notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer will be increased so that, after any such deduction or withholding for such withholding Taxes, the net amount received by CenturyLink will not be less than CenturyLink would have received had no such deduction or withholding been required. Charges for Service are exclusive of Taxes and Fees. Customer may present CenturyLink with an exemption certificate eliminating CenturyLink’s liability to pay certain Taxes and Fees. The exemption will apply prospectively.
3.5 Credit Approval and Deposits. Customer will provide CenturyLink with credit information as requested. CenturyLink may require Customer to make a deposit as a condition of CenturyLink’s continuation of: (a) usage-based Services; or (b) non-usage based Service where Customer fails to timely pay CenturyLink hereunder or CenturyLink reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed two months’ estimated charges for Service and are due upon CenturyLink’s written request. When Service is discontinued, the deposit will be credited to Customer's account and the balance refunded.
3.6 Regulatory and Legal Changes. Notwithstanding any minimum notice required for rate increases set forth in Section 3.1 Rates/Charges, above, if changes in applicable law, regulation, rule or order materially affect delivery of Service CenturyLink will pass any increased costs on to Customer.
3.7 Charges for Services may be subject to (a) a property tax surcharge and (b) a cost recovery fee per month to reimburse CenturyLink for various governmental taxes and surcharges. Such charges are subject to change by CenturyLink and will be applied regardless of whether Customer has delivered a valid tax exemption certificate. For additional details on taxes and surcharges that are assessed, visit https://www.centurylink.com/taxes.
3.8 Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of US $150 and will be subject to collection by an authorized collection agency. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys' fees, court costs and collection agency fees) incurred by CenturyLink in enforcing collection.
- Obligations.
4.1 CenturyLink Compliance and Security. CenturyLink will comply with all laws and regulations applicable to CenturyLink’s provision of the Service, and Customer will comply with all laws and regulations applicable to Customer’s use of the Service. CenturyLink has adopted and implemented, and will maintain, a corporate information security program designed to protect Customer data from loss, misuse and unauthorized access or disclosure. Such program includes formal information security policies and procedures. The CenturyLink information security program is subject to reasonable changes by CenturyLink from time to time. Customer will ensure that all Customer Data stored, transmitted or processed via the Service complies with applicable law and reasonable information security practices, including those involving encryption. In addition to CenturyLink’s obligations in the Agreement, CenturyLink, as of the date of this Agreement, has completed an AICPA sanctioned Type II audit report (i.e., SSAE18/ISAE3402 SOC 1 or AT-101 SOC 2) in certain data centers and intends to continue to conduct such audits pursuant to a currently sanctioned or successor standard. Customer will be entitled to receive a copy of the then-available report, which is CenturyLink Confidential Information. Customer may make such report available to its End Users subject to confidentiality terms provided by CenturyLink.
4.2 Customer Acknowledgement: CenturyLink and its affiliates or subcontractors may use and transfer to the United States, or other countries, Service information or operational data (including business contact information) for the limited purposes of: (i) providing and managing the Services; (ii) fulfilling its obligations under this Agreement; and (iii) complying with applicable law.
4.3 Customer Security Obligations. Customer is solely responsible for properly configuring and using the Cloud Service and taking its own steps to maintain appropriate security (including maintaining reasonable information security practices) for the protection and backup of Customer Data, which may include the use of encryption technology to protect Customer Data from unauthorized access. CenturyLink may assist with initial configuration and monitoring subject to the purchase of certain Managed Services. Given that Customer can self-provision and self-configure the Services and the Customer environment in ways that may reduce its security, notwithstanding anything else to the contrary in this Agreement, Customer acknowledges that it and not CenturyLink is responsible for whether the Services and Customer environment are configured in a secure manner and no security requirements or obligations of CenturyLink related to any other CenturyLink Service, including FedRAMP, NIST, FISMA, or other security platforms shall apply. In addition, Customer is solely responsible for compliance related to the manner in which the Cloud Service is used or accessed by Customer or its authorized users including the transfer and processing of personal data.
4.4 Acceptable Use. Customer must comply with the CenturyLink Acceptable Use Policy (“AUP”), for Services purchased under this Agreement and acknowledge the CenturyLink Privacy Policy. CenturyLink may reasonably modify these policies to ensure compliance with applicable laws and regulations and to protect CenturyLink's network and customers. CenturyLink reserves the right to monitor (and suspend if applicable) processes on the virtual infrastructure to ensure Customer compliance with this Agreement, including the AUP. Such monitoring does not include the monitoring or viewing of any Customer Data. If CenturyLink suspends Services for violation of this section, including the AUP, Customer remains liable for all fees, charges and any other obligations incurred and accruing. No SLAs are payable for any period of suspension.
4.5 Authorization. Customer agrees that: (a) it will provide accurate and complete information as requested by CenturyLink in connection with its registration for the Services; and (b) any registrants, users, or others placing orders for Service on its behalf have full legal capacity to do so and are duly authorized to do so and to legally bind Customer to the Agreement and all transactions conducted under Customer's account. Customer may only use the Cloud Services to store, retrieve, query, serve, and execute Customer Data that is owned, licensed or lawfully obtained by Customer.
- Termination; Default.
5.1 Termination; Effect of Termination. Customer may terminate any individual Cloud Service at any time for any reason or no reason without liability for early termination charges. Customer must follow CenturyLink's termination or non-renewal procedures made available in the Control portal in conjunction with any other applicable Service Notices provision in this Agreement. Failure to provide disconnect, termination and non-renewal notices in accordance with this Section may result in continued charges, and CenturyLink will not credit charges for such noncompliance.
Notwithstanding any notice of termination or discontinuance of use of the Cloud Services by Customer, CenturyLink will not deem any notice of termination effective and all applicable monthly recurring or usage based fees will continue to apply until Customer removes and/or deletes any and all Cloud content and Customer Data. However, if Customer Data remains not deleted or removed greater than 30 days after Customer’s notice that it intends to terminate the Service or if Customer has dialed down usage to $0.00 and zero usage continues for greater than 30 days, CenturyLink reserves the right to delete any and all Cloud content, including Customer Data, without further obligation or liability to Customer.
5.2 Default. CenturyLink may suspend and/or terminate the affected Service upon five (5) days’ notice in the event of any uncured payment default, including a failure to maintain up to date credit card information that results in rejected charges. If either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after the other party’s written notice, then the non-defaulting party may: (i) terminate applicable Services or this Agreement; and/or (ii) subject to all applicable damages limitations and the SLAs, pursue any remedies it may have at law or in equity.
- Confidentiality. Neither party will: (a) disclose any of the terms of the Agreement; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the Confidential Information received from the other party. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under the Agreement. Each party will limit disclosure and access to confidential information to those of its employees, contractors, attorneys or other representatives who reasonably require such access to accomplish the Agreement’s purposes and who are subject to confidentiality obligations at least as restrictive as those contained herein. “Confidential Information” means any commercial or operational information disclosed by one party to the other in connection with the Agreement and does not include any information that: (a) is in the public domain without a breach of confidentiality; (b) is obtained from a third party without violation of any obligation of confidentiality; or (c) is independently developed by a party without reference to the Confidential Information of the other party.
- Scheduled Maintenance. Customer acknowledges that the Services may be subject to routine maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair. Scheduled or emergency maintenance terms are identified in the applicable SLA, SG, portal or Website.
- Liabilities; Disclaimer.
8.1 Damages Limitations. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
8.2 Direct Damages. Except for the payment obligations of Customer, the total aggregate liability of each party arising from or related to this Agreement shall not exceed in the aggregate the total MRCs, NRCs, and usage charges paid or payable to CenturyLink for the affected Services in the twelve months immediately preceding the first event giving rise to the cause of action (“Damage Cap”).
8.3 Representations. Customer represents and warrants that: (i) the information Customer provides in connection with Customer's registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if Customer is registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries where Customer operates and is an authorized representative of Customer's entity, and (b) Customer's employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer's account.
8.4 Disclaimer of Warranties. THE SERVICES AND ANY RELATED HARDWARE, SOFTWARE AND OTHER MATERIALS PROVIDED BY CENTURYLINK IN CONNECTION WITH THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPATIBILITY OF SOFTWARE OR EQUIPMENT, OR ANY RESULTS TO BE ACHIEVED THEREFROM. CENTURYLINK MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF HACKING OR SIMILAR MALICIOUS ACTIVITY, OR ANY ACT OR OMISSION OF THE CUSTOMER OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. CUSTOMER ACKNOWLEDGES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OFFERINGS IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO CUSTOMER'S PROPERTY OR LOSS OF DATA. THE PREVIOUS DISCLAIMERS WILL NOT LIMIT CUSTOMER'S ABILITY TO SEEK ANY APPLICABLE SLA REMEDIES.
- Notices.
9.1 Customer acknowledges and agrees that CenturyLink may contact Customer via e-mail at the e-mail address provided to CenturyLink when Customer ordered the Service, and such email may include instructions for use of a private website for posting of such notices, for any reason relating to the Service, including for purposes of providing Customer any notices required under this Agreement. Customer agrees to provide CenturyLink with any change to its email address.
9.2 Service Notice. Customer shall provide routine operational notices, requests for credits and/or billing inquiries to its CenturyLink sales representative.
9.3 Legal Notices. Notices will be in writing and deemed received if delivered personally, sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service or First Class International Post. All legal notices will be addressed to CenturyLink at: 931 14th Str., #900, Denver, CO 80202; Fax: 888-778-0054; Attn.: Notice Coordinator; and to any electronic or physical address of Customer as provided in the Agreement or in its absence, to Customer’s address identified on the Order or as reflected in CenturyLink's records, Attn. General Counsel.
- Intellectual Property.
10.1 Intellectual Property. CenturyLink's intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Service. Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors. Nothing in this Agreement or the performance thereof conveys, or otherwise transfers any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors.
10.2 CenturyLink Hardware/ Software. Any hardware and/or software (including related documentation) that may be provided by CenturyLink or its third party licensors may be used solely as part of the Services. Customer: (a) will not assert any ownership interest whatsoever in the CenturyLink hardware or software; (b) will keep the hardware and software free and clear from all liens, claims and encumbrances; (c) shall use all hardware and software solely in accordance with the Agreement; and (d) comply with any applicable third party licensing terms or conditions and use of the Service, including the hardware and software shall be deemed Customer’s acceptance of such terms. Unless Managed Operating System or Managed Application services are purchased, Customer is responsible for selecting, installing and maintaining any software used in connection with the Service including any related applications, systems, or software. Customer will not nor will Customer allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Services; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services; (iii) utilize black listed software; (iv) knowingly use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services;
10.3 CenturyLink will not disclose, modify, or access Customer Data, except (a) with Customer’s authorization to do so in connection with Customer's use of the Services, including requests for support; or (b) as necessary to provide the Services to Customer or to prevent or address service or technical problems, or to comply with this Service Exhibit; or (c) at the request of a governmental or regulatory body, subpoenas or court order.
10.4 Third Party Software. If Customer elects to use Customer provided and/or licensed software in connection with the Cloud Services or make such software available to other users of Cloud Services, Customer is solely responsible for (a) selecting, licensing, installing and maintaining any such software, including any related applications and systems; and (b) ensuring adherence to current technical documentation, all applicable licensing terms, requirements, and/or restrictions and all applicable laws with respect to such software.
- Service Levels; Credits.
11.1CenturyLink’s SLA constitutes Customer's sole and exclusive remedy for non-performance, failure or deficiency of the Services for any reason, except that CenturyLink shall have no obligation to compensate Customer under any SLA while Customer is in default, including not being current in its payment obligations under this Agreement.
11.2 Service credits, if any, as provided in the SLA or any other credits Customer may be eligible to receive for Services purchased pursuant to a valid promotion will be issued to Customer's account and shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. Credits shall expire if Customer's account is terminated.
- Feedback. In the event Customer elects, in connection with any of the Services, to communicate to CenturyLink suggestions for improvements to the Service (“Feedback”), CenturyLink shall own all right, title and interest in and to the same, even if Customer has designated the Feedback as confidential, and CenturyLink shall be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns all right, title, and interest in and to the Feedback to CenturyLink and agrees to provide CenturyLink such assistance as it may require to document, perfect and maintain CenturyLink’s rights to the Feedback.
- HIPAA. To the extent the Services involve the ongoing storage of or routine access to PHI (as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, “HIPAA”), or CenturyLink is otherwise acting as a Business Associate (pursuant to HIPAA), CenturyLink will agree to the terms in its then-current Business Associate Agreement upon Customer’s request.
- SLA Attachment and Supplemental Terms. Customer’s use of Services hereunder is subject to acceptance by Customer of the additional terms applicable to certain services and software, the Service Guide, and the SLA Attachment applicable to the Service.
- Force Majeure. Neither party will be liable, nor will any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”).
- Assignment and Resale. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. However, either party may assign its rights and obligations under this Agreement without the consent of the other party: (1) to any subsidiary, parent, or affiliate that controls, is controlled by, or is under common control with that party; (2) pursuant to the sale or transfer of substantially all of the business or relevant assets of that party; or (3) pursuant to any financing, merger, or reorganization of that party. This Agreement will apply to any permitted transferees or assignees. Any assignee of Customer must have a financial standing and creditworthiness equal to or better than Customer's. Nothing in this Agreement confers upon any third party any right, benefit or remedy hereunder.
- Affiliates. CenturyLink may use a CenturyLink affiliate or a third party to provide Service to Customer, but CenturyLink will remain responsible to Customer for Service delivery and performance. Customer’s affiliates may purchase Service under this Agreement, and Customer will be jointly and severally liable for all claims and liabilities related to Service ordered by any Customer affiliate.
- Governing Law; Amendment. This Agreement will be governed and construed in accordance with the laws of the State of New York, without regard to its choice of law rules. Each party will comply with all applicable laws, rules and regulations associated respectively with CenturyLink’s delivery or Customer’s use of the Service under the Agreement. This Agreement constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. CenturyLink is not subject to any obligations that are not explicitly identified in this Agreement. No failure by either party to enforce any right(s) hereunder will constitute a waiver of such right(s).
- Definitions.
“API” means a CenturyLink provided Application Programming Interface.
“Billing Commencement Date” or “BCD” means the date on which CenturyLink begins billing for a Service, as further defined in the Billing Commencement Date Section above. The BCD shall apply in lieu of any other Customer Commit Date, Service Commencement Date, Connection Notice, or similar language in the Agreement.
“Customer Data” means any data, content or information of Customer or its end users that is stored, transmitted, or otherwise processed using the CenturyLink Services. CenturyLink’s obligations with respect to such Customer Data shall be exclusively governed by the Compliance and Security section and are further subject to all Limitation of Liability provisions of this Agreement.
“End User” means Customer’s members, end users or any other third parties who use or access the Services or access CenturyLink’s network or data centers via the Services.
“Managed Services” means certain usage based managed operating systems and/or managed applications, including web, middleware, database applications, that a Customer may elect to purchase via the Control portal.
“MRC” means monthly recurring charge.
“NRC” means non-recurring charge.
"Service Guide" or "SG" means the product-specific Service guide that includes technical specifications which CenturyLink may modify from time to time, effective upon posting. “SLA” means the service level agreement applicable to the Service which provides Customer's sole and exclusive remedies for any nonperformance, Service deficiencies, outages, interruptions or failures of any kind. SLAs may be updated from time to time and are effective upon posting to the Website.
