THESE TERMS AND CONDITIONS BECOME EFFECTIVE ONLY WHEN YOU SUBSCRIBE TO ANALYZE MANAGED DNS SERVICES POWERED BY NEUSTAR.
IF YOU HAVE AN EXISTING ULTRADNS SMB ACCOUNT, THAT ACCOUNT AND ITS TERMS WILL REMAIN ACTIVE UNTIL SEPTEMBER 30, 2021.
TERMS OF USE
These Terms of Use ("TOU") govern your ("Customer" or "You") use of the Neustar, Inc. ("Neustar") UltraDNS Basic or UltraDNS Starter Services ("Services"). By clicking "Accept" You agree to be bound by the terms and conditions set forth herein.
Neustar may change or amend the TOU at anytime. Any use of the Services after the effective date of such change will be deemed acceptance of the change by You.
1. DEPLOYMENT OF SERVICES. The TOU shall not be binding on Neustar until Neustar deploys the Services to You. Neustar may refuse to deploy or provision Services to You for any reason, including, without limitation, if You provide inaccurate or
incomplete information. Neustar shall notify You by e-mail when Services are deployed.
2. USE OF SERVICES. Upon deployment of Services, Neustar grants You a non-exclusive, non-transferable right to access and use the Services solely for Your internal purposes. The Services are not for resale to any third party or use on a service
bureau basis. Except as set forth herein, Neustar grants no other rights or licenses to You with respect to the Services.
3. TERM & TERMINATION. For UltraDNS Starter Services the term of this TOU ("Term") shall commence on the date Neustar deploys the Services (the "Effective Date") and shall continue in effect for a period of twelve (12) months, counted from the
first day of the next full month following the Effective Date. The Term for UltraDNS Starter Services shall renew automatically unless You provide written notice to cancel@neustar.biz of Your intent not to renew at least seven (7) days prior to
the end of the then-current Term. For UltraDNS Basic Services the Term shall be one calendar month from the Effective Date, counted from the first day of the next full month of the Effective Date, and shall renew automatically unless You
provide
notice of your intent not to renew by providing seven (7) days written notice to cancel@neustar.biz. Cancellations for UltraDNS Basic Services and UltraDNS Starter Services take effect on the last day of a calendar month regardless of Effective
Date. Customer may terminate this TOU by written notice in the event that Neustar breaches this TOU and such breach is not cured within thirty (30) days of Customer providing written notice to Neustar of such breach. Neustar may terminate this
TOU at any time without prior notice to You and specifically reserves the right to terminate this TOU in the event that You consistently exceed the monthly query allotment for UltraDNS Basic Services.
4. USE OF SERVICES. Customer shall not use, or allow use of, the Services in any of the following manners ("Abuses") and shall be responsible for any such Abuses if committed by its end users: (a) Use of the Services in an unlawful manner or
for
an unlawful purpose, including display of unlawful content; (b) Use of the Services to transmit or distribute material that contains a virus, "Trojan Horse," adware, spyware or data that is designed to corrupt or disable any computer file,
database or network; (c) Use of the Services in a manner that, in Neustar's discretion, directly or indirectly produces or threatens to produce a negative effect on the Neustar network or that interferes with the use of the Services or Neustar
network by other customers or authorized users, including, without limitation, overloading servers or causing portions of the Neustar network to be blocked; (d) Use of the Services to post substantively similar articles to an excessive number
of newsgroups or to send unsolicited and/or mass e-mailings, whether or not such activities provoke complaints from the recipients; (e) Altering any aspect of the Service where such is not authorized by Neustar; or (f) Use of the Services in a
manner that causes or is designed to cause, a denial-of-service or similar attack to any other party whether on the Neustar network or on another network. Neustar may suspend a domain, a record, or the Services, as applicable, immediately and
without prior notice if, in Neustar's reasonable determination, an Abuse occurs.
5. FEES, PAYMENT TERMS & TAXES. Customer shall pay Neustar the service package fee associated with the Services ("Services Fee"). In the event that Customer uses the Services in excess of the amounts set forth in the service package, Customer
shall pay the applicable Overage Fees set forth herein ("Services Fee" and "Overage Fees" individually and collectively "Fees"). Fees for any renewal Term are subject to change, provided that Neustar notifies Customer in writing of any such
change at least thirty (30) days before the commencement of the renewal Term. Neustar shall charge applicable Fees to Customer's credit card in U.S. dollars. Neustar shall not issue an invoice. In the event Customer disputes any Fees, Customer
must notify Neustar in writing of the reasons for, and the amount of, such dispute, within thirty (30) days of the date of billing. If Neustar commences legal proceedings to collect any Fees and prevails, Customer shall pay Neustar's reasonable
attorneys fees, court costs and other collection expenses. All Fees for Services are calculated exclusive of any federal, state or local sales, excise, value-added or similar taxes. Any taxes or similar liabilities that may now or hereafter be
levied on the Services which are chargeable to Customer by a government authority shall be paid by Customer. In the event that Neustar is required to pay or pays these liabilities, Customer shall reimburse Neustar for such payments upon receipt
of an invoice and showing of indebtedness from Neustar. Neustar shall not provide refunds with respect to the Services.
6. SERVICE LEVEL AGREEMENT . Neustar shall deliver the Services subject to the service level agreement attached hereto at Exhibit A ("SLA"). Neustar's failure to deliver the Services as set forth in the SLA shall not constitute a breach of the
TOU and Customer's sole and exclusive remedy, and Neustar's sole and exclusive obligation, in the event that Neustar fails to deliver the Services as set forth in the SLA will be the remedies set forth in the SLA.
7. SERVICE CHANGES. Neustar may make changes to the Services without notice to Customer. In the event that, in Neustar's sole estimation, a change to the Services permanently and materially diminishes or impairs the functionality of the
Services
("Change"), Customer may terminate the TOU without penalty by providing written notice to Neustar within thirty (30) days of the date the Change takes effect. Any use of the Services by Customer after such date will be deemed acceptance of the
Change by Customer.
8. INTELLECTUAL PROPERTY. Each party retains all right, title and interest in and to its intellectual property. No licenses will be deemed to have been granted by either party to any of its intellectual property except as expressly authorized
herein. Customer acknowledges that it has no proprietary interest in the Services, including, but not limited to, the servers, software, or data used by Neustar in the provision of the Services.
9. USE OF NAME & TRADEMARKS. Neither party shall use the trademarks or service marks of the other party in any advertising, promotional or marketing materials without such other party's prior written consent, provided, however, that Neustar may
identify Customer as a customer of Neustar without prior approval.
10. REPRESENTATIONS, WARRANTIES & DISCLAIMERS. Customer represents and warrants that it has the requisite corporate power and authority to enter into this TOU and to carry out the transactions contemplated hereunder. Customer represents and
warrants that it will comply in all respects with the export restrictions applicable to any technology delivered to the Customer and will otherwise comply with the applicable United States laws and regulations in effect during the term.
Customer
warrants that (a) it has all right, title and interest to use and/or access all of the applications or content Customer provides to
Neustar to perform the Services and all of the content accessed by Neustar at Customer's direction to perform the Services (collectively, "Content"); and (b) it shall provide complete, accurate, and current information as is necessary for
Neustar to perform the Services and shall update this information as needed to keep all such information complete, accurate, and current.
NEUSTAR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR SECURE AND DOES NOT WARRANT THE SERVICES AGAINST MALFUNCTION OR CESSATION. ALL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND NEUSTAR MAKES NO WARRANTIES TO
CUSTOMER OR TO ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, END USERS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR RESULTS
TO BE OBTAINED FROM USE OF THE SERVICES, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL NEUSTAR BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR LOST EQUIPMENT, ANY WEBSITE OR NETWORK DOWNTIME, COST OF PROCURING SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, WHICH ARE RELATED TO THIS TOU AND THE PROVISION OF SERVICES HEREUNDER, EVEN IF NEUSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR BREACH OF ANY TERM FOR WHICH AN EXPRESS REMEDY
OR
MEASURE OF DAMAGES IS PROVIDED, SUCH SHALL BE THE EXCLUSIVE REMEDY OF CUSTOMER AND NEUSTAR'S SOLE LIABILITY. IN NO EVENT SHALL NEUSTAR'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY DIRECT DAMAGES EXCEED THE LESSER OF: (i) ACTUAL DIRECT
DAMAGES OR (ii) AMOUNTS ACTUALLY PAID BY CUSTOMER TO NEUSTAR IN CONNECTION WITH THE SERVICE OVER THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY OCCURS.
12. INDEMNIFICATION. Customer will defend, indemnify and hold harmless at its own expense any action brought against Neustar, its directors, officers, or employees by a third party to the extent that the action is based on a claim, suit, or
proceeding ("Claim"): (a) that arises out of or relates to the Content including, without limitation, a claim Neustar has infringed upon any third party's intellectual property rights in the Content; (b) that arises out of or relates to
Customer's or its end users use of the Services other than a claim that the Service itself as an application infringes the intellectual property rights of a third party; (c) brought by Customer's end users; or (d) that arises out of breach of
Section 4 hereof. Upon receiving notice of any claim covered by the indemnity obligations set forth herein, Neustar shall promptly notify the Customer in writing of the claim. Customer may assume sole control of the defense of any such claim.
Neustar may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. Customer will pay those costs and damages, including reasonable attorneys' fees, awarded against Neustar by a court of
competent jurisdiction in any such action that is specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Unless such settlement is solely for monetary damages for which Neustar is
fully indemnified hereunder, Customer shall not settle any such claim without the Neustar's prior, written consent, which shall not be unreasonably withheld or delayed.
13. GENERAL.
13.1 Assignment. Customer may not assign this TOU without the written permission of Neustar and any violation hereof shall be a breach hereof and will be void ab initio.
13.2 Notices. Notice of non-renewal by Customer shall be given as set forth in Section 3 above. Any other notice required under this TOU, other than routine operational communications, shall, if to Customer, be sent to Customer at the email
address provided herewith and, if to Neustar, be sent to Neustar at the address set forth above marked "Attention: General Counsel". Notices sent to Customer shall be deemed given when sent. Notices to Neustar shall be deemed given: (a) one (1)
business day after being transmitted with delivery costs paid via an express, overnight courier with delivery tracking; or (b) upon delivery when an authorized employee of Neustar accepts receipt in writing, when mailed by United States mail,
registered or certified mail, return receipt requested, postage prepaid. Neustar may contact Customer via e-mail and/or mail concerning routine operational communications, Service changes, upgrades, new Services or other relevant information.
13.4 Relationship of parties. The parties are independent contractors and nothing herein creates a relationship of partnership, employer and employee, or principal and agent. Neither party has the authority to bind, act on behalf of, or
represent the other.
13.5 Severability and Modification. If any provision of the TOU is adjudged by a competent authority to be invalid, void or unenforceable under applicable law, such provision will be modified or eliminated to the minimum extent necessary to
effect the intent of the parties and the remainder of the provision will not be affected thereby and will continue in full force and effect.
13.6 Waiver of Default. No waiver or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, waiver, or discharge is sought to be enforced. A delay or omission by either party to exercise any
right
or power under the TOU shall not be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant.
13.7 Survival. Any provision of the TOU which contemplates performance or observance subsequent to any termination or expiration (in whole or in part) shall survive any such termination or expiration and continue in full force and effect, such
to include specifically Sections 5, 8 and 12
13.8 Third Party Beneficiaries. This TOU shall not be deemed to create any rights in third parties, including end users, of a party, or to create any obligations of a party to third parties.
13.9 Export Control. Neustar is subject to regulation by agencies of the United States Government, including regulations which prohibit export of certain equipment, technology, hardware and software to certain countries. Any obligations of
Neustar to Customer hereunder shall be subject to, and if applicable, limited by, such laws and regulations.
13.10 Governing Law. The TOU shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflict of law principles. The parties hereby expressly opt-out of applicability of the
Uniform
Computer Information Transactions Act (UCITA).
13.11 Force Majeure. Neustar shall be excused from any delay or failure in performance of its obligations hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to,
acts
of God, earthquake, acts of terrorism, civil disorder, war, national or local emergency, acts of government, compliance with any statutory obligation or governmental requirements, fire, flood, or weather of exceptional severity ("Force Majeure
Events"). Neustar shall be liable for any loss or damage resulting from Force Majeure Event.
13.12 Arbitration. Any Dispute arising out of or relating to the TOU, or the breach thereof, will be settled by final and binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules and its Optional Procedures for Large, Complex Commercial Disputes. The arbitration will be heard and determined by a panel of three (3) arbitrators selected by the AAA, and each arbitrator will be an attorney having
experience
and familiarity with information technology disputes. The arbitrators will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions of arbitrability, including but not limited to, choice of venue
and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. Each party will bear its own costs relating to such arbitration, and the parties will equally share the
arbitrators' fees. The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties' proprietary and Confidential
Information. In no event will any arbitration award provide a remedy beyond those permitted under the TOU, and any award providing a remedy beyond such will not be confirmed, no presumption of validity will attach, and such award will be
vacated. Either party may, without waiving any remedy under the TOU, seek from any court of competent jurisdiction within the Commonwealth of Virginia any interim or provisional relief that such party deems necessary to protect its Confidential
Information pending the establishment of the arbitral tribunal or pending the arbitral tribunal's determination of the merits of the claim.
13.13 Entire Agreement. The TOU constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect to the subject matter contained therein.
EXHIBIT "A"
SERVICE LEVEL AGREEMENT FOR ULTRADNS MANAGED EXTERNAL SERVICE
This Service Level Agreement ("SLA") for UltraDNS Managed External Service is subject to the terms of, and is hereby incorporated into, the Service Order. In the event of a conflict between the terms of Service Order and the terms of this SLA,
this SLA shall control. Failure by Neustar to meet this SLA shall not constitute a breach of the Service Order, but shall afford Customer the remed(y/ies) set forth in Section 4 below.
1. Definitions
1.1 "Neustar Server Network" means the integrated hardware and software as combined to form the network deployed and controlled by Neustar in connection with the provision of the Services. The Neustar Server Network shall not include any third
party hardware, software or networks not deployed and under the control of Neustar or telecommunications services or infrastructure providing a connection between any Neustar servers used in the provision of the Services.
1.2 "Service Outage" means that the Neustar Server Network failed to respond to all DNS queries for more than five (5) minutes in the aggregate per calendar month.
2. Service Level
2.1 During the Term, Neustar will use commercially reasonable efforts to provide the Services without a Service Outage. Neustar, in its sole but reasonable discretion, shall determine whether a Service Outage occurred based on its records and
data.
2.2 Unavailability of the Services due to any of the following shall not be considered a Service Outage:
(a) Unavailability of the Services due to: (i) Customer's misuse of the Services through commission of an Abuse, application programming or non-performance thereof; (ii) negligent or unlawful acts by Customer or Customer's agents or its
suppliers; (iii) problems or delays associated with Customer's domain name registrar; (iv) unavailability of Customer's network or the network of the party conducting the query, including that resulting from telecommunications failures; (v)
problems or delays associated with third party networks or networks outside the Neustar Server Network; (vi) Force Majeure Events or denial-of-service attack (e.g., synchronized number sequence attacks) or similar, malicious attack on the
Neustar Server Network.
(b) Unavailability of the Services due to suspension or termination of the Services by Neustar in accordance with the terms of the Service Order.
(c) Unavailability of the Services if Customer's domains are not properly configured to utilize all name servers within the Neustar Server Network which are designated by Neustar as available for Customer's level of service.
3. Scheduled Maintenance.
3.1 Neustar may perform maintenance on its systems at any time. Scheduled Maintenance which may result in the customer's inability to access (a) client-side web-based user interfaces, (b) zone/data transfer mechanisms, or (c) applications
programming interfaces (APIs), or other customer accessible data manipulation software will either occur during Neustar's standard maintenance window on Saturday through Sunday from 12:00AM to 4:00AM Eastern Time or during a time period that is
communicated to the Customer at least forty-eight (48) hours in advance. Notice of Scheduled Maintenance will be provided to Customer's designated point of contact by a method elected by Neustar (including telephone, email, fax, pager, mail or
notification to the Neustar Customer management portal). DNS queries will continue to resolve during Scheduled Maintenance.
4. Remedies for Service Outages.
4.1 If Neustar determines that the Service Outage reported by Customer occurred, Neustar will issue to Customer a credit, upon Customer's request, calculated on the pro-rated charges for the Services Fee ("Credit") for the Services as follows:
If the Service Outage lasted for more than five (5) minutes in the aggregate, but less than four (4) hours in the aggregate, then Neustar will issue a Credit to be applied towards the next monthly invoice for Services provided under this
Agreement, equal to the pro-rated charges for one (1) day of the Services. If Neustar determines that the Service Outage lasted for four (4) or more hours in the aggregate ("Prolonged Service Outage"), then Neustar will issue a Credit to be
applied towards the next monthly invoice for Service provided under this Agreement, equal to the pro-rated charges for one (1) week of the Services.
4.2 Any claims for a Credit must be made by Customer within thirty (30) days after the alleged Service Outage and will be made to Neustar's customer support organization in writing. Claims made thirty (30) days after the event will not be
eligible for any of the remedies described herein. Customer will provide to Neustar all relevant details and documentation supporting Customer's claims of a Service Outage. Neustar will investigate the claim and will respond back to Customer
within ten (10) business days of receipt of the notification of a claim from Customer.
4.3 Credits shall only apply to Services provided pursuant to Services Fee and will not apply to any Neustar professional services or any other form of custom development services provided by Neustar. Customer's sole and exclusive remedy, and
Neustar's sole and exclusive liability, in the event Neustar fails to meet this Service Level Agreement, shall be to receive a credit in accordance with the terms of this Section 4.
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