In addition to the General Terms and Conditions, your use of the Managed Hosting Services (Intensive) is subject to the following additional terms and conditions:
1. ADDITIONAL DEFINED TERMS
Some words used in these Managed Hosting Services Terms and Conditions (Intensive) have particular meanings:
“Hosting Services” means Fortress Networks’ provision for your use of the Hosted System described in the Service Description.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, §6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
“Service Commencement Date” means the date on which we provide the access codes that enable you to send and receive information from your Hosted System.
“Support” means: (i) the management of the Hosting Service by a service delivery team with training and experience in hosted systems; (ii) availability of live support twenty four hours per day, seven days per week, year round; (iii) any specific support services described in Service Description; and (iv) use of the MyFortress NetworksSupport.com customer.
2. DEPLOYMENT
2.1 Deployment Guaranty. We will deploy the server(s) described in the Service Description by the date stated in the Service Description, provided that you promptly provide all information that we reasonably request from you to complete deployment. Servers are deemed deployed as of the time that Fortress Networks generates an email message to you that includes the information needed to allow you to transfer information to and from the server(s). Your sole and exclusive remedy for our failure to deploy the servers by the guarantied time shall be a credit equal to the amount of the set up fee stated in the Service Description for the affected server(s). You are not entitled to a credit if you request or cause the deployment delay. This deployment guaranty does not apply to any software, other managed services, or hardware devices other than the server(s).
2.2 Delayed Deployment. If you wish to delay the deployment of a Hosted System you may do so, provided that you give us written notice of your election to delay no later than five (5) days following the date you sign the Agreement. The requested delay may not continue for more than two (2) months following your signature on the Agreement. If you request a delay in deployment, we may charge you up to fifty percent (50%) of the monthly recurring fees for the Hosted System during the period of delay. You are not entitled to a credit under Subsection 2.1 above if you request the deployment delay. The initial term of the Agreement will begin when we deploy your Hosted System at your request, or on the second monthly anniversary of the date you sign the Agreement, whichever comes first. Following deployment we will charge you the full monthly recurring fee (plus other usage fees as applicable) for the full term of the Agreement.
3. ENCRYPTION OF PERSONALLY IDENTIFIABLE INFORMATION
The General Terms and Conditions require you to use reasonable security precautions in light of your use of the Services. For Hosting Services, this includes encrypting any PII transmitted to or from, or stored on, the Fortress Networks servers or storage devices you use.
4. SERVICE LEVEL GUARANTEES
4.1. Support.
4.1.1 Support Requests. Fortress Networks live support will be available 24 hours per day, 7 days per week, year round. You may request support by opening a support ticket via your MyFortress NetworksSupport.com portal or by calling your account team.
4.1.2 Response Times. We will respond to your support requests made via ticket or telephone within the following time frames:
| Severity Level | Example | Response Time |
| Emergency: Server, switch, or site down | You cannot access your server or site from the public Internet. | Within 15 minutes |
| Urgent: Server or site functioning improperly or at less than optimal performance | Your server or site is accessible but in a reduced state (timeouts or slow response) | Within 1 hour |
| Standard: Non-critical; server or site is functioning normally, but you require information or assistance, wish to schedule maintenance, or any other non-immediate tasks | Your site is functioning with acceptable parameters, but you have a help-desk type question | Within 4 hours |
We will respond to you via support ticket, telephone call, or both depending upon the severity of the situation and consistent with any procedures we have established with you for your account.
4.1.3 Remedy. If we fail to meet the response time guarantees stated in this Section 4.1, you are entitled to a credit equal to the fees paid for that server during the month of the outage for any connectivity or computing failure caused by Fortress Networks that lasts for a consecutive 10 minutes in any given month. To receive this credit you must submit a trouble ticket associated with the outage that documents the outage and you must apply for the refund in writing online or via US Postage. The response time guarantees stated above do not apply to support requests made via email.
4.2 Datacenter
4.2.1 Power. A/C power to the outbound port on your serving power distribution unit (PDU) will be available 100% of the time.
4.2.2 HVAC (Heating, Ventilation and Air Conditioning). Target ambient room temperature will be 72 degrees Fahrenheit in the server area of the datacenter. Ambient room temperature will not vary by more than +/- 5 degrees. Target Relative humidity will be 45% in the server area. Relative humidity will not vary by more than +/- 5%.
4.2.3 Network. The data center network will be available 100% of the time. “Network” means the portion of the network extending from the outbound port on your edge device to the outbound port on the border router and includes Fortress Networks managed switches, routers, and cabling. Network availability is defined as the ability to pass TCP/IP traffic with less than 3% packet loss and less than 30ms latency across the Fortress Networks network infrastructure.
4.2.4 Remedy. If Fortress Networks fails to meet any of the guarantees stated in this Section 4.2 and the failure adversely affects your Hosted System, you are entitled to a credit in the amount of 5% of your monthly recurring fee for the affected Hosted System per half hour of power outage, HVAC outage or network downtime, up to 100% of the monthly recurring fee for the affected components for any calendar month.
4.3 Hardware Replacement
For purposes of this Subsection 4.3, “hardware” means server hardware, firewalls, and load balancers, but not Storage Area Networks (“SAN”). See Section 4.5 for our SAN guaranty.
4.3.1 Hardware Repair or Replacement. Fortress Networks will repair or replace failed hardware components provided by Fortress Networks at no additional cost within one (1) hour of problem identification by Fortress Networks, excluding failed replication appliances (see Section 4.3.4 below). This guaranty does not include the time required to rebuild your system, such as the time required to configure a replacement device, rebuild a RAID array, reload the operating system, reload and configure applications, and/or restore from backup (if necessary).
4.3.2 High Availability Network Device Solution. A “high-availability” network device solution means two devices within a single datacenter (such as a firewall, load balancer, router, or switch) configured in a fail-over configuration and tested by Fortress Networks for reliability as part of the implementation process for your configuration. High availability network device solutions will be available 100% of the time. At your request, and at a specific price to you, Fortress Networks will implement a high availability solution in a live configuration prior to testing the solution, but this guaranty will not apply until the testing is scheduled by you and successfully completed.
4.3.3 Remedy. If Fortress Networks fails to meet the guarantees stated in this Section 4.3 and the failure adversely affects your Hosted System, you are entitled to a credit in the amount of 5% of your monthly recurring fee per half hour of downtime (after the one hour from problem identification for Section 4.3.1), up to 100% of the monthly recurring fee for the affected component for any calendar month.
4.3.4 Replication Appliance. If a replication appliance is unavailable due to a hardware failure, Fortress Networks will have a technical specialist and necessary parts onsite to begin repairs within six (6) hours of problem identification. If Fortress Networks fails to meet this guaranty and the failure adversely affects your Hosted System, you are entitled to a credit in the amount of 5% of your monthly recurring fee per half hour of delay in beginning repairs for the affected replication appliance, up to 100% of the monthly recurring fee.
4.4 Firewall
4.4.1 Default Rule Set. Unless you ask us to implement a different rule set during implementation, we will implement our standard “default-deny” rule set upon deployment of your firewall, which means that only a select few TCP/UDP ports will be open.
4.4.2 Changes to Rule Set. We will open additional ports and perform other basic configuration changes within twenty four (24) hours of the time that you open a ticket via your MyClearData portal requesting the change. “Basic” configuration changes are common changes that can be performed from a remote console and require no physical hardware modifications or reconfigurations.
4.4.3 Remedy. If we fail to meet the guaranty stated in this Section 4.4, you are entitled to a service credit of $50 per event, up to 100% of the monthly recurring fee for the affected firewall(s) for any calendar month.
4.5 Storage Area Network
4.5.1 Availability. We guarantee that your Storage Area Network (“SAN”) service will be available 100% of the time in a given calendar month, excluding scheduled maintenance and downtime or degradation due to hardware failure. Your SAN is unavailable if your SAN connected servers do not have access to the data stored on the SAN, and is measured from the time a trouble ticket is opened (either by you or by Fortress Networks) until access to the data is restored. If the SAN is unavailable due to a hardware failure, Fortress Networks will have a technical specialist and necessary parts onsite to begin repairs within six (6) hours of problem identification.
4.5.2 Remedy. If Fortress Networks fails to meet the guaranty stated in this Section 4.5 and the failure adversely affects your Hosted System, you are entitled to a credit in the amount of 5% of your monthly recurring fee per half hour of downtime (after the initial .01% of downtime) or delay in beginning repairs, as applicable, for the affected SAN service and each server directly connected to the SAN, up to 100% of the monthly recurring fee for the SAN service and those servers for any calendar month.
4.6 Restoration of Backed Up Data
We will back up your data only if you have purchased data backup services.
4.6.1 Data Backup. Unless another schedule is agreed to in advance, backups will be performed on a weekly full and daily differential basis to a Fortress Networks storage repository as appropriate. Backups will be retained for the time agreed in the Service Description or other written agreement.
! Please Note: Open database files cannot be backed up without the use of a software backup agent. We will only back up a database if such a backup agent is used or you dump your database to flat files prior to scheduled backup.
4.6.2 Data Restoration
4.6.2.1 Local Restores from Tape. We will initiate restoration of your data stored onsite within two (2) hours of the time that you request the restore via a support ticket. You are allowed one (1) free local restoration event per calendar month. Additional restores will be billed at Fortress Networks’ standard hourly rates.
4.6.2.2 Offsite Restoration Service. We will initiate restoration of your data stored offsite within eight (8) hours of the time that you request the restore via a support ticket if you stored your data at a Fortress Networks offsite backup partner location. Note: all Fortress Networks offsite storage of backups will be electronically transmitted to the onsite datacenter where the restoration is to take place. If we are restoring from a backup stored offsite by you or a non- Fortress Networks partner of yours we will initiate restoration within two (2) hours of the time when we receive the backup media at the appropriate Fortress Networks data center where the restore will take place. Offsite restores will be billed at our standard hourly rates.
! Please Note: Backups are not an instantaneous snap-shot of your data, but are made (potentially) over a period of hours. There are three types of backup failures, one where the backup is corrupted by the latency between current state and the backup (database drift), one where the backup has the same data that caused the failure of the primary (application bugs triggered by valid data) and one where a virus, worm or other contaminant has corrupted the backup as well as the primary server. For these reasons, in the event you need a complete server recovery we cannot guaranty that the restore procedure will provide a fully functional operating system and/or application after backup. We recommend that you migrate to a new server as soon as possible after a full restore to ensure reliability of the operating system and application in any case.
Database duplications or “cloning” for purposes other than a restoration of lost or corrupted data are not included as part of your managed backup service and are not covered by this guaranty, but may be arranged as a Supplementary Service for an hourly fee or as part of our Mirrored Service Offering.
4.6.3 Remedy. If we fail to restore the data that you have selected for backup in accordance with the standards stated in this Section 4.6, you are entitled to a service credit of 100% of your monthly recurring fee for the affected configuration for any calendar month.
4.7 Monitoring and Response.
4.7.1 Monitoring
4.7.1.1 Availability Monitoring. Fortress Networks will monitor up to 6 TCP ports (HTTP, HTTPS, SMTP, POP3, etc.) per server for service availability. General server availability is tested every five (5) minutes via ping. You will be alerted via ticket if port or ping monitors fail three consecutive times.
4.7.1.2 Fault Monitoring. Fortress Networks monitors status events on servers and network devices including network availability, process status, file system capacity, and backup success/failure. Fortress Networks also monitors core OS and application log files for critical/warning application and system events.
4.7.1.3 Performance Monitoring. Fortress Networks monitors key performance metrics for the operating system (i.e. CPU, RAM, and Disk), and select applications (i.e. process statistics, users, throughput) and databases (i.e. caching, performance, transaction success).
4.7.2 Notification of Monitoring Alerts. We will notify you of monitoring alerts within the time frames stated in Section 4.1 (Support) above.
4.8. Limitations on Credits
4.8.1 Cumulative Dollar Amount. Notwithstanding anything in this Agreement to the contrary, the maximum total credit for any calendar month for failure to meet Service Level Guarantees under this Agreement, shall not exceed 100% of your monthly recurring fee for the affected Hosted System. Credits that would be available but for this limitation will not be carried forward to future months.
4.8.2 Maintenance. You are not entitled to a credit for downtime or outages resulting from Maintenance. “Maintenance” means: a. Fortress Networks maintenance windows – upgrades or repairs to shared infrastructure, such as core routing or switching infrastructure that we scheduled at least 72 hours in advance and that occurs during off peak hours in the time zone where the data center is located; b. Scheduled customer maintenance – maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades; c. Emergency maintenance – critical unforeseen maintenance needed for the security or performance of your configuration or Fortress Networks’ network.
4.8.3 Extraordinary Events. You are not entitled to a credit for downtime or outages resulting from denial of service attacks, virus attacks, hacking attempts, or any other circumstances that are not within our control.
4.8.4 Your Breach of the Agreement. You are not entitled to a credit if you are in breach of the Agreement (including your payment obligations to us) at the time of the occurrence of the event giving rise to the credit until you have cured the breach. You are not entitled to a credit if the event giving rise to the credit would not have occurred but for your breach of the Agreement.
4.8.5 Disabling or Removing of Monitoring or Security Services, Interference with Services. You must notify us in advance if you plan to disable, block, or remove any monitoring or security element of your Hosting Service for more than thirty (30) minutes. We will not issue you any credit for events that might have been avoided or mitigated if you had not disabled, blocked or removed our monitoring or security elements or otherwise interfered with our ability to provide the Services.
4.8.6 Logical Access. The Service Level Guarantees are contingent on Fortress Networks having full logical access to your configuration. No credit will be due if the credit would not have accrued but for your restriction of Fortress Networks’ logical access to your configuration.
4.9 Measurement of Time Periods
For the purpose of determining whether a credit is due, time periods will be measured from the time stamp generated by our ticket system, or the time an interruption is recorded in our monitoring system, as applicable. You may open a support ticket to document the start time for a support request or other incident, or if you contact us by telephone to request support, we will open a ticket. If you contact us by phone, there may be a delay between the time of the call and the time we open a ticket.
4.10. Requests
You must request a credit in writing via your MyFortress NetworksSupport.com portal mail no later than seven (7) days following the occurrence of the event giving rise to the credit. We will contact you within 30 days to approve or reject the claim or to request more information. If the claim is approved, the credit will appear on your monthly invoice following approval.
5. TERM
The initial term of the Agreement begins on the Service Commencement Date unless otherwise provided in Section 2.2 (Delayed Deployment) and continues for the period stated in the Service Description. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of four (4) months each unless and until one of us provides the other with notice of non-renewal at least ninety (90) days in advance of the expiration of the initial term or then current extended term, as applicable. If you add service elements to a Hosted System by a subsequent agreement, we may use the word “coterminous” to describe the initial term of the subsequent agreement for those additional elements. If the term of an agreement is “coterminous,” the initial term of the agreement shall expire of the last day of the initial term of the agreement that initially established the Hosted System.
6. FEES
6.1 Your first invoice will include the initial one-time set-up fee and a pro rated monthly recurring fee from the Service Commencement Date to the last day of the calendar month. We may require you to pay the initial invoice before beginning the Hosting Service. Following the Service Commencement Date, monthly recurring fees will be billed monthly in advance on or around the first day of each calendar month. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears.
6.2 Fees are due within five (5) days of invoice date. If you have arranged for payment by credit card or ACH, Fortress Networks may charge your card or account on or after the invoice date. Fortress Networks may suspend all Services, and services provided pursuant to any unrelated agreement, if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four (4) Business Days of our written notice to your billing contact. You agree that if your Services are reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. Fortress Networks may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days and Fortress Networks brings a legal action to collect, or engages a collection agency, you must also pay Fortress Networks’ costs of collection, including reasonable attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
7. FEE INCREASES
7.1 Increase in Producer Price Index. If during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Agreement, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees under this Subsection more often than once per twelve (12) months, and we must give you at least thirty (30) days advance written notice of the increase. The “Producer Price Index” means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as “preliminary” data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication. For historical information on the Producer Price Index you may visit the Bureau of Labor Statistics website. (Example: if the Producer Price Index for the month in which you sign the Agreement is 186, and then increases in a subsequent month during the term of the Agreement to 195, we may increase your fees by up to 4.8%).
7.2 Increase During Extended Term. If following the expiration of the initial term or any renewal term you do not sign a renewal of your Agreement but continue to use your Services for extended three month terms as described in Section 5 (Term) above, then we may increase your fees at any time by any amount, in our sole discretion, on ninety (90) days advance written notice.
8. TERMINATION FOR CONVENIENCE
You may terminate this Agreement for convenience at any time on ninety (90) days advance written notice.
9. EARLY TERMINATION FEE
If you terminate this Agreement for convenience or we terminate this Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the total monthly recurring fees for the remaining portion of the then-current term. You will not be charged an early termination fee under this Section in the event you terminate this Agreement as part of an agreement to establish a replacement for the Hosted System in a different Fortress Networks service segment, even if the overall fees for the replacement system are less than those for the Hosted System, provided that the replacement system is the functional equivalent of the Hosted System.
10. RESALE
You may resell the Hosting Services, subject to the provisions of Section 18 of the General Terms and Conditions. If you resell any part of the Hosting Services that include Microsoft software then you must include the Microsoft terms posted at https://partner.microsoft.com/global/productssolutions/dynamics/solsprovideragreement in a written agreement with your customers.
11. MANAGED BACKUP.
Fortress Networks’ managed backup services are designed to facilitate restoration of data to the server or device from which the data originated in the event the primary data is lost or corrupted. The quality of your backup depends on how your data is organized. We recommend that you test your managed backup service promptly following the Service Commencement Date, and then periodically, to determine if it is capturing your data properly. If it is not, we will work with you to maximize the accuracy of our managed backup service for your data and/or help you identify other data backup solutions that may work better for you. In the event your primary server or device hardware fails and is replaced, we may not be able to restore your backed up data exactly as it was configured on the failed device. If this risk is not acceptable to you, then we will help you identify other data backup solutions that are more reliable in this situation. The “retention” period for your backup refers to the amount of time that we will retain the backup in a useable form for restoration to the server or device from which it originated. If you wish to preserve your backup after the time that this server or device is decommissioned, you must make arrangements with us at least seventy-two (72) hours in advance of the scheduled decommissioning of the server or device. Database duplications or “cloning” for purposes other than a restoration of lost or corrupted data as described in this paragraph are not included as part of your managed backup service, but may be arranged as a Supplementary Service for an hourly fee. We may choose to use either tape or disk to collect your data in our discretion. Provided that we do not impair the security or reliability of your backup service, you agree that we may from time to time test our backup systems, and may use copies of your data as part of these tests. We will treat duplicate data in accordance with the same security standards applicable to your backup service.
12. SHAREPOINT
If you purchase the Fortress Networks SharePoint service, then the SharePoint Addendum, as of the date you sign the order or agreement for the SharePoint service, are part of this Agreement.
13. HIPAA
If Fortress Networks is your “Business Associate” as defined in the Health Insurance Portability and Accountability Act of 1996, as amended, then the HIPAA Business Associate Addendum, as of the date that Fortress Networks becomes your Business Associate, is part of the Agreement.
14. DATA REPLICATION
If you purchase any Services that involve data replication at a geographically diverse site, then the following applies to your use of that Service: The rate by which the data at the primary site can be transferred to the secondary site will vary depending on the amount and type of data, constraints inherent in your Hosted System, and fluctuations in bandwidth availability. Therefore, at any given time, the secondary site may not be completely up to date. In the event of a failover to the secondary site, the data that has not yet completed the transfer from the primary site will be lost. We may provide you with some guidelines on latency times based on our understanding of your data and system constraints, but these guidelines are not guarantees.
15. COLLOCATION
If we host a device that you own in our datacenter, then the Collocation Addendum, as of the date you sign the order or agreement covering the collocation services, is part of the Agreement.
16. VIRTUALIZATION
If you use Fortress Networks’ virtualization services, your virtual server(s) will be active on the Service Commencement Date. Following the Service Commencement Date you are responsible for managing the active or inactive status of your virtual servers via your MyFortress NetworksSupport.com portal. Fortress Networks will invoice you for your virtual service in advanced based on your contract. While your virtual servers are in an “inactive” status we may not install any software updates that we may have otherwise agreed to install. We will update your virtual servers when you return them to “active” status, but there could be a delay of up to twenty four (24) hours before the updates are fully installed.
17. VULNERABILITY TESTING
Vulnerability testing services involve inherent risks, such as data corruption, and impaired performance of your Hosted System. If you ask Fortress Networks to provide vulnerability testing services, then you agree that Fortress Networks is not liable to you for any damages arising from the performance of the Services as agreed.
18. UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES
If you ask us to implement a configuration element (hardware or software) or hosting service in a manner that is not customary at Fortress Networks, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “one-off,” “EOL,” “end of support,” or with like term in the Service Description (referred to in this Section as an “Unsupported Service”). Fortress Networks makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Fortress Networks will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Guarantees will not apply to the Unsupported Service, or any other aspect of the Hosting Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Fortress Networks’ other services, such as backup and monitoring.
19. UTILITY NETWORK ATTACHED STORAGE
If you purchase the Utility NAS service, the Utility NAS Service Level Guaranty is part of the Agreement.
20. IP ADDRESSES
Upon termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Services (but not any URL or top level domain or domain name) and you agree that we may take steps to change or remove any such IP addresses.
This Managed Hosting Services Terms and Conditions (Intensive) is the final agreement between you and Fortress Networks regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
