4. Term & Termination
4.1. Term
A Service Contract for the provision of CORE Security Services shall have such term as is specified in the applicable Order (the “Initial Term”). If a term is not specified in the Order, then the Initial Term of a Service Contract for CORE Security Services shall be twenty-four (24) months. The Initial Term shall commence on the date on which Accellis begins providing Services, unless such date is a day other than the first day of a calendar month, in which case: (a) the Initial Term shall commence on the first day of the first full calendar month following the date on which Accellis began providing the Services and shall automatically renew for subsequent twelve (12) month periods unless either party notifies the other party in writing at least ninety (90) days prior to the next-scheduled renewal date of its intention not to renew and (b) the Client shall pay to Accellis in addition to the Monthly Service Fee for the first month of the Initial Term a pro rata Monthly Service Fee on account of the partial month during which Services were provided prior to the commencement of the Initial Term. The Initial Term’s commencement date shall be set forth in Accellis’ first invoice for Monthly Service Fees.
4.2. Early Termination by Client for Failure to Meet Service Levels
If Client has satisfied all of its obligations under a Service Contract, then Client may terminate the Service Contract without cause upon giving at least ninety (90) days’ advance written notice of the intended termination date, which shall be the last day of a monthly billing cycle, provided that: (a) you pay us an early termination fee equal to fifty percent (50%) of the recurring Monthly Service Fees remaining to be paid from the effective termination date through the end of the Initial Term or then-current renewal term, based on the prices then in effect; and (b) no such notice of termination may be given prior to the expiration of the first ninety (90) days of the Initial Term of the Service Contract.
4.3. Early Termination by Accellis for Failure to Cooperate
Accellis may terminate a Service Contract if, during any period of twelve (12) months, there are at least three (3) occasions on which there is a failure by the Client to comply with a written request by Accellis for reasonable cooperation in connection with the provision of the Services. Without limiting the generality of that provision, the circumstances that may constitute a failure to furnish reasonable cooperation in the context of a Service Contract for CORE Security Services shall include without limitation: a failure to install recommended software updates, a failure to replace outdated hardware, a failure to follow recommended cyber-security practices and procedures and/or abusive behavior towards SecOps personnel.
4.4. Early Termination by Accellis Without Cause
Accellis may elect to terminate a Service Contract without cause upon giving at least ninety (90) days’ advance written notice of the intended termination date, which shall be the last day of a monthly billing cycle, in which case: (a) you will not be responsible for the payment of any further fees beyond the fees for Services provided to you through the date of termination; and (b) we will provide you with reasonable off-boarding and transition services at no charge.
4.5. Non-Payment and Suspension
Accellis reserves the right to suspend or terminate this Agreement and any account access to software or services as defined in the applicable Service Order if a Client’s account becomes 30 days delinquent (falls into arrears). Accellis reserves the right to impose a start-up fee if the Client’s Service is suspended and after that requests a restart of their Services. The client agrees and acknowledges that Accellis has no obligation to retain client data and that such client data may be irretrievably deleted if the client’s account is 30 days or more delinquent.
5. Warranty
5.1. Warranty
ACCELLIS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY ACCELLIS EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY ACCELLIS FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF ACCELLIS WHATSOEVER.
5.2. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID TO ACCELLIS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFIT OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FOR WHICH DAMAGES ARE BEING SOUGHT, OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY SUCH DAMAGES. IN NO EVENT WILL ACCELLIS HAVE ANY LIABILITY FOR THIRD PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THOSE BUNDLED, INTEGRATED OR OTHERWISE ASSOCIATED WITH THIRD PARTY PRODUCTS OR SERVICES.