Terms of Your Use of Service

Published on Thursday, May 12, 2016

This License Agreement (“Agreement”) is made between Nexus EduManage Services Assoc. (“Vendor”) with its principal address at 445 Fort Hill Cir., Fort Washington PA 19034 and the Customer (as defined below).  This Agreement, including the attached Schedule(s), is effective on the date that both parties have signed this Agreement (the “Effective Date”).

  1. Definitions. The following definitions (and additional definitions provided below) will apply:
    • “Activation Date” is defined in Section 23.
    • “Customer” means the legal entity or individual that enters into this Agreement as described on the Signature Page.
    • “Customer Data” means data, information or material provided or submitted by Customer or any User to Vendor in the course of utilizing the Service.
    • “Customer Representative” means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
    • “Pricing Schedule” means Schedule A to this Agreement.
    • “Service” means Vendor’s online service, a“web application” to facilitate management of child day care services, and applicable documentation on Vendor’s web site.
    • “Term” means the term of this Agreement as specified in Section 23.
    • “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by Vendor at Customer’s request).
    • “Student” means one of Customer’s students and/or children that Customer provides supervision and/or educational enrichment to.
    • “Vendor Content” means Vendor-supplied text, audio, video, graphics and other information and data available by means of the Service or on Vendor’s web site.
  2. Customer Use of the Service
    • Vendor grants Customer a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Vendor will host the Service.  Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
    • Customer is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service. No other use of Vendor Content is permitted. 
  3. Number of Licensed Students

Customer is licensed to use the number of Students listed in the Pricing Schedule. Customer, by its Customer Representative, may add to the number of Students by contacting Vendor customer support by email or phone or by utilizing applicable management features of the Service.  Customer will be bound by the instructions and authorizations provided by its Customer Representative.

  1. Fees Generally

Customer agrees to pay fees as set forth in the Pricing Schedule or as Vendor and Customer otherwise agree in writing.

  1. Usage-Based Fees; Payment
    • Subject to the fee structure and calculations stated in the Pricing Schedule, license fees are due for the Service based on the number of billable Students in the immediately preceding 30 days. A Student is considered billable if his or her record is available for use at any time during a month. Customer agrees that charges will apply for all billable Student entries including those that have been inactive during a particular month. An entry for a licensed Student may not be shared or used for more than one natural person.
    • Vendor will invoice monthly for use of the Service at the end of the current Term, unless the Customer has selected an Annual Term, where Vendor will invoice at the beginning of the Term. All invoices for any charges under this Agreement are due and payable within 4 days of invoice date. For customers paying via credit card, customer’s credit card is charged simultaneously with the creation of the customer’s invoice.  Customer’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer must contact Vendor in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
  2. Excess Data Storage Fees

The maximum disk storage space for Customer Data provided to Customer at no additional charge is specified on the Pricing Schedule.  If the amount of disk storage required for Customer’s use exceeds this limit, Customer will be charged per‑gigabyte (GB) at the applicable rate stated in the Pricing Schedule, based on the maximum storage used during the month.

  1. Non-Payment
    • In addition to other applicable remedies, Vendor reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon 7 days' email notice, if Customer’s account becomes delinquent (falls into arrears).
    • Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys' fees and court costs.
  2. Account Information Submitted to Vendor

Customer agrees to provide Vendor in writing with billing and contact information as Vendor may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, User name and password of the Customer Representative. Customer agrees to update this information promptly by means of email to CustomerService@edumanage.net, but in no case less than 15 days before the change is to take effect.

  1. Appropriate Use of the Service
    • While Users may be any persons that Customer authorizes to use the Service for its business, including, but not limited to, Customer’s employees and contractors, Customer may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Vendor’s prior written consent.
    • Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; Customer and Customer’s Users will be bound by any such rules. Vendor reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 9.
    • Vendor reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Customer will be a material breach of this Agreement.
  2. Passwords and Access

Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify Vendor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.

  1. Customer Data
    • All Customer Data submitted by Customer to Vendor, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.
    • Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Vendor will not use the Customer Data for any purpose other than to provide the Service to Customer and for statistical reporting purposes. Vendor may aggregate statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.
    • Vendor will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use. Vendor’s security policies in effect from time to time can be accessed on Vendor’s web site.
  1. Limited License to Customer Data

Subject to the terms and conditions of this Agreement, Customer grants to Vendor a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.

  1. Vendor’s Ownership

Vendor and its suppliers retain all rights in the Service and Vendor Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent.

  1. Restrictions on Use of the Service

Customer may not alter, resell or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Vendor Content or (iv) copy any features, functions or graphics of the Service or the Vendor Content.  Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Vendor Content except as expressly permitted in this Agreement is prohibited.

  1. Privacy

Vendor agrees to implement its privacy policies then in effect from time to time. Vendor’s privacy policies can be accessed on Vendor’s web site. Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

  1. Warranty Regarding the Service

Vendor warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Vendor’s web site.

  1. Service Level Warranty

Vendor warrants during the Term of this Agreement that the Service will meet the applicable service level stated in Schedule B. If Vendor does not achieve such service level, Vendor will provide Customer upon request with a credit as described in Schedule B as Customer’s sole and exclusive remedy. To claim a remedy under this Section, Customer is required to notify Vendor within 15 days of the occurrence of the failure to provide the applicable service level.

  1. Additional Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

  1. Additional Services
    • Customer may retain Vendor to perform additional fee based consultative services (“Additional Services”) as the parties may agree upon in writing in the form of a statement of work or other writing (“Scope of Work”). Vendor will use reasonable efforts to carry out the Additional Services stated in the Scope of Work. Additional Services and the results thereof are made available “AS IS.”
    • Unless otherwise agreed in writing in the Scope of Work, Additional Services are provided by Vendor on a time and materials basis at Vendor’s then applicable rates and subject to such deposit or advance payment as Vendor may require. Any business processes or computer code created or provided under this Section and all interests therein, including copyrights, will be Vendor’s property. Unless otherwise agreed in a Scope of Work, Vendor may bill for Additional Services on a weekly or monthly basis, at its discretion.
  2. Indemnification
    • Vendor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Vendor Content (other than that due to Customer Data). In case of such a claim, Vendor may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Vendor may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
    • Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 9 (Appropriate Use of the Service) or 10 (Passwords and Access) above.
    • Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.
    • In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
  3. Disclaimers and Limitations
    • THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTIONS 16, 17 AND 18 ABOVE, THE SERVICE AND VENDOR CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.  VENDOR DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET. VENDOR SHALL NOT BE LIABLE FOR CU
    • Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will Vendor’s aggregate liability exceed the license fees due for the 3 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Customer breach of Sections 9 or 10, in no event will Vendor be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
    • The Service may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). Vendor does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use.  VENDOR MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
  4. Confidentiality
    • “Confidential Information” means non-public information, client data, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
    • Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
    • Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder.
    • Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
    • In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
  5. Term
    • The Term commences on the “Effective Date.” Vendor will use commercially reasonable efforts to make the Service available to Customer on the “Target Activation Date”. The “Activation Date” will be the date that Vendor first makes the Service available to Customer and provides email or written notice of such availability to Customer. In most cases, the Target Activation Date and the Activation Date will be the same; Vendor will use reasonable effort to inform Customer of any likely delay.  Billing of monthly license fees will start as of the Activation Date and thereafter on or after the first of each month.
    • Monthly Term: The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end 30 days from the Activation Date. This Agreement will automatically renew for successive 30 day periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Vendor receives Customer’s written notice of termination.
    • Annual Term: The Initial Term will begin on the Effective Date and will end one year from the Activation Date. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Vendor receives Customer’s written notice of termination.
    • Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless Vendor notifies Customer of changes in pricing at least 30 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.
  6. Termination
    • Termination by Vendor: Vendor, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 7 days of notice of such breach. Additionally, Vendor reserves the right to terminate this Agreement for convenience on not less than 30 days’ notice.
    • Termination by Customer: Customer, in its sole discretion, may terminate its use of the Service and this Agreement by notifying Vendor of its intent of such in writing. Vendor must receive Customer’s written notice not less than 15 days, in the case of a Monthly Plan, or 30 days, in the case of an Annual Plan, before the end of the current In no case shall Customer receive a refund of the license fees prepaid for use of the Service not yet furnished as of the termination date.
    • In the case the Customer has currently selected an Annual Plan: Any termination by Customer prior to the end of the Initial Term or any Renewal Term will subject Customer to an early termination (acceleration) fee. The early termination fee is calculated as the remaining months of the then contract term (that is the Initial Term or the current Renewal Term) multiplied by the applicable minimum monthly licensing fees (if any) under the Pricing Schedule plus any other outstanding fees or amounts due.
    • In the event that this Agreement is terminated (for any reason), Vendor will, within 7 days of a Customer’s request, make available one backup of the Customer Data in Vendor’s standard format. Customer agrees and acknowledges that Vendor has no obligation to retain and may delete Customer Data that remains in Vendor’s possession or control more than 60 days after termination.
  • The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for Vendor’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 7.2 (Overdue Payments), 11.1 (Customer Data), 13 (Vendor’s Ownership), 14 (Restrictions on Use of the Service), 20 (Indemnification), 21 (Disclaimers and Limitations), 22 (Confidentiality), 22.4 (Return of Customer Data), 23.6 (Survival of Provisions), 24 (Notice), 26 (Arbitration), 27 (Non-Solicitation), and 28 (Miscellaneous).
  1. Notice

Vendor may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Vendor by email at CustomerService@edumanage.net. A party may, by giving notice, change its applicable address, email, or other contact information.

  1. Assignment

This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

  1. Mediation and Arbitration

If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Philadelphia, Pennsylvania. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the dispute will be subject to arbitration in the city of Philadelphia, Pennsylvania, under the commercial rules of the American Arbitration Association before a single arbitrator. The parties will share the arbitration fees equally. Any award will be enforceable in any court of competent jurisdiction and will not be inconsistent with the terms of this agreement. Nothing herein will prevent a party’s application to a court of law for injunctive relief to prevent irreparable harm.

  1. Non-Solicitation

During the Term of this Agreement and for a period of one year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Vendor or (ii) hire or engage for any services any person employed by Vendor.

  1. Miscellaneous
    • Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the Commonwealth of Pennsylvania and applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the city of Philadelphia will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
    • Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    • No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Service.
    • No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.
    • Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
    • Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Vendor may modify this agreement, but will endeavor to place the notice of the agreement on its website and within the Service.

 

Schedule A

Pricing Schedule

Unless otherwise indicated on http://edumanage.net, the Customer shall have the option of selecting one of the two pricing plans below:

  1. Monthly Plan – $5 per licensed Student per month on a ”high water mark” basis within a rolling 30 day period; this period commences at the point an additional Student is entered into the Service. This plan is payable monthly.
  2. Annual Plan – $50 per licensed Student per annum on a purchased license basis within a rolling 12 month period; this period commences on the first day of the subsequent billing cycle of the purchase if the customer has an existing activation date, elsewise it may commence from the activation date. This plan is payable yearly.

Storage Fees

The Customer will be given a storage allowance of 5 gigabytes. Additionally required storage may be priced at a rate that Vendor shall, from time to time, determine.

User Limits

The Customer will be permitted an unlimited number of authorized Users notwithstanding technical and operational limits that Vendor shall, from time to time, determine.

 

Schedule B

Service Level Agreement

  1. Service Level Warranty: Vendor's warranty is no less than 98% Uptime (as defined below).
  2. Remedy: If the warranted level of uptime is not provided, the Customer will be entitled to a credit (subject to the applicable procedures in this Agreement) equal to 10% of the previous month’s
  3. “Uptime” means the service is operational and is available to communicate with the Internet in Vendor’s server location (which may be at a co-location facility).
  • This credit does not apply to the extent that the failure to achieve the Uptime is due to (a) circumstances that are subject to the Force Majeure clause of this Agreement, (b) scheduled maintenance and system upgrades, or (c) Customer’s misuse of the Services.