ECS Service Terms

The following Service Terms apply only to the specific Services to which the Service Terms relate. In the event of a conflict between the terms of these Service Terms and the terms of the ECS Customer Agreement or other agreement with us governing your use of our Services (the “Agreement”), the terms and conditions of these Service Terms apply, but only to the extent of such conflict. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Agreement.

1. Universal Service Terms (Applicable to All Services)

1. You may only use the Services to store, retrieve, query, serve, and execute Your Content that is owned, licensed or lawfully obtained by you. As used in these Service Terms, (a) “Your Content” includes any “Company Content” and any “Customer Content” and (b) “ECS Content” includes “Enseva Properties”. As part of the Services, you may be allowed to use certain software (including related documentation) provided by us or third party licensors. This software is neither sold nor distributed to you and you may use it solely as part of the Services. You may not transfer it outside the Services without specific authorization to do so.
   
   
2. You must comply with the current technical documentation applicable to the Services (including the applicable developer guides) as posted by us and updated by us from time to time on the ECS Site. In addition, if you create technology that works with a Service, you must comply with the current technical documentation applicable to that Service (including the applicable developer guides) as posted by us and updated by us from time to time on the ECS Site.
   
   
3. You will provide information or other materials related to Your Content (including copies of any client-side applications) as reasonably requested by us to verify your compliance with the Agreement. We may monitor the external interfaces (e.g., ports) of Your Content to verify your compliance with the Agreement. You will not block or interfere with our monitoring, but you may use encryption technology or firewalls to help keep Your Content confidential. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to Your Content or any end user materials that you control.
   
   
4. If we reasonably believe any of Your Content violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the documentation, the Service Terms, or the Acceptable Use Policy) (“Prohibited Content”), we will notify you of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If you do not remove or disable access to the Prohibited Content within 2 business days of our notice, we may remove or disable access to the Prohibited Content or suspend the Services to the extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law.
   
   
5. From time to time, we may offer free or discounted pricing programs covering certain usage of the Services (each, a “Special Pricing Program”). We may stop accepting new sign-ups or discontinue a Special Pricing Program at any time. Standard charges will apply after a Special Pricing Program ends or if you exceed the limitations by the Special Pricing Program. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) for the Special Pricing Program as described in the offer terms for the Special Pricing Program or on the pricing page for the eligible Service(s). You may not access or use the Services in a way intended to avoid any additional terms, restrictions, or limitations (e.g., establishing multiple ECS accounts in order to receive additional benefits under a Special Pricing Program), and we may immediately terminate your account if you do so. Any data stored or instances provided as part of a Special Pricing Program must be actively used.
   
   
6. If we make multiple discounts or pricing options for a Service available to you at one time, you will only be eligible to receive one discount or pricing option, and will not be entitled to cumulative discounting and pricing options.
   
   
7. You will ensure that all information you provide to us via the ECS Site (for instance, information provided in connection with your registration for the Services, requests for increased usage limits, etc.) is accurate, complete and not misleading.
   
   
8. From time to time, we may apply upgrades, patches, bug fixes or other maintenance to the Service Offerings (“Maintenance”). We agree to use reasonable efforts to provide you with prior notice of any scheduled Maintenance (except for emergency Maintenance) and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.
   
   
9. If your Agreement does not include a provision on ECS Confidential Information, and you and ECS do not have an effective non-disclosure agreement in place, then you agree that you will not disclose ECS Confidential Information (as defined in the ECS Customer Agreement), except as required by law.
   
   
10. Preview Service Participation
    (a) This Section describes the additional terms and conditions under which you may access and use certain features, technologies and services made available to you by ECS that are not yet generally available, including, but not limited to, any products, services, or features labeled “Preview”, “preview”, “pre-release”, or “experimental” (each, a “Preview Service”) or access and use Service Offerings available in ECS regions that are not generally available, including, but not limited to, any ECS regions identified by ECS as “Preview”, “preview”, “pre-release”, or “experimental” (each, a “Preview Region”). In the event there is a conflict between the terms of this Section and an existing ECS Preview Test Participation Agreement between you and ECS, the terms of the existing ECS Preview Test Participation Agreement will take precedence.
    
    (b) During the term of the applicable Preview Service or Preview Region (as specified by ECS), you may: (a) access and use the Preview Service or Service Offerings in any Preview Region solely for internal evaluation purposes; and (b) install, copy, and use any related ECS Content that may be provided to you by ECS in connection with the Preview Service or Service Offerings in any Preview Region (“Preview Materials”) solely as necessary to access and use the Preview Service or Service Offerings in any Preview Region in the manner permitted by this Section.
    
    (c) You must comply with all policies and guidelines related to any Preview Service or Preview Region as posted on the ECS Site or otherwise made available to you, including the Privacy Policy, Acceptable Use Policy, the Service Terms, and any additional terms and conditions for a specific Preview Service or Preview Region. ECS may add or modify restrictions, including lowering or raising any usage limits, related to access to or use of any Preview Service, Service Offerings in any Preview Region or Preview Materials at any time. If requested by ECS, you will promptly increase or decrease your usage of the applicable Preview Service, Service Offerings in a Preview Region or Preview Materials to the levels that ECS may specify. Service Level Agreements do not apply to Preview Services or any Services Offerings in Preview Regions.
    
    (d) ECS may suspend or terminate your access to or use of any Preview Service or Service Offerings in any Preview Region at any time and for any reason. ECS may at any time cease providing any or all of any Preview Service or any Service Offering in a Preview Region in its sole discretion and without notice. Preview Services and Services Offerings in Preview Regions also may be unavailable and/or their performance may be negatively affected by scheduled and unscheduled maintenance. ECS will use reasonable efforts to notify you in advance of scheduled maintenance, but ECS is unable to provide advance notice of unscheduled or emergency maintenance.
    
    (e) In consideration of being allowed to access and use a Preview Service or Service Offering in a Preview Region, you agree to provide ECS with information relating to your access, use, testing, or evaluation of the Preview Service, Service Offerings in the Preview Region or any related Preview Materials, including observations or information regarding the performance, features and functionality of the Preview Service or any related Preview Materials as applicable, when and in the form reasonably requested by ECS (“Test Observations”). ECS will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of the Preview Service or Preview Region.
    
    (f) Each individual Preview Service and Service Offering in a Preview Region will automatically terminate upon the release of a generally available version of the applicable Preview Service or Service Offering in a Preview Region or upon notice of termination by ECS. Notwithstanding anything to the contrary in the Agreement or these Services Terms, either you or ECS may terminate your participation in a Preview Service or Service Offering in a Preview Region at any time for any reason upon notice to the other party. Notwithstanding anything to the contrary in the Agreement, after the conclusion of your participation in a Preview Service or Service Offering in a Preview Region for any reason, (i) you will not have any further right to access or use the applicable Preview Service or Service Offering in the Preview Region and Preview Materials; (ii) your Content used in the applicable Preview Service or Service Offering in the Preview Region may be deleted or inaccessible; and (iii) you will immediately return or, if instructed by ECS, destroy all Preview Materials or any other ECS Confidential Information related to the applicable Preview Service, Service Offering in any Preview Region or Preview Materials. If ECS releases a generally available version of a Preview Service or a Service Offering in a Preview Region, your access to and use of the generally available version will be subject to the Agreement and any separate Section of these Service Terms as may be specified for that generally available Service Offering. If any Preview Region becomes generally available, your access to and use of Service Offerings in the generally available ECS region will be subject to the terms and conditions applicable to that ECS region. ECS does not guarantee that any Preview Service or Service Offering in any Preview Region will ever be made generally available, or that any generally available version will contain the same or similar functionality as the version made available by ECS during the term of the Preview Service or Preview Region, as applicable. ECS does not guarantee that any Preview Region will become generally available.
    
    (g) Preview Materials, Test Observations, Suggestions concerning a Preview Service or Preview Region, or any other information about or involving (including the existence of) any Preview Service or Preview Region are considered ECS Confidential Information. You will not disclose (including, but not limited to, in a press release or public statement) any Preview Materials, Test Observations, Suggestions concerning a Preview Service, or any other information about or involving (including the existence of) any Preview Service, except as agreed by ECS in writing.
    
    (h) ADDITIONAL WARRANTY DISCLAIMERS. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE SERVICE TERMS, THE PREVIEW SERVICES, SERVICE OFFERINGS IN PREVIEW REGIONS, PREVIEW REGIONS AND PREVIEW MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, ECS IS PROVIDING THE PREVIEW SERVICES, SERVICE OFFERINGS IN PREVIEW REGIONS AND PREVIEW MATERIALS TO YOU “AS IS.” ECS AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PREVIEW SERVICES, SERVICE OFFERINGS IN PREVIEW REGIONS, PREVIEW REGIONS AND PREVIEW MATERIALS, INCLUDING ANY WARRANTY THAT THE PREVIEW SERVICES, SERVICE OFFERINGS IN PREVIEW REGIONS, PREVIEW REGIONS AND PREVIEW MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ECS AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. ECS’ AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY PREVIEW SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE PREVIEW SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
    (i) Because the Preview Services and Materials involve features, technologies and services that are not yet generally available, you acknowledge that any violation of this Section 1.10 could cause irreparable harm to ECS for which monetary damages may be difficult to ascertain or an inadequate remedy. You therefore agree that ECS will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Section 1.10.
    
    
11. You may perform benchmarks or comparative tests or evaluations (each, a “Benchmark Test”) of the Service Offerings; provided, however, that you may not, and may not direct or permit third-parties to, disclose results or data produced from any Benchmark Test of a Service Offering, unless: (a) such disclosure includes all information necessary for us or any third-party to completely and accurately replicate the Benchmark Test; (b) you permit us to perform Benchmark Tests of your products or services and to disclose results or data produced from such Benchmark Tests, provided that such disclosure includes all information necessary for you or any third-party to completely and accurately replicate the Benchmark test; and (c) if you perform a Benchmark Test for a third-party, directly or indirectly, in exchange for consideration, you will identify the third-party and you represent and warrant that you have procured all rights necessary for us to perform Benchmark Tests of the third-party’s products or services and to disclose results or data produced from such Benchmark Tests.
    
    

2. Enseva Azure Instances and Symphony Instances

1. In connection with your use of Enseva Azure Services (including all instances and instance types, hosts and other resources, dedicated, reserved or on-demand, collectively “Enseva Azure”), Enseva Syphony and the Services, you are responsible for maintaining licenses and adhering to the license terms of any software you run.
   
   
2. Using Microsoft Software. In conjunction with the Services, you may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”).
   
   (a) If you choose to use the Microsoft Software, Microsoft and its licensors require that you agree to these additional terms and conditions:
   The Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services.
   You may not transfer or use the Microsoft Software outside the Services.
   You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software.
   You may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law.
   Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services.
   Microsoft is not responsible for providing any support in connection with the Services. Do not contact Microsoft for support.
   You are not granted any right to use the Microsoft Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Software for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
   
   (b)For any instance running Microsoft Software (each, a “Microsoft Instance”), you may not use nesting, container or similar technologies to sell or resell multiple instances, portion(s) of an instance, or containers running within the Microsoft Instance, unless (i) you are the ultimate end user of the Microsoft Instance, (ii) you have supplemented the Microsoft Instance with your own applications, or (iii) you have added primary and significant functionality to the Microsoft Instance.
   
   
3. Dedicated Instances. You may request that certain Enseva Azure Instance instances run on physically isolated host hardware dedicated to a single customer account (each requested instance, a “Dedicated Instance”), using the process set forth on the Enseva Dedicated Instance detail page on the ECS Site.
   
   
4. Dedicated Hosts.
   (a) You may request that Enseva provide the Enseva Azure Instance service to you on host hardware physically dedicated to a single customer account (each, a “Dedicated Host”), using the process set forth on the ECS Site.
   
   
5. Microsoft BYOL Licensing. Under this option, Enseva Azure enables you to provision Enseva Azure instances using your Microsoft Software and Microsoft Licenses (the “BYOL Program”). Unless otherwise specified in your agreement(s) with Microsoft, you can use this benefit only if you comply with the requirements here , and you (a) use Dedicated Instances or Dedicated Hosts; (b) launch from Virtual Machines (VMs) sourced from software binaries provided by you; and (c) run the instances within your designated ECS regions.
   You must be eligible to use the BYOL Program for the applicable Microsoft software under your agreement(s) with Microsoft. You are solely responsible for obtaining all required licenses and for complying with all applicable Microsoft licensing requirements, including the Product Use Rights/Product Terms. Further, you must have accepted Microsoft’s End User License Agreement (Microsoft EULA), and by using the Microsoft Software under the BYOL Program, you agree to the Microsoft EULA.

   You agree that you have determined that your use of the BYOL Program will comply with the applicable Microsoft licensing requirements. Usage of the Services in violation of your agreement(s) with Microsoft is not authorized or permitted.
   
   

6. As part of using Enseva Azure, you agree that your Enseva Azure resources may be terminated or replaced due to failure, retirement or other ECS requirement(s). We have no liability whatsoever for any damages, liabilities, losses (including any corruption, deletion, or destruction or loss of data, applications or profits), or any other consequences resulting from the foregoing. THE USE OF ENSEVA AZURE DOES NOT GRANT YOU, AND YOU HEREBY WAIVE, ANY RIGHT OF PHYSICAL ACCESS TO, OR PHYSICAL POSSESSION OF, ANY ECS SERVERS, EQUIPMENT, REAL OR PERSONAL PROPERTY, OR OTHER ASSETS.

3. Symphony DBaaS

1. If during the previous six (6) months you have incurred no fees for Symphony DBaaS and have registered no usage of Your Content stored in Symphony DBaaS, we may delete, without liability of any kind, Your Content that is stored in Symphony DBaaS upon thirty (30) days prior notice to you.
   
   

4. Symphony LBaaS

1. You may only use Symphony LBaaS to provide load balancing functionality in connection with the Services. You must have instances running in all Availability Zones across which you want to balance loads with Symphony Load Balancing.
   
   
2. Use of Symphony LBaaS requires use of other Services. You are responsible for the separate fees you accrue for the Services. You are responsible for all fees incurred from your use of Symphony LBaaS regardless of the results obtained or the quality or timeliness of the results. Charges for Symphony LBaaS will accrue as soon as you deploy Symphony LBaaS functionality.
   
   

5. ECS Import/Export

1. As part of ECS Import/Export Disk, you may send physical storage media (the “Media”) to us that we will use to either (a) transfer data contained on the Media into supported ECS Services as Your Content, or (b) transfer certain of Your Content to the Media (such data contained on Media either before or after transfer, “Data”) and provide the Media to you. You will not deliver to us, and we may refuse to accept, any damaged, defective or unreadable Media or any Media otherwise not shipped in accordance with the Agreement (collectively, “Unsuitable Media”). We may return or dispose of any Unsuitable Media, or erase Data on such Unsuitable Media, and you will reimburse us for any expenses we incur in connection with any Unsuitable Media. If you request and we return Unsuitable Media to you, you agree that we will select the shipping carrier and handling standards for return of such Unsuitable Media in our sole discretion, and the carrier and standards may not be the same as (and may cost more) than those we use for shipping media in connection with ECS Import/Export generally. For avoidance of doubt “Media” includes “Unsuitable Media”.
   
   
2. You will comply with all specifications and documentation for ECS Import/Export as provided and updated by us from time to time, including shipping and encryption requirements, the ECS Import/Export Disk Pack and Ship Check List.
   
   
3. You will be solely responsible for all shipping and handling costs (which may include costs of freight and transit insurance) for shipping Media and Appliances to or from us. For ECS Import/Export Disk, we may pay some reasonable return shipping charges as described on the ECS Import/Export Disk section of the ECS Site. You are responsible for payment of all customs, duties, taxes and other charges in connection with Media and Appliances being shipped to or from us. Use of ECS Import/Export may require or allow use of supported ECS Services, which are subject to the applicable terms of this Agreement. You are responsible for the separate fees you accrue for ECS Services.
   
   
4. For ECS Import/Export Disk, you will bear the entire risk of loss of, or damage to, any Media while in transit and you are solely responsible for obtaining insurance at your expense.
   
   
5. You will retain title to any Media and Data we receive from you and store on an ECS Service (or provide to you upon your request) as part of ECS Import/Export. You supply us with Media and Data, and YOU use Media entirely at your own risk. You should back-up Data prior to transfer onto Media and prior to delivery to us, and you should not delete any of Your Content on an ECS Service before transferring such content from an Appliance, Snowmobile or Media onto your own systems. Your Data should not include live or production data or any other data that you are not prepared to lose. We are not responsible for and will not be held liable for any delay, damage or loss incurred in connection with ECS Import/Export, including without limitation loss, damage, destruction or misuse of ANY Data or any systems or equipment used in connection with ECS Import/Export. Our confirmed receipt of delivery or notification of shipment or transport does not: (a) indicate or imply that any Media or Data has been or will be delivered or was received free of loss, damage or destruction, or that any loss or damage to, or any destruction of, any Media, Appliance, Snowmobile Materials, or Data later discovered is not your responsibility; (b) indicate or imply that we actually received the number of units of Media or Appliances specified by you for such shipment; or (c) waive, limit or reduce any of our rights under the Agreement. We reserve the right to impose, and change, from time to time, limitations on the delivery of your Media or Data, and you will comply with any of these restrictions or limitations.
   
   
6. You represent that you have all necessary rights to (a) provide the Media and/or Data (whether contained on an Appliance or Media) to us for upload into supported ECS Services, (b) receive Appliances and/or Media and use them as permitted by us, (c) transfer Data to the Media, Appliance or Snowmobile, and (d) authorize our transfer of any Data specified by you to the Media, Appliance or Snowmobile and to you. Without limiting the foregoing, if Data includes personal information, personally identifiable information, personal data, any information about a person or individual, or any other data covered by applicable law or regulation, you represent that you have obtained all necessary rights to transfer such Data to or from the ECS region you select, and you will comply with all of your obligations with respect of such Data as required by applicable law or regulation, which may include obtaining consent of the subjects of such Data. We may reproduce Data as necessary to transfer it between Media, Appliances or Snowmobiles and supported ECS Services.
   
   
7. In addition to your indemnification obligations under the Agreement, you agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees), arising out of or in connection with any claim arising out of the Media, Data, and your use of Appliances, including (a) any personal injury, death or property damage (tangible or intangible) related to the foregoing, (b) any sales, goods and services, use, excise, import, export, property, value added or other taxes or duties assessed or imposed on us or our affiliates in connection with or as a result of the storage, shipping or other actions taken by you or us with respect to your use of ECS Import/Export; or (c) any legal or regulatory violation arising under the lECS or regulations of any country (including without limitation privacy regulations) related to your use of ECS Import/Export.
   
   
8. Once ECS Import/Export services are complete, we will return the Media to you or destroy Unsuitable Media, delete Data from the Appliance as applicable. We may return Media to you for any reason, including upon termination of the Agreement or the ECS Import/Export Service. Returned Media will be sent to your designated shipping address. If we are unable to return Media to you due to any issue with your address or Media, we will attempt to notify you, and you will have thirty (30) calendar days from the date we provide notification to resolve the issue. If the issue is not resolved, the Media will be deemed Unsuitable Media subject to disposal and we may erase Data and dispose of Media in any manner and we have no obligation to reimburse or compensate you in connection with such erasure or disposal.
   
   
9. Notwithstanding anything to the contrary in the Agreement, you may give agents and subcontractors of your choosing access to the private key associated with your ECS account solely for the purpose of (a) preparing Data for import, export or processing using ECS Import/Export or (b) confirming the integrity of Data imported, exported or processed using ECS Import/Export. You remain fully responsible for and indemnify us for all activities undertaken by such third parties under your account. Other than as specifically set forth in this section, all terms and conditions of the Agreement continue to apply to your use of the Services.
   
   
10. You are responsible for complying with all applicable data protection, import, re-import, export, and re-export control lECS, including any applicable license requirements, and country-specific sanctions programs. Without limiting the foregoing, you are solely responsible for compliance related to the manner in which you use Appliances, Media, including your transfer, upload, and download of your data, goods, software, or technology and the provision of your data, goods, software, or technology to End Users. You are responsible for serving as the exporter and importer of record (as applicable) for your Media, data, goods, software, or technology, and you accept that ECS will not participate in the export or import procedure.
    
    

6. Symphony Relational Database Service (Symphony RDS)

1. You may only use Symphony RDS to store, query, retrieve and serve data and other content owned, licensed or lawfully obtained by you. You acknowledge that neither we nor our licensors are responsible in any manner, and you are solely responsible, for the proper configuration of database security groups and other security settings associated with Symphony RDS.
   
   
2. We may terminate your Symphony RDS database instance if you attempt to access or tamper with any software we pre-load on the database instance, including the operating system software running on the database instance.
   
   
3. You are responsible for configuring your backup retention period to give yourself enough time to recover data from your backups in the event of a hardware or file system failure.
   
   
4. Reserved DB Instance Pricing. You may designate Symphony RDS database instances as subject to the reserved pricing and payment terms (“Reserved DB Instance Pricing”) set forth on the Symphony RDS detail page on the ECS Site (each designated instance, a “Reserved DB Instance”). You may designate database instances as Reserved DB Instance by calling to the Purchasing API or selecting the Reserved DB Instance option in the ECS console. When you designate a database instance as a Reserved DB Instance, you must designate a region, instance type and quantity for the applicable Reserved DB Instances. The Reserved DB Instances may only be used in the designated region. We may change Reserved DB Instance Pricing at any time but price changes will not apply to previously designated Reserved DB Instances. We may terminate the Reserved DB Instance Pricing program at any time. Reserved DB Instances are noncancellable, and you will owe the Reserved DB Instance Pricing for the duration of the term you selected, even if the Agreement is terminated. Reserved DB Instances are nontransferable and all amounts paid in connection with the Reserved DB Instances are nonrefundable, except that if we terminate the Agreement other than for cause, terminate an individual Reserved DB Instance type, or terminate the Reserved DB Instance Pricing program, we will refund you a pro rata portion of any up-front fee paid in connection with any previously designated Reserved DB Instances. Upon expiration or termination of the term of a Reserved DB Instance, the Reserved DB Instance Pricing will expire and standard on-demand usage prices will apply to the database instance. In addition to being subject to Reserved DB Instance Pricing, Reserved DB Instances are subject to all data transfer and other fees applicable under the Agreement.
   
   
5. Using Microsoft Software.
   (a) “License Included.” In conjunction with the Services, you may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”). If you choose to use the Microsoft Software, Microsoft and its licensors require that you agree to these additional terms and conditions:

   The Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services.
   You may not transfer or use the Microsoft Software outside the Services.
   You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software.
   You may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law.
   Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services.
   Microsoft is not responsible for providing any support in connection with the Services. Do not contact Microsoft for support.
   You are not granted any right to use the Microsoft Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Software for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
   SQL Server Web Edition may be used only to support public and Internet accessible Web pages, Web sites, Web applications or Web services. It may not be used to support line of business applications (e.g., Customer Relationship Management, Enterprise Resource Management and other similar applications).
   (b) Microsoft is an intended third-party beneficiary of this Section 16.7, with the right to enforce its provisions.
   
   
   

7. ECS Direct Connect

1. You may use ECS Direct Connect to establish a dedicated network connection between your network and your ECS resources by using connection types and locations supported by ECS. When you establish a dedicated connection, your network traffic that would have otherwise been routed over the Internet may be routed through your dedicated network connection, including your network traffic sent to or from (i) services offered by other affiliates of Enseva Cloud Service or (ii) the ECS resources of other ECS customers.
   
   
2. The hardware and equipment you use with ECS Direct Connect must comply with the Documentation provided by ECS. You are responsible for protecting your ECS Direct Connect connections, including using physical security, firewalls and other network security tools as appropriate.
   
   
3. ECS will permit data center operator or other service provider to connect your hardware to ECS’s hardware at the ECS Direct Connect location(s) that you select. ECS will provide the necessary information to enable the data center operator or other service provider to establish and monitor this connection, including your name, email address, network configuration, activity information, and ECS account number.
   
   
4. You are responsible for your separate relationship with the data center operator or other service provider, including compliance with your agreement with, and the policies and procedures of, the data center operator or other service provider, and payment of applicable fees to the data center operator or other service provider. You are responsible for providing or procuring (and ECS will not own) any equipment or cabling necessary to establish this dedicated connection. Neither ECS nor any of its affiliates are responsible for the actions, errors or omissions of any employees or contractors of data center operators or service providers, including if the employees or contractors fail to follow instructions from you or ECS.
   
   
5. We may disconnect your ECS Direct Connect connection at any time for any reason. If the connection you establish as part of ECS Direct Connect is temporarily unavailable or terminated, ECS will route traffic bound for your ECS resources over the public Internet and ECS’s standard data transfer charges will apply.
   
   

8. ECS Support

1. We will provide “Support” in accordance with the terms of ECS Support Features page available at http://www.enseva.com (the “Guidelines”). ECS Support is available only as described in the Guidelines. If you are experiencing problems with one or more Services in connection with your use of any Content that was provided to you by a third party (someone other than yourself or ECS) then ECS Support is not available.
   
   
2. In providing ECS Support, ECS will use commercially reasonable efforts to (a) respond within the “Response Times” set forth in the Guidelines for all properly submitted cases from authorized individuals, and (b) work towards the identification and resolution of the problems submitted. When submitting a case, you may designate the severity level of a problem; provided that, we reserve the right to reclassify the severity level in our reasonable opinion. All Response Times are measured from the point when a case has been properly submitted by an authorized individual to us. Cases may be submitted as specified in the Guidelines. We do not represent, warrant or guarantee that (i) we will always be able to resolve a case fully, (ii) you will no longer experience a problem, (iii) we will provide a bug fix, patch or other workaround in connection with the identified problem, or (iv) any support or advice will result in any performance efficiency or improvement. You are solely responsible for the implementation and results of any suggestions or advice received.
   
   
3. Unless otherwise set forth in the Guidelines, ECS Support fees will be the greater of (a) the specified minimum monthly fee, or (b) a percentage of your monthly usage charges for all Services during the billing period. Regardless of when you sign up or terminate ECS Support, you are obligated to pay for a minimum of thirty (30) days of support each time you register to receive the service. Implementation of any suggested configurations or improvements may result in additional fees and charges. We reserve the right to refuse to provide ECS Support to any customer that frequently registers for and terminates the service.
   
   

9. ECS Marketplace & Symphony Marketplace

1. The ECS Marketplace is a venue operated by ECS and our partners that allows Content to be offered, sold, and bought. Content may be sold by ECS or a third party, and the party offering or selling the Content may specify separate terms and conditions and privacy policies for the use of the Content. If the Content is offered or sold by a third party, that party will be the seller of record for the Content. ECS is not a party to the terms with respect to Content offered or sold by third parties. Any Content of third parties offered through the ECS Marketplace constitutes “Third Party Content” under the Agreement. While ECS may help facilitate the resolution of disputes between you and third parties, ECS is not responsible for Third Party Content and has no control over and does not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Third Party Content or listings, or the ability of sellers to offer the Content.
   
   
2. Except to the extent Content is provided to you under a separate license that expressly states otherwise, neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Content, (b) reverse engineer, disassemble, or decompile the Content or apply any other process or procedure to derive the source code of any software included in the Content, (c) resell or sublicense the Content, (d) transfer Content outside the Services without specific authorization to do so, or (e) tamper with or circumvent any controls or make unauthorized copies of the Content.
   
   
3. ECS may stop providing the ECS Marketplace (or any features of or listings within the ECS Marketplace) to you at ECS’s sole discretion, without prior notice to you. In addition, ECS may disable or remove Content already purchased, if ECS determines in its sole discretion that the Content may violate any ECS policies or any other regulations, policies or lECS.
   
   
4. You authorize ECS, its affiliates, and its third-party payment processors and any service providers to charge the payment method you select in your ECS account for Content that you purchase in the ECS Marketplace. This may include one-time payments as well as recurring payments. A “recurring payment” is a payment that occurs at the specified intervals and amounts provided at the time of purchase (e.g. annually or monthly). The applicable fees and billing periods for the Content are listed on the confirmation screen when you place your order. Your authorizations will remain until cancelled. You may cancel your subscriptions at any time by logging into “Your Software Subscriptions” on the ECS Site. Unless we specify otherwise, only valid credit cards may be used to purchase a recurring payment subscription.
   
   

10. Symphony API

1. You may use the Symphony API Gateway to publish, maintain, monitor, and secure Your Content at any scale to accept and process concurrent API calls, including traffic management, authorization and access control, monitoring, and API version management.
   
   
2. By using the Symphony API Gateway you acknowledge and agree that established throttling thresholds may vary, cache services may be limited by us in our sole discretion, and version capacity will not exceed 300 deployments per API at any given time. In addition and without limiting your obligations under the Agreement, you agree not to and not to attempt to: (i) access any resources not assigned to you by us; and/or (ii) perform any form of network discovery and/or load testing of Your Content inside the Amazon API Gateway.
   
   
3. You are solely responsible for the access, operation, performance, and security of all Your Content you use with Symphony API Gateway.
   
   

11. ECS Professional Services

1. “ECS Professional Services” are advisory services and implementation assistance designed to help you use the other Services. If ECS provides ECS Professional Services to you, then this Section 60 will apply. References to “Services” in the Agreement include ECS Professional Services.
   
   
2. To receive ECS Professional Services, you must sign a statement of work for each specific project, which will describe the project and may include additional terms and conditions applicable to the project (each, a “SOW”). Each SOW is made part of the Agreement. ECS or any of its affiliates may enter into SOWs with you. For the purposes of an SOW, references to “ECS” in the SOW and the Agreement will be interpreted as references to the ECS entity that signs the SOW. No ECS entity other than the ECS entity that signs the SOW has any obligations under such SOW. Any SOW (together with the Agreement as amended by such SOW) is intended by the parties as a final, complete and exclusive expression of the terms of their agreement and supersedes all prior agreements and understandings (whether oral or written) between the parties with respect to such subject matter. If there is a conflict between a SOW and this Section 60, and the SOW explicitly states that it intends to modify the conflicting terms, then the SOW will control.
   
   
3. Each SOW will show the charges for the ECS Professional Services that ECS will provide. Charges are exclusive of applicable taxes, duties and levies (e.g., VAT, GST, sales tax and use tax). Charges for ECS Professional Services are in addition to any applicable fees for your use of the other Services. ECS will invoice you monthly for the ECS Professional Services and you must pay all invoiced amounts in accordance with the terms of the Agreement. Payments for ECS Professional Services are not refundable.
4. You acknowledge that ECS does not provide legal or compliance advice. You are responsible for making your own assessment of your legal and regulatory requirements and whether your proposed use of the Services meets those requirements.
   
   
5. As stated in the Agreement, you are solely responsible for your use of Third Party Content, and this includes any Third Party Content recommended by ECS. Other than Third Party Content, Content that ECS provides as part of the ECS Professional Services is “ECS Content.” You are solely responsible for testing, deploying, maintaining and supporting Content provided or recommended by ECS.
6. Any materials or information that you own or license from a third party that is provided to ECS for the purposes of the ECS Professional Services are “Your Content.” If you choose to provide access to Your Content to ECS, then you will ensure that you have adequate rights and permissions to do so.