SOFTWARE AS A SERVICE
END-USER LICENSE AGREEMENT (EULA)
This Software as a Service End-User License Agreement (EULA) Agreement (including the
executed order form (“Order Form”) annexed hereto) (the “Agreement”) is made and entered into
on ___________, ____ (“Effective Date”) by and between Fiverun, Inc. (“Fiverun”), and the party set
forth on the Order Form (“Subscriber”). In consideration of the mutual promises contained herein,
the parties hereby agree to the following:
1. S ERVICES . The Fiverun service (as further described in the applicable Order Form) provides its
subscribers with a branded commerce portal that allows Fiverun’s subscribers to, depending
on the scope of the relevant Order Form(s), [manage their merchandise inventory, provide
mobile point of sale services for both in-store and online products from the same Subscriber
device (via a third party payment processor), and better understand the preferences of their
customers] (the “Service”).
2. A CCESS AND S ERVICES
2.1. Access. Subject to the terms and conditions of this Agreement, Fiverun hereby grants
Subscriber, during the Term (as defined below), a nonexclusive, nontransferable, nonassignable, worldwide right to access and use the Service (as and to the extent such
access is purchased under one or more mutually executed Order Forms) solely for its
internal business purposes in accordance with the technical materials provided by Fiverun
to Subscriber in hard copy or electronic form describing the use and operation of the
Service (“Documentation”). On or as soon as reasonably practicable after the Effective
Date, Fiverun shall provide to Subscriber the necessary passwords, security protocols,
technical specifications and policies and network links or connection and access protocols
(“Access Protocols”) to allow Subscriber and its Authorized Users to access the Service in
accordance with the Access Protocols. As used herein, “Authorized Users” means any
individual who is an employee of Subscriber or such other person or entity as may be
authorized by an Order Form, to access the Service pursuant to Subscriber’s rights under
this Agreement.
2.2. Updates.
During the Term, Fiverun may update, correct and revise the Service as
necessary or deemed desirable by Fiverun (collectively, “Updates”), without limiting
Section 2.4. Fiverun will make such Updates, if any, available to Subscriber to the extent
such Updates are generally made available to all similarly situated Fiverun subscribers.
For the purposes of clarity, Fiverun is not obligated to produce any Updates.
2.3. Restrictions. Subscriber will not: (a) permit any third party to access and/or use the
Service or Documentation; (b) rent, lease, loan or sell access to the Service or
Documentation to any third party; (c) interfere with, disrupt, alter, translate, or modify the
Service or any part thereof; or (d) reverse engineer or access the Service to (i) build a
competitive product or service, (ii) build a product using similar ideas, features, functions
or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the
Service. Except as expressly set forth herein, no express or implied license or right of any
kind is granted to Subscriber regarding the Service or Documentation or any part thereof
and all rights not expressly granted to Subscriber are reserved to Fiverun.
2.4. Service Level Commitment. Subscriber will provide and support the Service in accordance
with the service level commitment set forth on Exhibit A. Fiverun’s sole liability and
Subscriber’s sole remedy in the event of a breach of the foregoing covenant shall be as
set out in Section 4 of Exhibit A.
2.5. IP Ownership. The Service, Documentation and all intellectual property rights therein
(“Fiverun Technology”) are Fiverun’s and its suppliers’ exclusive property. Subscriber
hereby assigns to Fiverun any suggestions, ideas, enhancement requests, feedback,
recommendations or other information provided by Subscriber related to the Service, and
all of the foregoing shall be deemed to be Fiverun Technology.
3. F EES AND E XPENSES ; P AYMENTS
3.1. Fees. In consideration for the access rights granted to Subscriber to the Services,
Subscriber will pay to Fiverun the fees set forth in the applicable Order Form (s). In the
event that Subscriber wishes to increase the number of Authorized Users beyond the
maximum number of Authorized Users for which fees have been paid, the parties agree to
follow the process in Section 4.2, but regardless of whether a new Order Form is
executed, Subscriber shall be required to pay additional fees associated with the
increased number of Authorized Users, prorated from the date on which each Authorized
User accessed the Service and through the remainder of the term of the Order Form.
Except as otherwise provided in an Order Form, all fees for the Service are due and
payable to Fiverun in advance. Fiverun shall be entitled to withhold performance and
discontinue access to the Service (under all Order Forms) until all amounts due are paid in
full.
3.2. Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes,
and all applicable duties, tariffs, assessments, export and import fees, or other similar
charges, and Subscriber will be responsible for payment of all such taxes (other than taxes
based on Fiverun’s income), fees, duties, and charges and any related penalties and
interest, arising from the payment of the fees, the delivery of the Services, or the license
of the Software to Subscriber. Subscriber will make all payments of fees to Fiverun free
and clear of, and without reduction for, any withholding taxes; any such taxes imposed on
payments of fees to Fiverun will be Subscriber’s sole responsibility, and Subscriber will
provide Fiverun with official receipts issued by the appropriate taxing authority, or such
other evidence as the Fiverun may reasonably request, to establish that such taxes have
been paid.
Subscriber shall indemnify and defend Fiverun in connection with any
proceedings brought by any taxing authorities in connection with this Agreement
3.3. Interest. Any amounts not paid when due shall bear interest at the rate of one and one
half percent (1.5%) per month, or the maximum legal rate if less. Subscriber will permit
Fiverun or its representatives to review Subscriber’s relevant records and inspect
Subscriber’s facilities to ensure compliance with this Agreement.
3.4. Expenses. An Order Form may provide for additional expense reimbursement rights with
respect to work performed under an Order Form.
4. S UBSCRIBER C ONTENT ; S UBSCRIBER R EPRESENTATIONS , W ARRANTIES AND C OVENANTS
4.1. License; Ownership. Subscriber grants Fiverun a non-exclusive, worldwide, royalty-free
and fully paid license (a) to use the Subscriber Content as necessary for purposes of
providing the Services and (b) to use the Subscriber trademarks, service marks, and logos
as required to provide the Services. The Subscriber Content hosted by Fiverun as part of
the Service, and all worldwide intellectual property rights in it, is the exclusive property of
Subscriber. All rights in and to the Subscriber Content not expressly granted to Fiverun in
this Agreement are reserved by Subscriber. As used here, “Subscriber Content” means
any text, graphics and other content uploaded to the Service by Subscriber or any
Authorized User.
4.2. Authorized Users’ Access to Services. Subscriber may permit any Authorized Users to
access and use the features and functions of the Services as contemplated by this
Agreement. User IDs cannot be shared or used by more than one Authorized User at a
time. If a Subscriber wishes to add additional user IDs, Subscriber may order such
additional user IDs at any time by executing a new Order Form detailing the number of
additional user IDs. Upon written acceptance by Fiverun of the Order Form, Fiverun shall
make the Service available to the additional Authorized Users. Subscriber shall use
commercially reasonable efforts to prevent unauthorized access to, or use of, the
Services, and notify Fiverun promptly of any such unauthorized use known to Subscriber.
4.3. Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content
hosted by Fiverun as part of the Service shall not (a) infringe any copyright, trademark, or
patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene,
pornographic or unlawful; (d) contain any viruses, worms or other malicious computer
programming codes intended to damage any system or data; or (e) otherwise violate the
rights of a third party. Subscriber agrees that any use of the Service contrary to or in
violation of the representations and warranties of Subscriber in this section constitutes
unauthorized and improper use of the Service.
4.4. Subscriber Responsibility for Data and Security. Subscriber and its Authorized Users shall
have access to the Subscriber Content and shall be responsible for all changes to and/or
deletions of Subscriber Content and the security of all passwords and other Access
Protocols required in order the access the Service. Subscriber shall have the ability to
export Subscriber Content out of the Service and is encouraged to make its own back-ups
of the Subscriber Data. Fiverun is not obligated to back up any Subscriber Content; the
Subscriber is solely responsible for creating backup copies of any Subscriber Content at
Subscriber’s sole cost and expense. Subscriber shall have the sole responsibility for the
accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber
Content.
5. D ATA ; C ONFIDENTIALITY
5.1. Data. Subject to the terms and conditions of this Agreement, Subscriber hereby grants
Fiverun the limited rights to use, access, and collect Data to: (a) perform its obligations
under this Agreement; and (b) on an anonymous, aggregated basis, for its own internal
business purposes.
“Data” means information regarding Subscriber’s use of the Service.
5.2. Confidential Information. During the term of this Agreement, each party (the “Disclosing
Party”) may provide the other party (the “Receiving Party”) with certain information
regarding the Disclosing Party’s business, technology, products, or services or other
confidential or proprietary information (collectively, “Confidential Information”).
The
Disclosing Party will mark all Confidential Information in tangible form as “confidential” or
“proprietary” or with a similar legend, and identify all Confidential Information disclosed
orally as confidential at the time of disclosure and provide a written summary of such
Confidential Information within thirty (30) days after such oral disclosure. Regardless of
whether so marked or identified, the Documentation, the Service and all enhancements
and improvements thereto will be considered Confidential Information of Fiverun.
5.3. Protection of Confidential Information. The Receiving Party agrees that it will not use or
disclose to any third party any Confidential Information of the Disclosing Party, except as
expressly permitted under this Agreement. The Receiving Party will limit access to the
Confidential Information to those employees who have a need to know, who have
confidentiality obligations no less restrictive than those set forth herein, and who have
been informed of the confidential nature of such information. In addition, the Receiving
Party will protect the Disclosing Party’s Confidential Information from unauthorized use,
access, or disclosure in the same manner that it protects its own proprietary information
of a similar nature, but in no event with less than reasonable care. At the Disclosing
Party’s request or upon termination of this Agreement, the Receiving Party will return to
the Disclosing Party or destroy (or permanently erase in the case of electronic files) all
copies of the Confidential Information that the Receiving Party does not have a continuing
right to use under this Agreement, and the Receiving Party shall provide to the Disclosing
Party a written affidavit certifying compliance with this sentence.
5.4. Exceptions. The confidentiality obligations set forth in this section will not apply to any
information that (a) becomes generally available to the public through no fault of the
Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any
confidentiality duties or obligations; (c) was already known to the Receiving Party at the
time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence,
was independently developed by employees and contractors of the Receiving Party who
had no access to the Confidential Information. In addition, the Receiving Party may
disclose Confidential Information to the extent that such disclosure is necessary for the
Receiving Party to enforce its rights under this Agreement or is required by law or by the
order of a court or similar judicial or administrative body, provided that the Receiving Party
promptly notifies the Disclosing Party in writing of such required disclosure and
cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate
protective order.
6. DISCLAIMERS. Subscriber acknowledges and agrees that neither Fiverun nor the Service
processes, transmits, or collects any payment card information (other than the last four digits
of a payment card number), and as such the Service is not required to comply with the
Payment Card Industry’s Data Security Standards.
TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS,” AND FIVERUN MAKES NO (AND
HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS,
WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT
OR FITNESS FOR A PARTICULAR PURPOSE. FIVERUN DOES NOT WARRANT THAT ALL
ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SERVICE WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT CUSTOMER DATA WILL NOT BE IMPAIRED OR
LOST.
7. LIMITATION OF LIABILITY. TO THE EXTENT LEGALLY PERMITTED BY APPLICABLE LAW,
FIVERUN AND ITS SUPPLIERS SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY OF
SUBSCRIBER’S CUSTOMERS OR AGENTS (I) FOR THE COST OF ANY REPLACEMENT
SERVICES OR (II) FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES
OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE,
OR BUSINESS INTERRUPTION ARISING OUT OF OR IN CONNECTION WITH FIVERUN’S
PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICE,
REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN
TORT, CONTRACT, OR OTHERWISE, EVEN IF FIVERUN HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF FIVERUN ARISING OUT OF
OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE SERVICE FEES
PAID BY SUBSCRIBER TO FIVERUN DURING THE TWELVE (12) MONTHS PRECEDING THE
CLAIM UNDER THE ORDER FORM(S) TO WHICH THE CLAIM RELATES. IN NO EVENT SHALL
FIVERUN’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED
TO THIS AGREEMENT.
8. I NDEMNIFICATION .
8.1. Subject to Section 7, Fiverun will defend any suit brought against Subscriber, and will pay
any settlement Fiverun makes or approves, or any damages finally awarded in such suit,
insofar as such suit is based on a claim by any third party alleging that Subscriber’s
permitted use of the Service misappropriates or infringes any third party’s intellectual
property right. Fiverun’s obligation as set forth in the foregoing sentence is expressly
conditioned upon each of the following: (i) Subscriber shall promptly notify Fiverun in
writing of any threatened or actual suit; (ii) Fiverun shall have sole control of the defense
or settlement; and (iii) Subscriber shall cooperate with Fiverun to facilitate the settlement
or defense of any claim or suit. If any portion of the Service becomes, or in Fiverun’s
opinion is likely to become, the subject of a claim of infringement, Fiverun may, at
Fiverun’s option: (a) procure for Subscriber the right to continue using the Service; (b)
replace the Service with non-infringing services which do not materially impair the
functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d)
terminate the affected Order Form(s) and this Agreement and refund a pro-rata portion of
any pre-paid fees under those Order Form(s), and upon such termination, Subscriber will
immediately cease all use of the Service. Notwithstanding the foregoing, Fiverun shall
have no obligation under this section or otherwise with respect to any infringement claim
based upon (x) any use of the Service not in accordance with this Agreement; (y) any use
of the Service in combination with other products, equipment, software or data not
supplied by Fiverun; or (z) any modification of the Service by any person other than
Fiverun or its authorized agents, unless Fiverun has modified the Service at Subscriber’s
instruction or request and the infringement results from such Subscriber instructions or
modifications. This subsection states the sole and exclusive remedy of Subscriber and the
entire liability of Fiverun, or any of the officers, directors, employees, shareholders,
contractors or representatives of the foregoing, for infringement claims and actions.
8.2. By Subscriber. Subscriber will defend at its expense any suit brought against Fiverun, and
will pay any settlement Subscriber makes or approves, or any damages finally awarded in
such suit, insofar as such suit is based on a claim arising out of or relating to Subscriber’s
breach or alleged breach of subsections 2.5, 3.2, 4.3, or 4.5. This subsection states the
sole and exclusive remedy of Fiverun and the entire liability of Subscriber, or any of the
officers, directors, employees, shareholders, contractors or representatives of the
foregoing, for the claims and actions described herein
9. T ERM A ND T ERMINATION . This Agreement commences on the Effective Date and remains in
effect, unless earlier terminated as set forth below, for one (1) year, and thereafter shall renew
automatically for additional one (1) year terms unless, within thirty (30) calendar days prior to
expiration of the initial or any renewal term a party gives written notice of non-renewal; the
Agreement shall be deemed to apply to any unexpired Order Form notwithstanding the
termination or expiration of the Agreement as long as such Order Form remains in effect (the
“Term”). Either party may terminate this Agreement immediately upon notice to the other party
if the other party breaches a material provision of this Agreement, and such breach remains
uncured more than thirty (30) days after receipt of written notice of such breach. Upon
termination or expiration of this Agreement for any reason: (a) all rights and obligations of both
parties (other than obligations accrued under Section 3, which shall survive until satisfied),
including all access rights and licenses granted hereunder, shall immediately terminate; and (b)
within ten (10) days after the effective date of termination, each party shall comply with the
obligations to return all Confidential Information of the other party, as set forth in the section
titled Confidentiality. The sections and subsections titled Restrictions, Warranties and
Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Term and Termination, and
Miscellaneous will survive expiration or termination of this Agreement for any reason.
10. M ISCELLANEOUS .
This Agreement and any action related thereto will be governed and
interpreted by and under the laws of the State of California, without giving effect to any
conflicts of laws principles that require the application of the law of a different jurisdiction.
Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and
federal courts for the county in which Fiverun’s principal place of business is located for any
lawsuit filed there against Subscriber by Fiverun arising from or related to this Agreement. If
any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the
other provisions of this Agreement will remain enforceable and the invalid or unenforceable
provision will be deemed modified so that it is valid and enforceable to the maximum extent
permitted by law. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any other
occasion. Any delay in the performance of any duties or obligations of either party (except the
payment of money owed) will not be considered a breach of this Agreement if such delay is
caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event
beyond the control of such party, provided that such party uses reasonable efforts, under the
circumstances, to notify the other party of the cause of such delay and to resume performance
as soon as possible.
Fiverun ’s relationship to Subscriber is that of an independent
contractor, and neither party is an agent or partner of the other. This Agreement and the
Order Form comprise the final, complete and exclusive agreement of the parties with respect
to the subject matters hereof and supersede and merge all prior discussions between the
parties with respect to such subject matters. In the event of a conflict between the terms of
this Agreement and the terms of an Order Form, the terms of this Agreement shall control. No
modification of or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized signatory of
Subscriber and the Fiverun.
In Witness Whereof, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the Effective Date, and each represents and wa rrants to the
other that it is legally free to enter into this Agreement.
FIVERUN
Fiverun, Inc.
SUBSCRIBER
[Company]
By:
By:
Title:
Title:
Address:
Fax:
Fax:
Exhibit A
Service Level Commitment
1.
D EFINITIONS .
The following capitalized terms will have the definitions set forth below:
1.1
“Force Majeure” means any act, event, or occurrence beyond Fiverun’s reasonable
control, including, without limitation, issues arising from bugs or other problems in the software,
firmware or hardware of Fiverun’s suppliers, outages or issues with upstream providers or network
carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought,
blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war,
insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
1.2
“Normal Business Hours” means 9 a.m. to 5 p.m. Pacific Time Monday through
Friday] excluding holidays.
1.3
“Scheduled Downtime” means the total amount of time during any calendar month,
measured in minutes, during which Subscriber is not able to access the Service due to planned
system maintenance performed by Fiverun. Fiverun will exercise reasonable efforts to perform
scheduled system maintenance between the hours of [___ p.m. and ____ p.m. Pacific Time].
Fiverun will provide Subscriber with reasonable prior notice of such Scheduled Downtime.
1.4
“Total Monthly Time” means the total minutes in the relevant calendar month less
Scheduled Downtime. For any partial calendar month during which Subscriber subscribes to the
Service, availability will be calculated based on the entire calendar month, not just the portion for
which Subscriber subscribed.
1.5
“Unscheduled Downtime” means the total amount of time during any calendar
month, measured in minutes, during which the Subscriber is not able to access the features and
functions of the Service, other than Scheduled Downtime, as defined above.
Unscheduled
Downtime shall not include any period during which the Service is unavailable as a result of (i)
non-compliance by Subscriber with any provision of this service level commitment or of the
Agreement; (ii) incompatibility of Subscriber’s equipment or software with the Service; (iii) actions
or inactions of Subscriber or third parties; (iv) Subscriber’s use of the Service after Fiverun has
advised Subscriber to modify its use of the Service, if Subscriber did not modify its use as
advised; (v) acts or omissions of Subscriber or Subscriber’s employees, agents, contractors, or
vendors, or anyone other than Authorized Users gaining access to the Service by means of
Subscriber’s passwords or equipment; (vi) performance of Subscriber’s systems or the Internet;
(vii) any systemic Internet failures; (viii) network unavailability or Subscriber’s bandwidth
limitations; or (ix) Scheduled Downtime.
1.6
“System Availability” means, with respect to any particular calendar month, the ratio
obtained by subtracting Unscheduled Downtime during such month from the Total Monthly Time,
and thereafter dividing the difference so obtained by the Total Monthly Time. Represented
algebraically, System Availability for any particular calendar month is determined as follows:
2.
S YSTEM P ERFORMANCE
2.1
System Availability: Fiverun will undertake commercially reasonable measures to
ensure that System Availability equals or exceeds ninety-nine point nine percent (99.0%) during
each calendar month (the “Service Standard”).
2.2
Access to Support; Response Times:
Subscriber may report Unscheduled
Downtime at any time (“24x7x365”) by sending Fiverun an e-mail to [email protected]. During
Normal Business Hours, Fiverun will exercise commercially reasonable efforts to respond to
reports of Unscheduled Downtime within [30 minutes] of each such report.
2.3
System Monitoring and Measurement: Fiverun uses a third party service provider
(“Monitoring Service Provider”) to monitor System Availability on an ongoing basis.
All
measurements of System Availability will be calculated on a monthly basis for each calendar
month during the Term based on the records of such Monitoring Service Provider. The Monitoring
Service Provider’s records regarding System Availability will be final and each party agrees not to
dispute such records. As of the effective date of the Agreement, Fiverun uses _____ as its
Monitoring Service Provider; provided, however that Fiverun reserves the right to switch to a
different Monitoring Service Provider upon written notice to Subscriber.
3.
S UBSCRIBER R EQUIREMENTS . Subscriber is responsible for maintenance and management of
its computer network(s), servers, and software, and any equipment or services related to
maintenance and management of the foregoing.
Subscriber is responsible for correctly
configuring its systems in accordance with any instructions provided by Fiverun, as may be
necessary for provision of access to the features and functions of the Service.
4.
R EMEDY
4.1
Credits Against Fees: In the event Unscheduled Downtime occurs, Subscriber will
be entitled to credits against its subsequent payment obligations under the Order Form(s) with
respect to which the Unscheduled Downtime is occuring (as set forth in the Agreement) (“Service
Credits”) according to the following table:
Service Availability
Credit as a Percentage of Monthly Billing
Less than 99.9% and equal or higher than
99.0%
[10%]
Less than 99.0% and equal or higher than
95.0%
[25%]
Less than 95.0%
[50%]
Subscriber’s rights under this Section 4.1 are Subscriber’s sole and exclusive remedy with respect
to any Unscheduled Downtime or any failure by Fiverun to meet the Service Standard required by
Section 2.1.
4.2
Maximum Service Credits: The maximum amount of Service Credits that Fiverun will
issue to Subscriber for Unscheduled Downtime in a single calendar month will not exceed fifty
percent (50%) of the monthly billing for such month. In addition, Service Credits are in no event
refundable for any cash amount.
4.3
Requesting Service Credits:
As a condition to Fiverun’s obligation to provide
Service Credits to Subscriber, Subscriber must request such Service Credits by sending an e-mail
identifying the date and time of the Unscheduled Downtime for which Subscriber is requesting
Service Credits, with sufficient evidence (including description of the incident and duration of the
incident) to _____________________ within thirty (30) days following such Unscheduled Downtime.
If Subscriber fails to request any Service Credits to which Subscriber is entitled in accordance
with this Section 4.3, Fiverun will have no obligation to issue such Service Credits to Subscriber.