Exoscale Terms and Conditions <p>These Exoscale Services Terms and Conditions govern the Order(s) entered
into between Client and Supplier for the provision of IaaS Cloud
Computing Services.
Supplier and Client are hereinafter referred to
individually as a “<strong>Party</strong>” and collectively, as the “<strong>Parties</strong>”.</p>
<p>Applicable starting January 16th, 2019
Previous version
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1.
Definitions
<p>“<strong>Agreement</strong>” means any Order and these Terms and Conditions
collectively.</p>
<p>“<strong>Affiliate</strong>” means an entity that, now or in the future, directly or
indirectly Controls, is Controlled by or is under common Control with a
Party.
For purposes of the foregoing, “<strong>Control</strong>” shall mean the
ownership of more than fifty percent (50%) of the (i) voting rights of
said entity or (ii) ownership interest in said entity.</p>
<p>“<strong>Client</strong>” means the entity or individual so named on the Order.</p>
<p>“<strong>Client Data</strong>” means any data (including but not limited to any
software application) stored by Client on the cloud infrastructure
provided by Supplier, including all text, pictures, sound, video, and
log files and all documentation (printed or electronic).</p>
<p>“<strong>Client Technology</strong>” means Client’s proprietary technology, including
without limitation, algorithms, software (in source and object codes),
user interface designs, architecture, know-how, and any related
Intellectual Property Rights throughout the world (whether owned by
Client or licensed to Client from a third party).</p>
<p>“<strong>Users</strong>” means any person or entity deriving use of the Services
through Client including but not limited to the Client (its employees,
consultants, contractors, and agents), an Affiliate of Client or a
customer of Client.</p>
<p>“<strong>Exoscale Service(s)</strong>” or “<strong>Service(s)</strong>” means the
Infrastructure-as-a-Service (IaaS) cloud computing services provided by
Supplier to Client, namely an on-demand network access to a shared pool
of configurable computing resources (such as virtualization, servers,
storage, networking, and datacenter facilities), as further described in
the Order.</p>
<p>“<strong>Force Majeure Event</strong>” is any event beyond a Party’s reasonable
control, including, without limitation, acts of war, earthquake,
hurricanes, flood, fire or other similar casualty, embargo, riot,
terrorism, sabotage, strikes, governmental act, insurrections,
epidemics, inability to procure materials or transportation facilities,
failure of power, restrictive laws or regulations, court orders,
condemnation, failure of the Internet or other event of a similar
nature.</p>
<p>“<strong>Governmental Authority</strong>” means any federal, national, cantonal or
city, court, governmental or administrative authority or regulatory
body, whether foreign or domestic.</p>
<p>“<strong>Intellectual Property Rights</strong>” means and includes any and all
intellectual property of whatever nature and kind including without
limitation patents, designs, trademarks and service marks, copyrights,
domain names, trade names (whether such rights are applied for,
registered or not), database rights, design rights, inventions,
drawings, computer programs, data, formulae, algorithm, software,
know-how, confidential information, goodwill and applications and the
right to apply for protection of any of the above rights.</p>
<p>“<strong>Interest Rate</strong>” means an interest rate of 5% per year.</p>
<p>“<strong>Malicious Code</strong>” means viruses, worms, time bombs, Trojan horses and
other harmful or malicious code, files, scripts, agents or programs.</p>
<p>“<strong>Non-Exoscale Applications</strong>” means online applications and offline
software products that are provided by entities or individuals other
than Supplier and are clearly identified as such, and that interoperate
with the Services.</p>
<p>“<strong>Order</strong>” means the order submitted by Client to Supplier by mail,
fax, email or via the Website, setting out matters relating to
Supplier’s delivery of Services to Client and governed by these Terms
and Conditions.</p>
<p>“<strong>Personal Information</strong>” means any information relating to a natural person
as defined by the applicable law that may be used to identify an individual.</p>
<p>“<strong>Service Commencement Time</strong>” means (i) the time Supplier commences
providing the Services as notified by Supplier to Client.
or (ii) the
time Client begins using the Services, whichever date is earlier.</p>
<p>“<strong>Services Fees</strong>” means charges for the Services (including but not
limited to monthly recurring charges and non-recurring charges) as
identified in the relevant Order.</p>
<p>“<strong>Service Level Agreement</strong>” or “<strong>SLA</strong>” means the service level
provisions describing the service level targets as set out in Section 4.</p>
<p>“<strong>Software</strong>” means any software application provided by Supplier which
Client may be entitled to use in accordance with any Order.</p>
<p>“<strong>Supplier</strong>” means Akenes SA, Boulevard de Grancy 19A, 1006 Lausanne,
Switzerland.</p>
<p>“<strong>Supplier Network</strong>” means the telecommunication network, including
but not limited to fiber-optical and wired/wireless transmission
equipment, which is owned and/or leased and operated and maintained by
Supplier or its Affiliates.</p>
<p>“<strong>Supplier Data</strong>” means any data, including but not limited to any
software applications, class libraries, texts, pictures, sounds, videos,
and log files, and documentation (printed or electronic).</p>
<p>“<strong>Supplier Technology</strong>” means Supplier’s proprietary technology,
including without limitation, the Services, software tools, hardware
designs, algorithms, software (in source and object codes), user
interface designs, architecture, network designs, know-how, business
methods, and any related Intellectual Property Rights throughout the
world (whether owned by Supplier or licensed to Supplier from a third
party).</p>
<p>“<strong>Terms and Conditions</strong>” mean these Exoscale Services Terms and
Conditions.</p>
<p>“<strong>Unavailable</strong>” means that Client is unable to access its subscribed
resources running on the Exoscale Service platform due to failure of a
critical component of the Service (including virtual server, server
instance, firewall, load balancer, switch, storage platform, and
connectivity to Supplier Network Services (i.e.
Internet and MPLS –
Multiprotocol Label Switching) from the Exoscale Service platform).
and
“<strong>Unavailability</strong>” means accordingly.</p>
<p>“<strong>Website</strong>” means the Exoscale Service website available at
https://portal.exoscale.com.</p>
2.
The Services
<p>
<em>Client may</em> submit the Order(s) via the Website (after having accepted
on the Website to be bound by these Terms and Conditions) or by
executing the Order and these Terms and Conditions and returning them to
the Supplier by mail, fax or email.
The submission of that certain
Order(s) shall constitute an offer to buy the Services.
Supplier may
accept that offer at its sole discretion (at which time both Client and
Supplier are legally bound) by way of (i) a message sent via the Website
or by mail, fax or email, thereby acknowledging receipt and acceptance
of the Order.
or (ii) delivery of the Services.</p>
3.
Fees and Payment Modalities
3.1 Service Fees
<p>Supplier shall charge the Services Fees to Client as detailed in the
Order(s).
Supplier shall be <em>entitled</em> to increase its Service Fees upon
a forty-five (45) day prior written notice to Client.</p>
3.2 Invoicing and Payment
<p>Unless otherwise agreed between the Parties in writing, billing for the
Services shall <em>commence on</em> the Service Commencement Time.
Supplier
shall invoice all Service Fees in accordance with the frequency, method,
payment terms and currency set out in the Order and in any case in
advance except for charges that are dependent on usage which shall be
billed in arrears.
In the case of period billing any partial period
shall be pro-rated except otherwise noted on order.</p>
3.3 Overdue Charges
<p>Any amount due but not received by Supplier will accrue interest from
thirty (30) days after the date of invoice to the date of payment at the
Interest Rate (pro-rated on a daily basis).
Furthermore, Supplier shall
have the right to set-off any amounts due hereunder which are not paid
when due against any amounts owed to Client by Supplier pursuant to
these Terms and Conditions or any other agreement between the Parties.
In case any amount due is not received by Supplier within sixty (60)
days after the date of invoice, the Supplier shall be entitled to stop
providing the Services to the Client.</p>
3.4 Deposits
<p>The Client may make a deposit as an advance payment of Service Fees.
Such deposit will be credited on its account for the payment of future
Services.
Upon Supplier’s request, Client will make a deposit, or other
security for the payment of Service Fees as specified by Supplier, (i)
as a condition to Supplier’s acceptance of any Order, or (ii) in the
event Client fails to comply with the payment terms set forth in Section
3.2 twice in any twelve (12) month period, as a condition to Supplier’s
continuation of delivery of any Service.
The deposit will be held by
Supplier as security for payment of the Service Fees.
When Service to
Client is terminated, the amount of the deposit will be credited to
Client’s account and <em>any remaining credit balance will be refunded
within thirty (30) days of such termination.
Client shall be subject to
the credit limit (“</em>
<em>Credit Limit</em>
<em>”) as may be specified in the
Order(s).</em> The Credit Limit may be varied only with the written approval
of Supplier.
Supplier shall have the right at any time to increase or
decrease the Credit Limit by giving at least three (3) days prior
written notice to Client.
If at any time Supplier determines that the
sum (“<strong>Accrued Liability</strong>”) of (i) total invoiced amounts which remain
unpaid, plus (ii) the unbilled but accrued usage of Client, has exceeded
the then current Credit Limit, Supplier shall have the right to demand
by written notice that Client make an immediate payment to Supplier by
electronic transfer (or such other method as agreed by the Parties) of
such amount required: (i) to reduce its aggregate Accrued Liability to
less than the Credit Limit, and (ii) to ensure that the Credit Limit
shall not be exceeded prior to the next invoice due date.
Upon such
demand, the demanded amount shall become immediately due and payable and
Client shall pay such amount within twenty-four (24) hours of its
receipt of such notice.
If Client fails to remit such payment when due,
Supplier shall have the right without further notice to suspend and/or
terminate the Services.</p>
3.5 Taxes
<p>All Service Fees are net of taxes.
Client will be responsible for
payment of all applicable VAT, duties, sales, use or withholding taxes,
or other similar taxes, fees, or charges whether now or hereafter
enacted, however imposed on or based on the provision, sale or use of
the Services (“<strong>Taxes</strong>”).
If Supplier has the legal obligation to pay
or collect Taxes for which Client is responsible under this Section, the
appropriate amount shall be invoiced to and paid by Client, unless
Client provides Supplier with a valid tax exemption certificate
authorized by the appropriate taxing authority.</p>
3.6 Disputed Bills
<p>In the event Client disputes in good faith any portion of Supplier’s
invoice, Client must pay the undisputed portion of the bill and submit a
written claim for the disputed amount documenting the basis of its
claim.
All claims must be submitted to Supplier within thirty (30) days
of receipt of billing for those Services.
Client waives the right to
dispute the charges not disputed within the time frame set forth above.</p>
3.7 Trial Credit
<p>Trial credit is not redeemable for cash or credit, not transferable and is valid for new accounts only, and limited to one per person.
It may not be used in conjunction with other offers or promotions and is issued on a case-by-case evaluation.
Trial credit may be billed differently, may vary and be revoked without previous or further notice.
Trial value is always based on CHF.
When promoted in printed or written forms in other currencies than CHF, as in promotional cards, flyers, digital communications like newsletters, tweets, or any other form of digital or physical communication, the actual credit may vary in function of the exchange rate.
During trial period, additional limitations may apply, including, but not limited to:</p>
<ul>
<li>
<p>Maximum number of virtual machines, snapshots and other quantitative limitations of services.</p>
</li>
<li>
<p>Network performance</p>
</li>
</ul>
4.
Service Level Agreement (SLA)
4.1 Service Availability Targets
<p>Supplier shall use commercially reasonable efforts to make the Services
available 24 hours a day, 7 days a week, with an overall 99.95% annual
availability for the virtual machine (i.e.
365 days minus 4hours20min),
except for:</p>
<ul>
<li>
<p>Planned downtime and maintenance events;</p>
</li>
<li>
<p>Force Majeure Events;</p>
</li>
<li>
<p>Unavailability of the Website;</p>
</li>
<li>
<p>Failures or malfunctions in any Client software, equipment or
technology.
and/or</p>
</li>
<li>
<p>If Client is in breach of these Terms and Conditions, including but
not limited to its payment obligations and the use of Services.</p>
</li>
</ul>
4.2 Incident Management Service Levels
<p>Supplier targets to respond to incidents within the maximum following
time frame as of receipt of notice of incident within fifteen (15)
minutes.</p>
4.3 Standard Service Requests
<p>Supplier shall provide platform usage support as follows:</p>
<ul>
<li>
<p>Password reset: within one (1) hour from receipt of request.
and</p>
</li>
<li>
<p>Start, Stop, Reboot: within one (1) hour from receipt of request.</p>
</li>
</ul>
<p>The platform usage support shall be free of charge.</p>
4.4 Service Unavailability Credit
<p>Except under the conditions mentioned in the section 4.1 above, if the Services Availability is less than 99.95%, the Supplier will issue a credit to Client according to the following table:</p>
<ul>
<li>From 99.95% to 98.3% : fifty percent (50%) of the monthly Service Fees for the affected Services</li>
<li>Below 98.3% : one hundred percent (100%) of the monthly Service Fees for the affected Services</li>
</ul>
<p>The credit will be calculated based on the monthly service charge for the affected Services.
The Client shall address a Service Unavailability Credit request within ten (10) business days via email to sales@exoscale.ch mentioning the Client name and address as well as the times and dates of the unavailability.
If the unavailability is confirmed by the Supplier, credits will be applied within two billing cycles after Supplier’s receipt of Client’s credit request.
Credits are not refundable and can be used only towards future billing charges.</p>
5.
Use of the Services
5.1 Protection of Client Data
5.1.1 Safeguards
<p>Supplier shall maintain appropriate safeguards for protection of the
security, confidentiality and integrity of Client Data.
Supplier shall
not (i) modify Client Data, (ii) disclose Client Data except as
compelled by law in accordance with Section 8.3 or as expressly
permitted by Client in accordance with Section 8.3 or
(iii) access Client Data except to provide the Services and prevent or
address service or technical problems, or at Client’s request in
connection with Client support matters.</p>
5.1.2 Sub-contractors
<p>Supplier may engage sub-contractors to fulfil its contractual obligations.
Supplier will obtain the sub-contractor’s written confirmation that the
sub-contractor complies with the provisions of data protection law.</p>
5.2 Data Storage
<p>Client acknowledges and agrees that Supplier shall not be responsible
for any Data stored by Client using the Services.
Notwithstanding the
above, Client may copy such Data using the Services to a separate
location at any time.
The Data stored by Client in Switzerland shall at all times be stored solely in Switzerland.
Likewise, data stored
by Client in another non-Swiss Exoscale location shall remain at all times in the same country as the base location.</p>
<p>Because the Internet is an inherently open and insecure means of
communication, any Data a User transmits over the Internet may be
susceptible to interception and alteration.
Supplier makes no guarantee
regarding, and assumes no liability for, the security and integrity of
any Data a User transmits via the Service or over the Internet,
including any Data or information transmitted via any server designated
as “secure”.</p>
5.3 Client’s Responsibilities
<p>Client shall (i) be responsible for Users’ compliance with these Terms
and Conditions, (ii) be responsible for the accuracy, quality and
legality of Client Data and of the means by which Client acquired the
Data, (iii) use commercially reasonable efforts to prevent unauthorized
access to or use of the Services, and notify Supplier promptly of any
such unauthorized access or use, and (iv) use the Services only in
accordance with the Terms and Conditions and applicable laws.
Client is
responsible for maintaining the security of its internal network from
unauthorized access through the Internet.
Supplier shall not be liable
for unauthorized access to Client’s network or other breaches of
Client’s network security.</p>
5.4 Misuse of the Services
<p>Client shall not (i) make the Services available to anyone other than Users,
(ii) sell, resell, rent or lease the Services, (iii) use the Services to store
or transmit unlawful material or messages, or to store or transmit material or
messages in violation of third-party privacy rights, (iv) use the Services to
store or transmit Malicious Codes, (v) interfere with or disrupt the integrity
or performance of the Services or third-party data contained therein, or (vi)
attempt to gain unauthorised access to the Services or their related systems
or networks, (vii) transmit or distribute material containing fraudulent
offers for goods or services, or any advertising or promotional materials
that contain false, deceptive or misleading statements or representations, or
(viii) transmit or distribute unsolicited e-mail messages where such e-mail
messages could reasonably be expected to provoke complaints (spam), all of
which as reasonably determined by Supplier in accordance with generally
accepted standards of the Internet community.</p>
5.5 Unauthorized or Fraudulent Use of the Services
<p>Client shall be responsible for (save as to the extent caused by any
acts or omissions of Supplier) taking all reasonable measures to avoid,
and immediately notify Supplier in the event of, any unauthorized or
fraudulent use of the Services.
Client will be solely responsible for
all Service Fees and other charges incurred in respect of the Services
even if such Service Fees and other charges were incurred through or as
a result of such fraudulent or unauthorized use of the Services.</p>
5.6 Interruption of the Services
<p>In case the Supplier’s infrastructure is damaged (or threatened to be
damaged) through the IP Address of a Client (e.g.
virus or hacking) or
otherwise, Supplier is expressly authorized to immediately interrupt the
exoscale Services and shall immediately inform the Client thereof.</p>
5.7 Intellectual Property Rights
<p>Material accessible through the exoscale Services may be subject to
protection under privacy, publicity, or other personal rights and
Intellectual Property Rights.
Users shall not use the exoscale Services
in any manner that would infringe, dilute, misappropriate, or otherwise
violate any such rights.</p>
5.8 Export Control
<p>The Parties acknowledge that products, software, and technical
information (including, but not limited to Services, technical
assistance and training) provided under these Terms and Conditions or
used by Client in connection to the Services, may be subject to export
laws and regulations of Switzerland and other countries, and any use or
transfer of the products, software, and technical information must be in
compliance with all applicable regulations.
The Parties will not use,
distribute, transfer, or transmit the products, software, or technical
information (even if incorporated into other products) except in
compliance with all applicable export regulations.
If requested by
either Party, the other Party also agrees to sign written assurances and
other export-related documents as may be required to comply with all
applicable export regulations.</p>
6.
Software Licenses
6.1 Acquisition of Software
<p>Client may be provided with the right to use certain Software which
shall be governed by the terms of the relevant Software license terms
available at the Website.
Client authorizes Supplier to enter into
relevant Software license in Client’s name as a client to satisfy any
Software license terms and third party Software license terms so as to
accomplish any Services pursuant to these Terms and Conditions.
Client
agrees and acknowledges that Supplier is not renting any client software
to Client.
Supplier does not warrant or support Non-exoscale
Applications, whether or not they are designated by Supplier as
“certified” or otherwise, except as specified in any Order.</p>
6.2 Non-exoscale Applications and Client’s Data
<p>If Client installs or enables Non-exoscale Applications for use with the
Services, Client acknowledges that it may allow providers of those
Non-exoscale Applications to access its Data as required for the
interoperation of such Non-exoscale Applications with the Services.
Supplier shall not be responsible for any disclosure, modification or
deletion of Client’s Data resulting from any such access by Non-exoscale
Application providers.</p>
6.3 Demarcation of Responsibilities
<p>Supplier is only responsible for providing management of server host
hardware including storage and a web based portal for overall management
of the Services and, if requested by Client and agreed by Supplier, the
provision of the Software.
Client is responsible for managing and
operating the Software including but not limited to patch management,
upgrades, antivirus, system security, application programs and data.
Client is also responsible for managing and configuring its use of the
Service (via the Website and any application interface provided)
including but not limited to User access administration, security
controls and payment information.</p>
7.
Proprietary Rights
7.1 Technology and Data
<p>Client is and shall remain exclusively entitled to all right and
interest in and to all Client Technology, Client Data and its
Confidential Information, and Supplier is and shall remain exclusively
entitled to all right and interest in and to all Supplier Technology,
Supplier Data and its Confidential Information.
Neither Party shall,
directly or indirectly, reverse engineer, de-compile, disassemble or
otherwise attempt to derive source code or other trade secrets from the
property of the other Party.</p>
<p>Client shall not (i) create derivative works based on the Services, (ii)
copy, frame or mirror any part or content of the Services, other than
copying or framing Client’s own intranet, or (iii) access the Services
in order to build a competitive Service or copy any features, functions
or graphics of the Services.</p>
7.2 IP Addresses
<p>The Parties acknowledge and agree that Supplier may provide Client the
right to use certain IP (Internet Protocol) addresses owned and/or
licensed by Supplier in connection with the provision of the Services.
Client acknowledges and agrees on termination of the Agreement for any
cause in which case Client’s right to use such IP addresses shall
automatically terminate.</p>
7.3 Client’s Applications and Code
<p>If Client, a third party acting on Client’s behalf, or a User creates
applications or program code using the Services, Client authorizes
Supplier to host, copy, transmit, display and adapt such applications
and program code, solely as necessary for Supplier to provide the
Services in accordance with this Agreement.
Subject to the above,
Supplier acquires no right, title or interest from Client or Client’s
licensors under this Agreement in or to such applications or program
code, including any Intellectual Property Rights therein.</p>
7.4 Suggestions
<p>Supplier shall have a royalty-free, worldwide, irrevocable, perpetual
license to use and incorporate into the Services any suggestions,
enhancement requests, recommendations or other feedback provided by
Client, including Users, relating to the operation of the Services.</p>
8.
Confidentiality
8.1 Confidential Information
<p>“<strong>Confidential Information</strong>” means all confidential information
disclosed by a party (“<strong>Disclosing Party</strong>”) to the other Party
(“<strong>Receiving Party</strong>”), whether orally or in writing, that is
designated as confidential or that reasonably should be understood to be
confidential given the nature of the information and the circumstances
of disclosure.
Client’s Confidential Information shall include Client
Data and Client Technology.
Supplier Confidential Information shall
include the Services, Supplier Data and Supplier Technology.
and
Confidential Information of each Party shall include this Agreement.
Confidential Information shall not include information that: (i) is
independently developed by the Receiving Party.
or (ii) is lawfully
received by the Receiving Party free of any obligation to keep it
confidential.
or (iii) becomes generally available to the public other
than by breach of this Section.</p>
8.2 Principle
<p>The Confidential Information shall remain the property of the relevant
Party.
Each Party shall use the same degree of care that it uses to protect
the confidentiality of its own Confidential Information of like kind (but
in no event less than reasonable care) (i) not to use any Confidential
Information of the Disclosing Party for any purpose outside the scope of
this Agreement, and (ii) to limit access to Confidential Information of the
Disclosing Party to its employees (which for Supplier includes its Affiliates’
and its subcontractors’ employees) and its legal and financial advisors on
a ‘need-to-know’ basis provided those persons first agree to observe the
confidentiality of the Confidential Information, without the other Party’s
prior written consent.
This confidentiality undertaking shall be valid for the
duration of this Agreement and for an indefinite time following termination
thereof, independently of the reasons of termination.</p>
8.3 Exceptions
<p>The Receiving Party may disclose Confidential Information of the
Disclosing Party if it is compelled to do so by law, any stock exchange,
or any Governmental Authority, provided the Receiving Party gives the
Disclosing Party prior notice of such compelled disclosure (to the
extent legally permitted) and reasonable assistance, at the Disclosing
Party’s cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party is compelled by law to disclose the Disclosing
Party’s Confidential Information as part of a civil proceeding to which
the Disclosing Party is a party, and the Disclosing Party is not
contesting the disclosure, the Disclosing Party will reimburse the
Receiving Party for its reasonable cost of compiling and providing
secure access to such Confidential Information.</p>
<p>If Client believes that, in the course of providing Services under these
Terms and Conditions, Supplier will have access to data Client does not
want Supplier to comprehend, Client should encrypt such data so that it
will be unintelligible.</p>
<p>Further, the provisions of Section 11 are reserved.</p>
9.
Warranties
9.1 Representations and Warranties of Client
<p>Client represents and warrants that (i) it has validly entered into this
Agreement and has the legal power and authority to do so, and (ii) the
performance of Client’s obligations under these Terms and Conditions,
the Order(s), and the use of the Services will not violate any
applicable law, rule or regulation or any contract or otherwise
unreasonably interfere with Supplier’s Clients’ use of the Services.</p>
9.2 Representations and Warranties of Supplier
<p>Supplier represents and warrants that (i) it has validly entered into
this Agreement and has the legal power and authority to do so.
(ii) the
performance of Supplier’s obligations under these Terms and Conditions
and the Order(s) will not violate any applicable law, rule or
regulation.
and (iii) Supplier is authorized and has completed all
required corporate actions necessary to execute the applicable Order(s).</p>
9.3 Exclusion of other Warranties
<p>
<strong>Except for the representations and warranties expressly made in these
Terms and Conditions, Supplier makes no representations or warranties,
express or implied, statutory or otherwise, including warranties of
merchantability, satisfactory quality, and fitness for a particular use
or non-infringement of third parties rights.</strong>
</p>
10.
Indemnification
10.1 Indemnification
<p>Subject to the limitations set forth in Section 10.3, each Party shall
indemnify the other Party from any claim, demand, suit or proceeding
(“<strong>Claim</strong>”) made or brought by third parties and shall indemnify such
Party for any damages, fees and costs (including attorney fees and court
costs) in respect of (i) damage to tangible property, personal injury or
death caused by such Party’s gross negligence or willful misconduct
(including such Party’s corporate bodies, employees, auxiliaries,
Affiliates, and, in respect of Supplier, its Users).
(ii) a breach by
Client of Section 9.1, respectively by Supplier of Section 9.2.</p>
10.2 Exclusion of Indirect and Consequential Damages
<p>
<strong>Notwithstanding any other provision hereof, neither Party shall be
liable for any indirect, incidental or consequential damages (including
but not limited to damages for lost profits, lost revenues, loss of
goodwill, loss of anticipated savings, loss of customers, loss of Client
Data, interference with business or cost of purchasing replacement
services) arising out of the performance or failure to perform under any
Order or these Terms and Conditions, whether or not caused by the acts
or omissions of such Party, its employees or agents, and regardless of
whether such Party has been informed of the possibility or the
likelihood of such damages, provided however, that the foregoing
limitations shall not apply to the Parties’ indemnity obligations
contained herein.</strong>
</p>
10.3 Limitation of Liability
<p>
<strong>Supplier’s sole liability for damages arising out of or in connection
with this Agreement is limited to (i) any amount paid by Client
hereunder in the three (3) months preceding the incident and/or (ii)
Client’s right to terminate a particular Service, being specified that
in no event shall Supplier’s aggregate liability arising out of or
related to this Agreement exceed the total amount paid by Client
hereunder.
The foregoing shall not limit Client’s payment obligations
under Section 3.</strong>
</p>
10.4 Personal Injury and Death, Fraud and Willful Misconduct
<p>The liability of either Party for (i) personal injury or death resulting
from the negligence of a Party or its employees.
(ii) fraud (including
fraudulent misrepresentation) or willful misconduct is not limited.</p>
11.
Publicity
<p>Neither Party shall have the right to use the other Party’s or its
Affiliates’ trademarks, service marks or trade names or to otherwise
refer to the other Party in any marketing, promotional or advertising
materials or activities, provided, however, that Supplier shall be
entitled to refer to Client (by name and/or logo, as well as to the
Services, provided that the financial conditions or other disclosed
shall not be disclosed) in any such materials or activities.
Neither
Party shall issue any publication nor any press release relating to any
contractual relationship between Supplier and Client except as required
by law or agreed in writing between the Parties.</p>
12.
Force Majeure
<p>Except for Client’s payment obligations under these Terms and Conditions
and/or any Order, neither Party shall be liable, nor shall any other
remedy be extended, for any performance that is prevented or hindered
due to a Force Majeure Event.
The defaulting Party shall promptly notify
the other Party of an inability to perform any obligation stipulated in
this Agreement as a result of a Force Majeure Event and take such action
as the other Party shall reasonably request to alleviate the situation.
If Supplier is unable to provide the Services for a period in excess of
thirty (30) consecutive days due to a Force Majeure Event, then either
Party may cancel the affected Order upon written notice to the other
Party, and both Parties shall be released from any further future
liability under that particular Order.</p>
13.
Term and Termination
13.1 Term
<p>The exoscale Services will be provided on an indefinite-time basis and
may be terminated at any time (i) by Client upon a thirty (30) day prior
written notice to Supplier or (ii) by Supplier upon a ninety (90) day
prior written notice to Client.</p>
13.2 Termination or Suspension by either Party
<p>Either Party (“<strong>Non-Defaulting Party</strong>”) may terminate and/or suspend
the provision or the procurement of the Services upon written notice of
termination and/or suspension to the other Party (“<strong>Defaulting
Party</strong>”) if (i) the Defaulting Party breaches a material provision of
this Agreement and the Defaulting Party fails to cure such breach within
thirty (30) days after receipt of written notice of breach from the
Non-Defaulting Party.
or (ii) any bankruptcy, insolvency, liquidation,
receivership or winding up proceeding is commenced in respect of the
other Party.</p>
13.3 Termination or Suspension by Supplier
<p>Supplier shall have the right, upon written notice, to immediately
terminate and/or suspend any Order(s) and/or the delivery of the
Services (without liability) in the event that:</p>
<ul>
<li>
<p>a) Client has violated (i) any law rule, regulation or directive of any Governmental Authority related to the Services or Client’s or a User’s use thereof or (ii) Section 5 (Use of the Services).
or</p>
</li>
<li>
<p>b) Supplier receives any direction, notification or instruction from any Governmental Authority (or any independent Internet content monitoring entity) to suspend or terminate the provision of the Services to Client (through no fault or negligence of Supplier).</p>
</li>
</ul>
13.4 Supplier’s Remedies
<p>In the event Supplier terminates or suspends an Order because of any
reasons set forth in Sections 13.2 or 13.3, then Client agrees to pay to
Supplier the Service Fees and/or any other fixed minimum charges for the
term of this Agreement.</p>
13.5 Return of Data
<p>Upon request of the Client notified at least thirty (30) days prior to
termination of the Services, Supplier shall make Client Data available
to Client in its original format through the exoscale recovery service,
upon charge of a recovery service fee.
Unless a request for the exoscale
recovery service is made, Supplier shall have no obligation to maintain
or provide any of Client Data after termination of the Services and
shall thereafter, unless legally prohibited, delete all of Client Data
in Supplier’s systems or otherwise in Supplier’s possession or under its
control.</p>
13.6 Surviving Provisions
<p>Sections 3 (Fees and Payment Modalities), 7 (Proprietary Rights), 8
(Confidentiality), 9.3 (Disclaimer of Warranties), 10 (Indemnification),
13 (Termination), 14 (Miscellaneous Provisions) shall survive any
termination or expiration of this Agreement.</p>
14.
Miscellaneous Provisions
14.1 Severability.
No Waiver
<p>The invalidity, illegality or unenforceability of any provision of this
Agreement shall in no way affect the validity, legality or
enforceability of any other provision thereof.
The Parties undertake to
negotiate in good faith with a view to replace such invalid, illegal or
unenforceable provision with another provision that best reflects the
intentions of the Parties.</p>
<p>The failure by either Party to exercise or enforce any provision of this
Agreement shall not be deemed to be a waiver of the application of such
provision or of a right nor to operate so as to bar the exercise or
enforcement of any such provision or right on any later occasion.</p>
14.2 Assignment and Successors
<p>Neither Party may assign an Order without first obtaining the other
Party’s written consent.
except that, however, Supplier may assign any
Order(s) to an Affiliate or as part of a corporate reorganization,
consolidation, merger or sale of substantially all of its assets.
Any
purported assignment in contravention of this Section shall be invalid
and the assigning Party shall remain bound.
This Agreement will bind and
inure to the benefit of each Party and each Party’s successors and
permitted assigns.</p>
<p>If any of the Parties is a participant in a merger, consolidation,
reorganization, or sale or transfer of assets or stock, such Party
agrees that as a condition precedent to the closing of any such
transaction, it shall ensure that the surviving entity of any such
transaction shall expressly assume the rights and be subject to the
obligations set forth in this Agreement.</p>
14.3 Notice
<p>Any notice shall be sent by a Party to the other Party by email,
registered mail or courier, to the following address:</p>
a) To Supplier:
<p>Akenes SA
Att.
exoscale Manager
Boulevard de Grancy 19A, 1006 Lausanne, Switzerland</p>
<p>Email: manager@exoscale.ch</p>
b) To Client:
<p>at the address set forth in the Order(s) or at such other address as may
hereafter be provided by Client.</p>
14.4 Relationship of Parties
<p>Supplier and Client are independent contractors and these Terms and
Conditions will not establish any relationship of partnership, joint
venture, employment, franchise or agency between Supplier and Client.</p>
14.5 Amendments
<p>Supplier may modify these Terms and Conditions upon a thirty (30) day
notice to Client.
Upon receipt of such notice, Client may terminate any
Order by delivering a written thirty (30) day notice of termination no
later than thirty (30) days after the notification date of the change.</p>
14.6 Third Party Beneficiaries
<p>Supplier and Client agree that there shall be no third party
beneficiaries to this Agreement, including, but not limited to, any
sublicensee or User of Client or the insurance providers for either
Party.
To the extent it is allowed by law any legislation in any
relevant jurisdiction giving rights to third parties is hereby excluded.</p>
14.7 Entire Understanding
<p>This Agreement (comprising these Terms and Conditions and any applicable
Order(s)) constitutes the entire understanding of the Parties related to
the subject matter hereof.
All prior written or oral agreements,
understandings, communications or practices between the Parties are
hereby superseded and withdrawn and shall have no legal effect insofar
as they relate to the Services hereunder.
In the event of any conflict
between the Order and these Terms and Conditions, the Order shall
prevail.</p>
14.8 Governing Law.
Jurisdiction
<p>
<strong>These Terms and Conditions and any Order shall be governed by the laws
of Switzerland.
The Parties irrevocably submit to the exclusive
jurisdiction of the courts of the canton of Vaud, district of Lausanne.
Notwithstanding the above, Supplier may submit any dispute to any court
of competent jurisdiction in accordance with the applicable conflicts of
law rules.</strong>
</p>