EXOSCALE END USER SERVICE AGREEMENT (EUSA)
applicable between Akenes (Exoscale) and You (Client) for Exoscale Services purchased from Authorized Partner
This Service Agreement is entered into between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“Client”), and Akenes (“Exoscale”). It consists of the terms and conditions below, Use Rights, SLA, and all documents referenced within those documents (together, the “agreement”). It is effective on the date that the Authorized Partner provisions your Subscription.
“Authorized Partner” means an entity which has entered into an Agreement with Exoscale and which is entitled to resell or distribute the Products and Services of Exoscale to Clients.
“Client” means You, representing a company or individual purchasing Exoscale Services from an Authorized Partner.
“Client Data” means any data (including but not limited to any software application) stored by Client on the cloud infrastructure provided by Exoscale, including all text, pictures, sound, video, and log files and all documentation (printed or electronic).
“Client Technology” 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).
“Exoscale” means Akenes SA, Route de Marcolet 39, 1023 Crissier, Switzerland.
“Exoscale Data” 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).
“Exoscale Service(s)” or “Service(s)” means the Infrastructure-as-a-Service (IaaS) cloud computing services provided by Exoscale 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).
“Exoscale Technology” means Exoscale’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 Exoscale or licensed to Exoscale from a third party).
“EUSA mean this Exoscale End User Service Agreement.
“Users” 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.
“Force Majeure Event” 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, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency, insurrections, epidemics, inability to procure materials or transportation facilities, failure of power, court orders, condemnation, failure of the Internet, or other event of a similar nature.
“Governmental Authority” means any federal, national, cantonal or city, court, governmental or administrative authority or regulatory body, whether foreign or domestic.
“Intellectual Property Rights” 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.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-Exoscale Applications” means online applications and offline software products that are provided by entities or individuals other than Exoscale and are clearly identified as such, and that interoperate with the Services.
“Order” means the order within the active subscription submitted by Client to Exoscale (for example via the Exoscale Website), setting out matters relating to Exoscale’s delivery of Services to Client.
“Exoscale Network” 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 Exoscale or its Affiliates.
“Personal Information” means any information relating to a natural person as defined by the applicable law that may be used to identify an individual.
“Subscriptions” means an enrollment of Exoscale Services concluded between the Client and the Authorized Partner, setting out matters relating to delivery of Services to Client and governed by these EUSAs and the Authorized Partner´s Terms and Conditions.
“Service Level Agreement” or “SLA” means the service level provisions describing the service level targets as set out in Section 3.
“Software” means any software application provided by Exoscale which Client may be entitled to use in accordance with any Order.
“Unavailable” 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 Exoscale Network Services (i.e. Internet and MPLS – Multiprotocol Label Switching) from the Exoscale Service platform); and “Unavailability” means accordingly.
“Website” means the Exoscale Service website available at https://portal.exoscale.com.
2. The Services – Subscription and Ordering
Client must choose and maintain an Authorized Partner authorized within its region. If Exoscale or Authorized Partner chooses to discontinue doing business with each other, Client must choose a replacement Authorized Partner or purchase a Subscription directly from Exoscale, which may require Client to accept different terms.
If Client purchases the Products and Services from the Authorized Partner, these EUSA´s shall apply. In addition (e.g. ordering, payment…) the Terms and Conditions of the Authorized Partner, as detailed in the respective subscription for Infrastructure as a Service Offerings with the Authorized Partner, shall apply. Prices for each Product and any terms and conditions for invoicing and payment will be established by Clients’s Authorized Partner. For avoidance of doubt, if Client purchases the Products and Services directly from Exoscale, different Terms and Conditions (Exoscale Service Terms and Conditions) shall apply.
3. Service Level Agreement (SLA)
3.1 Service Availability Targets
Exoscale 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:
Planned downtime and maintenance events;
Force Majeure Events;
Unavailability of the Website;
Failures or malfunctions in any Client software, equipment or technology; and/or
If Client is in breach of these EUSA, including but not limited to its payment obligations against the Authorized Partner and the use of Services
3.2 Incident Management Service Levels
Exoscale targets to respond to incidents within the maximum following time frame as of receipt of notice of incident within fifteen (15) minutes. For avoidance of doubt, receipt of notice means the time at which Exoscale has knowledge of the incident.
3.3 Standard Service Requests
Exoscale shall provide platform usage support as follows:
Password reset: within one (1) hour from receipt of request; and
Start, Stop, Reboot: within one (1) hour from receipt of request.
The platform usage support shall be free of charge. For avoidance of doubt, the support period starts as soon as Exoscale has knowledge of the request.
3.4 Service Unavailability Credit
Except under the conditions mentioned in the section 3.1 above, if the Services Availability is less than 99.95%, the Exoscale will issue a credit to Client according to the following table:
From 99.95% to 98.3% : fifty percent (50%) of the monthly Service Fees for the affected Services
Below 98.3% : one hundred percent (100%) of the monthly Service Fees for the affected Services
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 email@example.com mentioning the Client name and address as well as the times and dates of the unavailability. If the unavailability is confirmed by the Exoscale, credits will be applied within two billing cycles after Exoscale’s receipt of Client’s credit request. Credits are not refundable and can be used only towards future billing charges.
4 Use of the Services
4.1 Protection of Client Data
Exoscale shall maintain appropriate safeguards for protection of the security, confidentiality and integrity of Client Data. Exoscale shall not (i) modify Client Data, (ii) disclose Client Data except as compelled by law in accordance with Section 7.3 or as expressly permitted by Client in accordance with Section 7.3 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.
In the event Exoscale is processing Personal Information in accordance with Art 28 GDPR, the data processing agreement published on the website shall apply.
Exoscale may engage sub-contractors to fulfil its contractual obligations. Exoscale will obtain the sub-contractor’s written confirmation that the sub-contractor complies with the provisions of applicable data protection law.
4.2 Data Storage
Client acknowledges and agrees that Exoscale 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.
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. Exoscale 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”.
4.3 Client’s Responsibilities
Client shall (i) be responsible for Users’ compliance with these EUSAs, (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 Exoscale promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the EUSAs and applicable laws. Client is responsible for maintaining the security of its internal network from unauthorized access through the Internet. Exoscale shall not be liable for unauthorized access to Client’s network or other breaches of Client’s network security.
4.4 Misuse of the Services
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 Exoscale in accordance with generally accepted standards of the Internet community.
4.5 Unauthorized or Fraudulent Use of the Services
Client shall be responsible for (save as to the extent caused by any acts or omissions of Exoscale) taking all reasonable measures to avoid, and immediately notify Exoscale 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.
4.6 Interruption of the Services
In case the Exoscale’s infrastructure is damaged (or threatened to be damaged) through the IP Address of a Client (e.g. virus or hacking) or otherwise, Exoscale is expressly authorized to immediately interrupt the Exoscale Services and shall immediately inform the Client thereof.
4.7 Intellectual Property Rights
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.
4.8 Export Control
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.
5. Software Licenses
5.1 Acquisition of Software
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 Exoscale 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 Exoscale is not renting any client software to Client. Exoscale does not warrant or support Non-exoscale Applications, whether or not they are designated by Exoscale as “certified” or otherwise.
5.2 Non-exoscale Applications and Client’s Data
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. Exoscale shall not be responsible for any disclosure, modification or deletion of Client’s Data resulting from any such access by Non-exoscale Application providers.
5.3 Demarcation of Responsibilities
Exoscale 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 Exoscale, 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.
6. Proprietary Rights
6.1 Technology and Data
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 Exoscale is and shall remain exclusively entitled to all right and interest in and to all Exoscale Technology, Exoscale 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.
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.
6.2 IP Addresses
The Parties acknowledge and agree that Exoscale may provide Client the right to use certain IP (Internet Protocol) addresses owned and/or licensed by Exoscale 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. The same applies mutatis mutandis if the Agreement between Exoscale and Authorized Partner ends, and Client doesn´t purchase the Services directly from Exoscale.
6.3 Client’s Applications and Code
If Client, a third party acting on Client’s behalf, or a User creates applications or program code using the Services, Client authorizes Exoscale to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Exoscale to provide the Services. Subject to the above, Exoscale 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.
Exoscale 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.
7.1 Confidential Information
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), 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; Exoscale Confidential Information shall include the Services, Exoscale Data and Exoscale 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.
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 Exoscale 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 the Service and for an indefinite time following termination thereof, independently of the reasons of termination.
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.
If Client believes that, in the course of providing Services under these Terms and Conditions, Exoscale will have access to data Client does not want Exoscale to comprehend, Client should encrypt such data so that it will be unintelligible.
Further, the provisions of Section 9 are reserved.
8.1 Representations and Warranties of Client
Client represents and warrants that the performance of Client’s obligations under these EUSAs, and the use of the Services will not violate any applicable law, rule or regulation or any contract or otherwise unreasonably interfere with Exoscale’s Clients’ use of the Services.
8.2 Representations and Warranties of Exoscale
Exoscale represents and warrants that the performance of Exoscale’s obligations under these EUSA including the respective Order will not violate any applicable law, rule or regulation; and (iii) Exoscale is authorized and has completed all required corporate actions necessary to execute the applicable Order(s).
8.3 Exclusion of other Warranties
Except for the representations and warranties expressly made in these EUSAs Exoscale 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.
Subject to the limitations set forth in Section 9.3, each Party shall indemnify the other Party from any claim, demand, suit or proceeding (“Claim”) 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 Exoscale, its Users); (ii) a breach by Client of Section 8.1, respectively by Exoscale of Section 8.2.
9.2 Exclusion of Indirect and Consequential Damages
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 EUSAs, 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.
9.3 Limitation of Liability
Exoscale’s sole liability for damages arising out of or in connection with this Agreement is limited to (i) any amount paid by Client to the Authorized Partner 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 Exoscale’s aggregate liability arising out of or related to this Agreement exceed the total amount paid by Client to the Authorized Partner hereunder.
9.4 Personal Injury and Death, Fraud and Willful Misconduct
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.
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 Exoscale 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 Exoscale and Client except as required by law or agreed in writing between the Parties.
11. Force Majeure
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 Exoscale 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.
12. Suspension by Exoscale
Exoscale shall have the right, upon written notice, to immediately suspend any Order(s) and/or the delivery of the Services (without liability) in the event that:
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 4 “Use of the Services”; or
b) Exoscale 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 Exoscale).
In the event Exoscale terminates or suspends an Order because of any reasons set forth in Sections 12, then Client agrees to pay to Authorized Partner the Service fees and/or any other fixed minimum charges for the term of the Subscription/respective Order.
13 Return of Data
Upon request of the Client notified at least thirty (30) days prior to termination of the Services, Exoscale 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, Exoscale 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 Exoscale’s systems or otherwise in Exoscale’s possession or under its control.
14 Surviving Provisions
Sections, 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer of Warranties), 9 (Indemnification), 12 (Suspension), 15 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.
15. Miscellaneous Provisions
15.1 Severability; No Waive
The invalidity, illegality or unenforceability of any provision of this EUSA 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.
The failure by either Party to exercise or enforce any provision of this EUSA 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.
Any notice shall be sent by a Party to the other Party by email, registered mail or courier, to the following address:
a) To Exoscale:
Akenes SA Att. Exoscale Manager, Boulevard de Grancy 19A, 1006 Lausanne, Switzerland
b) To Client:
at the address set forth in the Order(s) or at such other address as may hereafter be provided by Client.
Exoscale may modify these EUSAs upon a thirty (30) days notice to Client. Unless the Client has no minimum commitment and can stop using the Service any time, the 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 upon receipt of such notice.
15.4 Governing Law; Jurisdiction
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, Exoscale may submit any dispute to any court of competent jurisdiction in accordance with the applicable conflicts of law rules.