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 “Party” and collectively, as the “Parties”.
“Agreement” means any Order and these Terms and Conditions collectively.
“Affiliate” 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, “Control” 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.
“Client” means the entity or individual so named on the Order.
“Client Data” 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).
“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).
“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.
“Exoscale Service(s)” or “Service(s)” 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.
“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, 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.
“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.
“Interest Rate” means an interest rate of 5% per year.
“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 Supplier and are clearly identified as such, and that interoperate with the Services.
“Order” 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.
“Personal Information” means any information that may be used to identify an individual.
“Service Commencement Time” 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.
“Services Fees” means charges for the Services (including but not limited to monthly recurring charges and non-recurring charges) as identified in the relevant Order.
“Service Level Agreement” or “SLA” means the service level provisions describing the service level targets as set out in Section 4.
“Software” means any software application provided by Supplier which Client may be entitled to use in accordance with any Order.
“Supplier” means Akenes SA, Route de Marcolet 39, 1023 Crissier, Switzerland.
“Supplier 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 Supplier or its Affiliates.
“Supplier 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).
“Supplier Technology” 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).
“Terms and Conditions” mean these Exoscale Services Terms and Conditions.
“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 Supplier 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
Client may 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.
3. Fees and Payment Modalities
3.1 Service Fees
Supplier shall charge the Services Fees to Client as detailed in the Order(s). Supplier shall be entitled to increase its Service Fees upon a forty-five (45) day prior written notice to Client.
3.2 Invoicing and Payment
Unless otherwise agreed between the Parties in writing, billing for the Services shall commence on 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.
3.3 Overdue Charges
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.
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 any remaining credit balance will be refunded within thirty (30) days of such termination. Client shall be subject to the credit limit (“Credit Limit”) as may be specified in the Order(s). 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 (“Accrued Liability”) 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.
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 (“Taxes”). 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.
3.6 Disputed Bills
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.
3.7 Trial Credit
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:
Maximum number of virtual machines, snapshots and other quantitative limitations of services.
4. Service Level Agreement (SLA)
4.1 Service Availability Targets
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:
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 Terms and Conditions, including but not limited to its payment obligations and the use of Services.
4.2 Incident Management Service Levels
Supplier targets to respond to incidents within the maximum following time frame as of receipt of notice of incident within fifteen (15) minutes.
4.3 Standard Service Requests
Supplier 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.
4.4 Service Unavailability Credit
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:
- 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 firstname.lastname@example.org 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.
5. Use of the Services
5.1 Protection of Client Data
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 8.3.1 or as expressly permitted by Client in accordance with Sections 8.3.2 and 8.3.3, 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.
5.2 Data Storage
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.
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”.
5.3 Client’s Responsibilities
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.
5.4 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 defamatory, abusive, excessively violent, obscene, libelous, or otherwise unlawful or tortuous 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.
5.5 Unauthorized or Fraudulent Use of the Services
Client shall be responsible for (save as to the extent caused by any acts or omissions of 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.
5.6 Interruption of the Services
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.
5.7 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.
5.8 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. 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.
6. Software Licenses
6.1 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 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.
6.2 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. 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.
6.3 Demarcation of Responsibilities
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.
7. Proprietary Rights
7.1 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 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.
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.
7.2 IP Addresses
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.
7.3 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 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.
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.
8.1 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; 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.
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 third party service providers’ employees) and its legal and financial advisers 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.
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.
Client acknowledges and agrees that Supplier may hold, use, process and/or transfer Personal Information of Client and/or its employees (including to Affiliates, third parties and abroad): (i) in connection with the provision of Services; (ii) to incorporate such Personal Information into databases controlled by Supplier for the purpose of account administration, billing, operational maintenance and support activities, fraud detection and prevention, and customer and market analysis and reporting; and (iii) to communicate to Client by voice, letter, fax or email regarding products and services of Supplier. 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.
Further, the provisions of Section 11 are reserved.
9.1 Representations and Warranties of Client
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.
9.2 Representations and Warranties of Supplier
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).
9.3 Exclusion of other Warranties
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.
Subject to the limitations set forth in Section 10.3, 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 Supplier, its Users); (ii) a breach by Client of Section 9.1, respectively by Supplier of Section 9.2.
10.2 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 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.
10.3 Limitation of Liability
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.
10.4 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 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.
12. Force Majeure
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.
13. Term and Termination
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.
13.2 Termination or Suspension by either Party
Either Party (“Non-Defaulting Party”) 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 (“Defaulting Party”) 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.
13.3 Termination or Suspension by Supplier
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:
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
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).
13.4 Supplier’s Remedies
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.
13.5 Return of Data
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.
13.6 Surviving Provisions
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.
14. Miscellaneous Provisions
14.1 Severability; No Waiver
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.
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.
14.2 Assignment and Successors
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.
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.
Any notice shall be sent by a Party to the other Party by email, registered mail or courier, to the following address:
a) To Supplier:
Akenes SA Att. exoscale Manager Route de Marcolet 39, 1023 Crissier, 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.
14.4 Relationship of Parties
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.
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.
14.6 Third Party Beneficiaries
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.
14.7 Entire Understanding
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.
14.8 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, Supplier may submit any dispute to any court of competent jurisdiction in accordance with the applicable conflicts of law rules.