Master Service Agreement (hereinafter referred to as “Agreement” or “MSA”), dated as of January 15, 2025 (hereinafter referred to as “Effective Date”), is between
SUPPLIER, Advanced Hosters B.V. (hereinafter “Company” or “We”, which means and includes Our successors, assigns and affiliates), and
YOU, personally or the person, entity on whose behalf You legally act (hereinafter referred to as “You” or the Client) jointly referred to as Parties,
by registering an Account, ordering or using Services, using Our websites, web-platforms, applications, online complex tech-for-tech products (including WEBSA),
Whereas legal relations between Parties are concerned with hosting and related services only, the Supplier usually acts as a provider of intermediary services. The Supplier does not initiate Customer’s Content transmission, select the receiver of the transmission, select or modify the information contained in the transmission,
acknowledge the obligation to comply with the Agreement, as follows:
In the Agreement, except where the context otherwise requires, the expressions shall have the following meanings:
Affiliate means, with regard to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, including the possession of power, to direct or cause the direction of the management and the policies of an entity, whether through ownership of voting rights, by contract or otherwise.
Bandwidth is the maximum capacity of a network connection from one point to another, expressed in bits per second (bps).
Burstable bandwidth means a type of network connection that provides the Customer with the capability to burst up the physical capacity of the port during short periods of time if required.
Beta means a production-ready Service (features, technologies, etc.) delivered by the Supplier “as-is” and “as available” without any Service Levels and/or other liabilities, warranties, commitments being applicable labeled “beta”, “preview”, “pre-release”, ”test”, “experimental”, etc. All Services provided in Beta may contain bugs, errors, defects, or harmful components.
Charges means all fees which the Supplier may charge the Customer for Service, Equipment or due pursuant to the Agreement.
Colocation service is a package solution in which the Customer places its owned or rented physical servers and IT equipment in the Supplier’s data center(-s) or a housing space(-s). The Supplier usually offers space, power, cooling, physical security, network connectivity, and remote hands, while the Customer retains control over its hardware and software.
Confidential Information means all information used in or otherwise relating to the Agreement, the business or affairs of a Party or its Affiliate and disclosed (whether in writing, verbally or by any other means, directly or indirectly) by the Disclosing Party to the Receiving Party whether before or after the Agreement Effective Date. The Supplier’s Confidential information includes but is not limited to (i) information about the Supplier’s technology, customers, business plans, marketing and sales activities, finances, operations, and other business information; and (ii) the existence and content of Parties’ negotiations regarding Services; and (iii) course of Service providing.
Customer Account means registration for the Customer’s use of Services by separate and independent access via Supplier’s Portal (or Portals). The Customer may have one or more Accounts in one or more Supplier’s Portals.
Customer Content means information, text, images, videos, files, links, data, other content, including Content used by Customer’s End Users, partners, etc.
Dedicated server is a physical dedicated computer (platform, hardware, operating system software, etc., as selected by the Supplier) provided by the Supplier for the Customer’s sole use.
Dedicated server hosting services mean the provision of a dedicated server(s) for the Customer’s sole use.
End User means any client of Customer or other user of Customer’s services, as well as any other person or (legal) entity who may obtain direct or indirect access to Customer’s services, resources or Supplier’s IT infrastructure indirectly via the Customer.
Equipment means the computer server equipment (platform, hardware, operating system software, etc.) provided by the Supplier on a rental basis or delivered (sold) to the Customer for the sole use of the Customer, together with other tangible and intangible system components used by the Supplier (and any Supplierʼs Affiliates) to provide Services, including, but not limited to all computer hardware and other equipment (associated attachments, features, accessories, peripheral devices, front-end devices and the like); and telecommunications hardware and other equipment (including private branch exchanges, multiplexores, modems, CSUs/DSUs, hubs, bridges, routers, switches and the like).
Force Majeure means any event outside the reasonable control of a Party affecting its ability to perform any of its obligations (other than Customer’s payment and financial obligations) under the Agreement, including but not limited to: acts of God; acts of terrorists; acts of war; outbreak of hostilities; sabotage; civil disorder; riots; strikes or other labour unrest, lockout or industrial action; explosion; any interruption in the supply of electrical energy; restrictions related to an outbreak of disease (such as formally by government and/or medical authorities established viruses; pandemics); any civil commotion or disorder; shortage of materials; unavailability or delay in delivery not resulting from the responsible the Supplier’s failure; equipment failures; any destruction, temporary or permanent breakdown, malfunction or damage of or to any premises, plant, equipment or materials caused by the acts or omissions of any unrelated third party, including without limitation, cable cuts or other damage to cables by a third party or by reason of any event; lack of or delay in transportation; failure of a third party to grant a required right-of-way permit, assessment or other required authorization; acts or omissions of vendors or suppliers; any action taken by an authority of any kind, including, without limitation, not granting a consent, exemption, approval or clearance or imposing an embargo, export or import restriction, rationing, quota or other restriction or prohibition changes in law or government policy; and other unforeseeable circumstances. Provided, however, that a Party has no right to refer to Force Majeure for any event that (i) a Party could have reasonably known or been aware of prior to entering into the Agreement and could have been prevented by a Party’s reasonable precautions or workarounds, or (ii) any labor problems or strikes relating to the workforce of a Party.
GDPR means Regulation 2016/679/EU of the European Parliament and of the Council of 27 April 2016.
Intellectual Property Rights means any patent, (software) copyright, trademark, trade name, business name, designation, service mark, moral right, database right, trade secret, know-how, and all other intellectual property rights, whether registered or not or capable of registration and whether subsisting in the country of a Party’s principal place of business or any other part of the world together with goodwill relating thereto.
Maintenance means maintenance, repairs, modifications, or upgrades performed periodically by the Supplier or the Supplier’s partners.
Trade Laws mean export and trade sanction laws, regulations, and rules in force from time to time or any other applicable jurisdictions’ export restriction regulation, any legislation replacing the foregoing and any orders issued under the foregoing.
Prohibited Party List means any list of prohibited parties or subject to sanctions imposed by the EU, U.S., or other countries in force from time to time.
Services mean the applicable Services agreed by the Supplier as ordered by and provided to the Customer, including but not limited to Hosting, Web Hosting, Colocation services, Dedicated server hosting services, Cloud Services, CDN, Device rent, Cache services, IP, snapshots, and other services provided by the Supplier directly or by Supplier’s Affiliates. None of the Services are considered as an online platform under any EU regulations.
Supplier’s Portal is the Supplier’s online platform that allows the Supplier to connect and collaborate with the Customer, including transaction processing, information exchange, and collaboration on processes indicated by the Supplier in writing. The Supplier may indicate different Portals for different Services.
Website means the website https://advancedhosting.com/or such other website as the Supplier may notify the Customer from time to time in its sole discretion.
2.1. The Agreement consists of the Master Service Agreement, the Service Level Agreements provided by the Supplier under the Customer’s request or posted on the Website, the Policies and the Procedures, which are available on the Website, shall apply to all Orders, Services, Beta, and all legal relationships between the Parties. All the mentioned documents constitute the entire Agreement between Parties. In case of any inconsistency between the MSA and Service Level Agreements, Policies, Procedures, Service Level Agreements, Policies and Procedures shall prevail.
Therefore, the Customer should also review these other documents, which can be found at the links below:
2.2. The Supplier is entitled to issue new versions and thereby amend Master Service Agreement, Service Level Agreements, Policies, and Procedures. Such amendment also applies to existing Master Service Agreement unless the Supplier states otherwise formally in writing. The announcement about amendments may be made on (i) the Website, (ii) the Supplier’s Portal, applications, or (iii) by a Notice.
2.3. The amendments to the Master Service Agreement come into effect thirty (30) calendar days after the announcement or on a later date stated in the announcement. Any amendment to Service Level Agreements, Policies, and Procedures come into effect immediately upon being made announced.
2.4. If the Customer does not wish to accept amendments to the MSA, the Customer may terminate the Agreement by means of a Notice for termination that must have been received by the Supplier within fourteen (14) calendar days after the Supplier’s announcement of a new version (Services shall be suspended not earlier than on the 90th calendar day upon the Customer’s Notice), unless
(a) the amendments are required by law; or
(b) the amendments do not materially and adversely affect the Customer’s use of the Services and Equipment; or
(с) Charges shall be increased to 10% or less; or
(d) Charges shall be increased to more than 10% because of taxes or tariffs of the Supplier’s providers shall increase.
If the Customer does not notify the Supplier within the timeframe referenced above, a new version of the Master Service Agreement shall be deemed as approved by the Customer.
3.1. The Customer may receive Services and Equipment from either the Supplier or Supplier’s Affiliates.
3.2. The scope of Services and Equipment offered by the Supplier are set out in the Orders or may be agreed upon by Parties in mutual Notices (without Orders signed). The Customer agrees to purchase Services for the complete term identified in Customer’s Orders or agreed by Parties in writing. It is expressly understood and agreed by the Customer that the tariffs for the Services purchased by the Customer hereunder are based on the Customer’s term commitment.
Some types of Services can be ordered via the Supplier’s Portal or web platform, which shall contain activation options, i.e., Services that are charged based on the Customer’s actual usage of the Service, measured per day/minute/hour or other appropriate unitized measure. For such Services, the Customer may deactivate Service at any time in the Supplier’s Portal unless the Supplier’s Portal has indicated that the Service has a term commitment.
3.3. In the event that the Customer wishes (i) to purchase or use Supplier’s Services or Equipment, and/or (b) to modify Services, the Customer shall place a Notice to that effect. The Supplier shall review a Notice within a reasonable time.
3.4. Services may be limited by (i) the volume of Content to be stored or sent, received, and (ii) other limits established by the Supplier.
The Customer acknowledges that upon the limit to be reached for any given period, any additional traffic, storage space, or other aspects of Services over the limit may be charged in accordance with the Supplier’s rates. If the Customer does not use some part of allocated traffic, storage space, or other aspects of Services within any given period, that unused resources shall not “roll over” to the next billing cycle. All unused allocated aspects of Services in a given period shall be paid by the Customer. If the Customer exceeds limits and thereby overloads the Supplier’s system, servers, or other hardware or software, the Customer shall be assigned any and all fees, costs, and penalties associated with such overloading. For Cloud Servers, CPU utilization limits are in effect; consistent excessive CPU, network, or disk load is considered service misuse, which may result in Service termination.
3.5. Unless otherwise agreed by Parties, the term for Services provision shall commence on the Services start date.
The Supplier shall use commercially reasonable efforts to ensure that Services shall be ready for the Customer’s use on the agreed date and any Equipment sold (rented) to the Customer shall be delivered on the agreed date. The agreed date may be changed after a Notice to the Customer if the delay occurs for reasons beyond the Supplier’s control.
The Service start date is the date when the Supplier notifies the Customer in writing that the Service is operational. The Customer has seventy-two (72) hours from the Supplier’s Notice to advise the Supplier, in writing, that the Service is not performing in accordance with the Supplier’s specifications. Such Notice shall describe the deficiencies in Service.
If the Customer fails to notify the Supplier within the timeframe referenced above, then the Service shall be deemed accepted, and billing shall commence as of the date of the Supplier’s Notice.
For the avoidance of doubt, the Supplier may commence billing for the Service even if the Service is not operational if the delay is solely due to the Customer’s failure to provide information, access, equipment, or other resources necessary to operate the Service.
The Supplier may, at its sole discretion, unilaterally delay the Service activation date by giving a Notice to the Customer.
3.6. The Supplier may discontinue Services, sales, support, delivery, or offerings of Equipment and Services at any time for any end of life-cycle or alternative business reasons in causing such discontinuation of Services. The Supplier shall use commercially reasonable efforts to provide an advance Notice and offer the other relevant Service (if possible) on the different conditions. The Customer is aware that any continued operation of such discontinued Equipment or Services is undertaken at its own risk.
3.7. Equipment purchased by the Customer shall be for the risk and benefit of the Customer; the Customer may insure Equipment, the Supplier shall not be obliged to insure Equipment. However, the title of ownership to the Equipment will only be passed to the Customer on the receipt by the Supplier for full payment for such Equipment.
4.1. When using Services, software, or equipment, the Customer must maintain due care.
4.2. The scope and nature of the available Service levels are set out in Service Level Agreements.
4.3. The Customer must not use Services for any cryptographic use applied to blockchains, including cryptographic use for mining or to maintain a cryptocurrency system, without prior Supplier’s approval.
4.4. The Customer is responsible for its employees, contractors, and third parties engaging as the Customer’s authorized representatives.
4.5. The Supplier shall use commercially reasonable efforts to provide access to the Websites, Supplier’s Portal(-s), applications and Services 24 hours a day, seven days a week.
4.6. The Customer undertakes to use Services in accordance with (i) the Agreement and all applicable laws; (ii)reasonable operating instructions given in writing or orally, or in any way made public by the Supplier; and (iii) Acceptable Use Policy (hereinafter referred to as – “AUP”). The Customer shall enter into a legally binding paper or electronic agreement with the Customer’s End users, partners, or clients, which shall be no less protective than the Agreement and contain requirements similar to the Agreement regarding AUP.
4.7. The Customer grants permission for the Supplier, its employees, and contractors to have access to hardware or software elements of Service rendering or other aspects of Services to provide Services, including, without limitation, to (i) execute any works in connection with the delivery, installation, inspection, maintenance, adjustment, repair, alteration, moving, replacement, renewal or removal of equipment; and operate any Services equipment, hardware or software elements; (ii) execute any works in connection with Services provision. The Supplier shall not be granted any permission to execute any works except expressly specified by the Customer and accepted by the Supplier, shall not be granted access to any part of the Customer’s infrastructure, except expressly specified by the Customer and accepted by the Supplier (the exception to this rule may be agreed by Parties in writing). If the Customer requests technical support or orders Services that include administration support, the Customer hereby authorizes the Supplier to log into or otherwise access the Customer’s resources for the purposes related thereto only. The Customer is not authorizing the Supplier to perform any operations except expressly specified by the Customer and accepted by the Supplier in writing. All the data and Content of the Customer’s web resources shall be confidential and remain unreachable to the Supplier.
4.8. When using Services, the Customer shall have the right to restrict the Supplier’s access to the IPMI/iDRAC of the corresponding server, intended for autonomous monitoring and control, built into the server hardware, if such access has been granted. If the Customer decides to remove or change the access data to the IPMI/iDRAC of the respective server, the Customer fully releases the Supplier from liability for the possible consequences of these actions. If the Customer asks for assistance regarding the equipment replacement that has failed or requests changing server configurations, the Customer shall grant the Supplier access to the IPMI/iDRAC of the corresponding server. In case the Customer discontinues the paid use or orders an upgrade or replacement of a server, the Customer shall also be requested to share data to access the IPMI/iDRAC of the corresponding server.
4.9. The Supplier shall not be liable for any losses resulting from any unauthorized use of the Customer’s account; the Customer shall indemnify the Supplier and hold harmless for any such unauthorized use. The Customer shall protect digital certificates, user IDs, passwords, account identifiers, payment details, and other information connected with the Customer’s Account (hereinafter referred to as “Customer’s Identifiers”). The Customer may not permit other parties to use its Identifiers. Nor may Customer transfer, assign, or otherwise provide the Customer’s Identifiers to a third party. Upon verification by the Supplier of receipt of signals by way of the Identifiers that are assigned to the Customer, all communications transmitted thereafter until the Customer logs out from the Customer’s Identifiers will be presumed to be conducted by a properly authorized representative of the Customer. Accordingly, the Supplier bears no responsibility for any consequences that may result in the event that the Identifiers are stolen, employed for illicit purposes, or otherwise used improperly. The Customer shall notify the Supplier of any unauthorized or suspicious use of its Account or any other breach of security and shall take part in investigations or legal actions that shall be taken by authorities and/or the Supplier to investigate and cure the security incident or breach to the extent caused by use of Supplier’s websites, web platforms, applications, online complex tech-for-tech products, Customer’s Account, and Services.
4.10. The Supplier shall not process any personal information as part of the Services, including pseudonymous personal data.
5.1. Supplier will designate IP (hereinafter referred to as – “IP”) number and addresses as necessary for use with the Service on a paid basis. Customer may employ IP addresses other than those designated pursuant to the foregoing to use the Service under Supplier’s prior consent.
5.2. The Supplier shall maintain control or ownership of any and all Internet protocol numbers and addresses that the Supplier may assign to the Customer. Any control or ownership of any and all IP numbers and addresses shall not be transferred to the Customer. The Supplier does not warrant that the Customer shall maintain given IP addresses consistently; the Customer may be assigned different IPs from time to time. The Supplier will determine the number of the IP address. Supplier makes no guarantees of being able to offer consecutive IP addresses.
5.3. The Supplier may request justification to order IP addresses for the Customer. The Customer shall provide the Supplier with any and all information reasonably required by the Supplier. Customer’s details and documents may be disclosed to certain third parties, including, but not limited to, Administrators of IP addresses and ASNs.
5.4. Customer data, including but not limited to its legal title, address, and country of residence, may be published in the who.is databases of IP (available worldwide) as information about the entity that operates the IPs indicated.
6.1. The Customer acknowledges that from time to time, the Supplier must perform Maintenance in order to ensure the proper performance of the Network, Infrastructure, Services and that such Maintenance may affect the provision of Services.
6.2. If the Supplier expects scheduled Maintenance to affect the provision of Services, the Supplier shall provide a prior Notice to the the Customer of the intended Maintenance and, to the extent reasonably practicable – minimize any adverse effect of the Maintenance; and endeavor to keep the duration of the interruption, suspension or degradation of Services as short as possible.
6.3. From time to time, the Supplier has to perform non-scheduled Maintenance. The Supplier shall be entitled to perform such Maintenance at any time, without taking into account a Notice period.
6.4. If the Supplier is required to migrate a Data Center or the housing space in a Data Center, the Supplier shall give prior Notice to the Customer, taking into account a Notice period of at least thirty (30) calendar days, unless such Notice cannot be provided due to operation of law or circumstances outside the Supplier’s control, in which case the Supplier will provide as much early Notice as possible.
6.5. The Supplier may – at its sole discretion – decide to relocate collocated Customer’s equipment for and on behalf of the Customer, in which case the Supplier shall notify the Customer thereof simultaneously with its notification of the intended relocation of Data Center or housing space; and/or to the extent practicable, coordinate the relocation of collocated Customer’s equipment with the Customer. In the event the Customer does not confirm relocation within the specific term given in the Supplier’s Notice, the Supplier has the right, without any consent from the Customer at the time and day subject to the Supplier’s discretion, to relocate the collocated Customer’s equipment for and on behalf of the Customer, by giving written Notice prior to intended relocation.
7.1. The provision of Services may be subject to Know Your Customer (hereinafter referred to as – “KYC”) verification requirements and procedures under the Supplier’s KYC Policy.
7.2. Both in the onboarding stage and during the provision of Services, the Customer may be required to provide the Supplier with
(a) accurate, complete information about the Customer and its business, and
(b) authentic documentation as requested.
The usage of fictitious, fake information or documents and invalid contact details is forbidden.
The Customer shall maintain the relevance, completeness, accuracy of information and documents, and validity of contact details; all updates shall be provided to the Supplier by the Customer within ten (10) business days.
7.3.The Supplier reserves the right to request verification of the authenticity, completeness of documents, information, or validity of contact details under the Supplier’s KYC Policy from time to time. Requests may be repetitive and are obligatory to the Customer.
7.4.The Supplier may involve third parties as suppliers of verification services.
8.1. Using Services, the Customer may upload, store, publish, submit, reproduce, distribute, or otherwise use the Customer’s Content and carry out its own activities.
8.2. The Customer shall be solely responsible for its Content and any actions that are carried out by the Customer and its End Users.
8.3. The Customer affirms, represents, and warrants that:
(a) Customer’s Content and its activity, End Users’ content, and their activity shall be in compliance with AUP incorporated herein by the reference on Website; and
(b) The Customer is responsible for the development, moderation, operation, maintenance, support, and use of the Customer’s Content, including when it is contributed by the Customer’s partners and End Users; and
(c) The Customer is responsible for the technical operation of its Content, including, but not limited to, on behalf of End Users.
8.4. The Supplier may (but is not obligated to) monitor (at its own discretion) and take appropriate preventive action (including, but not limited to, removal, blocking, or other available technical actions) in case of allegedly commenced violation of the Agreement.
8.5. The Customer shall safeguard resources and its Content, including but not limited to (i) preventing any loss or damage, (ii) maintaining independent archival and backup copies, and (iii) ensuring the security, confidentiality, and integrity of the Customer’s Content and information transmitted through, managed or stored using Service. The Supplier shall have no liability for any data loss, unavailability, or other consequences related, if any.
8.6. For technical purposes only, the Supplier may back up the Customer’s Content. The Supplier makes no warranties or guarantees of any kind, either express or implied, as to the integrity and timeliness of these backups. If data loss occurs due to errors, the Supplier shall attempt to recover the data at no charge to the Customer. If loss of data occurs otherwise, the Customer may request the Supplier for an attempt to recover the data from the Supplier’s most recent backup at then-current fees.
9.1. The Customer is prohibited from providing, publishing, or transmitting content that is incompatible with or violates this Agreement or any applicable laws in the EU or any EU country (“Unauthorized Content”).
9.2. The Supplier may voluntarily take action against any Unauthorized Content in accordance with this Agreement. In addition, the Supplier may receive claims and orders from EU authorities reporting the presence of alleged illegal content on (or transmitted through) the Website or any Service or Equipment.
9.3. The Supplier will process these orders and claims and take action based on the information provided. When the Supplier has actionable evidence that Services or Equipment is being used for providing, publishing, or transmitting Unauthorized Content, the Supplier shall promptly take the appropriate mitigation action(s) that are reasonably necessary to stop, or otherwise disrupt, the Services and Equipment from being used for it. Action(s) may vary depending on the circumstances, taking into account the cause and severity of the harm from the Unauthorized Content and the possibility of associated collateral damage. These actions may entail the restrictions mentioned in this Agreement or any other restrictions required by the relevant authority, including, in some cases, without prior notice, suspending or terminating access to a whole Service and Equipment.
9.4. In the event of any conflict between the terms set out in this Section and the other provisions of the Agreement, the terms of this Section shall prevail.
10.1. The Supplier shall own its intellectual property, including all patents, trademarks, names, domain names, copyrights, logos, trade secrets, design, system architecture, computer code (including source code or object code), software, and other forms of intellectual property.
10.2. The Supplier shall grant the Customer a non-exclusive, non-transferable, non-sublicensable, revocable, and limited license to use the Supplier’s intellectual property as an integral part of Services and Website, Supplier’s web platforms, applications, and online complex tech-for-tech products only.
10.3. The Customer agrees not to copy, modify, publish, transmit, distribute, participate in the transfer or sale of, create derivative works of, or in any other way exploit, in whole or in part, any Supplier’s intellectual property.
10.4. Any improvements to existing intellectual property shall be owned by the Supplier. If the Customer chooses to provide input and suggestions regarding problems with or proposed modifications or improvements to the Supplier’s Website, web platforms, applications, online complex tech-for-tech products and Services (hereinafter referred to as – ‘Feedback’), then the Customer hereby grants to the Supplier an unrestricted, perpetual, irrevocable, exclusive, free of charge, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve products and Services and create other products and services.
10.5. The Customer may be exposed to content from a variety of sources, including content made available by other users or by links to other websites (hereinafter referred to as – ‘Third-Party Content’), and the Supplier does not control and is not responsible for any Third-Party Content. The Customer may be exposed to Third-Party Content, which may cause harm to computer systems. The Customer agrees to waive and hereby does waive any legal or equitable rights or remedies the Customer may have against the Supplier with respect thereto.
10.6. The Customer must not upload, implement or use any (i) Intellectual Property Rights of the Supplier, (ii) any Confidential Information of the Supplier, or (iii) any information or data contained on or in the Website, Supplier’s agreements, policies etc., or (iv) personal information of Suppliers employees, partners (hereinafter referred to as – ‘Supplier’s Information’), in or to any artificial intelligence-based program, computer system or software. If the Customer breaches the restriction, the Customer does not obtain any Intellectual Property Rights with respect to the artificial intelligence-generated content created by the use of the Supplier’s Information. The Customer shall indemnify and keep the Supplier harmless from damages and costs suffered in respect of the Customer’s breach of this clause.
11.1. The Customer agrees to pay all Charges associated with Services ordered, purchased, or received, Charges for all Services specified in payment requests and/or invoices.
Tariffs for Service may be individually negotiated between the Parties or available on the Website, Customer’s Account, web platforms, applications, and online complex tech-for-tech products.
The particular Service tariff shall be indicated in the payment requests or invoices provided by the Supplier to the Customer as stated herein.
Unless specified otherwise in writing, the Supplier shall invoice:
(a) one-time charges, including, without limitation, installation and equipment charges; and
(b) fixed tariffs, such as collocation, access costs, and minimum commitments. If Service acceptance does not occur on the first day of the month, the fee will be prorated based on the number of days remaining in that month, and
(c) tariffs for usage-based services, as well as other parts of the Services cost (including volume of used energy, storage, traffic, etc.), and
(d) deposits specified in the Agreement.
11.2. In addition, the Supplier is entitled at its sole discretion to automatically add on, pass on, pass through, embed, implement, and surcharge to any Services Charges to the extent applicable:
(a) changes in any (license) fees, purchase tariffs, or costs of any products, software, hardware, right to use, traffic, electricity, utility services, increased taxes, or any other expenses incurred as procured or leased by the Supplier from third parties: (i) used by the Supplier in the provision of Services; (ii) or licensed, provided or resold by the Supplier to the Customer;
(b) any costs, surcharges incurred, or fees payable for the use of any payment services provider in connection with the payment method, currency exchange costs. All bank costs or other fees and payments connected with the payments under the Agreement shall be paid by the Customer and/or
(c) any other costs, surcharges, or fees payable for the use of Services.
11.3. The Supplier reserves the right to pass through to the Customer any additional fees created by a change in regulation, new tax, or similar surcharge or a change in the telecommunication services or other fees with respect to services that the Supplier purchases from a third party to provide Services. Such changes in tariffs shall not be notified in advance.
11.4. Burstable-based Billing. For Burstable Billing, the Customer contracts for a selected Committed Access Rate, and the Supplier provides the Customer with the capability to burst up to the physical capacity of the port.
The amount of Burstable Bandwidth is derived from the 95th percentile calculation described below.
The 95th percentile calculation is based on the industry standard ‘Base 10’ method, where 1 kilobit per second (Kbps) equals 1,000 bits per second. The Burstable Bandwidth Charge described herein will be invoiced to the Customer in arrears and is in addition to the Flat Rate Billing for the selected Committed Access Rate.
Burstable Bandwidth calculation. The Supplier polls the routers for the Customer ingress and egress usage at five-minute intervals. The higher usage number for each poll is stack ranked. The top 5% of the usage number is discarded.
The subsequent highest measurement is the Burstable Bandwidth. The “Burstable Bandwidth Charge” = (Burstable Bandwidth – Committed Access Rate) * (Burstable Bandwidth price per Megabit).
The provisions of this clause are applied to this type of billing mutatis mutandis.
11.5.The Supplier reserves the right to change the pricing policy, the procedure for paying at any time, and such changes shall be published on Websites, or Supplier’s web platforms, applications, online complex tech-for-tech products, or the Supplier’s Portal, or sent to the Customer via e-mail, and shall take effect immediately without prior notice or signing any agreement with the Customer, unless otherwise expressly stated.
Notwithstanding the foregoing, the Customer shall be notified of changes to Service tariffs at least 30 days in advance.
If Service tariffs are increased to more than 10%, the Customer may have the option to terminate Services affected only within thirty (30) calendar days after a Notice date, except the increase is caused by any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, electricity, traffic etc. and other costs).If the Customer does not notify the Supplier within the timeframe referenced above, the new Service tariff shall be deemed as approved by the Customer.
11.6. All payments are non-refundable unless expressly stated otherwise. Refunds may be considered on a case-by-case basis and may be determined under Supplier’s Policies and Service Level Agreements.
11.7. The Supplier reserves the right to perform a credit check on or seek other reasonable assurances of payment from the Customer at any time.
11.8. Deposit.
In order to ensure the continued stability and quality of Services, the Customer may be required to make a deposit. The amount of the deposit shall not exceed 5% of one month’s Charges per current applicable Orders as a contribution towards potential legal expenses, considering the total amount of the unspent deposit held by the Supplier shall not exceed Euro 20 000.
The Supplier shall have the right to apply the deposit to cure (i) any payment defaults and/or (ii) damages, penalties, and costs connected with all proceeding, claim, or demand and their consequences arising from all actions, losses, costs, damages, awards, expenses, fines, fees (including legal fees, attorney and collection agency fees – incurred and/or awarded against the Supplier), proceedings, claims or demands brought or threatened against the Supplier by a third party under the Agreement. The deposit will only be used for its intended purposes.
The Supplier shall refund any amount of deposit paid to the Supplier pursuant to this Clause, less any amount owed to the Supplier by the Customer, no later than ninety (90) days after the termination of the Agreement and all the Services unless any litigation or investigation shall be initiated by the third party.
12.1. The Supplier shall issue payment requests and invoices for all Services provided and Equipment purchased. Payment requests and invoices constitute the basis for effecting payments and may be issued by the Supplier or its Affiliates or business partners (on behalf of the Supplier).
12.2. Payment requests and invoices shall be in EURO or USD. Otherwise, the Parties shall agree on the other currency. The Customer shall receive payment requests and invoices via e-mail or through the Supplier’s Portal(-s).
12.3. The Supplier may require the Customer to make a prepayment in relation to any Service or Equipment purchased. The Customer shall effect up to 100% prepayment under payment requests. Payment requests shall be issued on a monthly basis usually according to the Customer’s consumption for the previous month. Supplier’s Services shall commence at a time commercially reasonable after payment unless otherwise agreed.
12.4. Invoices shall be issued on a monthly basis for the previous month based on the actual Services provided.
12.5. Payment may be processed by any of the methods posted and available on Websites, Customer’s Account, specified in the invoices, additionally agreed upon. The Customer is responsible for any transaction fees associated with their chosen payment method.
12.6. Unless specified otherwise in a payment request or an invoice, all payment requests and invoices are payable by the Customer to the Supplier within fifteen (15) calendar days from the payment request or the invoice date. The Customer shall be deemed in default if not paid in a timely manner unless the Customer informs the Supplier in writing about the fact and the cause of the delay before the due date. In this case, the Supplier, at its sole discretion, may prolong the term of payment.
12.7. The Customer shall notify the Supplier in writing of any billing disputes within five (5) calendar days of a payment request date or an invoice date. In the absence of a Notice mentioned above, payment requests, invoices are deemed to be approved by the Customer. A complaint shall only be taken into consideration if the Customer provides evidence in support. The Parties shall use commercially reasonable efforts to resolve the dispute amicably, but the Customer shall pay the undisputed portion of the Charges on the due date without delays.
12.8. In case of delayed payment, the Customer shall pay an interest of 0,2 % of the sum unpaid per each day of delay.
12.9. If payment is not received within fifteen (15) calendar days of the due date, Services may be temporarily suspended by the Supplier until full settlement, or the Supplier may terminate the Agreement. A reactivation fee may apply to reinstate Services. Such termination or suspension shall not relieve the Customer from its obligation to make payment under this Agreement.
12.10. The Customer hereby grants to the Supplier a lien and pledge on any Customer’s equipment located in the Supplier’s facilities. In the event of termination for non-payment or other default, the Supplier may hold such equipment until the Customer satisfies all outstanding balances due to the Supplier. In the event that the Customer fails to pay all amounts due within thirty (30) calendar days, the Supplier may retain or sell, in its sole discretion, any such equipment without Customer’s approval. In such cases, the outstanding amounts are returned/credited to the Customer.
12.11. The Supplier shall be entitled to charge an administrative fee in addition to payment request or invoice of up to one hundred Euros (EUR 100.00- ) if payment to the Supplier has been reversed or denied.
13.1. Unless specified otherwise, all Charges are exclusive of any sales tax, VAT, or similar or other taxes. The Customer shall be responsible for and shall pay all sales, use, excise, or similar consumption taxes (including VAT, when applicable) arising out of the Agreement. Taxes that must be withheld at the source in the country where the Customer resides are for the Customer’s account. The amount payable on the payment request or the invoice is to be considered an amount after source taxes.
13.2. If the Customer is required by law to make any withholding (or other deduction) from Charges, the Customer shall:
(a) gross up the amount payable in order to apply the applicable laws so that, after payment of any withholdings, the net amount received by the Supplier shall be equal to the actual amount payable under payment requests, invoices, and
(b) make payment of the applicable withholdings to the relevant authority.
13.3. If any taxing authority asserts any claim that the Customer should have made a deduction or withholding, the Customer agrees to indemnify the Supplier and to hold the Supplier harmless on an after-tax basis, from and against any resulting claim for taxes or penalties.
14.1. The Agreement commences shall continue 1 year from the effective date but not less than the Service period provided by valid Orders and periods of Service provision mutually agreed by Parties in writing.
The Service is provided to the Customer with a minimum period of use – 1 year, except in cases provided for Orders.
The Agreement and each Service provision period shall be renewed automatically on a year-to-year basis unless earlier terminated pursuant to the Agreement. The number of automatic extensions is not limited.
If a Party does not agree to such renewal and wishes to cancel the Agreement, a Party has the right to cancel and notify the other Party via the Customer Portal or by e-mail, taking into account a termination Notice period of at least 60 (sixty) calendar days before the next automatic renewal.
A Party may only terminate the Agreement in accordance with the termination rights explicitly granted to such Party in the Agreement. Termination or cancellation of the Agreement shall be without prejudice to any rights or remedies available to, or obligations or liabilities accrued to the Parties, as at the date of termination or expiration.
14.2. Early termination for Cause. The Supplier may immediately (i) terminate the Agreement, or (ii) suspend, block Services (in whole or partly), or (iii) suspend Customer’s right to access or use the Customer Portal at any time, with or without notice, in its sole discretion if:
(a) the Supplier receives an order, ruling, or decision to that effect from a court, any law enforcement authority, or any governmental authority, or the Supplier reasonably expects that a court or a government body shall rule or decide so; and/or
(b) the Customer (or its End User) is or can reasonably be expected to breach the Agreement and/or fails to take (timely) remedial action in accordance with the Claim Consideration Policy after receipt of a Notice from the Supplier; and/or
(c) the continued provision of Services may subject the Supplier to a third-party claim; and/or
(d) the Customer does not effectively cooperate with any investigation of Customer’s alleged improper or unlawful use of Services, the Internet, or other networks accessed through the Supplier; and/or
(e) the Customer has failed to pay Charges in full and/or in time; and/or
(f) Services, software, or equipment are exported or used by the Customer or its End User, partners in violation of the restrictions referenced herein, or the Customer is in breach of any of the other provisions of the Agreement, and the Customer fails to remedy such breach after having received written Notice thereon; and/or
(g) the Customer provides the Supplier with false, inaccurate, or misleading information (documents) or invalid contacts’ the Supplier has reasonable doubts about the Customer’s good standing of its business and/or related staff; and/or
(h) the Customer’s incompliance with the Supplier’s KYC requirements, the Customer refuses to perform the Supplier’s KYC procedure, or not providing in time all the documents and data requested by the Supplier; and/or
(i) the Customer is subject to any export control restriction globally.
Provided always that the Supplier may immediately suspend Services without providing a remedy period if the continued provision of Services is likely to cause an emergency at the Supplier’s discretion and/or may place the Supplier in violation of applicable law, U.S. or EU sanctions, export or import laws, any executive orders, or any rules, regulations or orders issued by the U.S. or European Union authorities.
14.3. Early termination rights. A Party is entitled to terminate the Agreement if (i) the other Party ceases to exist or is dissolved; (ii) the other Party has been declared bankrupt, or it has been granted suspension of payments or entered into voluntary liquidation; (iii) the other Party is unable to perform its obligations due to an event of Force Majeure, provided that the event of Force Majeure has lasted more than sixty (60) calendar days and the Parties are unable to reach a temporary solution for the Force Majeure period in spite of having negotiated in good faith with respect to such temporary solution.
If the Customer is a natural person who is a resident of the EU, the Customer has a period of 14 calendar days from the date of commencement of the Agreement to withdraw from the Agreement without giving any reason and without incurring any costs. However, in the case Services are provided during this period, the Customer must pay for all Services provided.
The Supplier is entitled to terminate the Agreement taking into account a Notice period of at least thirty (30) days, in the event that:
(a) the Supplier receives the notification from its partners with respect to termination or expiration of the facility contract where the housing space is located; and
(b) the Supplier is not able, for any reason, to arrange for an alternative and suitable location for the housing space within a period
of thirty (30) days after having received the notification from the Data Center.
The Customer shall be entitled to terminate the relevant Agreement by giving a Notice if the Supplier fails to remedy a Service disruption that results in the Service provided under the Agreement being fully unavailable or unusable within thirty (30) calendar days after having received prior notification of Customer’s intention to terminate.
14.4. Consequences of Termination. Any termination may result in the immediate forfeiture and destruction of data associated with the Customer’s Account. Termination may take place immediately. If the Customer’s Account is suspended for any reason other than the Supplier’s breach of Agreement, Charges related to the Account shall continue to accrue.
Upon any suspension or termination:
(a) The Customer shall cease to use the Service; the Supplier shall cease to provide all Services; and
(b) The Customer shall immediately pay the Supplier all Charges due and payable at the date of such suspension or termination, penalties, and expenses, and
(c) any and all rights granted to the Customer by the Agreement shall be terminated immediately, and
(d) moving the Customer’s Content off is the Customer’s responsibility; and
(e) the Customer shall remove from the housing space all of the Customer’s equipment within 14 (fourteen) calendar days from the Agreement’s end date. If the Customer does not remove its equipment timely, the Supplier may – at the Customer’s expense – remove, take out, and dispose of such Customer’s equipment. At the Supplier’s sole discretion, the Supplier can decide, at the Customer’s expense, to store such equipment or return such equipment to the Customer without the Supplier incurring any liability for any related damages. The Supplier will have the right to retain any Customer’s equipment until payment in full of all sums due and/or payable by the Customer to the Supplier. If the Supplier does not receive such sums within fourteen (14) days after termination or expiration of the Agreement, such to be determined by the Supplier, the Supplier shall be entitled to sell any Customer’s equipment necessary to recoup all sums due and/or payable, at such price as the Supplier is able to obtain in the open market; and
(f) IP addresses shall be unreachable; all accesses and equipment relating to the Services shall be revoked; and
(g) the Supplier shall not be obligated to pay any amounts to the Customer; and
(h) the Supplier may, but shall not be obligated to: (i) delete or deactivate Customer’s Account(s), or (ii) permanently delete Customer’s Content and data, without the ability to reopen or restore such Content and data of the Customer and any and all data of Customer’s End Users; or (iii) take any other action to prevent the Customer usage of Services.
14.5. If the Customer cancels Services before the end of the committed term of one, some of or all the Order Forms or committed terms of Services agreed in writing within the minimum period of use as set forth in the Agreement, in the Order or otherwise by the Parties, or the Agreement is terminated by Supplier because of Customer’s (alleged) breach of the Agreement within the minimum period of use as set forth, the Customer obligated to pay the following early termination fees, no later than five (5) calendar days after the termination date
(a) all fees for all Services for that portion of the minimum period of use that has not elapsed as of the termination date, and
(b) any applicable third-party early termination charges (including but not limited to any cancellation charges) incurred in relation to such termination; and
(c) all fees to third-party providers that the Customer committed to pay in connection with the Supplier commitment under the Agreement for the duration of the Agreement.
The early termination fees represent a reasonable estimation of the Supplier’s minimal damages caused by the early termination or Customer’s breach of the Agreement.
14.6. Without limiting any of the rights set forth elsewhere in this Agreement, the Supplier expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to the Website or any Services or Equipment to any Customer (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any Supplier’s policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Services or Equipment (as determined by the Supplier in its sole and absolute discretion).
If Customer’s purchase or account activity shows signs of fraud, abuse, or suspicious activity, the Supplier may cancel any service associated with your name, e-mail address, or account and close any associated Supplier’s Accounts. If the Supplier, at its sole discretion, determines that any conducted activity is fraudulent, the Supplier reserves the right to take any necessary legal action, and the Customer may be liable for monetary losses to the Supplier, including litigation costs and damages.
14.7. The following Clauses shall survive termination or cancellation of the Agreement and continue in full force and effect, in addition to those Clauses the survival of which is necessary for the interpretation or enforcement of the Agreement: Customer’s Content (Clause 8), Supplier’s Intellectual Property Rights (Clause 10), Charges (Clause 11), Payments (Clause 12), Applicable Taxes (Clause 13), Terms and Termination (Clause 14), Indemnification (Clause 15), Limitation of Liability (Clause 16), Confidentiality (Clause 18), Miscellaneous (Clause 21).
15.1. Without limiting any other legal remedy available to the Supplier, the Customer shall indemnify and hold harmless the Supplier and its Affiliates, predecessors, successors, assigns, and all of their respective current and former officers, directors, members, shareholders, agents, contractors and employees (hereafter – “Indemnified Parties”) against all actions, losses, costs, damages, awards, expenses, fines, fees (including legal fees, attorney and collection agency fees – incurred and/or awarded against the Supplier), proceedings, claims or demands brought or threatened against Indemnified Parties by a third party:
(a) related to the Content stored or transmitted through Services; and
(b) arising out of Service use by the Customer, any of its subcontractors, End Users, Agreement performance; and
(c) related to any willful or negligent act, breach of security or data, unauthorized access, misconduct, or omission of the Customer or any of its subcontractors or End Users.
15.1. The Customer shall, at its sole expense, (i) provide the Supplier with full authority, information, and assistance as is reasonably necessary for the defense, compromise, or settlement of the third-party claims and (ii) at the request of the Supplier, take those steps that are reasonably required to put the Supplier in the financial position it would have been in if said third party claim did not occur.
15.3. The Supplier reserves the right to participate in the proceedings of any lawsuit, claim, or demand subject to indemnification from the Customer, but the Supplier shall have no obligation to do so. The Customer shall not settle any such proceeding, claim, or demand without the Supplier’s prior consent in cases if the consequences of such settlement may affect the Supplier in any way (damages, penalties, costs, reputation damages, etc.) The Supplier reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Customer, without limiting Customer indemnification obligations with respect to that matter, in which event the Customer shall make best efforts to assist and cooperate with the Supplier in defending the matter at Customer expense.
15.4. If the Customer is involved in a dispute with any third parties, the Customer hereby releases the Supplier, Supplier’s officers, employees, agents, and successors-in-right from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or Services and the Agreement. The Customer shall pay the Supplier damages, penalties, and costs connected with all proceeding, claim, or demand and their consequences arising.
16.1. Neither Party shall be liable to the other Party in respect of any breach of an obligation, warranty, or guarantee under the Agreement for loss of profits, loss of revenue, loss of anticipated savings, loss of any plant or facility, loss of opportunity, loss of goodwill, special or punitive damages, loss of contract, loss or damage as a result of an Incident or any action brought by a third party or any type of indirect or consequential loss and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.
16.2. Under no circumstances shall the Supplier be liable to the Customer or other persons or entities for direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including loss of revenue or anticipated profits or lost business, goodwill damages, loss of data or costs of procurement, licenses, economic loss, or for any punitive, indirect, special, incidental, consequential, or similar damages of any nature, whether foreseeable or not, resulting from any aspect of Customer’s use of, misuse of or inability to use the Service and Websites, Supplier’s web-platforms, applications, online complex tech-for-tech products, equipment, whether such damages arise, including but not limited to:
(a) Customer’s (its clients’, partners’, users’) use, misuse, or inability to use the Service and
(b) Customer’s violation of the Agreement, and
(c) the interruption, suspension, modification, alteration, or complete discontinuance of the Service, any transaction which Customer may enter into with a third party using the Services, and
(d) the Service termination for the cause made by the Supplier, the damage that is the direct or indirect result of the suspension of Services by the Supplier, and
(e) the temporary or permanent shutdown of the Website, the Customer portal, or other resources participating in the Service, or the damage that is the direct or indirect result of the Customer’s use of the Customer Portal. The Customer’s use of the Website, Supplier’s web platforms, applications, online complex tech-for-tech products, and Services is solely at the Customer’s own risk, and
(f) the claims of third parties, regardless of whether it has been advised of the possibility of such claim or damage, and
(g) any harm or personal injury to the Customer or Customer’s employees, clients, representatives, or agents, except when such harm or personal injury is the direct result of gross negligence or willful misconduct on the part of the Supplier, and
(h) the contents of any information and/or communications transmitted via Equipment and/or Services or for any information or content on the Internet, and
(i) the contents of any information and communication, in whatever form, transmitted by the Customer over the Internet, and
(j) the accuracy or quality of information, and
(k) damage to or loss of any of Customer’s or its data subjects’ data, including any Personal Data or loss of technology, and
(l) damage to or loss or destruction of Customer’s Equipment, except when such damage or loss is the direct result of gross negligence or willful misconduct on the part of the Supplier, and
(m) damage that is the direct or indirect result of an Incident in case of any excluded events, including but not limited to a Denial-of-Service (DDoS) attack, or other attack that results in a peak in data traffic, or any damage resulting from successful or unsuccessful hack attempts or any intrusion, any unauthorized access to, or any corruption, erasure, theft, destruction, alteration, or unintended disclosure of data, information, or content transmitted, received, or stored, and
(n) any damage in the case and insofar as such damage is covered by any insurance effected by or for the benefit of the Customer, and
(o) the Service shall be available at any particular time or location, any defects or errors shall be corrected immediately.
16.3. The failure, delay, or interruption of any Services shall not be deemed a breach of the Agreement, including but not limited to:
(a) resulting from circumstances beyond the Supplier’s reasonable control, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, and other failures, Force Majeure events, events of casualty or condemnation; or
(b) to the extent that Services (or any of them) cannot reasonably be provided as a result of works of inspection, planned, emergency, or Customer-requested service interruptions or maintenance made by the Supplier or its partners, repair or other works being carried out at any facility; or
(c) equipment malfunctions; or
(d) the delay or failure of the Customer in the performance of any of its obligations under the Agreement; or
(e) a claim based on the Customer or third-party measurements that have not been verified by the Supplier; or
(f) acts or omissions of anyone other than the Supplier, including (a) the Customer; (b) the Customer’s customers, employees, contractors, agents, or others acting on the Customer’s behalf; or (c) third-party carriers or other third-party service providers; or
(g) Customer’s failure to allow entry by the Supplier or make facilities or components available to the Supplier for testing or repair, or failure to otherwise comply with the Supplier instructions and service requirements; or
(h) the Customer performs any risk assessment services, including but not limited to penetration tests and internal or external vulnerability assessments, without the Supplier’s prior written consent; or
(i) the Customer performs any performance benchmark testing that may impact shared service users, including but not limited to LAN/WAN bandwidth throughput, storage subsystem, and CPU benchmarking without the Supplier’s prior written consent.
16.4. Should the Supplier be liable in spite of the provisions set out above in the Agreement, this liability shall in no case exceed the amount of Service Charges paid by the Customer to the Supplier with respect to the one-month period prior to the event or events giving rise to such liability. All Customer’s claims for compensation end, in any case, twelve (12) months after the date that the event giving rise to such claim is known or reasonably should have been known to the Party making such claim unless the Customer has commenced legal action in accordance.
16.5. Nothing in the Agreement shall exclude or limit the liability of the Customer to pay the Service Charges or repair (or, if repair is not practicable, replace) any tangible physical property intentionally or negligently damaged by the Customer or its representatives.
16.6. The limitations, exclusions, and disclaimers in this Section apply to the fullest extent permitted by law. The Supplier does not disclaim any warranty or other right that is prohibited from disclaiming under applicable laws.
16.7. Each clause of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the Supplier and the Customer under the Agreement. This allocation is an essential element of the basis of the bargain between the Supplier and the Customer. The limitations in this section shall apply even if any limited remedy fails for its essential purpose.
17.1. Except as to the obligation of the Customer to make payments, neither Party shall be deemed to be in breach of the Agreement or otherwise liable to the other as a result of any delay or failure in the performance of its obligations under the Agreement if and to the extent that such delay or failure is caused by a Force Majeure Event, provided that a Party that is affected by the event of Force Majeure has:
(a) promptly notified the other Party thereof in writing, as soon as reasonably possible and no later than five (5) calendar days after the first occurrence of the Force Majeure event; and
(b) provided the other Party with all information on the event of Force Majeure and the (expected) cessation or termination of said event.
18.1. A Receiving Party, meaning either the Customer or the Supplier and its Affiliates,:
(a) shall not, and shall cause its representatives not to, directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential information without the prior consent of Disclosing Party, and
(b) shall not disclose any Confidential Information to any other party than the Party and its Affiliates without the prior written consent of the Disclosing Party, and
(c) shall only use and reproduce the Confidential Information for the performance of its obligations under the Agreement. A Receiving Party shall ensure and procure its employees, contractors, and other related staff to comply with this Clause and will only receive the Confidential Information on a reasonable need-to-know basis.
Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to (i) its Representatives solely on a need-to-know basis in connection with the performance of the Receiving Party’s obligations or rights under the Agreement, provided that the Receiving Party shall be responsible for the compliance of its representatives hereunder, and such representatives shall be subject to a written confidentiality agreement or otherwise subject to fiduciary obligations of confidentiality covering the treatment of the Confidential Information, with confidentiality restrictions no less protective than provided in the Agreement; and (ii) to a court, regulatory or other authorized authority or a person to the extent that such disclosure is required by governmental order, subpoena, or law.
The obligations contained above shall not apply to any Information which:
(a) at the date of the Agreement is, or at any time after the date of the Agreement becomes, public knowledge other than through breach of the Agreement by the Receiving Party; or
(b) can be shown by the Receiving Party to the reasonable satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to the Receiving Party; or
(c) is required to be disclosed or used by law.
18.2. If the Receiving Party becomes aware of any unauthorized use or disclosure of Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure and take all reasonable steps to mitigate any potential harm or further disclosure, loss or destruction of such Confidential Information, unless the above mentioned notification shall be prohibited under laws or regulations.
18.3. The Receiving Party shall, within thirty (30) calendar days after the expiration or termination of the Agreement, and at any other time upon written request by the Disclosing Party, either: (i) return to the Disclosing Party all Confidential Information (or such portion requested), including any copies, duplicates, summaries, abstracts or other representations of any such Confidential Information, in whatever form, then in its possession or control; or (ii) permanently delete such Confidential Information from its storage systems, media, and destroy any and all tangible copies thereof. Upon request by the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party written certification of its compliance with this provision. Notwithstanding the foregoing, all the data and documents provided by the Customer to the Account and the Supplier’s KYC policy shall be stored by the Supplier and shall not be returned or deleted. Notwithstanding foregoing the The Receiving Party may store the information necessary to be in compliance with laws and regulations applicable.
19.1. The Supplier shall be entitled to assign any of its rights or obligations under the Agreement to an Affiliate (or its or their successors, through merger or acquisition of substantially all of their or its assets) upon giving a written announcement to the Customer which shall be announced on the website, the Customer Portal, e-mail or otherwise.
19.2. The Supplier shall be entitled to sub-contract any or all of its obligations under the Agreement to a third party without a Notice to the Customer, provided that the Supplier shall remain liable to the Customer for the performance of those obligations.
19.3. In case the Customer wishes to assign, or transfer, or purport to assign or transfer, any rights or obligations under the Agreement to a third party, the Supplier’s consent is subject to the agreement whereby the Supplier shall consider if the third party is of same or better socio-economic standing than the Customer, of the third party meets the KYC requirements and/or credit position is adversely affected by such assignment or transfer to a third party.
19.4. Nothing in the Agreement shall exclude or limit the Supplier’s rights to grant or create a right of pledge or other security right – for the benefit of a bank, other financial institution, or other third party – on or over any or all (cash) receivables that the Customer owes or comes to owe to the Supplier.
19.5. Other than the Supplier’s sub-contractors, who shall have the benefit of the Agreement, nothing in the Agreement shall confer upon any third party any right, benefit, or remedy of any nature under the Agreement.
20.1. Any Notice or communication required or authorized by the Agreement must be in writing and in English.
20.2. The Supplier may provide the Customer with Notices by (i) e-mail provided on the Website, (ii) Supplier’s Portal, or (iii) other communication means agreed by the Parties in writing. Notice is deemed to be received by the Customer when it is sent. If the Supplier sets a deadline for the Customer to perform specific actions, then such a period is considered from the moment a Notice is sent and cannot be suspended or renewed due to the situation that the Customer did not get or read a Notice.
20.3. Notices to the Supplier must be delivered to e-mail addresses posted on the Website, provided by the Supplier in writing or as a notification via the Supplier’s Portal, shall be deemed to be received when actually received by the Supplier.
20.4. Under no circumstances shall the Supplier be liable to the Customer or other persons or entities for direct, indirect incidental, special, consequential, or exemplary damages and any consequences (including, but not limited to, Service suspicion) in case if (i) the Customer sends a Notice from e-mail address (other sources) not mentioned in the Customer’s Account, or (ii) the Customer’s notification contains insufficient information, and the Supplier is unable to identify the Customer or matter for a Notice.
21.1. Eligibility. Services are not targeted towards, nor intended for use by, anyone under the age of 18. The Customer confirms that the Customer has reached the age of 18, or it is legally established that the Customer has the right to accept and comply with the Agreement, effect payments. If the Customer does not meet the above conditions, does not register on Supplier’s resources, does not use Services (otherwise, the Supplier is not responsible for any consequences). If the Customer acts on behalf of another person, entity, the Customer warrants that the Customer is an authorized representative of such person, entity; the Customer has the authority to enter into the Agreement on behalf of such a person, entity, to bind on its behalf. If the Customer does not have the permissions, authority to act on behalf of another person, entity, the Customer shall be personally liable for all the consequences, including penalties, damages.
21.2. Electronic documentation. For the purpose of the Agreement, electronic signatures and documents transmitted via e-mail, other electronic means, or media shall be valid. As between the Parties and any Party claiming through them, neither the Agreement nor any electronic record or signature may be challenged or denied legal effect or enforceability because it is in electronic form. It is the express intent of the Parties that if any applicable law requires a record or signature to be in writing, an electronic signature or record shall satisfy that law.
21.3. Publicity. Parties shall not issue or permit the issuance of any publicity, press or news release, or other public statements concerning the relationship between Parties, the terms or existence of the Agreement and/or any Service Orders, or any of the transactions contemplated by Parties, and Parties shall not use the name, trademarks, logos of other Party in any promotional materials. Any approval or consent given by either Party under the Agreement for any continued use may be revoked by such Party at any time by giving the other Party written Notice of such revocation.
The Supplier shall – under the Customer’s prior approval – be entitled to inform third parties that the Supplier provides Services to the Customer, e.g., as a Customer case during sales activities, third-party events, in marketing communication, and on the Website.
21.4. Data Protection. The Supplier retains the Privacy Policy incorporated herein by the reference to the Website.
21.5. Independent Contractors. Parties are independent contractors and have no right or authority to bind or commit the other party in any way without the other party’s express written authorization to do so. The Agreement does not establish employer/employee, joint venture, partnership, franchise, sales representative, or agency relations. The Customer has no authority to make or accept any offers or representations on the Supplier’s behalf. Without the Supplier’s prior written consent, the Customer shall not resell or provide the Service to third parties for any purposes.
21.6. Governing Law and Arbitration. The legal relations arising out of or relating to the Agreement are governed by the law of the Supplier’s state of residence without regard to conflict of law provisions. Any dispute, claim, or controversy arising out of or relating to the Agreement or the violation, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of the Agreement to arbitrate, shall be treated by the courts of the Supplier’s state of residence without regard to conflict of law provisions. For any claim brought by either party, the Customer agrees to submit and consent to the personal and exclusive jurisdiction in and the exclusive venue of the courts located in the state of the Supplier’s residence.
21.7. Additional restrictions. Each Party represents and warrants to the other Party that
(a) a Party, including its employees, officers, directors, representatives, agents, affiliates, and/or financial institution, is not subject to any sanctions or otherwise listed or included on a Prohibited Party List, and
(b) a Party is not directly or indirectly owned 1% or more in the aggregate by one or more persons, entities, or organizations listed on any Prohibited Party List, nor controlled by, or acting on behalf of or for the benefit of any party or parties included on any Prohibited Party List.
Each Party shall provide another Party with complete and accurate information in writing detailing its direct and/or indirect ownership upon request and immediately shall notify the other Party in writing about any change of ownership, control, and/or other circumstances that would place another Party in breach of the representation and warranty made by in this Section.
The Customer hereby acknowledges and agrees that the use of the Services, which term includes any related goods, technology, information, equipment, and/or software provided by the Supplier, may be subject to Trade Laws. The Customer shall be solely responsible for its compliance with all applicable Trade Laws. During the Term of this Agreement, the Customer, at all times, shall:
(a) use the Services in compliance with all applicable Trade Laws,
(b) not directly or indirectly resell, assign transfer, transmit, export, re-export, or provide the Services, directly or indirectly, to any country, destination, corporation, organization, entity, or person on a Prohibited Party List or in violation of any Trade Laws or any prohibited end-use pursuant to Trade Laws, and
(c) shall not do anything which would cause the Supplier to be in violation of any Trade Laws. If requested by the Supplier, the Customer agrees to provide written assurances and sign other documents as may be reasonably required for the Supplier to comply with applicable Trade Laws.
The breach of any of the representations and warranties set forth above and/or the failure by the Customer to comply with any part of this Clause, including being owned, directly or indirectly, 1% or more in the aggregate by one or more persons listed on any Prohibited Party List, shall constitute a material breach of this agreement that is not susceptible to cure or subject to a cure period. In the event of such a material breach, the Supplier shall have the right upon written Notice to the Customer and with immediate effect to suspend the performance of any Services and/or to cancel or terminate any Service Order or the Agreement without liability or further obligation to the Customer.
The Customer shall protect, indemnify, defend, and hold harmless the Supplier from any fines, losses, claims, costs (including reasonable attorney’s fees), and liabilities incurred by the Supplier as a result of the failure of the Customer to comply with this section or with any Trade Laws.
Prior Versions of the Terms of Service Agreement are available here.
