IT Clever Solutions Services Services Agreement
Last updated: September 24, 2020
YOU MUST CAREFULLY READ THIS IT CLEVER SOLUTIONS SERVICES AGREEMENT (“AGREEMENT” or “MSA”) BEFORE SIGNING, EXECUTING OR OTHERWISE PLACING YOUR SERVICE ORDER FOR IT CLEVER SOLUTIONS. BY ORDERING IT CLEVER SOLUTIONS SERVICES YOU AGREE TO BE BOUND BY THE LATEST AMENDED VERSION OF THIS AGREEMENT.
This Agreement is entered into between IT Clever Solutions incorporated under laws of United Kingdom, established and having its registered Kemp House, 152 – 160 City Road, London EC1V 2NX (here in after referred to as “IT Clever Solutions”), and you, the Customer, who placed the Service Order or executed a similar document with reference to this Agreement (hereinafter referred to as “Customer”). IT Clever Solutions and Customer are hereinafter referred to individually as a “Party”, or collectively as the “Parties”.
“Acceptable Use Policy” (AUP) means the policy currently available, as it may be updated by IT Clever Solutions from time to time.
“Accepted” or “Acceptance” means a Party’s authorized execution and acceptance of a document.
“Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity will “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has management and operational control.
“Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party’s equity owners of record immediately before such transaction(s) will, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.
“Customer Content” means content, software, data, video or information of Customer and/or End Users, including third-party content, software, data and equipment, provided or made available to IT Clever Solutions for storage, delivery or otherwise in connection with Services.
“Customer Data” includes all data that identifies Customer, or their respective End Users. Customer Data may include Customer name, employee contact information, End User Data, data necessary for account establishment, billing data or content transmission data when such data identifies Customer.
“Days” means calendar days unless otherwise indicated.
“Effective Date” means a date when this Agreement enters into legal force.
“End User” means a subscriber, member, end-user, customer or other visitor of an online site or service owned and/or operated by Customer.
“End User Data” includes End User name, address, contact information, usage, billing or any other data that personally identifies authorized End Users of the Services.
“Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and trade names, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.
“Quotation” means a non-binding proposal communicated to Customer, specifying Services to be performed and the associated fees and charges (collectively “Fees”). Upon Customer’s approval of a Quotation, IT Clever Solutions will send to Customer a Service Order for Acceptance.
“Service Order” means a service specification, price, quantity and Customer commitment for IT Clever Solutions services, based on a mutually accepted Quotation, of standard or non-standard Services to be performed by IT Clever Solutions for the specified time period.
“Service Start Date” means the Service start date set forth in the applicable Service Order.
“Service Level Agreement” (SLA) means all service level agreements that we offer with respect to the IT Clever Solutions Services, currently available, as it may be updated by IT Clever Solutions from time to time.
“Services” means all of the IT Clever Solutions services as set forth in any applicable Service Order that IT Clever Solutions provides to Customer pursuant to this Agreement.
“Services Specification” means the rights, limitations and restrictions and other service specific details for particular Services, currently, as it may be updated by IT Clever Solutions from time to time.
“Taxes” means any applicable foreign or domestic taxes, tax-like charges, tax-related charges and other charges or surcharges assessed in connection with Services, including all excise, use, sales, value-added and other fees, surcharges and levies.
2.1 IT Clever Solutions will provide Services to Customer as specified in a mutually Accepted Service Order, subject to the terms and conditions herein. Within five Days after Customer has submitted to IT Clever Solutions an Accepted Service Order, IT Clever Solutions will respond with Acceptance or reason for non-Acceptance. IT Clever Solutions will not be bound to provide Services until the applicable Service Order has been mutually Accepted. However, if Customer begins using Services before the Service Start Date in an applicable Service Order, the provision and use of such Services nonetheless will be governed by the terms of this Agreement, the Services Specifications, the SLA, the AUP and the Service Orders.
2.2 Customer acknowledges that IT Clever Solutions (a) does not own or control all local circuit links, leased co-location spaces, leased space cross-connects, Internet service providers (“ISP”) providing connectivity to IT Clever Solutions, other networks outside the connectivity to IT Clever Solutions or ISPs, or the Internet and except as set forth in the SLA, IT Clever Solutions will not be responsible for performance or non-performance within such networks or within non-IT Clever Solutions operated interconnection points.
2.3 IT Clever Solutions may at any time, and without notice, use the services of one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement, and Customer’s obligations to IT Clever Solutions extend to those parties when acting on IT Clever Solutions behalf.
2.4 To be eligible for a Service Credit under the SLA as defined there, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements. The SLA is also not applicable during any trial period.
2.5 Given the nature of the Services, Customer, and not IT Clever Solutions, is solely responsible for (i) all bandwidth abuse, theft or other unauthorized usage or activity occurring on Customer ’s account (e.g., leeching or hotlinking/direct linking to content), (ii) all resulting Fees and costs, (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by IT Clever Solutions or a third party) related to Customer’s account and (iv) regularly monitoring all usage of bandwidth and Services and other activity on Customer’s account. IT Clever Solutions makes available to Customer, through the IT Clever Solutions reporting tools, data regarding Customer’s billable usage of bandwidth or Services; but IT Clever Solutions is not responsible for notifying Customer of usage or activity patterns occurring on Customer’s account.
2.6 IT Clever Solutions may modify the configuration of the Services, provided such modifications are necessary due to technical, economic or regulatory developments or to maintain the quality standard of Services and such modification will not affect the essential characteristic features of Services ordered. In such event, IT Clever Solutions shall use commercially reasonable efforts to notify Customer prior to any such modification becoming effective. Customer’s continued use of Services following the modification will constitute Customer’s acceptance of the modification.
2.7 IT Clever Solutions or any of its subcontractors will from time to time carry out routine maintenance or improvements to the network, software, facilities, servers, network equipment or other technical equipment required for the provision of the Services (“Scheduled Maintenance”). Scheduled Maintenance may cause interruptions to the Services in part or as a whole.
2.8 IT Clever Solutions may carry out Scheduled Maintenance which is unlikely to affect the Services at its own discretion and without notice. Insofar as Scheduled Maintenance will likely cause interruptions to the Services in part or as a whole or any other problems for the Customer, IT Clever Solutions will notify Customer at least seven Days in advance or with as much advance notice as reasonably possible in the event that IT Clever Solutions receives a maintenance notification from an underlying provider. The notification will include time and date, duration and description of any such work. Notwithstanding the foregoing, if IT Clever Solutions reasonably believes that timely providing such notice would result in an unacceptable risk of a defect, damage or loss of integrity to the IT Clever Solutions network, IT Clever Solutions may perform such work and may serve notice to Customer of the need to perform emergency maintenance on the network with a notice period reasonable under the given the circumstances.
2.9 For the purposes of this Agreement, one Kbps is equal to 1,000 bits; one Mbps is equal to 1,000 Kbps; one Gbps is equal to 1,000 Mbps etc; one KB is equal to 1,000 bytes; one MB is equal to 1,000 KB; one GB is equal to 1,000 MB; one TB is equal to 1,000 GB; one PB is equal to 1,000 TB etc.
3.1 As between the Parties, Customer is solely responsible for any Customer Content stored, reproduced, displayed or distributed using Services. All use of Services, unless otherwise indicated in a Service Order, is governed by the AUP, which is made a part of this Agreement.
3.2 If IT Clever Solutions determines, in its sole reasonable discretion, that Customer Content or Customer’s use of Services violates the AUP or otherwise adversely impacts the Services, IT Clever Solutions reserves the right to take remedial measures including blocking or disabling access. IT Clever Solutions will use commercially reasonable efforts to limit the measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties will work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact.
4.Cooperation and Customer Obligations
4.1 For Services to function as intended, Customer must cooperate in good faith with IT Clever Solutions to configure and enable Services. When Customer elects to send or receive Customer Content using Services, Customer is solely responsible for modifying its content identifiers, consistent with instructions that IT Clever Solutions provides, to enable IT Clever Solutions to deliver the selected content. This may include changing the alias information in Customer’s DNS record so that hostname addresses of page objects resolve to IT Clever Solutions servers.
4.2 Customer acknowledges that the timely and successful performance of Services requires good faith cooperation by the Customer. Therefore, Customer will (a) furnish all information reasonably requested by IT Clever Solutions (b) comply with all laws, regulations, orders and statutes which may be applicable to Customer, and (c) timely perform its obligations as necessary to meet any schedule or deadline in the applicable Service Order. In the event that any failure by the Customer to comply with the provisions of this section 4 results in any delay, deficiency or interruption in the performance of Services, IT Clever Solutions shall not be deemed in breach of the applicable Service Order for such delay and Customer shall be responsible for any costs reasonably incurred by IT Clever Solutions in addressing and remedying such delay, deficiency or interruption.
4.3 The Services provided by IT Clever Solutions pursuant to this Agreement and under any Service Order shall only be used for purposes assumed under this Agreement, and in accordance with applicable local legislation, rules and regulations. IT Clever Solutions shall be entitled, at its reasonable option, to immediately suspend Services if in its sole opinion Services are being used in a manner that may result in liability or other damage for IT Clever Solutions.
5.Fees and Payment
5.1 Customer will pay to IT Clever Solutions all Fees incurred on Customer’s account in full, as set forth in this Agreement and any Service Order, without set-off, withholding or deduction by Customer. Customer bears all charges of its bank or the intermediary banks. IT Clever Solutions will provide notice of all changes to the Services, including new features, functions or services. The new Services will be effective on the date set forth in the notice. For Services purchased without a monthly or other rate commitment or where such commitment has terminated or expired, IT Clever Solutions will provide thirty Days’ notice of rate increases.
5.2 All charges are exclusive of Taxes, Customer is solely responsible for all Taxes payable in connection with Services. If Customer provides IT Clever Solutions with a valid, duly executed tax exemption certificate, IT Clever Solutions will exempt Customer from Taxes in accordance with the law, effective on the date IT Clever Solutions receives the exemption certificate. If Customer is required by law to make any deduction or withholding from any payment due hereunder to IT Clever Solutions, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer to IT Clever Solutions will be increased so that, after any such deduction or withholding for taxes, the net amount received by IT Clever Solutions will not be less than IT Clever Solutions would have received had no such deduction or withholding been required.
5.3 Upon mutual Acceptance of a Service Order, IT Clever Solutions will begin billing Customer for all monthly recurring charges (each, a “MRC”). At the beginning of a calendar month, IT Clever Solutions will bill Customer in advance for MRCs for the Services to be provided in that month. IT Clever Solutions will invoice Customer for any overage and other usage charges, if applicable, the following month the usage occurred.
5.4 All Fees will be billed and payable in euros, unless otherwise mutually agreed in writing. Customer will pay all MRCs through the Term, regardless of whether or how much Customer uses the committed Services. If IT Clever Solutions cannot begin timely delivery of Services for any reason caused by Customer, IT Clever Solutions nonetheless may, in its sole discretion, begin billing Customer for MRCs as of the Service Start Date. Any Service Credit granted under the SLA for a Downtime (as defined in the SLA) will be applied to the next applicable invoice, against any charges for MRCs and/or overages.
5.5 Unless otherwise agreed to in writing by the Parties, Customer shall pay all invoices within fourteen Days of the invoice date by transferring the invoiced amounts to the bank account designated on the invoice. All invoices may be provided to Customer electronically. In respect of all due and unpaid invoiced amounts, IT Clever Solutions reserves the right to charge (i) in addition to the legal interest, an interest of one and three-quarters percent (1.75%) per month of all invoiced amounts from the due date as set out above until full and final payment of such amounts and (ii) reasonable collection costs incurred in respect of such unpaid invoiced amounts, including but not limited to reasonable legal expenses.
6.1 A “Defect” occurs only in case a Service does not operate according to the applicable Service Levels or other levels agreed by the parties in writing.
6.2 In case of Defects, the claim of Service Credits, as defined in the SLA, shall be Customer’s sole and exclusive remedy. Customer may contact G-Core for notification of Defects by email (email@example.com).
6.3 Customer has to notify IT Clever Solutions in writing of any Defects immediately, but no later than three Days, upon Customer’s discovery of the Defects. The notification has to contain a Defect report (“Defect Report”) to IT Clever Solutions that includes (a) Customer name and, as applicable, on-site technical contact information (telephone number, email address and hours of operation of the responsible Customer contact); (b) a reasonably detailed description of the Defect, together with any supporting information that Customer’s engineers believe will assist G-Core in its diagnostic process (including e.g. time of first occurrence of Defect, affected systems, error messages etc.); and (c) the date and time that Customer identified the Defect for the first time.
All communication between Customer and IT Clever Solutions regarding Defect Reports and remedying of Defects shall be in English.
6.4 IT Clever Solutions is not obliged to remedy Defects, and will not be held otherwise liable, and Service Credits will not be granted in connection with any failure or deficiency caused by or associated with the following, each an “Excluded Cause”: (a) equipment, software or other technology not provided by IT Clever Solutions; (b) Customer’s equipment, software or other technology, including without limitation the Customer’s servers; (c) use of Services other than agreed with IT Clever Solutions, in particular any use in violation of the Agreement; (d) actions, omissions or interventions by Customer or its agents, contractors or vendors, including without limitation, any negligence or willful misconduct; (e) any third party’s actions or interventions (excluding actions or interventions by IT Clever Solutions Affiliates); (f) Scheduled Maintenance, emergency maintenance or Customer-requested service interruptions; (g) failure in local access circuits or cross connects connecting the Customer to IT Clever Solutions network; (h) conditions at the Customer’s premises such as power supply, climate or housing; (i) false service outages and downtimes reported due to errors of any SLA measurement system; (j) an event of Force Majeure; and/or (k) the suspension, interruption or termination of Services in accordance with the Agreement.
6.5 Customer acknowledges that Customer shall reimburse IT Clever Solutions for any Services provided by IT Clever Solutions if IT Clever Solutions was not obliged to provide this Services due to an Excluded Cause. In particular, IT Clever Solutions reserves the right to charge Customer for resources devoted by IT Clever Solutions to the receipt, investigation, troubleshooting and/or clearance of Defects reported by Customer that are not attributable to IT Clever Solutions (e.g., no Defect is found or the reported Defect is caused by an Excluded Cause). If a Defect reported by Customer is found not to be attributable to IT Clever Solutions, then Customer shall compensate IT Clever Solutions at IT Clever Solutions then current hourly rates (depending on the level of technical qualification of IT Clever Solutions personnel that investigated the alleged Defect) and for any expenses IT Clever Solutions may have incurred (e.g. for using IT Clever Solutions Affiliates and/or IT Clever Solutions subcontractors) when investigating and/or remedying the alleged Defect.IT Clever Solutions will invoice these charges for the Defect support and Customer shall make payment in accordance with the terms of the Agreement.
7.Grant of Rights, Intellectual Property
7.1 IT Clever Solutions grants to Customer, as applicable, the non-exclusive right to access and use the Services during the Term solely for the purposes of this Agreement. As between the Parties and subject only to the rights of use expressly granted by IT Clever Solutions herein, IT Clever Solutions retains all worldwide rights, title and interest in and to the Services, IT Clever Solutions equipment, network and methodologies, software or other Intellectual Property Rights embodied therein provided in connection with the Services, IT Clever Solutions Confidential Information, all revisions thereto, derivatives thereof and all Intellectual Property Rights therein, whenever developed. Customer will not, except insofar as permitted by applicable law, and will require End Users to not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Services or IT Clever Solutions Confidential Information. Customer will provide reasonable assistance to IT Clever Solutions, at IT Clever Solutions cost, to secure protection of IT Clever Solutions Intellectual Property Rights, including assistance in preparing and filing applications, registrations, assignments and other instruments to perfect title.
7.2 Customer grants to IT Clever Solutions, and its agents, suppliers and subcontractors, the non-exclusive right to access and use, ingest, reproduce, format, store, distribute, display, perform and make modifications to Customer Content, including encoding, decoding, translating, compressing, decompressing, encrypting, decrypting, repackaging, encapsulating, de-encapsulating, chunking, segmenting, storing, transmitting, distributing, making derivative works of and otherwise managing instances of such Customer Content and associated metadata, solely for the purposes of this Agreement. The foregoing license includes the creation, storage, duplication, modification and distribution of packages that include Customer Content in connection with the performance by IT Clever Solutions of the Services requested by Customer pursuant to this Agreement. As between the Parties and subject only to the licenses expressly granted by Customer herein, Customer or End Users, as applicable, retain all rights, title and interest in and to Customer Content, Customer Confidential Information and other Customer Intellectual Property Rights. Except insofar as permitted by applicable law, IT Clever Solutions will not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content or Customer Confidential Information.
8.1 In relation to the processing of any personal data under or in relation to this MSA, each Party agrees to comply with its respective obligations under the European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “General Data Protection Regulation“) and local laws and regulations where applicable (together with the General Data Protection Regulation, the “Data Protection Laws“) and to co-operate with the other Party in putting in place any procedures or documents as may be required in this regard.
9.1 “Confidential Information” means, with respect to a Party (“Disclosing Party”), all non-public confidential information pertaining to such Party’s business (including such information of a Party’s subcontractor or a Party’s Affiliate), in particular information containing customer lists, customer information, technical information (including technical layouts and designs, configurations of cables, network etc.), pricing information, trade secrets, financial positions, customer communications or proposals, benchmarking information, satisfaction surveys or information relating to business planning or business operations and the terms of this Agreement including any Service Order. IT Clever Solutions and Customer will comply with this section 10 when exchanging Confidential Information under this Agreement, including any Service Order. Confidential Information will be designated and/or marked as confidential when disclosed. However, any information that the Party receiving such information (“Receiving Party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such.
9.2 The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees of the Receiving Party with a need to know such information. IT Clever Solutions may, for the purpose of exercising rights and performing obligations under this Agreement, disclose Confidential Information of Customer also to IT Clever Solutions Affiliates and IT Clever Solutions subcontractors.
9.3 The Receiving Party shall not be liable to the Disclosing Party for the release of Confidential Information if such information: (a) was known to the Receiving Party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the Receiving Party; (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceedings or otherwise required by law.
9.4 The Receiving Party’s obligation under this section 10 shall expire five years after termination of this Agreement.
10.1 IT Clever Solutions warrants that it shall provide Services in compliance with applicable laws and regulations and in a professional and workmanlike manner. IT Clever Solutions shall use all commercially reasonable efforts to provide Services without interruptions (including the Service Levels) as set forth in the applicable SLA. The Parties acknowledge, however, that it may be technically impracticable to provide Services free of any defects or interruptions. Therefore, IT Clever Solutions cannot and does not guarantee that Services will be uninterrupted or error free.
10.2 In the event of defects or interruptions of Services, Customer shall only be entitled to the remedies, if any, as specified in the relevant Service Order or the SLA.
10.3 Except as otherwise set forth in section 11, IT Clever Solutions does not make and disclaims (i) all warranties that the Services will be uninterrupted, defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Services are provided on an “as is” basis and Customer’s use of the Services is solely at its own risk.
10.4 Customer represents and warrants that it owns, controls or possesses all necessary rights to the Customer Content and any materials it supplies to IT Clever Solutions, including the programs and any advertising therein, free and clear of any and all claims, rights and obligations whatsoever and is empowered to grant the rights, licenses and privileges granted in this Agreement.
11.1 Customer will, at its cost, defend, indemnify and hold harmless IT Clever Solutions and its officers, directors, employees, agents and permitted successors and assigns (each a “IT Clever Solutions Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) brought against a IT Clever Solutions Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Customer or their respective agents or employees; (b) operation or use of Customer’s products, websites or services; (c) Customer Content, including any allegation that Customer Content or any other data or information provided by Customer infringes any third party Intellectual Property Rights or otherwise violates applicable law; (d) Customer’s failure to comply in any material respect with the AUP or applicable law; (e) the unauthorized use of or access to Services by any person using Customer’s systems or network; (f) IT Clever Solutions compliance with Customer specifications; (g) a combination or modification of the Services by or on behalf of Customer by anyone other than IT Clever Solutions or its authorized agents; (h) distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer information by any entity other than IT Clever Solutions; or (i) information, data, or other Customer Content provided by or on behalf of Customer to IT Clever Solutions.
11.2 IT Clever Solutions will, at its cost, defend, indemnify and hold harmless Customer and its officers, directors, employees, agents and permitted successors and assigns (each a “Customer Indemnitee”) from and against any third-party Claim brought against Customer Indemnitee based upon allegations that Services directly infringe any patent issued as of the Effective Date of this Agreement under the laws of the country in which the Services are being provided to Customer or any third party copyright. Notwithstanding the foregoing, IT Clever Solutions will have no liability for any infringement of patents, copyrights or other intellectual property rights based upon or resulting from Customer Content, use of Services in a manner not specified in applicable IT Clever Solutions documentation, or services or products not supplied by IT Clever Solutions. If Services, or any material portion thereof are determined to infringe and the use enjoined, IT Clever Solutions will have the option, at its sole cost, to (i) obtain the right for Customer to continue using Services, (ii) modify Services so that they are non-infringing, (iii) substitute functionally similar, non-infringing services or (iv) if none of the foregoing is available to IT Clever Solutions on commercially reasonable terms, terminate the Agreement and return to Customer any unused Customer prepaid Fees for which Services have not been provided as of the date of termination.
11.3 The IT Clever Solutions Indemnitee or Customer Indemnitee as applicable (each an “Indemnified Party”) will (a) promptly provide notice to the indemnifying Party (“Indemnifying Party”) of any Claim for which indemnity is claimed (provided, that, any delay in providing notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such delay); (b) permit Indemnifying Party to control the defense of any such Claim; and (c) provide reasonable assistance at Indemnifying Party’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Indemnifying Party may select legal counsel to represent Indemnified Party (such counsel to be reasonably satisfactory to Indemnified Party) and to otherwise control the defense. If Indemnifying Party elects to control the defense, Indemnified Party may fully participate in the defense at its own cost. If Indemnifying Party, within a reasonable time after receipt of notice of Claim, fails to defend Indemnified Party, Indemnified Party may defend and compromise or settle the Claim at Indemnifying Party’s cost. Notwithstanding the foregoing, Indemnifying Party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on Indemnified Party or diminishes Indemnified Party’s rights, without obtaining Indemnified Party’s express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by the Indemnifying Party under this Agreement.
11.4 This section 12 provides the sole and exclusive remedy of Customer and the exclusive obligations of IT Clever Solutions in connection with any third-party claim, action, suit or other demand asserted against Customer as described in subsection 12.2 above (in respect of IT Clever Solutions obligations to indemnify Customer only) and IT Clever Solutions disclaims all other warranties and obligations with respect thereto. IT Clever Solutions obligations under this section 12 are subject to the limitations in section 13 below.
12.1 With the sole exception of willful misconduct or fraud and without prejudice to any limitation of liability contained elsewhere in this Agreement or in any other contractual documents being part of this Agreement, especially in any relevant Service Order concluded hereunder, IT Clever Solutions total liability to Customer in the aggregate for the entire Term as defined in section 15 below (regardless of whether the claims are brought during or after the term) with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Order hereunder) will at no time exceed fifty per-cent (50%) of the amount of Fees actually paid by Customer to IT Clever Solutions under this Agreement and any Service Orders concluded hereunder. As a further limitation, IT Clever Solutions maximum liability for any claims relating to Services offered or provided by IT Clever Solutions (i) for non-recurring Fees shall not exceed the amount of the Fees for the Services provided on the occasion giving rise to the claim; (ii) for recurring Fees shall not exceed the amount of Fees due for one month for the Services provided on the occasion giving rise to the claim.
12.2 Subject only to the exception of willful misconduct or fraud, IT Clever Solutions shall under no circumstances be held liable for any (a) economic loss, loss arising from or in connection with loss of revenues, profits, contracts, goodwill, customers or business or from failure to realize anticipated savings; (b) loss or corruption of any software; (c) loss or corruption of any data; (d) loss of use of hardware or other equipment, of software or data; (e) wasted administrative time or management time; (f) cost of procuring or migrating to substitute services; and (g) any indirect, consequential or special loss.
12.3 Customer’s liability claims shall expire after one year following the damaging incident.
12.4 The limitations of liability set forth in this section 13 apply to all claims and causes of action by Customer with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Orders thereunder), regardless of whether for breach of contract, tort (including negligence) or for any other reason.
13.1 Force Majeure means any circumstance not within a party’s reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; and (h) non-performance by suppliers or subcontractors (other than by Affiliate of party seeking to rely on this section).
13.2 Provided it has complied with subsection 14.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by an event of Force Majeure (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the event of Force Majeure but no later than three Days from its start, notify the other party in writing of the Force Majeure, the date on which it started, its likely or potential duration, and the effect of the Force Majeure on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations.
If the Force Majeure prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than six weeks, the Party not affected by the Force Majeure may terminate this Agreement by giving one weeks’ written notice to the Affected Party.
14.Term and Termination
14.1 This Agreement will commence on the Effective Date and will remain in effect for the initial period of 12 months, unless another initial subscription period is agreed in the Service Order (“Initial Subscription Period”). The Services will renew automatically for periods equal to the Initial Subscription Period (each, a “Renewal Term”) unless, at least thirty Days before expiration of the Initial Subscription Period or, subsequently, the Renewal Term, either Party provides notice of non-renewal. The Initial Term and all Renewal Terms are collectively, the “Term”. If the Parties enter into a Service Order that expires after the Term, the Term will be deemed to expire on the same date as such Service Order.
14.2 Customer may terminate this Agreement for cause, upon notice to IT Clever Solutions, if (i) a receiver or administrator is appointed for IT Clever Solutions or its property; (ii) IT Clever Solutions makes a general assignment for the benefit of its creditors; (iii) IT Clever Solutions commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within sixty Days; (iv) IT Clever Solutions is liquidated or dissolved; (v) IT Clever Solutions ceases to do business or otherwise terminates its business operations; or (vi) IT Clever Solutions materially breaches this Agreement and such breach continues unremedied for twenty Days after receipt of notice from Customer. For clarity, a Downtime (as defined in the SLA) is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Downtime is set forth in the SLA.
14.3 IT Clever Solutions may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within sixty Days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced Fees within thirty Days from the invoice date; (vii) any use of Services, including Customer Content, actually or allegedly infringes or misappropriates any Intellectual Property Rights or otherwise violates the AUP or any applicable law, regulation or order; or (viii) Customer otherwise materially breaches this Agreement and such breach continues unremedied for twenty Days after receipt of notice from IT Clever Solutions. IT Clever Solutions may terminate, interrupt or suspend Service without prior notice if necessary, to (1) prevent or protect against fraud, (2) protect G-Core’s personnel, facilities, equipment, network or services, (3) prevent violation of section 10 or infringement upon the rights of others or (4) prevent potential material liability.
14.4 Upon expiration or termination of the Agreement for any reason, (i) all rights to access or use Services and any other IT Clever Solutions Intellectual Property Rights will terminate and IT Clever Solutions will cease providing same, (ii) Customer will pay to IT Clever Solutions all Fees accrued but unpaid as of the date of expiration or termination, (iii) all liabilities accrued before the date of expiration or termination will survive and (iv) Customer will return or destroy, and certify in writing to IT Clever Solutions such destruction of, all copies of IT Clever Solutions Confidential Information.
14.5 If Customer terminates the Agreement without cause or if IT Clever Solutions terminates the Agreement for cause pursuant to section 15.3, Customer will be billed and pay to IT Clever Solutions an amount equal to Customer’s MRCs from the effective Service Orders multiplied by the number of months remaining in the applicable committed term or subscription term (“Early Termination Fee”). The Parties agree that IT Clever Solutions damages in the event of the foregoing will be difficult or impossible to ascertain; therefore, the foregoing is intended to establish liquidated damages in such event and is not a penalty. If Customer terminates the Agreement for cause pursuant to subsection 15.2, Customer will not be obligated to pay Early Termination Fee.
14.6 In preparing a final invoice to Customer, which Customer will pay pursuant to the terms of this Agreement, IT Clever Solutions will (i) calculate the balance due, (ii) deduct from such balance the unused portion, if any, of any prepaid Fees or Customer deposit and (c) bill Customer for the remaining balance due. If there remains an unused portion of any prepaid Fees or Customer deposit after satisfaction of the balance due, IT Clever Solutions will refund to Customer such unused portion.
15.Suspension of Services
15.1 IT Clever Solutions may, upon giving notice to Customer, without prejudice to any of IT Clever Solutions rights to terminate this Agreement or any Service Order hereunder, suspend provision of all or any of Services in the event that
(a) suspension of Services is required in order to comply with the directive of an authority and/or court;
(b) IT Clever Solutions has grounds for suspecting that Customer is committing any illegal or unlawful act in connection with the use of Services;
(c) if Customer is in default with its payment obligations under any Service Order for more than thirty Days, and/or
(d) any other provision within this Agreement or Service Order allows IT Clever Solutions to suspend provision of all or any of Services.
15.2 If any Services are suspended as a consequence of Customer’s act or omission, (i) Customer shall remain liable to pay the respective Fees as if Services had been properly provided by IT Clever Solutions, and (ii) Customer shall reimburse IT Clever Solutions for any additional charges and expenses incurred due to the suspension and/or recommencement of Services.
16.1 During the Term, IT Clever Solutions may publicize the existence of the relationship between the Parties for the purpose of its marketing activities. Subject to the foregoing, neither Party shall make any press announcements concerning the Agreement or publicize the Agreement in any way without the prior written consent of the other Party.
16.2 All notices, requests, approvals, consents and other communications required or permitted herein will be in writing and in English. Either Party may change its contact information upon notice to the other Party. For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless will be deemed to have been conclusively made seven Days after delivery was reasonably initiated.
16.3 If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding will not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
16.4 Neither Party may assign this Agreement, in whole or in part, without the other Party’s express prior consent except that IT Clever Solutions may freely assign any and all of its rights and obligations under this Agreement (a) to a parent or Affiliate or (b) in connection with a Change of Control. This Agreement will be binding upon and inure to the benefit of all permitted successors and assigns. Unless expressly permitted in writing by IT Clever Solutions, Customer may not assign, transfer, distribute, resell, lease or otherwise provide access to the IT Clever Solutions Services to any third party.
16.5 Each Party acknowledges that the Services, Confidential Information, hardware, software, technology, devices or other materials or information obtained from or provided to the other Party under this Agreement may be protected under, and subject to, import and export control laws of the European Union, its member states, or the United States, as well as those of equivalent in other jurisdictions; accordingly, their use, import, export and reexport, may be restricted, prohibited or necessitate securing licenses which either Customer or IT Clever Solutions, as applicable, will obtain or provide information for the securing of such licenses, depending on who is designated as the importer and exporter in the transaction. Each Party agrees not to directly or indirectly export, re-export or cause to be exported or re-exported, any such Confidential Information, Services, hardware, software, technology, device or other such materials or information to any destination or entity prohibited or restricted under the laws of the European Union, its member states, or of the United States, unless it will have first obtained express prior consent of the disclosing party, the applicable agency or governmental body, either in writing as required hereunder or as provided by applicable regulation, as the same may be amended from time to time).
16.6 This Agreement, the Services Specifications, the SLA, the AUP and all Service Orders between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.
16.7 From time to time this Agreement, including all Services Specifications, the SLA and the AUP can be modified by IT Clever Solutions. Such modifications will not apply retroactively. The Customer will be notified by IT Clever Solutions by email or a written notice in the Customer’s account in the IT Clever Solutions system.
16.8 If there is an irreconcilable conflict between the terms and conditions of the Agreement and any other documents referenced herein, the conflict will be resolved in the following order of precedence: (a) this Agreement; (b) Services Specification; (c) SLA; and (d) AUP. If a provision of this Service Order conflicts with the aforementioned documents, those documents will take precedence, unless the conflicting provision in the Service Order explicitly amends Agreement, the Services Specification, the SLA or the AUP respectively.
16.9 This Agreement and any Service Order hereunder shall be governed by the laws of the United Kingdom, without regard to International Private Law.