PRODUCT TERMS AND CONDITIONS – EUROPE
ALL OTHER PRODUCTS AND SERVICES
Version Q 3-25-14
All products and services (“Products” as further defined in Exhibit C) sold or licensed by EVault (EMEA) B.V., a Dutch corporation having its principal place of business at Europalaan 20, 5232 BC’s-Hertogenbosch, The Netherlands, (“EVault”) directly or sold or licensed by a Channel Partner (except Trial Licenses and Trial Subscriptions) are subject to these Product Terms and Conditions (the “Product Terms”). Capitalized terms used in these Product Terms are defined in Exhibit C. To purchase or license Products from Seller, Customer must sign and deliver to Seller an Order Form which incorporates these Product Terms by reference. Collectively, the Order Form and these Product Terms comprise the binding Agreement for purchase or license of the Products.
1. ACCEPTANCE. The Order Form and these Product Terms are controlling and any additional or inconsistent terms and conditions in any acknowledgement, purchase order, or other documents proposed or provided by Customer are expressly rejected.
2. PRODUCT SPECIFIC TERMS AND CONDITIONS. Terms and conditions applicable to the specific Products, including individual Product elements when sold as part of a Product bundle, are set forth in Exhibit A. Customer warrants and represents that it has completed the environmental assessment form completely and accurately. Customer understands that Seller will rely on this information in recommending the Products needed to support Customer’s computing environment and agrees that while Seller may recommend a Product configuration, Customer is responsible for determining the Products actually purchased. Customer also understands and agrees that to the extent the information included on the environmental assessment form is inaccurate or incomplete or Customer desires a higher level of performance, Customer may need to purchase additional Products.
3. DELIVERY, INSTALLATION AND SUPPORT
(a) Licensed Software. Following acceptance of the applicable Order Form, Seller will provide Customer with the software key(s) necessary to download and use the Licensed Software. The Licensed Software is deemed to be delivered upon Customer’s receipt of the software key(s).
(b) Appliances and Hardware. Seller shall deliver the Appliance or Hardware to Customer as soon as practicable following acceptance of an Order Form unless another delivery date is set forth in the Order Form or the parties agree otherwise in writing. Shipping fees are not included in the price of the Hardware or Appliance and are the responsibility of Customer. Delivery will be FCA (Free Carrier), the premises of Seller or its supplier, as such term is defined by Incoterms 2010. Title to the Hardware, including Appliance Hardware, and risk of loss and damage will pass to Customer when Seller or its supplier delivers the Hardware to the carrier selected by Customer. If Customer is leasing the Appliance Hardware from EVault, title to the Appliance Hardware will remain with EVault at all times.
(c) Services. Delivery of Subscription Services, Other Services, Hosting Services, Software Managed Services and Support Services will begin on the Service Effective Date. Professional Services are deemed to be delivered upon completion by EVault of the services.
All Products are deemed accepted upon delivery.
3.2 SUPPORT SERVICES.
(a) Licensed Software and Services. Support Services are either included as a part of the Product Fee or will be provided by Seller subject to a separate Fee. If Customer is entitled to receive Support Services directly from EVault, EVault will provide maintenance and support services to Customer as set forth in Exhibit B. For Products licensed or sold by a Channel Partner, Support Services shall be provided by the Channel Partner on terms and conditions generally equivalent to Exhibit B. Customer must purchase Support Services for at least one (1) year for each license of Licensed Software purchased either alone or on an Appliance. If Customer purchases multiple licenses and maintains Support Services for any one license, Customer must purchase Support Services for all such Licensed Software. Customer may not copy and/or use a license key provided for one valid Product on another Product for which Support Services have not been purchased. If Customer does not continuously maintain Support Services with respect to any Licensed Software or Appliance, EVault reserves the right to charge Customer a reinstatement fee to resume such Support Services.
(b) Hardware. Customer, at its option, may purchase a maintenance package for any Hardware, including Appliance Hardware, from the Hardware manufacturer. Customer understands and agrees that Seller and its suppliers shall have no maintenance, support or warranty responsibilities with respect to Hardware, except for support with respect to an Appliance if specifically set forth in the Order Form.
4. FEES AND PAYMENT
4.1 FEES. Customer shall pay to Seller the applicable license, subscription, hosting, support, purchase price and other fees (if any) for those Products purchased or licensed by Customer, as set forth in the applicable Order Form or Statement of Work (collectively, “Fees”). Fees for additional services, including, without limitation, data seeding, data restoration and data deletion may also apply. In addition, Customer shall reimburse EVault for any expenses incurred in the performance of Professional Services on condition that any single expense or group of related expenses exceeding five-hundred EURO (€500.00) will require Customer’s prior written approval. Except as specifically set forth in this Agreement, all Fees are non-refundable.
4.2 CREDIT. Acceptance of any Order Form by Seller and the applicability of Seller’s standard payment terms are subject to Seller’s review of Customer’s credit history and rating. Notwithstanding anything to the contrary in this Agreement, if a Customer’s credit history and/or ratings do not meet Seller’s acceptance criteria, Customer may be required to make deposits and/or up-front payments on orders until an acceptable credit history is established
4.3 PAYMENT. Payments due under this Agreement shall be made in EURO or pounds sterling in the amounts and at the times set forth in the applicable Order Form or Statement of Work or, if not indicated therein, within thirty (30) days of the date of invoice. If it is Customer’s standard business practice to issue purchase orders prior to payment of invoices, then Customer will ensure that a purchase order accompanies each Order Form submitted to Seller. If Customer fails to timely pay any amount when due, Customer shall pay, in addition, interest at the rate of one and one half percent (1½%) per month, but not to exceed the maximum allowed by law, on such delinquent amount.
4.4 TAXES. All Fees are exclusive of any sales, value-added, foreign withholding or other government taxes, duties, fees, excises, or tariffs imposed on the production, storage, licensing, sale, transportation, import, export or use of the Products or performance of any services (collectively, “Taxes”). Customer is responsible for, and if applicable will reimburse Seller within thirty (30) days of request for, all such Taxes and any related penalties, except for taxes imposed on Seller’s net income.
5. OWNERSHIP AND RESTRICTIONS
5.1 TITLE. Customer acknowledges and agrees that as between EVault and Customer title to and ownership of the Products (excluding any Hardware purchased by Customer) and Systems, including all corrections, enhancements, or other modifications to the Licensed Software, whether made by EVault, Seller or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of EVault or its suppliers, as applicable. All rights not expressly granted to Customer in this Agreement are reserved by EVault.
5.2 PROPRIETARY RIGHTS NOTICES. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by EVault on or in the Products and shall ensure that all such notices are reproduced on all copies thereof.
5.3 RESTRICTIONS ON USE. Customer acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of EVault or its suppliers. Accordingly, Customer will not, directly or indirectly, do any of the following: (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software or use the Licensed Software for application development purposes; (b) merge the Licensed Software with other software; (c) sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Licensed Software or Products to any third party except as specifically permitted by this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software or evaluate the Licensed Software in order to develop a competitive product; (e) use the Licensed Software or Products to process data or provide any service bureau activity for any third party; (f) otherwise use the Licensed Software except as expressly allowed under this Agreement; (g) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with its Users’ use of the Licensed Software; (h) willfully tamper with the security of any of the Systems or tamper with other customer accounts of EVault; (i) attempt to access data on the System not belonging to or intended for Customer; (j) attempt to probe, scan or test the System or to breach the security or authentication measures without proper authorization; (k) willfully render any part of the Systems unusable; or (l) publish or disclose to third parties any evaluation of the Licensed Software without EVault’s prior written consent.
5.4 THIRD PARTY SOFTWARE. Notwithstanding anything to the contrary contained in this Agreement, any Third Party Software included in the Licensed Software, Appliance Software or licensed as a stand alone product is subject to the terms and conditions of any end user license agreement or additional terms accompanying such software and/or posted on EVault’s website. If the Licensed Software includes Microsoft Corporation’s WinPE software and related utility programs (“WinPE”), Customer may only use WinPE as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not as a general purpose operating system product. CUSTOMER UNDERSTANDS THAT WINPE CONTAINS A SECURITY FEATURE THAT WILL CAUSE THE COMPUTER SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO THE END-USER AFTER TWENTY-FOUR (24) HOURS OF CONTINUOUS USE. To the maximum extent permitted by applicable law, neither Microsoft Corporation nor any of its affiliates shall be liable to Customer for any claims or amounts relating to WinPE or other Microsoft software licensed pursuant to this Agreement. Further, Microsoft Corporation and its affiliates will not provide Customer with any customer support for WinPE or other Microsoft software licensed pursuant to this Agreement.
5.5 CUSTOMER’S DATA. Customer agrees that it is solely responsible for the content of all communications it makes while using Customer’s account and all Customer Data it processes using the Subscription Services or Other Services. Customer agrees that Users will not use the Subscription Services or Other Services to communicate any message or material that (a) is known, or reasonably should be known, to be libelous, harmful to minors, obscene or constitutes pornography; (b) is known, or reasonably should be known, to infringe the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of a third party or is otherwise unlawful; or (c) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. Customer is solely responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is processed using the Products, stored on the System, or disclosed to or used by Customer or Users in connection with the Licensed Software.
5.6 AUTHORIZATION TO RELEASE DATA. Notwithstanding anything to the contrary contained in this Agreement, if Customer requests EVault to provide assurances to any governmental agency, regulatory organization or similar institution (collectively, “Regulatory Agencies”) regarding the services provided by EVault, Customer authorizes EVault to furnish to such Regulatory Agencies all data, e-mail and other records stored by Customer on EVault servers or routed through EVault exchange servers. Further, Customer authorizes EVault to provide to the Regulatory Agencies assurances that EVault will comply with any requests for data belonging to Customer received from a Regulatory Agency. Customer agrees to indemnify and hold harmless EVault from and against any and all claims relating to or arising from EVault’s compliance with this provision or release of such data.
5.7 PASSWORDS. Users will access the Subscription Services or Other Services via the Internet by means of a specific account and passwords provided by Seller. Seller will issue to Customer, or will authorize Customer to issue, a password (each, a “Password”) for each User authorized to use the Subscription Services or Other services using Customer’s account. Seller encourages Customer to change the Passwords issued by Seller. In addition, Customer will designate its own key for the encryption of Customer Data; if Customer loses its encryption key, it may not be able to access its data. Customer is solely responsible for the confidentiality and use of its Passwords, encryption key and the Customer account. In no event will Seller or its suppliers be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer’s account by obtaining a Password or encryption key caused by a negligent or an intentional act or omission of Customer.
6.1 OBLIGATIONS. Each party acknowledges that, in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. Confidential Information disclosed pursuant to this Agreement will be subject to the terms of this Agreement during the Term and for two (2) years following termination or expiration of this Agreement, except for Customer Data, which will be subject to the terms of this Agreement indefinitely. Recipient shall take all reasonable steps to prevent the unauthorized disclosure of and maintain the confidentiality of the Confidential Information of Discloser. Recipient shall not disclose the Confidential Information of Discloser to any employees or third parties except to employees (including independent contractors), subsidiaries and consultants of Recipient who have at least an equivalent confidentiality obligation to Recipient and who have a need to know such Confidential Information on condition that Recipient shall be liable for any breach by such individual or entity. However, the parties acknowledge and agree that, notwithstanding such measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Confidential Information. Accordingly, Recipient cannot and does not (and nothing in this Section 6.1 or this Agreement is intended to) guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet. The Confidential Information disclosed by Discloser may only be used by Recipient as necessary to perform its obligations or exercise its rights under this Agreement.
6.2 EXCEPTIONS. The obligations set forth herein will not apply to any information that: (a) is or becomes generally available to the public or within the industry to which the information relates other than as a result of a breach of this Agreement; (b) was known to Recipient prior to receipt from Discloser, provided such prior knowledge can be substantiated by documentary evidence antedating the disclosure by Discloser; (c) is disclosed to Recipient by a third party (other than employees or agents of either party) which in making such information available to Recipient, is not in violation of any obligation of confidentiality to Discloser; or (d) is independently developed by Recipient, provided such independent development can be substantiated by documentary evidence. A disclosure of Confidential Information (i) in response to a valid order by a court or other governmental body, or (ii) otherwise required by law, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Recipient will provide prompt written notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent such disclosure.
7. SECURITY AND ENCRYPTION. EVault has adopted a written security policy that includes administrative, technical and physical safeguards that are intended to protect Customer’s Confidential Information from unauthorized access and use. However, Customer shall encrypt, using the encryption feature provided in the Products, all Customer Data that it transmits to EVault, including, without limitation, data transferred over the Internet or via a Transfer Appliance or other media.
8. LIMITED WARRANTIES AND DISCLAIMERS
8.1 ASSUMPTION OF RESPONSIBILITY. Customer assumes all responsibility for the selection of, use of and results obtained from the Products. All warranties, express or implied, extend solely to Customer and not to any third parties.
8.2 SUBSCRIPTION SERVICES AND OTHER SERVICES WARRANTY. Seller warrants to Customer that the Subscription Services and Other Services, under normal use, will perform substantially in accordance with the Documentation. For any breach of this warranty and to the extent not otherwise covered by Support Services, Customer’s sole and exclusive remedy and Seller’s sole and exclusive liability, will be for Seller to use reasonable efforts to correct promptly any documents, reproducible errors and defects to make the Subscription Services or Other Services operate as warranted and if after a reasonable number of attempts, Seller is unable to provide the Subscription Services or Other Services in compliance with the warranty, Customer may terminate the Subscription Service or Other Service, as applicable. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services.
8.3 SUPPORT SERVICES, HOSTING SERVICES, SOFTWARE MANAGED SERVICES AND PROFESSIONAL SERVICES WARRANTY. Seller warrants to Customer that the Support Services, Hosting Services, Software Managed Services and Professional Services will be of professional quality conforming to generally accepted industry standards and practices. For any breach of this warranty, Customer’s sole and exclusive remedy and Seller’s sole and exclusive liability, will be for Seller to re-perform the services and if after a reasonable number of attempts, Seller is unable to provide the services in compliance with the warranty, Customer may terminate the affected services and if applicable, the Subscription Services or Other Services to which the affected Support Services apply. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services.
8.4 LICENSED SOFTWARE. EVault PROVIDES THE LICENSED SOFTWARE WITHOUT ANY EXPRESS WARRANTIES OF ANY KIND. ANY CLAIMS THAT THE LICENSED SOFTWARE FAILS TO COMPLY WITH ANY IMPLIED WARRANTIES ARISING UNDER DUTCH LAW MUST BE MADE WITHIN ONE (1) YEAR OF THE LICENSE EFFECTIVE DATE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND EVault’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF AN IMPLIED WARRANTY WILL BE FOR EVault TO USE REASONABLE EFFORTS TO CORRECT PROMPTLY ANY DOCUMENTS, ERRORS AND DEFECTS TO MAKE THE LICENSED SOFTWARE OPERATE IN CONFORMANCE WITH THE IMPLIED WARRANTIES. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITED BY APPLICABLE LAW, EVault PROVIDES THIRD PARTY SOFTWARE AND MICROSOFT SOFTWARE “AS IS” WITHOUT WARRANTIES OF ANY KIND, ALTHOUGH THE THIRD PARTY SUPPLIERS OF SUCH SOFTWARE MAY PROVIDE THEIR OWN WARRANTIES DIRECTLY TO CUSTOMER.
8.5. HARDWARE. WITH RESPECT TO THE HARDWARE, SELLER WILL TRANSFER, PASS ALONG AND UPON THE REQUEST OF CUSTOMER ASSERT FOR THE BENEFIT OF CUSTOMER, AT CUSTOMER’S COST AND EXPENSE, ANY WARRANTIES OF THE MANUFACTURER OR OTHER COMMITMENTS OR OBLIGATIONS OF THE MANUFACTURER.
8.6 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 8, THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON INFRINGEMENT OR NON MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. SELLER MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS USERS, THAT THE LICENSED SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
9.1 BY EVAULT. For Products licensed or sold directly by EVault to Customer, subject to Sections 9.3 and 9.4 below, EVault shall defend any Claim brought against Customer or its Indemnified Parties by any third party alleging that the Products (excluding Third Party Software and Hardware) infringe, misappropriate or violate that party’s patent rights, trademark rights, copyright rights or rights under trade secret laws, each as recognized in the United States or Europe and shall pay all damages and costs awarded against Customer and its Indemnified Parties, by judgment or in settlement, in connection with such a Claim as well as any costs incurred by Customer in response to a request by EVault to assist with the defense of the Claim. EVault will have no responsibility or liability for such Claims to the extent such Claim is based upon: (a) any use of any part of the Products after notification to discontinue use; (b) modifications of the Products not made or authorized by EVault; (c) use of the Products in combination with any products or services not supplied by EVault; (d) Third Party Software; (e) Hardware; or (f) any use in violation of this Agreement or misuse or unauthorized use of the Products. Customer understands and agrees that EVault has no control over the particular conditions or circumstances under which Customer uses the Products and that EVault shall not incur any liability as a result thereof.
9.2 BY CUSTOMER. Subject to Section 9.3 below, Customer shall defend any Claim brought against EVault or its Indemnified Parties by any third party arising from or related to Customer’s: (a) violations of law or regulations in connection with the use of the Products; (b) actual or alleged infringement of a third party’s Intellectual Property Rights (except to the extent such infringement is covered by EVault’s indemnification obligations as set forth in Section 9.1 above); (c) failure to encrypt Customer Data; or (d) business operations. Customer shall pay all damages and costs awarded against EVault and its Indemnified Parties, by judgment or in settlement, in connection with such a Claim as well as any costs incurred by EVault in response to a request by Customer to assist with the defense of the Claim.
9.3 CONDITIONS. Each party’s indemnification obligations are contingent upon the indemnifying party receiving: (a) prompt written notice of the Claim; (b) all reasonably necessary assistance, information and authority to defend the claim and perform its obligations under this Section; and (c) sole control of the defense and settlement of such claim and all associated negotiations. The indemnifying party agrees not to settle any claim, action, suit or proceeding for which it is indemnifying the other in a manner that would impose additional obligations on the other party without first consulting the other and obtaining its consent thereto (which shall not be unreasonably withheld or delayed); however, such consent shall not be required where the settlement results in the full and unconditional release of all claims against and obligations of the indemnified party. An indemnified party may, at its option and expense, participate in the defense or settlement of any Claim, provided that the indemnifying party retains control over the defense or settlement thereof.
9.4 EVault’S OBLIGATION FOR INFRINGEMENT INDEMNITY. If an infringement claim within the scope of Section 9.1 is made or appears likely to be made, Customer agrees that EVault may, in its sole discretion and at its expense: (a) enable Customer to continue to use the affected portions of the Products; or (b) replace or modify the Products so that it is non-infringing and substantially equivalent in function to the allegedly infringing Products. If EVault determines that none of these alternatives is reasonably available, then EVault may terminate this Agreement in whole or with respect to the affected portions of the Products. In such case, with respect to any perpetual license for Licensed Software, EVault shall refund to Customer the license fees paid by Customer for the affected Licensed Software less a reasonable allowance for the period of time Customer has used the Licensed Software.
9.5 ENTIRE OBLIGATION. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 9 ARE EACH PARTY’S ENTIRE OBLIGATION AND LIABILITY FROM OR RELATED TO THIS AGREEMENT REGARDING THIRD PARTY CLAIMS.
10. LIMITATION OF LIABILITY
10.1 WAIVER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY OR SELLER’S SUPPLIERS BE LIABLE FOR: (a) THIRD PARTY CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED IN SECTION 9; OR (b) ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.2 CAP ON LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6, IN NO EVENT WILL SELLER’S OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THIS AGREEMENT EXCEED (a) WITH RESPECT TO LICENSED SOFTWARE, THE PRO RATA PORTION, BASED ON A THREE-YEAR STRAIGHTLINE DEPRECIATION OF THE ACTUAL AMOUNT OF LICENSE FEES PAID TO SELLER FOR THE AFFECTED LICENSED SOFTWARE; (b) WITH RESPECT TO SUBSCRIPTION SERVICES, HOSTING SERVICES AND SOFTWARE MANAGED SERVICES, THE FEES PAID BY CUSTOMER FOR THE APPLICABLE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED; (c) WITH RESPECT TO CDR SERVICES, THE FEES PAID BY CUSTOMER FOR SUCH SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED; (d) WITH RESPECT TO HARDWARE, EXCLUDING APPLIANCE HARDWARE, THE PURCHASE PRICE PAID BY CUSTOMER FOR THE HARDWARE GIVING RISE TO THE CLAIM; (e) WITH RESPECT TO AN APPLIANCE, THE APPLIANCE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED; AND (f) WITH RESPECT TO PROFESSIONAL SERVICES, THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
10.4 GROSS NEGLIGENCE AND WILLFUL MISCONDUCT. Nothing in this agreement is intended to limit or exclude EVault’s liability to the extent that it is the result of the gross negligence or willful misconduct of EVault’s executive management.
11. TERM AND TERMINATION
11.1 TERM. This Agreement will be effective as of the date set forth in the Order Form. The term of the service Products will commence upon the Service Effective Date and will continue for the period set forth in the applicable Order Form (subject to the renewal terms set forth in this Agreement) and/or Statements of Work (“Term”), unless earlier terminated in accordance with the provisions of this Agreement. Upon expiration of the initial term and any renewal term of the Subscription Services, Other Services, Hosting Services or Software Managed Services, the term will automatically renew on a month-to-month basis unless either party notifies the other of its intention not to renew at least thirty (30) days prior to the renewal date. Upon expiration of the initial term and any renewal term of the Support Services, the term will automatically renew for a one year term unless either party notifies the other of its intention not to renew at least thirty (30) days prior to the renewal date.
11.2 TERMINATION. Either party may terminate this Agreement, a Statement of Work and all licenses and services provided hereunder upon written notice: (a) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party; (b) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (c) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (d) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (e) if a receiver is appointed for the other party or its business. In addition, Seller may suspend Customer’s access to Customer Data or Support Services or terminate this Agreement and/or a Statement of Work, effective immediately, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from Seller that payment is past due. Fees will continue to accrue during any such suspension. Additional termination rights are set forth in Section 8 above. Notwithstanding the foregoing, either party is entitled to terminate for important cause pursuant to article 6:265 Civil Code, to the extent this statute cannot be disclaimed or derogated from contractually; provided, however, that under no circumstances will Customer be entitled to any refunds for time periods where Customer used Products provided by EVault.
11.3 TERMINATION FEE. With respect to any Subscription Service, Other Service, Hosting Services or Software Managed Services, in addition to those termination rights set forth in Section 11.2 above, Customer may terminate such service for convenience upon thirty (30) days written notice to Seller and by immediately paying a termination fee equal to (a) the monthly subscription fee in effect for the term at the time that Seller receives the termination notice, multiplied by (b) the number of months remaining in the current term.
11.4 OBLIGATIONS UPON TERMINATION. Upon the termination or expiration of this Agreement: (a) Customer shall promptly pay in full all outstanding payments to Seller (but in any event, no later than ten (10) days following the date on which termination or expiration is effective); (b) all licenses granted hereunder (if any) will immediately terminate and Customer shall immediately cease all use of the related Products (except Hardware, including Appliance Hardware, purchased and paid for by Customer); (c) Customer shall remove all copies (or permits EVault to remove all copies, if applicable) of the Licensed Software (including Appliance Software except the operating system) from its computer systems and shall return or destroy, at EVault’s option, all such copies; and (d) the receiving party shall promptly return all Confidential Information (except Customer Data) of the disclosing party in its possession or control. With respect to (c) and (d) of the preceding sentence, Customer shall certify to Seller in writing within ten (10) days of the date on which termination or expiration is effective that it has made no other copies, or has completely destroyed all copies, including backup or archive copies, of the Licensed Software or any portion thereof, and that no copies of any portion of the Licensed Software are in existence on any network, system, or equipment ever owned or used by Customer. With respect to Customer Data maintained on an EVault System, on or before termination or expiration of the services, upon Customer’s request and payment of the applicable fees, EVault will export the Customer Data to a mobile device and return such data to Customer. In the alternative, Customer may request, in writing, that EVault delete all Customer Data maintained on an EVault System. Customer understands and agrees that following termination or expiration of the services, EVault may delete all of the Customer Data from its Systems and will have no liability for such action. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
11.5 SURVIVAL. The following Sections will survive the termination or expiration of this Agreement: 4 through 12, and any other provisions of this Agreement that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement.
12.1 ENTIRE AGREEMENT. This Agreement, including the Order Form and these Product Terms, constitutes the entire agreement between the parties and supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both parties. The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this Agreement, which will be considered as a whole.
12.2 WAIVER. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
12.3 SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
12.4 ASSIGNMENT. Neither party will indirectly or directly transfer or assign any rights under this Agreement, in whole or part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, assign this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party’s obligations hereunder. Any assignments contrary to this Section 12.4 will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, all or certain portions of the Products sold or licensed under this Agreement may be provided by a subsidiary or subcontractor of Seller or its suppliers. Seller agrees that it will be responsible for its subsidiaries and subcontractors and their performance under this Agreement.
12.5 COMPLIANCE WITH LAWS. Each party shall be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement and agrees to comply with all such laws, regulations and other legal requirements. Further, Customer warrants and represents that it will use the Products in full compliance with applicable laws and avoid any violations of third party rights, including, without limitation, data privacy rights. EVault retains the right to delete or block access to any data if there are concerns regarding potential violations of privacy laws or third party rights by Customer. If Customer uses Products for the storage of personal data and EVault gains access to such data in the context of hosting such data or relating to service requests, EVault shall process such data on behalf of Customer and only in accordance with instructions from Customer (as a data processing service provider).
12.6 INTERNATIONAL TRADE COMPLIANCE. The Products, including any Third Party Software, are subject to the customs and export control laws and regulations of the United States, the Netherlands and any country in which the products are manufactured, received or used. Further, under U.S. and Dutch law, the Products may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer will comply with these laws and regulations and shall ensure that any person to which Customer requests Seller or its suppliers to route Product directly has been made aware of the associated export controls.
12.7 FORCE MAJEURE. Except for Customer’s payment obligations for Products, neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without limitation, fire, earthquake, storm, flood, power outage, strike, war, act of terrorism, law, export control regulation, instructions of government authorities or judgment of a court (not arising out of breach by such party of this Agreement). If, however, a party’s performance is prevented for thirty (30) days or more, then the other party will be entitled to terminate these Product Terms on written notice to the party suffering the force majeure at any time prior to resumption of performance by the party suffering the force majeure.
12.8 INSPECTIONS. Customer will permit Seller or its representatives to review Customer’s relevant records and inspect Customer’s facilities and systems to ensure compliance with the Agreement. Seller will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations.
12.9 GOVERNING LAW. This Agreement will be governed by and construed under the laws of the Netherlands. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. In addition, any Dutch laws relating to the sale or license of services or software that can be disclaimed will not apply to this Agreement.
12.10 DISPUTE RESOLUTION AND JURISDICTION. The parties will attempt to resolve any dispute relating to this Agreement by good faith negotiation between business principals for ten (10) business days. Thereafter, the parties will submit their dispute to mediation before an agreed mediator from the International Chamber of Commerce (“ICC”) or its successor, to be scheduled within ten (10) business days. The parties will conduct all mediations in Amsterdam, the Netherlands and will bear their own costs. Neither party may commence arbitration proceedings with respect to the matters submitted to mediation until after completing mediation. All disputes relating to this Agreement will be finally resolved by binding arbitration before three (3) arbitrators under the auspices of the ICC and pursuant to the rules of the ICC (“Rules”). In accordance with the Rules, each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrators shall give a written opinion stating the factual basis and legal reasoning for their decision. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings shall be conducted in the English language and take place in Amsterdam, the Netherlands or any other place on which all three arbitrators agree unanimously. Notwithstanding the foregoing, a party will have the right at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. The provisions of this Section 12.10 may be enforced by any court of competent jurisdiction.
12.11 ATTORNEYS FEES. In the event any attorney is employed by any party to this Agreement with regard to any legal action, arbitration or other proceeding brought by any party for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, then the party or parties prevailing in such proceeding, whether at trial or upon appeal, will be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled.
12.12 NOTICES. All notices, consents and approvals under this Agreement must be delivered in writing by e-mail, by courier, by overnight mail service or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for Customer set forth in the Order Form (or if none is specified, that address to which Customer invoices are sent) and for EVault, to EVault’s Legal Department at 201 3rd Street, Suite 400, San Francisco, California 94103 USA or firstname.lastname@example.org, and will be effective upon receipt. Either party may change its address by giving written notice of the new address to the other party in writing.
12.13 MARKETING. Customer agrees that EVault may use Customer’s name and logo to identify Customer as a customer of EVault on EVault’s websites, and as a part of a general list of EVault customers for use and reference in EVault’s corporate, promotional and marketing literature, subject to EVault obtaining Customer’s prior written permission in each instance.
12.14 PRESS RELEASE. In the event that EVault wishes to issue a press release announcing the existence of the relationship between the parties and the nature of this Agreement, EVault will provide such press release to Customer for Customer’s written approval and consent. Such approval and consent will be in Customer’s sole discretion. No other press releases that mention the other party shall be issued without the other party’s prior written approval.
12.15 GOVERNING LANGUAGE. This Agreement is in the English language only. English will be the controlling language in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding upon the parties. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
Exhibit A: PRODUCT SPECIFIC TERMS AND CONDITIONS
Exhibit B: SUPPORT AND MAINTENANCE SERVICES
Exhibit C: DEFINITIONS