a. Throughout this Agreement, our products and services are referred to as “Service” or “Services.”
b. The pricing, features and term of the products and services you purchase from us are set out on the web page (www.elastx.com) on which the particular products and/or services are described (the “Description Page” ). The Services are provided to you based on the Description Page as of the Effective Date. The Effective Date is the date service is initiated. The Description Page may change during the Term. We are only obligated to provide to you the Services as set out on the Description Page on the Effective Date. Elastx offers Customers the ability to upgrade the Services. At the time your upgrade order is processed, you are bound by the terms and conditions of that particular Service, for the Term of that Service.
c. We will use commercially reasonable efforts to make the Services available to you. We reserve the right to modify the Services, or the way in which we provide them to you, should:
i. A third party vendor cease making a critical aspect of the services available to us;
ii.The Services be prohibited by law or regulation; and/or
d. The Services may contain software, hardware or services provided by third parties (the “Third Party Vendors”). Third Party Vendors may have reserved the right to make changes to the way they provide their products. These changes may materially affect the Services. You may not terminate this Agreement because of those changes.
e. You agree that Elastx may modify this Cloud Services Agreement or any policy or other terms referenced in this Cloud Services Agreement at any time by posting a revised version at the websites displaying the policy and/or posting a revised version of this Cloud Services Agreement. Unless otherwise set forth in this Cloud Services Agreement, or in Elastx change of terms notice, the revised terms shall be effective fifteen days after posting and/or notifying you. By continuing to use or receive the Services after the effective date of any revisions, you agree to be bound by the revised policies or this Cloud Services Agreement. It is your responsibility to check the websites listed herein regularly for changes to the policies and this Cloud Services Agreement. If you disagree with any modifications to the policies or this Cloud Services Agreement prior to the expiration of the fifteen-day period, your sole and exclusive remedy shall be to stop using the Services.
f. Co-management of the server
If set out on the Description Page, you will have access to the server or servers used to provide the Services to you.
g. Configuration and Support
The Services are provided to you in a standardized manner. Should you wish to use the Services in a particular manner, it is your responsibility to configure the Services. Any custom configuration may not affect our operation of the network, our provisioning of the Services of other customers, and is otherwise subject to our approval.
h. Shared Hosting Services
i. Our Shared Hosting Services are subject to capacity controls and CPU usage restrictions. If your use of the server, bandwidth or memory exceeds that of a similarly situated customer, this Agreement may be terminated by us, or your service may be suspended until you mitigate your excess use of our resources.
ii. You may not run background or other processes that consume excess resources. This Agreement may be terminated by us, or your service may be suspended, until you remove the program running the background processes.
i. Virtual Private Servers
i. Our Virtual Private Servers Service is subject to capacity controls and CPU usage restrictions. If your use of the server, bandwidth or memory exceeds that of a similarly situated customer, this Agreement may be terminated by us, or your service may be suspended until you mitigate your excess use of our resources.
ii.You must use our Virtual Private Servers Service in a responsible manner. In particular, your use may not disrupt other users of the Service, or our network. If your use does in fact cause such disruption, we may require you to modify your use of the Virtual Private Servers Service, or discontinue use of the Service altogether until such time as your use does not cause such interference.
j. Backup Services
i.The Description Page on which the features of Backup Services are set out is a summary of the features and aspects of the Backup Services. While we have designed the Backup Services in a general manner, it is your responsibility to configure the Backup Services to serve your unique needs.
ii.Backup Services are provided on an as-is and as-available basis, as a supplement to, and not in lieu of your own backup programs. While we will use commercially reasonable efforts to ensure the effective operation of our Backup Services, you expressly agree that no backup program or service is error-free or fail-safe.
iii.The Backup Services may be used to restore your data. However, restoring your data does not always result in the data retaining the same or a similar configuration. When we restore your data, it may be necessary for you to make changes to it.
i/v.Backup Services are designed for disaster recovery. Should you, or a third party, request that the data held by us as a result of the Backup Services be used for a purpose other than disaster recovery, for example in litigation, we have no obligation to provide the data to you. Should we determine, in our sole and exclusive judgment, to provide the data to you, or should your data be subpoenaed or disclosure of it otherwise compelled, it will be provided at our convenience and you will be charged our prevailing hourly rate. You will also be responsible for any attorney’s fees we incur in reviewing, responding to, or producing your data. You may also be required to pay us a retainer to secure your obligations.
i.The Services may come pre-configured with software owned by a Third Party (the “Third Party Software”). If you represent to us that you already have a license to use the Third Party Software, we may require you to provide us with evidence of this license. You agree to comply with your license agreement while using the Third Party Software.
ii.If you do not have a license to use the Third Party Software, you agree to comply with the terms of any license that is required for you to use the Third Party Software.
You may choose to have us provide software updates, upgrades, bug fixes or enhancements offered by licensors’ Third Party Software (the “Patches”). We have no liability whatsoever for the consequences resulting from installation of the Patches, or any attempt by us to install the Patches. It is your sole and exclusive responsibility to determine if installation of the Patches will damage your data, or otherwise affect the operation of the Services, as provided to, or used by, you.
m. IP Address
The Services may include an IP Address. This IP Address is leased to you by us. We may change this IP Address at any time. The IP Address is not transferable. Upon the Termination of this Agreement, you must cease using the IP Address.
a. Fees are set out on the Description Page (the “Fees”), and are due as set out thereon (the “Due Date”). Unless set out on the Description Page, Fees are due monthly.
b. Fees are not refundable for any reason, other than in the case of our breach.
c. We are only obligated to provide the Services to you upon payment of the Fees. If you have not paid the Fees by the Due Date, we may terminate this Agreement, or suspend the Services, without notice, at our sole and exclusive discretion. If you fail to pay the Fees on the Due Date, we may charge you interest in the amount of 2.0% per month (or the highest rate allowed by law) and collection charges (including, but not limited to attorney’s fees).
d.If we suspend the Services for a reason within your control, the Fees will continue to Accrue.
e. Your use of the Services may be contingent on payment of fees to Third Parties. If you fail to pay these fees when due, your use of the Services may be suspended, disrupted or terminated.
f. If you dispute a Fee charged by us to you, you must contact us prior to the Due Date. Upon your presentation to us of written documentation supporting your view of the dispute, we will temporarily suspend the Fees in dispute. You remain responsible for any Fees not reasonably within the scope of the dispute. If we disagree with your view of the dispute, we will provide you with evidence of our view. If, within 15 days of our presentation of our evidence, you continue to dispute your obligation to pay the Fees, with our agreement you may place the Fees in escrow with a reputable escrow company, and pursue your available rights. We are only obligated to continue to provide the Services to you during a Fee dispute, if you place the disputed Fees in escrow, and provide us with written evidence of this escrow. You may not dispute Fees due a Third Party.
Unless set out on your Order Form the term of this Agreement is month-to-month (the “Term”). If you purchase multiple Services, the Term of this Agreement is for the length of time during which we agree to provide the individual Services to you.
a. Either of us may terminate this Agreement by providing the other with written notice of intent to terminate (a “Termination Notice”). You must provide us with written notice of your intent to terminate this agreement no less than thirty days prior to the renewal of your Service.
b. Either of us may terminate this Agreement by providing the other with written notice of a material breach. The written notice must contain sufficient facts from which the non-breach party may identify the alleged cause of the breach, and take steps to cure such a breach. Upon delivery of the notice of material breach, the party of alleged breach shall have ten calendar days during which the breach may be cured. If the material breach is incapable of cure, the non-breaching party may terminate this Agreement immediately.
c. We may terminate this Agreement, or a particular Service, immediately upon your violation of any of the policies incorporated into this Agreement; your violation of any licenses with Third Parties; or your bankruptcy.
d. Upon termination of this Agreement, your data will be deleted. Any data present on our backup servers will be overwritten. We shall have no obligation whatsoever to provide data to you upon termination of this Agreement.
e. If the Services are terminated based on your failure to pay the Fees when due or a breach of any of our Agreements, we may charge you a reconnection fee.
a. Mutual Warranties: each party has the power, authority, and legal right to enter into this Agreement; each party has the power, authority, and legal right to perform their obligations under this Agreement.
b. We warrant that we will perform in a competent manner.
c. You represent and warrant to us that:
i.you have the experience and knowledge necessary to use the Services;
ii.you will comply with the terms of any licenses required for your use of Third Party Software;
iii.you will draft end user agreements with terms that are no less restrictive than the terms of our Acceptable Use Policy (AUP) to your customers
iv.you own the entire right, title and interest to, or have an appropriate license to use all materials provided to us, or which may be accessed or transmitted using the Services;
v.your end users have warranted that they own the entire right, title and interest to, or have an appropriate license to use all materials provided to you, or which may be accessed or transmitted using the Services, and have agreed to indemnify us if they do not.
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 5(a), WE HAVE NOT, AND DO NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO US SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
7. Limitation of liability
a. We are not liable to you, or any third parties, for harm caused by or related to the Services, or your, or a third party’s, inability to utilize the Services, unless it is caused by our sole and exclusive gross negligence.
b. We are not liable to you, or any third parties, for lost profits, whether direct or indirect, special or incidental, consequential or punitive, or damages of any kind. This paragraph applies whether or not such potential liability was known to us, or should have been known.
c. Our maximum aggregate liability for any claims made pursuant to, based on the Services, Third Party Vendors, under any theory of law, is the amount paid by you for the Services for the month prior to the occurrence of the event or events giving rise to the claim.
a. You agree to indemnify, defend and hold us harmless, including, but not limited to our parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services (ii) any violation by you of the AUP; (iii) any breach of any of your representations, warranties or covenants contained in this Terms of Service (TOS); or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
9. Licenses and Intellectual Property
a. You may be required to agree to Third Party Vendor licenses in order to use the Services. You agree to preserve and not obscure trademark, copyright and other indications of intellectual property ownership placed on any software, hardware provided to you, or displayed during your use of the Services.
b. You must have a valid license to use the software you place on our equipment. You agree to provide us with evidence of this license upon our request.
c. If we license software to you, that license terminates upon the Termination or expiration of this Agreement.
d. You are responsible to us for any unauthorized installation, use, copying, access or distribution of the Services if you fail to: include in your customer agreements terms and conditions that are similar to but no less restrictive than those set out herein, or incorporated by reference; and, if your customers resell our Services, require your resellers to include in their customer agreements, terms and conditions that are substantially similar to but no less restrictive than those set out herein, or incorporated by reference.
e. Any information provided to us in connection with your use of the Services shall be provided by you on a non-confidential basis. Such information shall be considered non-confidential and our property. By submitting any such information to us you agree to a no-charge assignment to us of all worldwide rights, title, and interest in copyrights and other intellectual property rights to the information. We shall be free to use such information on an unrestricted basis. This paragraph is expressly limited to information you provide to us to troubleshoot and/or enhance the Services provided to you. It excludes any information you place on our equipment using the Services (“Your Information”). We shall have no ownership interest in Your Information, and between Elastx and you, you shall be the exclusive owner of Your Information.
Neither party shall ever disclose to any third party any Confidential Information received from the other party. “Confidential Information” means information disclosed to a party under this Agreement, which the disclosing party has identified as confidential information. Confidential Information does not include any information which (i) at the time of disclosure is in the public domain; (ii) after disclosure has become part of the public domain by publication or otherwise, except by breach of this Agreement by the receiving party; (iii) which the receiving party can establish by competent proof was in its possession at the time of disclosure; (iv) which the receiving party independently develops without the use of the disclosures hereunder or (v) is required to be disclosed by any party by law or regulation having force of law. Each party shall ensure that all of its advisors and consultants who are given access to Confidential Information are bound by equivalent confidentiality obligations.
All notices, claims, demands, and other communications hereunder shall be in writing and shall be deemed given upon (i) confirmation of receipt by the addressee by a standard overnight carrier, or (ii) the expiration of five (5) Business Days after the day when mailed by registered or certified mail (postage prepaid, return receipt requested), addressed to the respective parties at the following address:
SE-111 20 Stockholm
b. Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, interruptions of telecommunications providers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. Notwithstanding the above, in the event Force Majeure has prevented us from performing our obligations under this Agreement for one month, you shall be entitled to terminate this Agreement at no additional cost. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the Force Majeure event.
c. Choice of Law, Jurisdiction and Venue
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish. This Agreement shall be governed by the substantive law of Sweden.
No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.
Neither this Agreement nor any rights under this Agreement, except in the case of Company, other than monies due or to become due, shall be assigned or otherwise transferred by you (by operation of law or otherwise) without our prior written consent. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect, and such provision shall be enforced to fullest extent consistent with applicable law.
g. No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
Sections 6, 7, 8, 9(d), 10, 11(a),(c), (d) and (f) shall survive the termination of this Agreement.