1. Purchase and Sale of Services
Criticalcase shall sell to Customer and Customer shall purchase from Criticalcase the products or services (“Services”) as described in the service order (“Service Order”) to which these General Terms and Conditions of Service (“General Terms”) are attached. The Service Order, together with these General Terms sets forth the entire agreement and understanding of Criticalcase and Customer with respect to the purchase and sale of Services in accordance with such Service Order, and the same shall supersede all prior discussions and negotiations between the parties with respect thereto. In case of conflict between these General Terms and the terms of a Service Order, the terms of the Service Order shall control. The Service Order, together with these General Terms is referred to herein as the “Agreement”. Unless and until modified by the parties hereto, these General Terms shall apply with respect to each Service Order (and any extension, modification or renewal thereof) entered into by Customer and Criticalcase with respect to the Provider identified herein.
2. Service Fees
Customer will pay all fees due for Services according to the prices and terms listed in the Service Order. The prices listed in the Service Order will remain firm during the Initial Term indicated in the Service Order. Thereafter, prices may be changed by written notice from Criticalcase to Customer no less than 30 days prior to the commencement of any renewal term. All amounts payable hereunder to Criticalcase shall be exclusive (i.e. net) of all sales, use, value-added, withholding and other taxes and duties (other than Criticalcase’s income tax). In the event Criticalcase pays any such amounts and has not collected those amounts previously from Customer, Customer shall reimburse Criticalcase and they shall be added to the invoiced amounts as separate charges.
Except as otherwise indicated on a Service Order, on the service activation date for each Service, Criticalcase shall bill Customer for all non-recurring fees indicated in the Service Order and the agreed upon monthly minimum service charge for the first month of the term (if the first month is a partial month, then Customer will be billed minimum service charges for the partial month and the next following complete month). Criticalcase shall invoice Customer for the monthly minimum service charges for all subsequent months on or about the first day of the month in which such Services are to be provided. All other fees for Services received and expenses incurred for Services during a month (e.g., excess bandwidth usage fees) will be invoiced on or about the first day of the month following the month in which the Services were provided. Payment shall be made by Customer to Criticalcase no later than 30 days from invoice date, at an address or to such bank account designated by Criticalcase from time to time. Interest shall accrue on any delinquent amounts owed by Customer to Criticalcase at a rate equal to the lesser of (i) one percent (1%) per month or (ii) the maximum legal interest rate chargeable. In addition, Customer shall bear all costs (including reasonable legal fees), incurred by Criticalcase to collect any unpaid or delinquent amounts. Criticalcase may, at any time, and from time to time, modify the payment terms or require a deposit or other acceptable form of security if it reasonably deems that Customer’s ability to pay is in doubt. Unless prohibited by applicable law or regulation, all invoiced amounts not disputed in writing by Customer within thirty (30) days of invoice date shall not be subject to dispute or challenge by Customer.
4. Provider; Acceptable Use
a. Customer acknowledges that Criticalcase does not develop or own the Services, but rather is an approved distributor and/or reseller thereof and accordingly, other than the limited rights granted to Customer to access and use the Services as provided for in this Agreement, all intellectual property rights, including copyrights, patents, trademarks and related trade secrets are and shall remain the sole and exclusive property of the service provider(s) and or their respective affiliates named in the Service Order (each, a “Provider”). There are no implied licenses granted under this Agreement.
b. When using the Services, Customer shall comply with Provider’s acceptable use policies (as the same may be amended from time to time) copies of which shall be provided by Criticalcase at the request of Customer. Should Customer fail to comply with such policies, in addition to its other remedies hereunder, Criticalcase may, following notice to Customer, suspend Customer’s use of the Services. Customer acknowledges that the acceptable use policies are provided, monitored and enforced by the Provider and Criticalcase acts only as a conduit between Provider and Customer with respect to any claims of violations of such policies; accordingly, the determination of Provider as to a violation of its acceptable use policy shall be binding upon Customer. For avoidance of doubt, a breach of Provider’s acceptable use policy shall be deemed a material breach of this Agreement.
a. Criticalcase shall provide to Customer the Services in accordance with the Service Order. The Services may be more particularly described in the marketing and technical materials prepared by Provider, copies of which shall be provided by Criticalcase at the request of Customer.
b. Criticalcase will provide or procure that Provider provides technical support services to Customer that do not materially differ than the standard technical support services made available directly by Provider to its customers.
6. Confidentiality; Modifications
a. Customer acknowledges that the Services and related technology, structure, organization, and source code (the “Provider Technology”) constitute valuable trade secrets, and accordingly, Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Provider Technology; (b) merge the Provider Technology with other technology; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Provider Technology to any third party; or (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Provider Technology.
b. This Agreement, including the fact of its existence and all business terms of the Service Order is confidential (“Confidential Information”) and neither party hereto shall disclose or divulge any of the Confidential Information to third parties without the prior written consent of the other party.
c. Neither party shall use the other party’s name, logo or marks without the other party’s prior written consent except that Criticalcase and its affiliates shall be permitted to use the unaltered name, logo or mark of Customer in its client referral lists, case studies, and other promotional or sales material (including on its website or in printed materials).
d. Criticalcase acknowledges that Customer’s technology and intellectual property (the “Customer Technology”) constitute valuable trade secrets of Customer, and accordingly, Criticalcase agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Customer Technology; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Customer Technology to any third party; or (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Customer Technology.
e. Customer acknowledges that Provider, upon thirty days written notice, may modify components of any Service so long as such change is generally applicable to all customers and provided further that the modified Service will include substantially all of the original features and functionality the Service had before such modification.
7. Indemnification; Customer Content
a. Criticalcase hereby indemnifies and holds harmless Customer from and against any claims, actions, or demands alleging that the Services infringe any patent, trademark or copyright of any third party. In the event the Service becomes or is in Criticalcase’s reasonable discretion likely to become the subject of any injunction preventing its use as contemplated herein, or Criticalcase reasonably determines that the Service is likely to infringe or violate any third party intellectual property rights, Criticalcase may, at its option, (A) procure for Customer the right to continue to use the Service in the manner permitted hereunder, (B) replace or modify the Service so that it is non-infringing while continuing to perform all of the material functions of such Service or (C) if in Criticalcase’s reasonable opinion it is not commercially reasonable for it to take the actions set forth in (A) or (B), terminate this Agreement. Criticalcase shall have no liability for any infringement of patents, copyrights, or other intellectual property rights resulting from Customer Content (defined below), or to the extent such liability arises or results from the use or combination of the Services with any hardware, software, products, applications, data or other materials not specified or provided by Criticalcase, or to the extent the claims arise from products or services not supplied by Criticalcase.
Customer shall (i) promptly notify Criticalcase in writing of any claim, suit or proceeding for which indemnity is claimed under this Section, and (ii) allow Criticalcase solely to control the defence of any claim, suit or proceeding. Criticalcase shall not enter into any settlement that imposes liability or obligations on Customer without obtaining Customer’s prior written consent, which shall not be unreasonably withheld.
b. Customer is solely responsible for all content and applications, including any third party content or applications, provided to Criticalcase or the Provider for delivery by the Services (“Customer Content”). Customer retains all right, title and interest in its Customer Content and Customer Content shall not be deemed part of any Service. Customer acknowledges that Criticalcase does not assume and should not be exposed to Customer’s business and operational risks associated with Customer Content. Customer shall defend, indemnify, and hold Criticalcase harmless as a result of any claim by a third party against Criticalcase with respect to any Customer Content, the operation of Customer’s website (including commerce thereon) or misuse of a Service by Customer or use of Services in violation of any applicable law or Provider’s acceptable use policies.
8. Disclaimer; Limitation of Liability
a. Criticalcase expressly disclaims all warranties, terms and conditions of any kind with respect to the delivery, installation and use of the Services by Customer, contractual, statutory or otherwise in law or equity, or from a course of dealing or usage of trade, to the fullest extent permitted by law, including any implied warranties, terms and conditions of satisfactory quality, fitness for a particular purpose.
b. Except for each party’s liability arising out of its indemnification, payment and confidentiality obligations, and subject to subsection (d) below, liability for all claims arising hereunder, whether in contract, tort, negligence or otherwise, shall not exceed the aggregate amount of fees paid or payable by Customer to Criticalcase under the applicable transaction document during the twelve (12) months preceding the claim.
c. In no event shall either party be liable for any (i) loss of data, (ii) loss of profits, (iii) loss of sales, (iv) loss of or damage to business, (v) loss of customers, (vi) business interruption, (vii) replacement services or (viii) any special, incidental, consequential punitive or indirect loss, however caused and regardless of theory of liability and whether in contract, tort, negligence or otherwise, even if such party has been advised of the possibility of such damages.
THE FOREGOING WILL NOT BE CONSTRUED TO LIMIT CRITICALCASE’S RIGHT TO RECEIVE FEES PAYABLE UNDER A SERVICE ORDER DURING THE FULL TERM THEREOF, EVEN TO THE EXTENT SUCH PAYMENTS INCLUDE AN ELEMENT OF PROFITS TO CRITICALCASE.
d. None of the exclusions and limitations in this section 8 shall apply in respect of (i) liability in negligence causing personal injury or death; (ii) liability for fraudulent misrepresentation; or (iii) any other liability which cannot by law be excluded or limited.
9. Term and Termination
a. The Initial Term of the Service Order shall be as indicated on the Service Order and shall automatically renew for successive terms of equal duration unless either party notifies the other of its intent to terminate at least sixty (60) days prior to the expiration of the applicable Term. Notwithstanding the foregoing, if no notice of non-renewal has been delivered but (i) Criticalcase is unable to renew or extend its agreement with Provider so that Criticalcase may continue to provide the Services to Customer, and (ii) Criticalcase is unable to provide Customer with services substantially similar to the Services from another service provider reasonably acceptable to Customer, then either party shall have the right to terminate this agreement by delivery of written notice to the other prior to the commencement of the renewal term.
b. In the event that Criticalcase terminates a Service Order in accordance with subsection (c) or (d) below, or pursuant to the exercise of any other legal remedy or right, Customer shall remain liable for the fees that would have become due for the remainder of the Term (including the renewal thereof, if renewed or deemed renewed), in addition to all fees outstanding at the date of termination.. Where the fees include a variable component based on usage or excess usage, for the remaining months of the term (including the renewal thereof, if renewed or deemed renewed), such amount shall be calculated on a per month basis based on the average monthly amount in the six month period prior to termination.
c. Either party may terminate a Service Order at any time if (i) a receiver is appointed for the other party or its property, (ii) the other party makes an assignment of all or substantially all of its assets for the benefit of its creditors, (iii) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor’s relief law and not dismissed within 60 days, (iv) the other party liquidates or dissolves or attempts to do so, or (v) the other party commits any other breach of a material obligation hereunder which it fails to cure within 30 days of written notice, or ten days for monetary default, or immediately if it is by its nature incurable.
d. In the event that Criticalcase terminates any other Service Order between Criticalcase and Customer due to a material default by Customer under such Service Order (as described in subsection (c) above), Criticalcase shall have the right, at its election, by written notice to Customer to terminate this and each other Service Order between Criticalcase and Customer and Customer shall be liable as provided for in subsection (b) above.
e. Should Customer fail to pay any fees or other amounts due hereunder as and when due, Criticalcase shall provide written notice to Customer by email and/or fax of this fact and, if Customer fails to make the payment within seven days of delivery of the notice, in addition to any other remedies Criticalcase may have hereunder or in law or at equity, Criticalcase will be entitled to suspend the Services under all applicable Service Orders.
a. Customer shall not sell, assign or resell or otherwise transfer the Services to a third party nor enter into any similar relationship with a third party to enable the purchase or use of the Services through Customer.
b. Customer shall not sell, sell, assign or otherwise transfer or dispose of its rights and obligations under this Agreement (including the Service Order) without the prior written consent of Criticalcase; provided that Customer may, upon written notice to Criticalcase assign its rights and obligations hereunder in connection with a merger or the sale of all or substantially all of its assets
c. Any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
d. Any notice under this Agreement shall be in writing and shall be deemed to have been duly given for all purposes (a) when received or five (5) days after it is dispatched by recognized express courier service; or (b) upon the manual delivery thereof, to the respective addressee, or to such other address of which notice as aforesaid is actually received.
e. Should either party initiate legal proceedings against the other regarding any matter connected with this Agreement or arising there from, such proceedings shall be initiated only and exclusively before the courts of LUGANO, Switzerland, and shall be governed by the procedural and substantive laws of Switzerland; provided, however, Criticalcase shall have the right to bring a claim against Customer for amounts owing hereunder in any jurisdiction in which Customer operates or has a place of business and the laws of such jurisdiction shall be applied.
f. The parties agree that, to the extent permitted by law, the United Nations Convention on the International Sale of Goods, or similar consumer protection legislation worldwide, does not apply in any respect to this Agreement.
g. If any legal action is necessary to enforce the terms of this Agreement, the substantially prevailing party shall be entitled to reasonable legal fees and costs.
h. Neither party to this Agreement shall be held responsible for the performance of any obligations under this Agreement if such performance is hindered or prevented by any circumstances of force majeure, as recognized under applicable law; provided, however the foregoing excuse Customer from the payment of all amounts owing hereunder as and when due.
i. Sections 3, 6, 7, 8 and 10 of these General Terms shall survive the expiration or termination hereof.
11. Governing Law and Jurisdiction
The Agreement and all other legal relationships between you and us will be governed by and construed in accordance with Swiss law. The courts of Lugano, Switzerland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement and any proceedings will be brought in the courts of Lugano, Switzerland. We and you irrevocably submit and agree to submit to the jurisdiction of the courts of Lugano, Switzerland. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. We and you irrevocably waive any objection which we or you may at any time have to the courts of Lugano, Switzerland being so nominated and agree not to claim that the courts of Lugano, Switzerland are not a convenient or appropriate forum.
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