THESE TERMS AND CONDITIONS (“Ts&Cs”) set out the terms under which kloudr sal Offshore, a company incorporated under the laws of Lebanon with its address for notices at Berytech Building BDD 1294, Beirut, Lebanon, provides cloud services and related professional services to its customers as set out in the Agreed Orders.
1.1 In these Ts & Cs, the following terms will have the following meanings:
Acceptance Tests: acceptance test procedures to determine whether or not particular Services are ready for use, comprising kloudr’s standard acceptance test procedures for the relevant Services or such other acceptance test procedures as may be referenced in a particular Agreed Order;
Affiliate: a company, which controls, is controlled by or is under common control with another company;
Agreed Order: means a contract for the provision of Services by kloudr to the Customer, formed as set out at Clause 2.1 of these Ts & Cs;
Applicable Law: all statutes, statutory instruments and regulations, which apply in relation to the provision and/or receipt of the Services and/or the provision of the Customer Services
Authorised Users: those employees, agents and independent contractors of the Customer, who are authorised by the Customer to use the Services and the Documentation;
Business Day: a day other than a Saturday, Sunday or public holiday in Lebanon when banks in Beirut are open for business.
Charges: means kloudr’s charges for the Services, as set out and/or referenced in a particular Agreed Order;
Confidential Information: any other information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information in accordance with Clauses 9.6 or 9.7;
Customer Data: information input into the Services or provided in connection with the receipt of the Services by the Customer and/or processed using the Services including, without limitation, Confidential Information;
Documentation: any soft or hard copy documentation made available to the Customer by kloudr howsoever provided, and relating to or arising out of the provision and/or use of the Services;
Due Date: the date on which particular Charges are due for Payment from Customer to kloudr, as set out at Clause 4 of these Ts & Cs or as otherwise specified in the relevant Agreed Order;
Effective Date: means in relation to any Agreed Order, the date of authorization of such Agreed Order by both Parties, and so that in the case of signature in counterparts, the date of the latter signature will be the Effective Date for that document;
Minimum Term: the initial term for the provision of particular Services as set out in the relevant Agreed Order;
Normal Business Hours: 8.00 am to 5.00 pm local Beirut time, each Business Day;
Payment: receipt of cleared funds into the bank account designated by kloudr for receipt of sums owed by the Customer to kloudr pursuant to the terms of an Agreed Order;
Portal: the web portal made available by kloudr to the Customer, to enable the Customer and its Authorised Users to use certain Services;
Ready for Service Date the date from which particular Services are available for use (including, where applicable, access to the Services through the Portal), following satisfactory completion of the Acceptance Tests or sooner use of such Services by the Customer other than for acceptance testing purposes;
Ready for Service Notification means an email notification from kloudr to the Customer, identifying that particular Services have complied with the Acceptance Tests;
Renewal Term: the period described in Clause 12.1;
Security means the value of the security deposit paid by Customer to kloudr in relation to a particular Service
Service Specific Terms means a service description or set of terms and conditions applicable to the provision of particular Services as referenced in or attached to a particular Agreed Order;
Services: means the services provided by kloudr to the Customer as set out in the Agreed Orders;
Software: any online software applications provided by kloudr as part of the Services;
Subscription Term: has the meaning given in Clause 12.2 (being the Minimum Term together with any subsequent Renewal Terms);
Third Party Services: cloud or infrastructure services and/or software and/or other intellectual property rights made available in connection with the provision of the Services and/or the Documentation, in respect of which the original licensor is a third party other than kloudr;
Third Party Terms and Conditions: the standard terms of business of a Third Party Services provider;
User Subscription: the user subscriptions purchased by the Customer, which entitles Authorised Users to access and use the Services in accordance with the terms of the relevant Agreed Order;
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 A reference to writing or written includes faxes and e-mail.
1.3 In the event of a conflict of terms, the order of precedence from highest to lowest shall be (a) in relation to any cloud or infrastructure services, or other third party services, the Third Party Terms and Conditions referenced in the relevant Agreed Order; (b) the terms of the Agreed Order excluding any other documentation referenced in such Agreed Order, (c) any Service Specific Terms referenced in the Agreed Order, (d) these Ts & Cs and (e) any other document referenced in the Agreed Order.
2.1 A contract will be formed between Customer and kloudr when a Customer and kloudr have entered into an Agreed Order. An Agreed Order may be a document (usually a proposal made by kloudr and then signed on behalf of both Parties), or an online document authorized by both Parties, in either case detailing the Services to be provided by kloudr to the Customer, the Charges for those Services and any Service Specific Terms. Each Agreed Order will incorporate by reference these Ts & Cs, and, in relation to any Third Party Services provided as part of the Services, will also incorporate the applicable Third Party Terms and Conditions. As set out at Clause 1.3 above, any Third Party Terms and Conditions will take precedence over any conflicting provision in these Ts & Cs in relation to the Services to which they relate.
2.2 Save as expressly set out in an Agreed Order, these Ts & Cs and the applicable Third Party Terms and Conditions will be the governing terms and conditions of all Agreed Orders, and no standard terms of the Customer shall have any effect whatsoever on the contract agreed between the Parties.
2.3 Where Services are not subject to any formal Acceptance Testing, Services will be deemed to be available for use by the Customer on the scheduled Ready for Service Date set out in the relevant Agreed Order. Where Services in a particular Agreed Order do require Acceptance Testing, then save as otherwise set out in the relevant Agreed Order, kloudr will send the Customer a Ready for Service Notification following the completion of the relevant Acceptance Tests. Save to the extent that Customer notifies kloudr within three Business Days of the scheduled Ready for Service Date that the relevant Service is not available for use by the Customer, the Ready for Service Date will be deemed to be the date set out in the Agreed Order or relevant Ready for Service Notification (as applicable). To the extent that the relevant Service is not available for use by the Customer on the scheduled Ready for Service Date, Customer shall notify kloudr by email, and the Parties will work in good faith to rectify any issues with such Service. kloudr will, where applicable, issue a (further) Ready for Service Notification following resolution of any issues (other than those caused by Customer or its authorised agents), which previously prevented Customer from using the relevant Service. Where Customer’s inability to use a Service has been caused by Customer or its authorised agents, kloudr shall be entitled to charge the Customer its reasonable Charges for rectifying Service availability, and Customer shall be liable for the Charges associated with such Service as if it had been available on the scheduled Ready for Service Date.
2.4 Subject to the Customer paying the Charges and compliance with the other terms and conditions of the relevant Agreed Order, kloudr grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation referenced in the Agreed Orders during the Subscription Term.
2.5 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorised User shall keep a secure password for his/her use of the Services, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his/her password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to kloudr within 5 Business Days of kloudr’s written request at any time or times;
(e) it shall permit kloudr to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at kloudr’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to interfere substantially with the Customer’s normal conduct of business;
(f) if any of the audits referred to in Clause 2.4(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to kloudr’ss other rights, the Customer shall promptly disable such passwords and kloudr shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in Clause 2.4(f) that the Customer has underpaid Charges to kloudr, then without prejudice to kloudr’s other rights, the Customer shall pay to kloudr an amount equal to such underpayment as calculated in accordance with the Charges set out in the relevant Agreed Order within 10 Business Days of the date of the relevant audit.
2.6 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and kloudr reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
2.7 The Customer shall not:
(a) except as may be allowed by Applicable Law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted in these Ts & Cs:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or the Services and/or the Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services; or
(c) use the Services and/or Documentation to provide services to third parties except in the manner expressly provided for in a particular Agreed Order; or
(d) subject to Clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or the Software, other than as provided under this Clause 2; and
2.8 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify kloudr.
2.9 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer or to any other third party.
3.1 The Charges payable for the Services shall be as set out and/or referenced in the Agreed Orders.
3.2 Save as otherwise referenced in an Agreed Order, Charges will be fixed for the Minimum Term. Thereafter they may be updated no more than once every twelve months by no less than thirty days notice from kloudr to the Customer.
3.3 Save as otherwise referenced in an Agreed Order, the provisions set out in this Clause 3.3 will apply. Non-recurring Charges will be invoiced on delivery of the Services to which they relate. Recurring Charges shall accrue from the Ready for Service Date and shall be invoiced monthly in advance. Usage based Charges shall accrue from the Ready for Service Date and shall be invoiced monthly in arrears.
- BILLING AND PAYMENT
4.1 Invoices shall be delivered by email in accordance with the notice provisions set out in the relevant Agreed Order. Save as otherwise set out in the relevant Agreed Order, invoices for installation and start up Charges, and security invoices raised pursuant to Clause 4.2 will be due for payment within seven days of the date of receipt of the relevant invoice, and all other Charges will be due for payment within 30 days of the date of receipt of the relevant invoice. Charges must be paid either by wire transfer directly to the kloudr bank account details set out in the relevant invoice or by credit card. Where payment of a Service has been secured through the Portal with the Customer’s credit card, kloudr will be authorised to take payments against the credit card details provided as and when payments become due during the Subscription Term.
4.2 Customer shall be subject to kloudr’s initial and on-going credit policies and procedures. kloudr reserves the right to withhold initiation or full implementation of Services under an Agreed Order pending initial satisfactory credit review and approval thereof, which may be conditioned upon terms specified, including, but not limited to, security for payments due hereunder in the form of a cash deposit, guarantee, irrevocable letter of credit or other financial statements or other indications of financial circumstances. The credit limit or terms of Payment may vary from time to time.
4.3 Upon termination of the Services in an Agreed Order, the current value of the security deposit relating to such Services (“Security”) will be offset against the final invoice for such Services. After payment of all amounts due for such Services, any remaining amount of the Security will be reimbursed by kloudr within fifteen days after the termination of the relevant Agreed Order.
4.4 Customer shall be entitled to dispute any Charges in good faith and withhold the disputed portion provided that the dispute is raised prior to the Due Date and that Customer has paid the undisputed portion by the relevant Due Date. Subject to the foregoing, the Parties shall use their best efforts to resolve such dispute as expeditiously as possible. If such dispute, or any portion thereof, presented in writing is found to be valid, then kloudr shall credit the disputed amount against the next invoice of charges, or where appropriate, it shall be refunded. Customer agrees that it shall not be entitled to withhold any Payment as a remedy for unsatisfactory quality or service standards.
4.5 Save as otherwise set out in a particular Agreed Order, all amounts due under an Agreed Order that are not paid when due shall accrue interest at the rate of 5% above the European LIBOR annual rate from the day following the day on which Payment was due until payment. Such interest will not be compounded.
4.6 Save as otherwise set out in a particular Agreed Order, all Charges are in US Dollars ($) and are exclusive of all applicable taxes other than taxes assessed on the income of kloudr, including but not necessarily limited to value added tax, sales taxes, and duties or levies imposed by any authority, government or government agency; all of which shall be paid promptly when due by the Customer, and who agrees to indemnify and hold kloudr harmless from any liability in respect thereof.
4.7 If any deductions or withholdings are required by law to be made from the Charges, Customer shall pay kloudr such amount as will leave kloudr with the same amount as it would have been entitled to receive in respect of the Charges in the absence of any such requirement to make a deduction or withholding.
4.8 In the event of non-Payment of any amount due under the Agreement for the Services, kloudr shall be entitled to suspend such Services subject to 7 days prior written notice. If the relevant Payment has not been made within a further seven days thereafter, kloudr shall be entitled to maintain the suspension of the relevant Services and/or terminate them in line with the provisions set out at Clause 12.
4.9 kloudr shall only pay the bank charges of its own bank hereunder.
- INFRASTRUCTURE SERVICES
Infrastructure services will be provided by public cloud providers or an in-country cloud services provider selected by kloudr. Such services will be provided in accordance with the relevant Third Party Terms and Conditions.
- kloudr’S OBLIGATIONS
6.1 kloudr shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week.
6.2 kloudr will, as part of the Services, provide the Customer with helpdesk support during Normal Business Hours. No support will be provided outside of Normal Business Hours except as expressly set out in a particular Agreed Order.
6.3 kloudr will designate a representative who shall act as the first point of contact for the Services under each Agreed Order. Prior to the Ready for Service Date for a Service, kloudr will send the Customer a full list of fault reporting and escalation procedures and contacts list for the Service(s) purchased in that Agreed Order.
6.4 kloudr warrants that the Services will be performed substantially in accordance with the terms of the Agreed Orders and with reasonable skill and care; and that it will maintain all licences, consents and permissions necessary for the provision of the Services.
6.5 The warranty at Clause 6.4 shall not apply to the extent of any non-conformance, which is caused by use of the Services contrary to kloudr’s instructions, or modification or alteration of the Services by any Party other than kloudr or kloudr’s duly authorised contractors or agents. If the Services do not conform with the foregoing warranty, kloudr will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.4. Notwithstanding the foregoing, kloudr:
(a) does not warrant that use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide kloudr with:
(i) all necessary co-operation in relation to each Agreed Order; and
(ii) all necessary access to such information as may be required by kloudr, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) appoint a representative who shall act as the first point of contact for the Customer under each Agreed Order;
(c) comply with all Applicable Laws with respect to its activities under each Agreed Order, including (without limitation) all applicable data privacy laws;
(d) carry out all other Customer responsibilities set out in each Agreed Order in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, kloudr may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure that the Authorised Users use the Services in accordance with these Ts & Cs, and shall be responsible for any Authorised User’s breach of such terms;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for kloudr, its contractors and agents to perform their obligations under each Agreed Order;
(g) ensure that its network and systems comply with the relevant specifications reasonably prescribed by kloudr from time to time; and
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to kloudr’s hosting platform or the cloud services platform(s) referenced in an Agreed Order, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
- PROPRIETARY RIGHTS
8.1 kloudr confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of each Agreed Order.
8.2 All intellectual property rights and all other rights in the Services and any Documentation shall be owned by kloudr or its licensors. kloudr grants to the Customer a licence to use such Services and Documentation for the term of the relevant Agreed Order.
8.3 It is expressly understood by each Party that the trade names, service marks, brands or trademarks of the other Party, together with any and all intellectual property rights pertaining to that party’s business are proprietary to that Party and nothing in these Ts & Cs constitutes the grant of a general licence to use the said trade names, service marks, brands, trademarks or other intellectual property rights.
- CONFIDENTIALITY AND PUBLICITY
9.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under an Agreed Order. A Party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving Party;
(b) was in the other Party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
9.2 Subject to clause 9.4, each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than to facilitate the provision and/or receipt of the Services.
9.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Ts & Cs.
9.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
9.5 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute kloudr’s Confidential Information.
9.7 kloudr shall be entitled to publicise on its website that the Customer is a customer of kloudr. Subject to the foregoing and as otherwise required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or any court or other authority of competent jurisdiction, neither Party shall make, or permit any person to make, any public announcement concerning any contractual relationship between the Parties without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
9.8 The above provisions of this Clause 9 shall survive termination of this Agreement, however arising.
10.1 Subject to the remaining provisions of this Clause 10, kloudr shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation (other than Third Party Services, which will be subject to any indemnity set out in the relevant Third Party Terms and Conditions) infringes any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) kloudr is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to kloudr in the defence and settlement of such claim, at kloudr’s expense; and
(c) kloudr is given sole authority to defend or settle the claim.
10.2 In no event shall kloudr, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or the Documentation by anyone other than kloudr; or
(b) use of the Services or the Documentation by Customer or its Authorised Users in a manner contrary to the instructions given to the Customer by kloudr; or
(c) use of the Services or Documentation by Customer or its Authorised Users after notice of the alleged or actual infringement from kloudr or any appropriate authority.
Customer shall indemnify kloudr for any claim arising out of any of the foregoing exceptions, or for any claim brought directly against kloudr by a customer or other authorized agent of Customer arising out of any Agreed Order.
10.3 In the defense or settlement of any indemnification claim by kloudr, kloudr may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate any affected Agreed Order on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer, other than as set out in Clause 10.1.
10.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and kloudr’s (including kloudr’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in these Ts & Cs:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer or its Authorised Users, and for conclusions drawn from such use. kloudr shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided by the Customer, or any Authorised User in connection with the Services, or any actions taken by kloudr at the Customer’s direction;
(b) save as expressly set out at Clause 6.4, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Ts & Cs; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
11.2 Nothing in this Agreement excludes the liability of either Party:
(a) for death or personal injury caused by its negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to Clauses 11.1 and 11.2:
(a) kloudr shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under any Agreed Order; and
(b) kloudr’s total aggregate liability in contract (including in respect of the indemnity at Clause 10.1), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any Agreed Order shall be limited for all claims in the aggregate to the higher of US$1,000 or the total Charges paid or payable for the User Subscriptions in an average three month term of the affected Agreed Order.
- TERM AND TERMINATION
12.1 Services shall, unless otherwise terminated as provided in this Clause 12 or as otherwise provided in the relevant Agreed Order, commence on the Effective Date for that Agreed Order and continue for the Minimum Term and, thereafter, such Services shall be automatically renewed for successive periods of 12 months (each a Renewal Term), unless:
(a) either Party notifies the other Party of termination, in writing, at least 60 days before the end of the Minimum Term or any Renewal Term, in which case the relevant Services shall terminate upon the expiry of the applicable Minimum Term or Renewal Term; or
(b) otherwise terminated in accordance with the provisions of these Ts & Cs;
and the Minimum Term together with any subsequent Renewal Terms shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, kloudr may terminate a particular Agreed Order with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under such Agreed Order on the Due Date and remains in default not less than seven days after being notified in writing to make such Payment.
12.3 Without affecting any other right or remedy available to it, either Party may terminate a particular Agreed Order with immediate effect by giving written notice to the other Party if:
(a) the other Party commits a material breach of any other term of an Agreed Order, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other Party repeatedly breaches any of the terms of an Agreed Order in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of such Agreed Order, and such repeated breaches, where remediable, have not been remedied within 30 days after being notified in writing to do so.
12.4 Without affecting any other right or remedy available to it, either Party may terminate all Agreed Orders with immediate effect by giving written notice to the other Party if the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or enters into any state of formal bankruptcy/insolvency in any jurisdiction.
12.5 On termination of an Agreed Order for any reason:
(a) all licenses granted under such Agreed Order shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;
(c) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the relevant Agreed Order, which existed at or before the date of termination shall not be affected or prejudiced.
- FORCE MAJEURE
kloudr shall have no liability to the Customer under an Agreed Order if it is prevented from or delayed in performing its obligations under such Agreed Order, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of kloudr or any other Party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of an Agreed Order shall be effective unless it is in writing and signed by the Parties (or their authorised representatives) and/or securely authorized by both Parties as an online transaction.
No failure or delay by a Party to exercise any right or remedy provided under an Agreed Order or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- RIGHTS AND REMEDIES
Except as expressly provided in an Agreed Order, the rights and remedies provided under these Ts & Cs are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision (or part of a provision) of an Agreed Order is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
18.1 Each Agreed Order constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each Party acknowledges that in entering into an Agreed Order, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in such Agreed Order.
19.1 The Customer shall not, without the prior written consent of kloudr, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under any Agreed Order.
19.2 kloudr may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under any Agreed Order.
- NO PARTNERSHIP OR AGENCY
Nothing in any Agreed Order is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- THIRD PARTY RIGHTS
No Agreed Order confers any rights on any person or Party (other than the Parties to such Agreed Order and, where applicable, their successors and permitted assigns) any rights under any Agreed Order.
22.1 Any notice required to be given under a Agreed Order shall be in writing and shall be delivered by hand or sent by reputable international courier delivery (a) to kloudr at the address set out in these Ts & Cs or such other address set out in the relevant Agreed Order; and to the Customer at the address set out in the relevant Agreed Order.
22.2 A notice delivered by courier shall be deemed to have been received when delivered as set out in the records of the courier company.
- GOVERNING LAW AND JURISDICTION
23.1 These Ts & Cs and each Agreed Order, together with any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England without reference to its conflict of law principles.
23.2 If a dispute arises out of or relates to these Ts & Cs or any Agreed Order, or the breach of any of the foregoing, and the dispute cannot be settled within twenty (20) business days through negotiation or such shorter period as may be reasonable in the circumstances, the claiming Party, at its sole discretion, shall submit such residual dispute for final settlement either to the courts of England and Wales or under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with the said Rules. The other Party shall not contest the claiming Party’s election of the English courts and/or ICC arbitration on grounds of inconvenient forum or at all. Where one Party has elected to resolve a dispute using arbitration rather than the courts of England and Wales, either Party shall have recourse to and both Parties agree to be bound by the pre-arbitral referee procedure of the ICC in accordance with its Rules for a Pre-Arbitral Referee Procedure. Any procedure followed pursuant to the operation of this Section will be held at a neutral site in London, England, and conducted in the English language. The arbitrator will determine issues of arbitrability, including the applicability of any statute of limitation, but may not limit, expand or otherwise modify the terms of any Agreed Order, or these Ts & Cs where the claim does not relate to one or more Agreed Orders. The arbitrator’s decision and award will be in writing, setting forth the legal and factual basis. The arbitrator may in appropriate circumstances provide for injunctive relief (including interim relief). An arbitration decision and award will only be subject to review because of errors of law. The arbitrator shall be entitled to make an award of costs to the prevailing Party. The Parties, other participants and the arbitrator will hold the existence, content and result of the arbitration in confidence, except to the extent necessary to enforce a final settlement agreement or to obtain and enforce a judgment on an arbitration award.
Where Agreed Orders have been executed in counterparts, each of which when executed shall be an original and the counterparts together shall constitute one and the same instrument.