Virtuozzo General Terms And Conditions
UPDATED APRIL 2023
By executing a Sales Order (as defined below) that references these Virtuozzo General Terms And Conditions (“GTCs“) with VZ Hybrid Compute (UK) Limited, with registered address at Riverbank House, 2 Swan Lane, London, EC4R 3TT, United Kingdom or any of its affiliates as identified in the Sales Order (“Virtuozzo“), the entity identified in such Sales Order (“Customer“) (each of Virtuozzo and Customer, a “Party“, and collectively, the “Parties“) agrees to these GTCs, which together with any other documents incorporated by reference into such Sales Order and/or these GTCs, will exclusively govern such Sales Order (collectively “Agreement“).
1. DEFINITIONS. Certain capitalized terms, if not otherwise defined, shall have the meanings set forth below in this Clause 1.
1.1 “Affiliate(s)” means any corporation, partnership or other entity that is under the direct or indirect control of the applicable Party or its respective successors and assigns. For purposes of the foregoing, “control” shall exist whenever there is an ownership, profits, voting or similar interest (including any right or option to obtain such an interest) representing at least 51% of the total interests of the pertinent entity then outstanding.
1.2 “Authorized User” shall mean Customer’s employees and other individuals who are permitted to use the Virtuozzo Products as specified in the applicable Sales Order, as well as Customer’s and Customer’s Affiliates’ clients and customers that enter into the Third Party EULA (defined below) for Third Party Software.
1.3 “Business Days” means a day on which banks are open for business the United Kingdom and which is not a Saturday, Sunday or public holiday in London.
1.4 “Confidential Information” means structural information about the architecture of the Virtuozzo Products, Third Party Software and any related information; any material or information that a Party considers confidential and that relates to the Party’s past, present and future research, development, business activities, products, software, services, technical knowledge, designs, methodologies, business plans or forecasts, finances, pricing, marketing plans, customers, prospects or other affairs and has not been explicitly identified as “public” or “non-confidential” or would be understood to be confidential by a reasonable person under the circumstances. Confidential Information does not include information that the receiving Party can evidence in writing was (i) previously known to the receiving Party, before it was received from the disclosing Party without an obligation not to disclose such information, (ii) independently developed by the receiving Party without use or access to the disclosing Party’s Confidential Information, (iii) acquired by the receiving Party from a third party that was not under an obligation to the disclosing Party not to disclose such information, or (iv) that is or becomes publicly available through no breach of this Agreement by the receiving Party.
1.5 “Documentation” shall mean Virtuozzo’s user manuals, technical manuals and/or related documentation relating to the Products that Virtuozzo makes available to Customer including by the means of publishing such manuals and/or related documentation on Virtuozzo’s internet resources.
1.6 “EULA” means applicable Virtuozzo Product End User License Agreement that any Authorised User or end user of the Virtuozzo Product must agree to in order to access and use the applicable Virtuozzo Product. Effective version of EULA can be found at: https://www.virtuozzo.com/legal/eula/, and may be amended, supplemented, or modified by Virtuozzo from time to time, and any applicable Third-Party Software End User License Agreement that any Authorized User must agree to in order to access and use the applicable Third-Party Software, as set forth in the Sales Order.
1.7 “Intellectual Property” means all rights, title, and interest in and to the Virtuozzo Product, Professional Services or Third Party Software or any part of it, including all patents, copyright and related rights, designs, trade secrets, trademarks, moral rights, mask work rights, domain names and all other types of intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals, or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
1.8 “Intellectual Property” means all rights, title, and interest in and to the Virtuozzo Product, Professional Services or Third Party Software or any part of it, including all patents, copyright and related rights, designs, trade secrets, trademarks, moral rights, mask work rights, domain names and all other types of intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals, or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
1.9 “Open-Source Software” means any software licensed under any form of open-source licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source definition from time to time.
1.10 “Licensor” means any third-party licensing Third Party Software to Virtuozzo for licensing to Customer.
1.11 “Personnel” means any individual that Virtuozzo employs as an employee or independent contractor and with which Customer comes into contact in relation to this Agreement.
1.12 “Products” means the Virtuozzo Products and the Third-Party Software.
1.13 “Sales Order” means an order in writing for purchase of Products and perform Support and/or Professional Services concluded between Virtuozzo and Customer.
1.14 “Professional Services” means the services specifically identified in the Sales Order or Statement of Work (as defined in the Professional Services Terms and Conditions which are available by the link provided in the Clause 3.8 hereof) that Customer may desire to engage Virtuozzo to perform.
1.15 “Services” shall mean Professional Services or Support Services.
1.16 “Software” shall mean the executable, object code version of Virtuozzo’s proprietary application software licensed to Customer as specifically identified in a Sales Order.
1.17 “Support” or “Support Services” means the support provided by Virtuozzo for the applicable Products purchased by Customer pursuant to the Sales Order or Statement of Work.
1.18 “Support Portal” means the statement of support for Virtuozzo Products available at the following link: https://www.virtuozzo.com/all-supported-products/.
1.19 “Term” shall mean the period that this Agreement remains in force and effect in accordance with Clause 11.
1.20 “Territory” shall mean the territory specified in the applicable Sales Order, if a Sales Order does not specify the territory, then it shall be deemed to be worldwide, subject to the following limitations and exceptions:
(a) Products are not authorized for sale and use by any Customer and any Authorized User in any country embargoed by any sanctions authority according to Clause 3.3 below or to any Customer or any Authorized User to whom export is restricted or prohibited by any sanctions authority according to Clause 3.3 below.
(b) Virtuozzo may apply any restrictions to the Territory where Products might be sold and used, which are corresponding to the applicable sanction legislation.
1.21 “Third Party Software” shall mean software products licensed to Virtuozzo by Licensor and made available by Virtuozzo to Customer under license as specified in the Sales Order.
1.22 “Virtuozzo Products” shall mean the Software, the Support Services (as outlined in the Sales Order), the Professional Services, and/or other products or services specified in a Sales Order, along with all applicable Documentation. Third Party Software is excluded from Virtuozzo Products.
2. AGREEMENT STRUCTURE
2.1 Customer may request to purchase Products, including engaging Virtuozzo to perform Professional Services and/or Support Services by executing a Sales Order, and after the execution of the Sales Order through the KA System (as defined in Clause 5 below), if Customer is provided with an access to KA System, or through the special Ordering Procedure set forth in the Clause 5 herein below. The Sales Order shall only be deemed to be accepted by Virtuozzo when Virtuozzo signs the Sales Order or issue a written acceptance of the Sales Order. Virtuozzo may accept or decline any Sales Order in its own discretion.
2.2 Each Agreement shall govern a single Sales Order that forms part of it and shall constitute a distinct contract independent of any other Sales Order and Agreement between Customer and Virtuozzo.
2.3 Any quotation given by Virtuozzo for Products shall not constitute an offer, and is only valid for the period specified in quotation (or if no such period is specified, twenty (20) Business Days from the date of issue).
2.4 Any documents or terms issued by Customer of which Customer seeks to impose or incorporate, including any purchase order, shall be for Customer’s internal administrative purposes only and, regardless of what such documents may state otherwise, will have no contractual force or effect on Virtuozzo and shall not operate to govern Parties’ relationship or modify Virtuozzo’s Agreement with Customer.
2.5 Customer acknowledges and understands that these GTCs do not, absent execution of a Sales Order, impose any obligation upon Virtuozzo to provide any license, access or services. In the event of a conflict between these GTCs and any Sales Order, these GTCs shall govern unless the provisions of the relevant Sales Order explicitly state that the particular terms of that Sales Order shall govern. Customer shall assist and cooperate with Virtuozzo whenever reasonably necessary including by performing Customer’s responsibilities as set forth on any Sales Order. Virtuozzo’s performance hereunder is dependent on Customer’s timely and effective performance of Customer’s responsibilities.
3. LICENSE AND SERVICES
3.1 License Grant. Notwithstanding any references to “purchase”, the Products are licensed and not sold pursuant to this Agreement. Subject to the license terms and restrictions set forth in a Sales Order and the restrictions in Clause 3.2 below, Virtuozzo grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to allow Authorized Users in the Territory to use the Products as specified in such Sales Order on physical or virtual machines owned or managed by Customer and its Affiliates during the Term which is specified in such Sales Order upon payment of all license fees owed for the Products according to the terms specified in the respective Sales Order. If any Third-Party Software is made available to Customer by Virtuozzo, any additional terms and conditions as well as limitations and additional prohibited uses shall be as set forth in the Sales Order and according to the Third Party Software Terms available at: https://go.virtuozzo.com/third-party-terms.
3.2 Prohibited Uses. Customer shall not use the Products for any purposes beyond the scope of the applicable EULA and licenses granted in these GTCs and the applicable Sales Order. Customer shall require each Authorised User to accept the applicable EULA, which may be embedded in the Products, prior to granting them access to any of the Products. Virtuozzo reserves the right to revoke the license for any Authorised User who does not comply with the applicable EULA. Customer shall provide documented evidence of such acceptance to Virtuozzo in writing upon request. Without limiting the generality of the foregoing, Customer shall not, unless specifically allowed in the applicable Sales Order or except with the prior written consent of Virtuozzo:
(i) rent, loan, market or distribute the Products or any portion, extract, selection, arrangement, adaptation, compilation, or derivative thereof;
(ii) assign (except as permitted by Clause 12.6 below), sublicense (except as permitted in the applicable Sales Order for providing Application Service Provider (“ASP”) and/or hosting services to Customer’s, and Customer’s Affiliates’, clients and customers), sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under the licenses granted;
(iii) modify or create any derivative works of the Products (or any component thereof);
(iv) combine or integrate the Products with hardware, software or technology not provided to Customer by Virtuozzo hereunder;
(v) make error corrections, adapt, or translate works from the Products
(vi) decompile, disassemble, reverse engineer or otherwise attempt to obtain, reconstruct, discover or perceive the source code of the Products to human readable form or underlying ideas, algorithms, file formats, or programming or interoperability interfaces from which any component of the Products are compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code or ideas, algorithms, file formats, or programming or interoperability interfaces.
(vii) decrypt data or extract portions of the Products’ files for use in other applications.
(viii) remove, obscure, or alter Virtuozzo’s or any third party’s Product names, trademarks or patent, copyright, or other proprietary rights notices, or ownership attribution statements affixed to or contained within or accessed in conjunction with or through the Products.
(ix) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Products. Customer shall be responsible and liable for the actions of Customer’s affiliates, employees, agents, and any third party who obtains access to the Products licensed.
3.3 Compliance with Laws. Customer shall ensure that its use of the Products complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the Parties or the Products are subject to, including, without limitation, by means of compliance with Sanction Compliance Terms, which are available at: https://www.virtuozzo.com/legal/sanction-compliance-terms/, and may be amended, supplemented, or modified by Virtuozzo from time to time, or by means of obtaining any permits, licenses and/or approvals required under applicable export control laws (including those export regulations promulgated by the Bureau of Export Administration or any other agency or department of the federal government of the United States of America, Switzerland or Japan, or any other competent authority (where applicable)). Customer acknowledges that Virtuozzo makes no representation or warranty that the Products may be exported without Customer first affirming appropriate licenses or permits under applicable law, or that any such license or permit has been, shall be or can be obtained. Customer herewith represents and warrants that Customer and its Authorized Users are not subject to any limitations of sanctions regulations (US, UK, EU or any other applicable regulations). VIRTUOZZO SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE PRODUCTS TO AUTHORIZED USERS OR OTHER USERS WHO ARE DEEMED OR SUSPECTED BY VIRTUOZZO TO BE USING THE PRODUCTS IN A MANNER NOT REASONABLY INTENDED BY VIRTUOZZO OR IN VIOLATION OF LAW OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING ANY APPLICABLE LICENSE TO AN AUTHORIZED USER TO USE THE PRODUCTS.
3.4 Proprietary Notices. Customer shall duplicate all proprietary notices and legends of Virtuozzo and its suppliers or licensors upon the Products made by Customer. Customer shall not remove, alter or obscure any such proprietary notice or legend.
3.5 Third Party Software. If any Third-Party Software is made available to Customer by Virtuozzo on the basis of a Sales Order, the terms regarding Third Party Software in these GTC and any respective Sales Order shall apply. In order to be able to install and use Third Party Software, Customer shall comply with the applicable Third-Party Software EULA as specified in the Sales Order.
3.6 Monitoring. Customer understands and acknowledges that Virtuozzo and Licensor may monitor the operation and usage of the Products through a reporting function in the Software. Customer agrees to facilitate such monitoring by ensuring that all firewall ports are open and to notify Virtuozzo if there are any operational issues that could prevent remote monitoring. Virtuozzo and Licensor have the right to use, and Customer warrants that it has obtained all necessary consents and licenses for such use, any and all data and information related to Customer’s use of the Products for any lawful purpose including, without limitation, invoicing, statistical analysis, benchmarking and research purposes.
3.7 Support. Unless otherwise agreed between the Parties in a Sales Order or in a separate written agreement, Virtuozzo shall provide to Customer only basic support services, according to Virtuozzo Support Terms and Conditions available at https://go.virtuozzo.com/support-terms-conditions and with the then applicable documentation and guidance provided at the Support Portal. Virtuozzo shall not provide support for Third Party Products unless otherwise agreed by the Parties in a Sales Order.
3.8 Professional Services. If agreed by the Parties in a Sales Order, Virtuozzo will provide Professional Services to Customer according to the terms of the Sales Order and/or respective Statement of Work, and according to then effective Professional Services Terms and Conditions available at: https://virtuozzo.com/legal/pstandc/ which may be amended, supplemented, or modified by Virtuozzo from time to time.
4. FEES AND PAYMENTS
4.1 Fees Payable. Customer agrees to pay the amounts specified in Virtuozzo invoice based on the Sales Order, monitoring data, KA System (as defined in Clause 5 below) account data, and/or another electronic ordering system, provided that billing shall be based on the actual number of running virtual machines and on the volume of Support and Professional Services performed by Virtuozzo. In case of controversy between the Sales Order, monitoring data, KA System data, and/or another electronic ordering system, for the purpose of invoicing information related to the quantity of purchased/generated Products provided by monitoring, KA System and/or another electronic ordering system a shall prevail. If no payment terms are specified in the applicable Sales Order, fees and other charges shall be due and payable by the Customer within thirty (30) calendar days of the date of Virtuozzo’ invoice. Virtuozzo may in its own discretion request Customer to pay an advance payment for Products set forth amounts of advance payments in the Sales Order. Virtuozzo does not refund fees paid by Customer, and once the fee payment is made to Virtuozzo, Customer shall have no recourse for receiving a refund of any part of the fees and all such fees shall be deemed to have been fully earned, unless Virtuozzo resolve the dispute of the invoice in accordance with the procedure described in the Clause 4.3 in favour of Customer. In case if the payment is conducted by a Customer’s credit card according to terms and conditions in the Clause 4.5 below, the credit card will be charged immediately upon Virtuozzo invoice issuance. Virtuozzo reserves the right to add or remove Products listed in the respective Sales Order, as well as amend any terms related thereto, including pricing, at any time upon written (email) notice to Customer to the Customer’s email address identified in the respective Sales Order. The amended list of Products, terms and/or pricing shall become effective in thirty (30) calendar days upon the date of the email notification.
4.2 Virtuozzo Products Pricing, Commitments, Price-list. Virtuozzo pricing is provided to Customer in the format of the electronic price-list (“Price-list”), which is available at the link provided in the Sales Order. Virtuozzo pricing is based on monthly minimal commitments (“MMC”) and various pricing tires, as reflected in the effective Price-list, and is subject to the following terms: (a) MMC and the pricing tier can be upgraded only for the next month, and not for the current, (b) to upgrade the MMC and the pricing tier both Customer and Virtuozzo shall negotiate and approve such upgrade, and sign the respective amendment to the Sales Order or the new Sale Order, (c) the MMC and the pricing tier can be upgraded as per the procedure described above only once a month, (d) Customer cannot downgrade MMC and the pricing tier during the term of the Agreement. Virtuozzo pricing shall be payable in the currency specified in the Sales Order between Customer and Virtuozzo. Virtuozzo Price-list is the confidential information of Virtuozzo, the access to the Price-list is limited and is provided only to Customer, and Customer is obliged to keep it strictly confidential and not share with any third party. Virtuozzo Price-list may be amended by Virtuozzo from time to time.
Customer is responsible for all expenses incurred in performance of its obligations or exercise of its rights under this Agreement.
4.3 Disputed Charges. Customer must duly notify Virtuozzo (in accordance with Clause 12.5 below) of any dispute with invoiced charges within fifteen (15) calendar days of the date of the invoice to billing-ops@virtuozzo.com. Absent such notice, Customer will be deemed to have agreed to the charges as invoiced. No further disputes will be accepted by Virtuozzo after such timeframe.
4.4 Late Charges. In addition to, and without prejudice to any other remedy available to Virtuozzo, if any payment is not received by Virtuozzo from Customer when it is due, and is not the subject of a good faith dispute, Virtuozzo may, without prejudice to its other rights and remedies and at its sole discretion, suspend Customer’s rights to use the Products immediately, upon written notice to Customer until payment is made and/or:
(i) revoke or limit Customer’s KA System access (as defined below) and/or terminate any License Keys supplied in connection with this Agreement and respective Sales Order(s), and/or cease provision of any services provided according to respective Sales Order(s); and/or
(ii) assess interest on any unpaid amounts from the due date until paid in full at the rate of 4% per annum above the Bank of England’s base rate from time to time or at the maximum rate permitted under applicable law, whichever is less. The payment of such interest will be in addition to and not in substitution for any and all other remedies available to Virtuozzo in respect of such non-payment.
4.5 Credit Card Payment. Customer herewith agrees to provide its credit card details to a third-party credit card processing provider as requested by Virtuozzo and authorizes Virtuozzo to charge the Customer’s credit card through such third-party provider monthly according to the amounts of Virtuozzo invoices. Customer herewith agrees that any fees payable under this Agreement and Sales Order shall be charged to Customer’s credit card unless otherwise agreed by the Parties in a Sales Order.
4.6 Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and value added taxes other taxes and all applicable export and import fees, customs duties and similar charges. Customer must pay Virtuozzo the total invoice amount without deductions for taxes, assessments, fees, or charges of any kind. Customer is responsible for paying all sales, use, excise, value-added, withholding or other tax or governmental charges imposed on the licensing or use of the Products (collectively “Taxes”). Customer shall be responsible for payment of all Taxes resulting from this Agreement (other than taxes based on Virtuozzo income). In the event that such Taxes are imposed and Customer is required to deduct such amounts from the fees payable hereunder, the Parties agree that the original amount invoiced by Virtuozzo will be increased by the amount of such Taxes such that Customer pays Virtuozzo the amount of fees as originally invoiced. The Customer shall apply the provisions of the applicable double taxation treaty to decrease the applicable tax rate or to avoid to the extent possible levying of taxes on Virtuozzo’s profit (fees). For the purpose of applying a double taxation treaty, at Customer’s request, Virtuozzo shall provide Customer a certificate of tax residency or other documentation that may be required to confirm the domicile (tax residency) of Virtuozzo pursuant to the laws of country of incorporation of Virtuozzo.
4.7 Audit Rights and Records. During the Term and for a period of two (2) years following termination or expiration of this Agreement, Customer agrees to keep all usual and proper books and records relating to its performance of and compliance with this Agreement. During that period, upon at least five (5) Business Days’ notice, Virtuozzo shall have the right, at its own expense, to periodically audit the records of Customer in order to verify Customer’s compliance with this Agreement either by physically visiting Customer’s premises or by remote access (as determined by Virtuozzo). If such audit reveals that Customer has underpaid Virtuozzo, or has otherwise breached this Agreement, Customer shall promptly pay such amounts as are necessary to rectify such underpayment or breach, together with interest at the rate in Clause 4.4. If the amount of an underpayment equals or exceeds five percent (5%) of the total amounts due during the applicable period, Customer will reimburse Virtuozzo for the cost of such audit.
5. ORDERING PROCEDURE. KEY ADMINISTRATOR (“KA”) SYSTEM LICENSE
5.1 Virtuozzo Product Ordering Procedure. Customer shall order License Keys for its Authorised Users through email: billing-ops@virtuozzo.com or through another electronic ordering system which is notified to Customer by Virtuozzo, such as Zendesk. If Customer is provided with an access to KA System as described in Clause 5.2 below, Customer shall order License Keys for its Authorised Users by using its KA System account. All orders, regardless of the ordering system, are subject to the terms and conditions of this Agreement and Sales Order. If there is any conflict between this Agreement and the terms of an order or any other correspondence transmitted to Virtuozzo by Customer, the terms and conditions of this Agreement shall prevail. Upon receipt of orders from Customer, Virtuozzo shall ensure that the requested Virtuozzo Products are made available to Customer by download, accompanied by corresponding invoices. Customer shall not accept, alter, enlarge, limit, or accept the return of any License Keys on behalf of Virtuozzo, or in any manner assume or create any obligation, express or implied, on behalf of or in the name of Virtuozzo, or act for or bind Virtuozzo in any other matter. Virtuozzo may in its ultimate and sole discretion accept, reject, or cancel any order submitted by Customer by email or through electronic system or through KA System as described herein above. Virtuozzo shall promptly notify Customer (in accordance with Clause 12.5 below) if it decides to reject or cancel any orders submitted by Customer by email or through electronic system or through KA System as described herein above. Virtuozzo is not liable for damages to Customer or to any third party caused by Virtuozzo’s delay or error in filling, or failure to fill, any orders for any reason.
5.2(a) KA System License and Revocation. Virtuozzo may grant Customer a non-exclusive, revocable, non-transferable, non-sublicenseable license to use its KA System to generate, manage, update and terminate Authorised User licenses on demand for some types of Virtuozzo Products. If at any time, in Virtuozzo’s sole and exclusive discretion, Virtuozzo is of the opinion that Customer is not using KA in a proper or responsible manner, or in case of reasonable suspicion of any fraudulent activities, , or if Customer is in breach of any terms of this Agreement and Sales Order, including delay of any payment due according to this Agreement and Sales Order, Virtuozzo may revoke the KA System license.
(b) License Key Responsibility. Customer is financially responsible for all License Keys created in its KA System account. Customer acknowledges and agrees that it is exclusively responsible for the termination of unused License Keys in its KA System account. Customer acknowledges that Virtuozzo is not responsible for the maintenance or termination of any License Keys in Customer’s KA System account whatsoever and that any active License Key in Customer’s KA System account will be billed toward Customer in the following monthly invoice. Active License Keys are considered as any License Key that is not marked for termination. For the avoidance of doubt, some License Keys carry a minimum subscription period and will be billed for the entire subscription period even if marked as terminated. If, in accordance with Clause 5(b) above, Virtuozzo revokes Customer’s license to the KA System, Customer may send License Key termination requests to Virtuozzo via email to billing-ops@virtuozzo.com.
6. CONFIDENTIALITY
6.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party shall have access to Confidential Information of the other Party. Both Parties agree that, as between the Parties, Confidential Information is owned by the relevant disclosing Party.
6.2 Mutual Confidentiality Obligations. Each Party agrees: (i) to use the other Party’s Confidential Information only for the purposes described herein; (ii) that such Party shall not reproduce the Confidential Information except as necessary to comply with this Agreement and shall hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party and such Party shall treat the Confidential Information and keep it confidential with the same duty of care as it uses with regard to its own Confidential Information, but at least the duty of care of a reasonable professional in the same circumstances; (iii) that neither Party shall create any derivative work from the other Party’s Confidential Information; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
7. OWNERSHIP
Customer acknowledges that Virtuozzo owns all right, title, and interest, including all Intellectual Property in and to the Virtuozzo Products and all work products, derivative works, developments, inventions, technology or materials provided under or otherwise in connection with a Sales Order(s), (including all related components) throughout the world in and to the original and all copies and portions of the Virtuozzo Products, and Customer hereby assigns all such rights, if any, to Virtuozzo. Virtuozzo expressly reserves all rights not expressly granted to Customer in this Agreement. In relation to Third Party Software, Customer acknowledges that the third party specified by the Parties in the respective Sales Order owns all right, title and interest, including all Intellectual Property in and to Third Party Software and all work products, derivative works, developments, inventions, technology or materials provided under or otherwise in connection with the Sales Order (including all related components). Customer shall obey Third Party Software EULA.
8. WARRANTIES
8.1 Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument and that it has the legal power and authority to enter into the Agreement and each applicable Sales Order. Virtuozzo’s obligations with respect to any warranties specified in this Agreement are contingent on Customer’s use of the Products in accordance with this Agreement and in accordance with the applicable EULA.
8.2 Open-Source Software. Customer understands and acknowledges that any Open Source Software provided by Virtuozzo shall be used according to the terms and conditions of the specific licence under which the relevant Open Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in Clause 8.3.
8.3 No Other Warranties. Except as otherwise expressly warranted in this Agreement, the Virtuozzo Products, and any other materials, software, data and/or services provided by Virtuozzo in accordance with this Agreement are provided “AS IS” and Virtuozzo expressly disclaims all other warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of operability, condition, title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose, or the absence of any defects therein. No warranty is made by Virtuozzo on the basis of trade usage, course of dealing or course of trade. Virtuozzo does not warrant that the Virtuozzo Products or any other materials, Software, data and/or services provided under this Agreement shall meet Customer’s requirements or the requirements of Authorised Users or that the operation thereof shall be uninterrupted or error-free, or that errors shall be corrected. Virtuozzo does not provide any warranties in relation to the Third-Party Software. Any warranties are provided by the Licensor to Customer as set forth in the applicable EULA.
9. LIMITATION OF LIABILITY
9.1 LIMITATIONS. The cumulative liability of Virtuozzo to Customer for all claims arising from or relating to this Agreement and any Sales Order(s) shall be a maximum of the fees paid to Virtuozzo by Customer under this Agreement during the three months period immediately preceding the event which gave rise to the claim. In no event shall Virtuozzo or its licensors or suppliers be liable to Customer for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Virtuozzo has been advised of the possibility of such damages. This limitation of liability does not apply to any liability arising from fraud or fraudulent misrepresentation, death or personal injury caused by gross negligence or any other liability which cannot be limited or excluded by applicable laws.
9.2 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement and Sales Order(s), including, without limitation, the economic terms, would be substantially different.
10. INDEMNIFICATION
10.1 Indemnification by Virtuozzo.
(a) Virtuozzo shall indemnify, hold harmless, and, at Virtuozzo’s option, defend Customer from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party that any use of, or access to, the Virtuozzo Products expressly authorized under this Agreement infringes any Intellectual Property under applicable laws of any jurisdiction. Notwithstanding the foregoing, Virtuozzo shall have no obligation or liability to Customer to the extent that the alleged infringement arises from (i) the combination, operation, or use of the Virtuozzo Products with products, services, information, materials, technologies, business methods or processes not furnished by Virtuozzo; (ii) modifications to the Virtuozzo Products not made by Virtuozzo; (iii) failure to use updates to the Virtuozzo Products provided by Virtuozzo; or (iv) use of the Virtuozzo Products in violation of any applicable user documentation or specifications (circumstances under the foregoing clauses (i), (ii), (iii) and (iv), are collectively referred to as, “Customer Indemnity Responsibilities“).
(b) Upon the occurrence of a claim that indemnity is or may be due under this Clause 10.1, or in the event that Virtuozzo believes that such a claim is likely, Virtuozzo may, at its option (i) appropriately modify the applicable Virtuozzo Products so that it becomes non-infringing without a material loss of functionality, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party Intellectual Property to allow for Customer’s continued use of the applicable Virtuozzo Products as contemplated by this Agreement; or (iii) if the options in both Clause 10.1(b)(i) and Clause 10.1(b)(ii) are not commercially practicable, terminate the applicable Sales Order on a due notice (in accordance with Clause 12.5 below) to Customer and refund any amounts paid in advance for services not yet received. The obligations set forth in this Clause 10 shall constitute Virtuozzo’s entire liability and Customer’s sole remedy for any actual or alleged infringement.
10.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Virtuozzo’s option, defend Virtuozzo from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities or Customer’s breach of (i) any of its representations, warranties, or covenants set forth in this Agreement, (ii) any negligent acts or wilful misconduct by Customer, (iii) or Customer’s or any Authorized User’s violation of any applicable law, rule, or regulation under this Agreement.
10.3 Indemnification Process. The Party seeking indemnification agrees to give the indemnifying Party (i) prompt a due notice (in accordance with Clause 12.5 below) of such claim; (ii) authority to control and direct the defense and/or settlement of such claim (directly or indirectly as permitted by the relevant procedural rules); and (iii) such information and assistance as the indemnifying Party may reasonably request, at indemnifying Party’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the indemnifying Party shall not settle any third-party claim against the indemnified Party unless such settlement completely and forever releases the indemnified Party with respect thereto or unless the indemnified Party provides its prior written consent to such settlement. Indemnified Party has the right but no obligation to participate in any action controlled by indemnifying Party pursuant to Section 9.3(ii), at Indemnified Party’s own expense and by counsel of its choice.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall become effective upon the Effective Date and shall continue for the initial period set out in the Sales Order (“Initial Term“) unless terminated earlier in accordance with this Clause 11. After the Initial Term, it shall renew for successive one (1) year periods (“Renewal Term“) unless either Party gives a due notice (in accordance with Clause 12.5 below) to the other Party that it does not intend to renew this Agreement at least ninety (90) calendar days before the end of the Initial Term or any Renewal Term. Notwithstanding the foregoing, this Agreement shall remain in full force and effect until the expiration or termination of any and all Sales Orders executed prior to the end of the Term. The Term of individual Sales Orders shall be as set forth therein.
11.2 Termination for Breach. Either Party may terminate this Agreement or a Sales Order immediately upon a due notice (in accordance with Clause 12.5 below) if the other Party breaches a material term of this Agreement or the applicable Sales Order and thereafter (i) in the case of a breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within three (3) Business Days after receiving a due notice thereof (in accordance with Clause 12.5 below); or (ii) has failed to cure any other breach (or fails to commence diligent efforts to cure such breach that are reasonably acceptable to the non-breaching Party) within thirty (30) calendar days after receiving a due notice (in accordance with Clause 12.5 below) thereof.
11.3 Termination for Insolvency. Either Party may terminate this Agreement immediately upon a due notice (in accordance with Clause 12.5 below) after the other Party takes or has taken against it (other than in relation to a solvent restricting) any step or action towards it entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a memorandum under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause 11.3.
11.4 Accrued Obligations. Termination of this Agreement and/or any particular Sales Order shall not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue with respect to any act or omission before termination, or from any obligation that is expressly stated in this Agreement and/or any applicable Sales Order to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement, or any Sales Order as permitted by any provision in this Clause 11 or in such Sales Order shall incur no additional liability merely by virtue of such termination.
11.5 Effect of Termination. Upon any termination of this Agreement or any Sales Order, Customer shall (i) immediately discontinue all use of the Products licensed and immediately cease the use of the Professional Services under the applicable Sales Order (unless otherwise specified in such terminated Sales Order); (ii) promptly pay to Virtuozzo all amounts due and remaining payable; and (iii) if applicable pursuant to a terminated Sales Order, pay any applicable termination fee.
11.6 Survival. The provisions of Clauses 1, 3.2, 4, 5, 6, 8.2, 9, 10, 11.4, 11.5, 11.6, and 12 shall survive any termination of this Agreement.
12. MISCELLANEOUS
12.1 Applicable Law. This Agreement shall be governed by and construed in accordance with English law. The Parties agree that any and all disputes between the Parties arising out of or in relation to this Agreement shall be resolved amicably between the Parties. Should the Parties fail to resolve the dispute amicably within thirty (30) calendar days upon written request by one Party to the other Party, such dispute shall be subject to the exclusive jurisdiction of the English courts. The prevailing Party in any action under this Agreement is entitled to recover reasonable attorneys’ fees and related costs.
12.2 Data Protection. Virtuozzo and Customer shall, in the course of performing its obligations under this Agreement, comply with the provisions of all applicable data protection legislation. To the extent needed, both parties shall agree upon a separate data processing agreement. Further information regarding how Virtuozzo processes Customer personal data is available in the privacy policy (Privacy Policy – Virtuozzo) available at: https://www.virtuozzo.com/legal/privacy-policy/. Virtuozzo reserves the right, consistent with data privacy and other user data protection requirements applicable to the jurisdiction where data is stored, and if mandated by applicable law, regulation, legal process, or governmental order, disclose user data or other information, but only to the extent required to satisfy those laws, regulations, or orders. Unless prohibited by law or other order, Virtuozzo will provide reasonable notice of any such required or requested disclosure to You and reasonably cooperate to limit such disclosure to the extent allowed by law. Customer acknowledges and agrees that the support services that may be provided pursuant to the Agreement can be provided from countries other than the country in which Customer is based.
12.3 Anti-Corruption. Customer shall: (a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (b) have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010 to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and (c) promptly report to Virtuozzo any instance of soliciting, receiving from or offering to any third party any bribe of other undue benefit in connection with its performance of this Agreement.
12.4 Force Majeure. Virtuozzo shall be excused from any delays in performance of its obligations under this Agreement if such a delay results from acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Virtuozzo. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances. However, the Customer shall be entitled to terminate this Agreement when such delay lasts for ninety (90) calendar days consecutively.
12.5 Notices. Any notice to be given pursuant to this Agreement must be sent on email addresses provided by the Parties in the Sales Order in English. If the Party change its email addresses, new email addresses shall be communicated by such Party to another Party by an email notification. Notice will be deemed duly given in writing when delivered to an email provided by the Party in the Sales Order, or sent by confirmed facsimile transmission, or sent by certified or registered mail or nationally-recognized express courier, return receipt requested, to the address shown on the Sales Order. To be effective all notices to Virtuozzo: (i) if other than by email, shall be sent to Riverbank House, 2 Swan Lane, London, EC4R 3TT, United Kingdom; (ii) if by email, shall be sent to billing-ops@virtuozzo.com, if another email is not provided in the Sales Order.
12.6 Assignment. Customer shall not assign its rights or delegate its obligations under this Agreement without Virtuozzo’s prior written consent; any such consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of Virtuozzo and Customer and their successors and permitted assigns. Virtuozzo may assign this Agreement or any Sales Order without changes of contractual contents in its totality to any subsidiary or Affiliate of Virtuozzo with ten (10) calendar days’ prior due notice (in accordance with Clause 12.5 above) to Customer.
12.7 Independent Contractors. Customer and Virtuozzo acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
12.8 Amendment. Virtuozzo may modify and/or amend this Agreement and any or all documents incorporated by reference including EULA from time to time. Any such amendment or modification will become effective immediately from when it is uploaded to https://www.virtuozzo.com/legal/ and Customer continued use of Virtuozzo Products shall constitute acceptance of such amendment and/or modification.
12.9 Waiver. Failure by either Party to enforce the provisions of this Agreement will not represent a waiver of such rights and will not affect the validity of this Agreement nor affect that Party’s rights to take subsequent action.
12.10 Severability. If any provision, or portion thereof, of the Agreement is held unenforceable or invalid by a court of competent jurisdiction, the enforceability of the remaining provisions shall not be affected.
12.11 No Third-Party Beneficiaries. Except for those third parties that have licensed software or other intellectual property to Virtuozzo and that is included as part of the Virtuozzo Products, no person or entity shall be a third party beneficiary of these GTCs or have any right or cause of action hereunder.
12.12 U.S. Government End-Users. The Virtuozzo Products include commercial technical data and/or computer licensed databases and/or commercial computer software and/or commercial computer software documentation, as such terms are used in 48 C.F.R. 12.212, that were developed exclusively at private expense by Virtuozzo and/or its licensors. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 all U.S. Government end users acquire the Virtuozzo Products with only those rights set forth herein.
12.13 Non-Solicitation. Customer will not, without the prior written consent of Virtuozzo solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of its affiliates, any of Virtuozzo’s Personnel or the Personnel of its affiliates during the Term of this Agreement or during the twelve (12) months following termination of this Agreement. For purposes of this Clause, “Personnel” includes any individual that Virtuozzo employs or has employed as a partner, employee or independent contractor and with which Customer comes into direct contact in the course of the Services. If Customer breaches this Clause, Customer will pay Virtuozzo 1,500,000.00 GBP (One million five hundred thousand GBP), payable net thirty (30) calendar days from the date of invoice, as liquidated damages for breach of this Clause. The parties agree that any such liquidated damages have been calculated as, and are, a genuine pre-estimate of the loss likely to be suffered by Virtuozzo and are considered reasonable and proportionate by the parties.
12.14 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
12.15 Publicity. Virtuozzo may include Customer’s name and corporate logo (if applicable) in any presentation, marketing materials, and/or customer lists (including, without limitation, customer lists posted on Virtuozzo web sites).
12.16 Entire Agreement. This Agreement (including all Sales Orders) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof.
