Cloud Services Agreement

These terms and conditions (“Cloud Terms of Sale” or “Agreement”) entered into between the Customer and Virtuoso IT Limited (“Virtuoso”) will govern your purchase from Virtuoso of the Cloud Services from Virtuoso. This Agreement is effective upon your (a) placement of an online or offline order with Virtuoso for Cloud Services; (b) accessing, accepting or using the applicable Cloud Services purchased from Virtuoso; or (c) acceptance of this Agreement between you and Virtuoso upon completion of an online order.

1.  Definitions

1.1. “Chargeable Units” means the metric or other unit of measure for the usage of the Cloud Services upon which Service Fees are calculated and charged. For illustration purposes and not by way of limiting this definition, a Chargeable Unit may be a User, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Cloud Services (such applicability will be determined by Virtuoso or Vendor).

1.2. “Cloud Services” means the cloud computing services ordered by the Customer through Virtuoso, and any applicable Third-Party Software or Vendor-branded services provided or performed by the Vendor.

1.3. “Customer” shall mean the entity entering into these terms which can be the end customer or reseller as applicable.

1.4. “Data Protection Legislation” means all applicable data protection legislation including the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or succeeded from time to time, in the EU and any individual jurisdiction. Terms used throughout this clause including “data controller”, “data processor”, “data subject”, “personal data” and “processing” are as defined in the Data Protection Legislation.

1.5. “Virtuoso Additional Services” means any technical, consulting or managed professional services performed by Virtuoso and related to the Cloud Services as may be set forth in a relevant Statement of Work (“Statement of Work” or “SOW”), and provided by Virtuoso in accordance with the applicable terms and conditions of sale for services as provided by Virtuoso from time to time.

1.6. “Minimum Usage Commitment” means the minimum Usage Commitment in additional terms for Cloud Services.

1.7. “Registered Usage” means the number or quantity of Chargeable Units provisioned online by Customer directly or through Virtuoso at the direction of Customer as calculated on a prorated basis by Vendor.

1.8. “Service Fees” means the total fees for services purchased by the Customer under this Agreement, including without limitation, Subscription Fees, as described in this Agreement.

1.9. “Service Level Agreement” or “SLAs” means the service levels or service level agreements pertaining to, among other things, the nature and quality of the Cloud Services. Any SLAs shall be described in the Special Terms.

1.10. “Vendor” means the entity that provides the Cloud Services, as described in the Vendor Terms and offered by Virtuoso under this Agreement, including Third Party Software licensors (if any).

1.11. “Vendor Facilities” means any infrastructure of Vendor or its licensors in connection with the provision of the Cloud Services, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Vendor or its licensors in connection with the provision of the Cloud Services.

1.12. “Vendor Terms” means, collectively, Vendor’s description of Cloud Services, terms of use/service, direct agreements entered into with Customer, and SLAs, if any, all of which may be amended or otherwise updated unilaterally by the Vendor from time to time.

1.13. “Special Terms Addendum” or “Special Terms” means any terms and conditions that are specific to the particular Cloud Services and added as an addendum to the Cloud Terms of Sale or provided to Customer at the time of purchase. To the extent such terms differ or conflict with these Cloud Terms of Sale, the Special Terms shall take precedence.

1.14. “Statement of Work” or “SOW” means a mutually agreed upon written statement of work describing the Virtuoso Offering performed by Virtuoso for Customer.

1.15. “Subscription Fees” means recurring fees for Cloud Services during the applicable Subscription Period based on the actual Chargeable Units and Cloud Services ordered by Customer.

1.16. “Subscription Period” means a monthly, yearly or other mutually-agreed-upon billing period, as indicated on the sales quotation or order.

1.17. “Term” means collectively, the “Initial Term” and, if applicable, any “Renewal Term,” as defined in subsection 4.1 (Term of Agreement).

1.18. “Territory” means countries located in EU/EFTA unless otherwise provided in the Special Terms.

1.19. “Third-Party Software” means any software that is owned by one or more third parties, is licensed by Vendor from such third parties, is not included in the software developed or published by Vendor but which may be embedded software subsequently sublicensed by Vendor to Customer, and is necessary for Customer to access and/or use the Cloud Services.

1.20. “Export Laws” means applicable laws, regulations, rules, ordinances, governmental orders, administrative acts, and the like relating to export.

1.21. “Usage Commitment” means the greater of: (i) the Registered Usage selected by Customer, or (ii) the then-current Registered Usage as reported to Virtuoso by Vendor and upon which Virtuoso invoices Customer for the applicable Usage and Subscription Period during the applicable Term.

2.  Scope of Services

Virtuoso is reselling and/or soliciting orders on behalf of the Vendors for Cloud Services performed or otherwise provided by Vendor or its affiliates, subcontracts, successors or assignees. Unless Virtuoso Services are specifically being purchased by Customer either individually or bundled with a Cloud Service, Virtuoso is not responsible for any third party services related to the implementation or configuration of Cloud Services.

2.1. Sale of Cloud Services.

(a) Description of Services; Order Placement. Description of Cloud Services may be amended or otherwise updated unilaterally by Vendor from time to time and without notice. Any order for such services by Customer shall incorporate the terms and conditions of this Agreement. Any pre-printed, different or additional terms and conditions sent by Customer to Virtuoso are expressly rejected and will not be binding upon Virtuoso.

(b) IP Rights. Vendor or its licensors, subcontractors, or suppliers will retain all rights, title, and interests in and to the Cloud Services and Vendor Facilities as well as any derivative works thereof, including, without limitation, any intellectual property rights in and to the Cloud Services and the Vendor Facilities. Customer shall not infringe, misappropriate, or otherwise violate such rights, title, or interests. Customers access to Cloud Services shall be subject to the terms and conditions of the Order, as well as the Vendor Terms.

(c) Use of Cloud Services. Customer’s access to, and use of, the Cloud Services shall be subject to the terms and conditions of this Agreement, including the Vendor Terms. Customer shall be solely responsible for periodically reviewing designated URLs or successor URLs of the Vendor to understand and perform in accordance with such amended or otherwise updated versions of Vendor Terms. Customer assumes all risks, costs, and expenses in connection with the use of the Cloud Services.

1. Territory. Customer is purchasing Cloud Services for use within the Territory, unless otherwise agreed between the parties.
2. Vendor Facilities. Customer acknowledges that the Cloud Services may be provided by Vendor from Vendor Facilities anywhere in the world and Vendor may, at any time, transfer the provision of the Cloud Services from one installation to another. There is no guarantee that any such installation, or part thereof, is dedicated to the sole use of Customer. Transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject Export Laws, privacy, or data security laws.
3. High Risk. Cloud Services sold by Virtuoso are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
4. Business Purpose. Customer will use the Cloud Services for its own use and for legitimate business purposes only, and Customer shall not resell, sub-lease, sub-rent, or sub-license the Cloud Services to any third party.

(d) Virtuoso Additional Services. This Agreement may incorporate one or more SOWs that describe certain technical, consulting or managed professional services performed by Virtuoso. Each such SOW or description of services shall be effective and become part of this Agreement by reference when signed or accepted by Customer. Unless otherwise agreed, if there is a conflict between the terms and conditions of this Agreement and those of any SOW, then the terms and conditions of SOW shall govern with respect to the underlying services.

2.2. Customer’s Responsibilities. In addition to other duties of Customer set forth in this Agreement, Customer is responsible for the following:

(a) Customer will provide a project contact with decision-making authority to support the scope of Cloud Services described in the Vendor Terms;

(b) Customer will provide all necessary hardware, software, and tools at Customer’s site required for the implementation of Cloud Services at Customer’s site prior to the provisioning of the Cloud Services, and Customer is responsible for all licensing requirements in connection with such hardware, software, and tools;

(c) Unless otherwise agreed between the parties, Customer is responsible for any data migration of existing data;

(d) Customer shall provide information reasonably requested by Virtuoso or Vendor, including, without limitation, any technical and related information, and any consents that Vendor may need from Customer necessary for Vendor to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Customer set forth in the Vendor Terms;

(e) Customer agrees to cooperate with Virtuoso in good faith by taking such further actions and/or executing such further agreements or instruments as may be reasonably required under the circumstances by Virtuoso or Vendor; and

(f) Customer shall comply with all relevant legislation and conform to the protocols and industry standards applicable to the use of the internet.

3.  Service Fees and Invoicing

3.1. Service Fees. Subject to subsection paragraph (b) below (Changes in Usage), as consideration for the services purchased by Customer under this Agreement, Customer shall pay Virtuoso the Service Fees, which will be based upon the applicable pricing rate for the Cloud Services and the Usage Commitment, and/or for any Virtuoso Additional Services. Virtuoso reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, Vendor price changes based on general partner/distributor program changes or errors in advertisements.

(a) Pricing Rates. For the Initial Term, the pricing rates for Cloud Services ordered under this Agreement shall be set within the Agreement, which rates will be based upon the Registered Usage and Cloud Services described therein. For any Renewal Term, the pricing rates shall be Virtuoso’s then-current rates for such Cloud Services based upon the applicable Usage Commitment at commencement of the then-current Renewal Term.  The current rates may be subject to change from time-to-time and changes will be communicated to the Customer by Virtuoso.

(b) Changes in Usage. Upon execution of an order, the parties agree that all future changes in quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis. If new Cloud Services or features are procured, Customer will need to execute a new order with Virtuoso for any such net-new Cloud Services. Fees payable by Customer for the then-current Usage Commitment shall be based upon the applicable pricing rates communicated by Virtuoso to the Customer.

3.2. Invoicing. Charges for Cloud Services will accrue on the date the Cloud Services are activated or made available by Vendor to Customer and are non-refundable, except as expressly provided in this Agreement. Virtuoso will invoice the Customer the Service Fees on a monthly basis. Service Fees include: (a) Subscription Fees; and (b) non-recurring set up and other one-off charges (including, but not limited to, domain set-up charges and/or Virtuoso Additional Services), if any, for a calendar month. Virtuoso Additional Services will be invoiced in accordance with the applicable mutually agreed upon Statement of Work between the parties.

3.3. Payment Terms. Customer must pay all undisputed invoices in full within 15 days of the invoice date. All payment terms are measured from the date of invoice. Each invoice shall be paid in the currency specified on such invoice. If an invoice is the subject of a bona fide dispute, Customer shall notify Virtuoso in writing, including a description of the nature of such dispute in sufficient detail, within such 15 day period. Failure to comply with the requirements of this provision shall preclude the Customer’s right to dispute such invoice. Virtuoso reserves the right to charge an annual interest rate of 4% over the base lending rate of HSBC bank for any undisputed past due Service Fees. Customer is responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default on undisputed Service Fees.

3.4. Taxes. Fees or prices exclude taxes of any kind and any travel expenses that may be incurred by Virtuoso in connection with this Agreement. The Customer shall pay Virtuoso’s invoices in full without off-set or withholding of taxes. If any such deduction or withholding is required by law, the Customer shall pay to Virtuoso such additional amount so that the net amount Virtuoso receives is equal to the full amount invoiced and Virtuoso would have received had such deduction or withholding not been made.

3.5. Service Credits. In the event that a credit for Cloud Services is due to Virtuoso in accordance with the Vendor Terms, the parties agree that any credit due will be credited by Virtuoso to Customer’s account within a reasonable time after Virtuoso’s receipt the corresponding credit amount from Vendor following Vendor’s verification of Customer’s claim. Customer expressly acknowledges and agrees that Virtuoso is not obligated to provide any Service credit if Vendor is unable to verify, or otherwise rejects, Customer’s claim for any reason or if Vendor fails to provide the Service credit for any reason even if it has verified Customer’s claim. Any credits or termination rights described under Vendor’s SLAs shall be the sole and exclusive remedy of customer in connection with any unavailability of the services or breach of such SLAs.

4.  Term; Suspension; Termination

4.1. Term of Agreement.

(a) Initial Term. Unless earlier terminated in accordance with this Section (Term; Suspension; Termination), the initial term of Customer’s subscription of the Cloud Services shall be as indicated in Special Terms, commencing on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Customer by the Vendor as notified by the Vendor to Virtuoso, (the “Initial Term”).

(b) Renewal Term. Upon expiration of the Initial Term, Customer’s Cloud Services subscription will automatically renew for additional, successive Subscription Periods as indicated in Special Terms (each a “Renewal Term”), unless Customer or Virtuoso provides notice of non-renewal at least 60 days prior to the end of the Initial Term or the Renewal Term then in effect.

Customer  expressly acknowledges and agrees that Customer’s cloud services subscription will be subject to: (i) this agreement (ii) the vendor terms, and (iii) other service-related terms, each as they exist on the first day of any renewal term. Such terms may be different than those in effect during the immediately preceding subscription period and may be further amended during the renewal term by Virtuoso and/or the Vendor, as provided in the then-current terms. Customer is solely responsible for periodically reviewing the relevant terms to ensure that Customer understands and performs in accordance with the terms and conditions then in effect.

4.2. Virtuoso/Vendor Suspension/Termination Rights.

(a) Customer’s Breach. Without prejudice to any other rights to which it may be entitled, Virtuoso may terminate this Agreement, in whole or in part, with immediate effect, if Customer materially breaches this Agreement and fails to remedy that breach within 30 days of receipt of Virtuoso’s written notice of such breach and its intent to terminate the Agreement unless the breach is remedied. A material breach of this Agreement, includes but is not limited to: (i) Customer’s failure to pay Service Fees when due, (ii) rejection of payment for any reason of any Service Fees using a credit card provided by Customer, (iii) Customer’s breach of subsection 5.3 (Compliance With Laws), or (iv) Customer’s use of the Cloud Services in violation of the terms and conditions of this Agreement, Special Terms or Vendor Terms (“Use Issues”). Notwithstanding anything to the contrary in this paragraph, Virtuoso is not required to provide Customer the aforementioned notice and cure period and may immediately terminate this Agreement, in whole or in part, if Vendor does not provide corresponding adequate notice and cure period to Virtuoso in connection with Vendor’s termination of Cloud Services due to Use Issues. In addition, Virtuoso may terminate this Agreement effective upon notice, if Customer: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.

(b) Suspension; Fee Accrual/Reinstatement. If any Cloud Services, or part thereof, are withheld or suspended by Vendor as a result of Use Issues, Service Fees will continue to accrue and will be based upon the Usage Commitment. Any such terminations or suspensions shall be in accordance with the notice requirements of the relevant Vendor Terms. Customer shall continue to be responsible for payment of Service Fees in accordance with this Agreement. If Vendor charges Virtuoso for any remedial work that is necessary as a direct result of any Use Issues, Virtuoso shall charge Customer. In addition, any reconnection of Cloud Services following disconnection or suspension pursuant to this subsection may require a reasonable reinstatement fee. Customer will pay Virtuoso for such charges within 30 days of Virtuoso’s invoice date. Furthermore, if Vendor suspends Cloud Services due to Customer’s material breach because of Use Issues and requires an increase in the fees payable by Virtuoso to Services Provider as a prerequisite to resume making the Cloud Services available for Customer, Customer agrees to pay such additional Service Fees in accordance with this Agreement if invoiced by Virtuoso. Virtuoso shall not be liable to Customer if Vendor withholds provision of Cloud Services or suspends or terminates Customer’s access to, or use of, Cloud Services, or any part thereof, as provided in this Section. In addition, any such action by Vendor does not give Customer the right to terminate this Agreement.

4.3. Customer Termination Rights.

(a) Customer Termination under the Agreement. This Agreement may not be terminated or suspended by Customer for convenience. Customer has the right to terminate this Agreement only if Virtuoso materially breaches this Agreement and fails to remedy that breach within 30 days after receipt of Customer’s written notice of such breach and Customer’s intent to terminate this Agreement unless the breach is remedied. Customer may terminate this Agreement effective upon notice, if Virtuoso: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.

(b) Customer Termination under Vendor Terms. Customer may have certain rights to terminate some Cloud Services (but not the entire Agreement) only as expressly provided under the Vendor Terms; provided, however, that Customer must first be in compliance with all termination-related processes and other applicable requirements set forth in the Vendor Terms. Customer must provide Virtuoso prior written notice of Customer’s election to exercise such termination rights, and any such election must be exercised in accordance with the applicable Vendor Terms.

4.4. Virtuoso/Vendor Agreement Termination. This Agreement will immediately terminate, without any liability for such termination if: 1) the Virtuoso/Vendor Agreement terminates for any reason or otherwise expires; or 2) Vendor refuses to provide such Cloud Services to Customer for any reason.

4.5. Effect of Termination.

(a) Payment upon Breach. If all or part of this Agreement is terminated by Virtuoso as provided in the subsection paragraph titled “Customer’s Breach,” Customer shall pay Virtuoso the Subscription Fees that would be due for the remainder of the unexpired Subscription Period and any Service Fees for Cloud Services performed prior to termination. All such fees shall become immediately due and payable upon any such termination.

(b) Provision of Cloud Services after Customer’s Termination. Notwithstanding anything to the contrary in this Section (Term; Suspension; Termination), if despite Customer’s election of termination, or any notice to terminate Cloud Services, or any part thereof, Customer: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Customer’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Vendor invoices Virtuoso for the provision of such Cloud Services to Customer, Customer shall pay Virtuoso the Service Fees. The terms of this Agreement shall govern the provision of any Cloud Services until terminated by Vendor.

(c) Payment upon Termination. Service Fees to be paid by Customer to Virtuoso as provided in subsection paragraphs 4.5(a) and (b) shall continue to be based upon the Usage Commitment in the Term immediately preceding termination, or as otherwise provided in Schedule 1 hereto. Except for termination for breach as indicated in subsection paragraph (a) above, upon termination or expiration of Cloud Services, payment shall be made in accordance with the terms of payment provided under this Agreement. Termination or expiration of this Agreement shall not relieve either party of its rights or obligations incurred prior to termination or expiration that by their nature or term survive, including any and all payment due under this Agreement.

5.  Additional Terms and Conditions

5.1. Authority. Each party represents and warrants that it has the full power and authority to enter into this Agreement, and that it possesses all other rights necessary for the performance of its obligations under this Agreement, without violating any right of any other party. Customer further represents and warrants that Customer is purchasing Cloud Services in the Territory for use within the Territory, unless otherwise specifically and mutually agreed between the parties in writing.

5.2. Not Used

5.3. Compliance with Laws. Customer shall comply with, and agrees that it is its responsibility to adhere to, all applicable laws in connection with Customer’s use of the Cloud Services, including without limitation, Export Laws and any territorial restrictions under this Agreement, or any such restrictions imposed by Vendor. In addition, Customer expressly acknowledges and agrees that one or more of the Vendor Facilities may be located outside the EEA and that the use of the Cloud Services, including, without limitation, the transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to the Export Laws, import, privacy, or data security laws. Customer represents and warrants that it is not on any blocked, debarred, or denied entity or party list, any debarred or denied persons list, or any other prohibited or restricted person or entity list under the Export Laws, and Customer is not a national or resident of, located in, or under the control of, any restricted country or any country with which the U.S. or the EU has embargoed trade under the Export Laws or other applicable law. Customer shall not transfer, transmit, distribute, upload, store, or post via, or download or retrieve from, the Cloud Services any information, software, technology, or other technical data in violation of applicable law.

5.4. High-Risk Use; Security; Access. Customer expressly acknowledges and agrees that Cloud Services offered by Virtuoso, including Virtuoso Additional Services, are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Use in any such applications is at Customer’s sole risk, and Customer shall be solely responsible and liable for any and all claims and damages (including, but not limited to reasonable attorney fees and costs of defense) incurred by Virtuoso as a result of or in connection with such unauthorized use by Customer, its employees or agents. Customer further acknowledges and agrees that (a) no data transmission over the Internet can be guaranteed to be 100% secure or private; (b) Virtuoso is not responsible for any interception or interruption of any communications through the Internet; (c) Customer is responsible for maintaining the security of its networks, servers, applications and access codes, including, without limitation, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (d) Virtuoso has no control over the Cloud Services, any Vendor Facilities or their location, or any technical support provided by Vendor in connection with the Cloud Services, and Virtuoso is not responsible for: (i) the reliability, content, functionality, availability, security, or scalability of the Cloud Services or any Vendor Facilities; or (ii) the quality, timeliness, or responsiveness of the Vendor in providing technical support in connection with the Cloud Services, any corrective action provided by the Vendor (or the lack thereof) in the course of performing such technical support, or any other matter in connection with such technical support; and (iii) any processes, procedures, policies, or practices engaged by Vendor or its licensors; (f) Virtuoso is not responsible for the suitability, integration, operability, or performance of the Cloud Services in connection with any hardware or other device, software program, information-technology infrastructure, or any other technology that may be used by Customer even if such hardware or other device, software program, information-technology infrastructure, or other technology is sold by Virtuoso to Customer under a separate agreement; (g) Virtuoso has no control over Customer’s data residing within any Vendor Facilities in connection with Customer’s use of the Cloud Services, and Virtuoso shall have no responsibility or liability for retrieving or otherwise recovering such data or for any deletion of such data or any restriction or denial of access to such data imposed by Vendor upon Customer in the event of any suspension of the Cloud Services or termination of this Agreement for any reason.

5.5. Data Protection

5.5.1. Both parties shall comply with the Data Protection Legislation.

5.5.2. Except to the extent otherwise dictated by the Data Protection Legislation, in respect of personal data relating to Customer’s employees and other data subjects related to Customer which is processed by Virtuoso pursuant to the Agreement, Customer is the data controller and Virtuoso is the data processor. Customer is responsible for obtaining the consent of all Customer related data subjects whose personal data is provided to or otherwise made available to Virtuoso pursuant to the Agreement. Customer authorizes Virtuoso to engage sub-processors to the extent required for the performance of the Agreement. Virtuoso shall ensure that its sub-contractors enter in to adequate contractual obligations for the protection of Customer’s personal data.

5.5.3. Virtuoso does not process personal data on behalf of Customer other than limited Customer user data in order to maintain and support the provision of the Services and as may otherwise be required for account management, reporting, and any other lawful and legitimate purpose. Virtuoso shall, in relation to any personal data processed in connection with the performance by Virtuoso of its obligations under the Agreement:

(a) process personal data specifically for the performance of the Agreement;

(b) ensure that it has in place appropriate technical and organisational measures to protect the personal data as required under Data Protection Legislation;

(c) ensure that all personnel of Virtuoso who access personal data do so under obligations of confidentiality; and

(d) provide reasonable assistance following written request to assist Customer to comply with its obligations under Data Protection Legislation, to respond to subject access requests and data breach notifications.

5.5.4. Customer agrees that Virtuoso shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and the Customer holds Virtuoso harmless) in respect of the processing of personal data pursuant to a product or Cloud Service provided by the Vendor, transacted by Virtuoso and where Virtuoso is not the prime supplier of such service. Such processing of personal data shall be subject to the arrangements, license and contract terms entered in to directly between Customer and the Vendor.

5.5.5. Customer authorises Virtuoso to transfer and process any personal data outside of the European Economic Area (EEA) in order to perform the Agreement, and for Virtuoso’s other legitimate interests, provided that such transfer is made under a legal framework compliant with the Data Protection Legislation, for example Privacy Shield or the European Commission approved Model Contract Clauses.

5.5.6. Customer agrees to comply with the forgoing obligations to the extent that it processes any personal data of Virtuoso personnel.

5.6. Notices.

(a) Required. Except as otherwise provided herein, any notice required to be given under this Agreement must be in writing and sent to the addresses set forth above (or to other persons or addresses as either party may designate in writing to the other subsequent to the execution of this Agreement). Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail.

5.7. Assignments. Customer shall have no right to assign this Agreement, nor any of its rights, obligations, or privileges (by operation of law or otherwise) without the prior written consent of Virtuoso. Virtuoso may, without having to obtain Customer’s consent, assign this Agreement, and its rights, obligations, and privileges hereunder to any Affiliate or corporate successor. Any attempted assignment, delegation or assumption not in accordance with this subsection shall be void and of no force or effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.

5.8. Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the laws of England and Wales.

5.9. Warranty Disclaimer. Virtuoso provides no warranty in connection with the services, any technical support provided by vendor in connection with the services, or any vendor facilities. Services and any technical support provided by vendor are sold or otherwise provided to Customer “as is,” without warranty of any kind from Virtuoso.

Virtuoso expressly disclaims all warranties, whether express, implied or statutory, in relation to services and technical support provided by vendor, or any vendor facilities, including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement, title, or arising from a course of dealing, law, usage or trade practice. Without limiting the foregoing, virtuoso disclaims any warranty that (i) the services will be uninterrupted, error-free, or secure; (ii) any defects will be corrected; (iii) there are no viruses or other harmful components; (iv) the services or any technical support provided by vendor in connection with the services will meet Customer’s requirements or expectations; (v) any results obtained from the use of the services will be accurate or reliable; and (vi) any vendor facilities will be dedicated to providing the services solely for Customer. No advice or information, whether oral or written, obtained by customer from virtuoso (including, without limitation, its sales or technical support representatives), or through or from the vendor’s website, will create any warranty by Virtuoso not expressly stated in this agreement.

5.10. Confidentiality. “Confidential Information” means any non-public information, including but not limited to, intellectual property, pricing, customer lists, personally identifiable health information, financial information, access codes provided in connection with the Cloud Services, sales and marketing plans of the other party, its affiliates, or its customers, Vendors, contractors, or licensors (collectively, “Vendors”). Each party (“Receiving Party”) will maintain in confidence and safeguard any Confidential Information disclosed to it by the other party (“Disclosing Party”). Each party must use the same degree of care in protecting and preserving Confidential Information as it uses to protect its own similar confidential and proprietary information, but shall never use less than what would be a reasonable standard of care. If Customer is a federal or state governmental entity, then Customer agrees on behalf of the other agencies of the federal or state government who may benefit from the Cloud Services that such agencies shall be subject to the same obligations of confidentiality as set forth in these Terms of Sale. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other in the manner contemplated by the order and restrict disclosure to only those personnel who have a need to know. Each party will bind such personnel to obligations of confidentiality to the same extent it is bound by this Agreement. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed by the party; (v) is otherwise permitted to be disclosed under the order; or (vi) is disclosed with the prior written consent of the disclosing party. Customer agrees Virtuoso may disclose Customer’s Confidential Information to Vendor as reasonably necessary for, or requested by, Vendor to provide the Cloud Services or any technical support related to the Cloud Services. If a Receiving Party is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, the recipient must first promptly notify the disclosing party so that the Disclosing Party may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority. Each party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach. Any such relief is in addition to, and not in lieu of any other remedies available, including, without limitation, monetary damages.

5.11. Customer Indemnification. Customer shall defend and indemnify Virtuoso for, from, and against any losses, damages, penalties, costs, and expenses (including reasonable attorney fees) incurred by Virtuoso in connection with any claims or actions by Vendor or other third parties arising out of or resulting from: (i) Customer’s use of the Cloud Services other than as permitted hereunder (excluding claims that the Cloud Services, as provided by Vendor, infringe third party intellectual property rights), and/or (ii) Customer’s failure to comply with applicable law.

5.12. Limitation of Liability.

(a) Direct Damages Limitation. To the maximum extent permitted by applicable law and subject to the subsection paragraph (b) below titled “indirect/special damages,” Virtuoso’s maximum liability to Customer for damages arising in any way out of this agreement is limited to proven direct damages, not to exceed in the aggregate, in any 12 month period, an amount equal to customer’s net payments for the services purchased in the 6 months prior to the event giving rise to the claim. Notwithstanding anything to the contrary in this agreement, to the extent Virtuoso has any obligation under the SLA’s, Virtuoso’s maximum liability in any calendar month shall be no more than one hundred percent (100%) of the monthly charge payable by the customer to virtuoso for the affected service(s) for such month.

(b) Indirect/Special Damages. Except for fraud and customer’s obligations under the subsection titled “Customer indemnification,” neither party will be liable for any indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business profits, business interruption, loss of business information and the like), arising in any way out of this agreement, any of the documents referenced in this agreement, or any addenda or amendment hereto, or arising out of the use of or inability to use any services, even if advised of the possibility of such damages.

(c) both parties understand and agree that the limitations of liabilities for each party set forth in this agreement, regardless of the form of action, are reasonable and they would not have entered into this agreement without such limitations.

5.13. Miscellaneous. Except as specifically provided herein, this Agreement is not intended to and does not create any claims, rights, remedies, or benefits exercisable by any third party. Any subsequent additions, deletions or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement is, for any reason, found to be invalid, illegal or unenforceable, all other parts of this Agreement will remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Virtuoso may subcontract any or all of its obligations hereunder to one or more qualified parties without Customer’s prior consent, unless otherwise restricted in any SOW. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. The headings in this Agreement are for reference purposes only and may not be construed as being part of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but which altogether constitute the same instrument. Agreement to, and acceptance of, this Agreement may be made by facsimile signature or in an electronic form showing the signatures of both parties.

5.14. Updates. Virtuoso reserves the right at any time to modify this Agreement from time to time. This Agreement, as amended, will be effective upon placement of new orders for Cloud Services or upon renewal of existing subscriptions for Cloud Services. Virtuoso shall use reasonable business endeavors to inform you of material changes to the terms and conditions of this Agreement affecting the delivery of the Cloud Services.

5.15. Conflicting Terms. Except as otherwise provided under this Agreement, in the event of a conflict between the terms and conditions of this Agreement and Vendor Terms, as they apply to the relationship between Customer and Virtuoso, the terms and conditions of this Agreement shall govern.

Services to Customer under this Agreement and unless otherwise indicated in this Agreement, supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.