Terms

This Agreement is made between Buyer and Seller, collectively referred to as the "Parties," as of the date that Buyer enters his or her initials on the “ Agreement” (the “Effective Date”).

1. SERVICES

   The Seller shall provide the services set forth under “Service Level Agreement” and “Support Levels” pages of the “Openfiler Customer Support Agreement” (the "Services") to the Buyer in accordance with the terms and conditions of this Agreement.

2. AMENDMENT

   This Agreement may not be amended, supplemented or modified except by a written instrument signed by the Parties hereto, with such written instrument making specific reference to this Agreement.

3. PAYMENT

   1. Fees and Expenses. Buyer shall pay Seller fees for the Services (the "Fees") as specified ”Price” on the “Support Agreement” page.

   2. Taxes. All Fees are exclusive of any Taxes. Buyer will pay to Seller an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added taxes, which are paid by or are payable by Seller. "Taxes" means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net income of Seller. If Buyer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Seller, then the sum payable to Seller will be increased by the amount necessary so that Seller receives an amount equal to the sum it would have received had Buyer made no withholdings or deductions.

4. OWNERSHIP

   1. Freedom to Use Ideas. Any and all ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed in and during the course of this Agreement may be used by either Party in any way that such Party deems appropriate, including by or for itself or its customers, notwithstanding anything to the contrary contained in this Agreement.

   2. Marks. No right or license, express or implied, is granted hereunder for the use of any of Seller, Seller affiliate, or Buyer trade names, service marks or trademarks.

       

5. TERM AND TERMINATION

   1. Term. Unless otherwise stated under “Contract Duration” on the “Service Description” pages, the term of this Agreement and the provision of Services hereunder begins on the Effective Date and continues for a period of one (1) year – except where the Services are provided on an ad-hoc basis. Buyer is only permitted to use Services purchased during the Term; if Services are unused during the Term, such Services will be forfeited.

   2. Termination

      1. If Buyer or Seller materially breaches the terms of this Agreement, and such breach is not cured or remedied within thirty (30) days after written notice of the breach is given to the breaching Party, then the other Party, by giving written notice of termination to the breaching Party, may terminate this Agreement. Without prejudice to any other right or remedy of Seller, in the event either Party terminates this Agreement, Buyer will pay Seller for all Services provided up to the effective date of termination.

      2. Either Party may terminate this Agreement if a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party's assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either Party or if any circumstances arise which entitle a court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.

      3. Effect of Termination. If this Agreement is terminated for any reason, each of the Sections of this Agreement that should reasonably survive termination will survive such termination.

6. LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES

   1. LIMITATION OF LIABILITY. FOR ALL EVENTS AND CIRCUMSTANCES, SELLER AND ITS AFFILIATES' AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND
      WILL NOT EXCEED THE AMOUNT THAT BUYER PAID TO SELLER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

       

   2. DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL SELLER OR ITS AFFILIATES BE LIABLE TO BUYER OR ITS AFFILIATES FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF SELLER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF INDIRECT DAMAGES,
      INCLUDING INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

7. CONFIDENTIALITY

   1. “Confidential Information” means any information that is (i) disclosed by either Party in any tangible form and clearly labeled or marked as “confidential” or “proprietary” (or a similar restrictive legend), or (i ) disclosed by either Party in any non-tangible form and designated confidential, proprietary or its equivalent at the time of its disclosure, and is thereafter summarized and confirmed promptly in writing as being confidential or proprietary. Confidential Information does not include any source code or technical information subject to a license that meets the requirements of the Open Source Definition, which is found at http://www.opensource.org/osd.html.

   2. The Parties agree to hold each other's Confidential Information in strict confidence and not to disclose it to any third party without the prior written consent of the disclosing Party. The Parties agree to use such Confidential Information of the disclosing Party only as it relates to the performance of the Party’s obligations under this Agreement. The receiving Party will use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third Party, but not less than reasonable care. Confidential Information will exclude information that is: (a)
      known to the receiving Party without restriction when received or thereafter developed independently by the receiving Party; (b) obtained from a source other than the disclosing Party through no breach of confidence by the receiving Party; (c) in the public domain when received or thereafter enters the public domain through no fault of the receiving Party; (d) provided by the disclosing Party without restriction; or (e) disclosed by the receiving Party pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided that the receiving Party has notified the disclosing Party in order to permit the taking of appropriate protective measures. These obligations will continue for two (2) years after receiving the Confidential Information.

       

8. REPRESENTATIONS AND WARRANTIES

   1. General Representations and Warranties. Seller represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner by qualified personnel; and (b) it has the authority to enter into this Agreement with Buyer. If Buyer is an entity, the individual acting on behalf of Buyer represents that the individual has the authority to enter into this Agreement on Buyer’s behalf.

   2. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. THE WARRANTIES IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER, ITS AFFILIATES, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. SELLER DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

9. GOVERNING LAW

Unless otherwise stated on the “Service Description” pages, the validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United Kingdom, as applicable, without giving effect to the conflicts of laws provisions thereof.

10. NOTICES

    Unless otherwise stated on the “Service Description” pages, notices given by a Party pursuant to this Agreement must be in English, in writing, and subject to any applicable local law provisions to the contrary, any such notice communication shall be deemed to have been made to the other Party, if delivered by:

1. first class post, five (5) days from the date of posting;
2. hand or by confirmed facsimile transmission, on the date of such delivery or confirmed transmission; and
3. electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail.

11. ASSIGNMENT

    This Agreement is binding on the Parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever, save for the Parties' affiliates as expressly provided in this Agreement. This Agreement is assignable by either Party only with the other Party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

12. SUBCONTRACTING

    Seller may subcontract Services under this Agreement to third parties or affiliates without the prior approval of Buyer; provided, however, that (a) subcontractors must agree to keep any proprietary information received from Seller or Buyer confidential, and (b) Seller remains responsible to Buyer for the performance of its obligations hereunder. Buyer
    acknowledges and agrees that to provide the Services, it may be necessary for Buyer Information to be transferred between Seller, its affiliates, and/or subcontractors, which may be located worldwide.

13. INDEPENDENT CONTRACTOR

    Seller is an independent contractor and nothing in this Agreement will be construed to create an employee relationship between Buyer (or any Buyer personnel) and Seller (or any Seller personnel). Each Party will be solely responsible for payment of its personnel including applicable taxes, deductions, other payments and benefits.
    

14. FORCE MAJEURE

    Except with respect to the payment of Fees owing under this Agreement, neither Party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.

15. NON-SOLICITATION

    Buyer agrees not to solicit or hire any personnel of Seller with whom Buyer has had contact in connection with this Agreement; provided that Buyer may hire an individual employed by Seller who, without other solicitation, responds to advertisements or solicitations aimed at the general public.

16. EXPORT RESPONSIBILITIES

    Seller may supply Buyer with technical data that may be subject to export control restrictions. Seller will not be responsible for compliance by Buyer with applicable export obligations or requirements for such technical data. Buyer agrees to comply with all applicable export control restrictions. In the event that Buyer breaches this Section 16 or any provision referencing this section, Seller may terminate this Agreement and its obligations hereunder without liability to Buyer.

17. DISPUTE RESOLUTION

    If Buyer is not satisfied with the Services provided by Seller, Buyer agrees to give Sel er a written description of the problem(s) and to make a good faith effort to amicably resolve the problem with Seller before commencing any legal proceeding. Seller also agrees to make a good faith effort to amicably resolve any problem with Buyer before commencing any legal proceeding. No claim or action, regardless of form, arising out of this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued.

18. HEADINGS

    All headings contained in this Agreement are inserted for identification and convenience, and will not be deemed part of this Agreement for purposes of interpretation.

19. SEVERABILITY

    If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the Parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.

20. WAIVER

    The delay or failure of either Party to exercise any rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the Party against whom such waiver is sought to be enforced.

21. COMPLETE AGREEMENT
    This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Buyer to place orders or otherwise effect transactions hereunder. This Agreement represents the final, complete and exclusive
    statement of the agreement between the Parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein. Any claim relating to the provision of the Services by Seller, its affiliates and their personnel will be made against Seller alone.

22. COUNTERPARTS AND FACSIMILE SIGNATURE
    This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument. The Parties may exchange signature pages by PDF and/or facsimile and such signatures will be effective to bind the Parties.