Iprotovps.com (hereinafter “IPROTOVPS") and you (hereinafter the “CUSTOMER”) may be referred to individually as a “Party” or collectively as the “Parties.”
WHEREAS CUSTOMER desires to purchase and/or lease from IPROTOVPS the following services: a) a connection to the Internet (IP Connectivity) and/or b) Content Delivery Network (CDN) and/or c) Cloud IPROTOVPS and/or d) Cloud Storage and/or e) Collocations Services, and/or f) Managed Services and/or g) Software Licenses Rental services and/or h) DDoS Protection services (referred to as the “Services”) as described in the Services Description.
WHEREAS. IPROTOVPS and CUSTOMER desire to set forth in this Agreement (hereinafter the “Master Agreement”) the terms and conditions pursuant to which IPROTOVPS shall provide Services to CUSTOMER.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties hereby agree as follows:
Master Agreement; Services
Licenses; Use of Services
Payment for services
Disclaimer of Warranties
Intellectual Property; Restrictions on Advertising
Default & Termination
Limitations of Liability
Relationship of the Parties
RESTRICTIONS ON USE
3.2 CUSTOMER shall not use the Services for any improper or unlawful purpose, nor permit any third party to do so. CUSTOMER will cooperate in any investigation of CUSTOMER’s alleged illegal use of IPROTOVPS’s facilities or other networks accessed through IPROTOVPS, provided that IPROTOVPS has reasonable cause to initiate such investigation. If CUSTOMER fails to cooperate with any such investigation, IPROTOVPS may suspend CUSTOMER’s Services. Additionally, IPROTOVPS may modify or suspend CUSTOMER’s Services in the event of illegal use of the Network or as necessary to comply with any law or regulation.
3.3 CUSTOMER will at all times comply with and conform its use of the Services to the IPROTOVPS AUP and IPROTOVPS Anti-SPAM Policy (iprotovps.com/terms) as updated from time to time.
3.4 IPROTOVPS may update the IPROTOVPS AUP and/or IPROTOVPS Anti-SPAM Policy from time to time by posting such updates on IPROTOVPS’s website. References herein to the IPROTOVPS AUP and/or IPROTOVPS Anti-SPAM Policy shall mean the most updated version of such policies or procedures posted on IPROTOVPS’s web site. IPROTOVPS shall notify CUSTOMER in advance via CUSTOMER’s registered email with IPROTOVPS of any material changes to its policies and procedures.
3.5 CUSTOMER acknowledges that IPROTOVPS exercises no control over and accepts no responsibility for the content of information and communications, in whatever form, transmitted by CUSTOMER over IPROTOVPS’s Network.
3.6 CUSTOMER’s use of any information obtained via the Network is at CUSTOMER’s own risk. IPROTOVPS specifically denies any responsibility for the accuracy or quality of information obtained through its Services.
3.7 In the event of any breach of this Section 3 by CUSTOMER, in addition to any other remedies available to IPROTOVPS, IPROTOVPS shall have the right to suspend the applicable Services without prior notice to CUSTOMER; provided that IPROTOVPS notifies CUSTOMER of the suspension and its justification therefore as soon as practicable after the commencement of the suspension. Such notice shall also serve as notice of breach of the Master Agreement, as set forth in Section 13.1 below, and IPROTOVPS may continue the suspension until (a) CUSTOMER cures the breach, or (b) IPROTOVPS terminates the Master Agreement as set forth in Section 13.3. CUSTOMER hereby indemnifies and holds IPROTOVPS harmless against any actual loss, claim, fine, damage, reasonable costs or expenses caused by CUSTOMER’s breach of this Section 3.
3.8 CUSTOMER’s non-adherence to this Master Agreement and/or any Order Form and/or any IPROTOVPS policy, might IPROTOVPS to enforce its rights under this Agreement.
3.9 Services not covered by a specific guarantee, are covered by IPROTOVPS’s Best Effort Policy (the “Best Effort Policy ”). IPROTOVPS will do it’s best to provide the specified Services, but cannot guarantee reaction, response and/or repair times. Any breach of this Master Agreement and/or Order Form by CUSTOMER makes this Best Effort Policy void.
3.10 IPROTOVPS’s obligations and CUSTOMER’s exclusive remedies for failure of the IPROTOVPS Services are stated in IPROTOVPS’s SLA signed by CUSTOMER and IPROTOVPS.
4.2 Initial Payment. Upon full execution of initial services preparation, CUSTOMER shall be invoiced for all Service Activation Charges. IPROTOVPS may require an Initial Payment for the first and last month’s Service Charges or IPROTOVPS may request an Initial Payment as agreed and clearly stated in an Order Form. The Initial Payment shall be due upon connection of CUSTOMER’s equipment to the Network, but in no event later than 14 days after the execution of this Agreement.
4.3 Recurring Charges. IPROTOVPS will bill CUSTOMER monthly in advance for the Services, and monthly in arrears for any additional Bandwidth/Datatraffic for the Services used above the committed Bandwidth / Datatraffic billed in the prior month, and/or extra services. “Bandwidth / Datatraffic Fees” is defined as charges for usage of Bandwidth / Datatraffic provided under this Agreement as set forth in an Order Form. Billing for monthly Service Charges will begin on the Effective Date or date of connection of the CUSTOMER equipment to the IPROTOVPS Network, whichever is earlier.
4.4 CUSTOMER reserves the right to dispute in good faith all or any portion of any invoice received from IPROTOVPS and to withhold payment of such disputed amounts, provided that CUSTOMER provides written notice of the amount of and reasons for the dispute at the time payment is withheld. IPROTOVPS must receive written notice of any dispute from CUSTOMER within fourteen (14) days after the date of the relevant invoice; otherwise, CUSTOMER shall be deemed to have waived its right to dispute such invoice. In the event of a dispute, CUSTOMER shall pay the undisputed portion of the invoiced charges pursuant to Section 4.1 above. After reviewing the disputed amount and a decision as to the disputed amount has been made in IPROTOVPS’s sole discretion, the final amount is then forwarded to the CUSTOMER and the CUSTOMER must process the payment within seven (7) business days.
4.5 Any amount not paid by CUSTOMER within fourteen (14) days after the date of the relevant invoice, absent any good faith dispute regarding the unpaid portion, will be subject to a late charge in the amount of two per cent (2,0%) per month or the maximum amount allowable by law, whichever is less. Such interest shall accrue from the day after the date on which payment is due up to and including the date on which payment is received by IPROTOVPS. This interest charge shall be payable not withstanding any and all damages which IPROTOVPS may otherwise claim in respect of CUSTOMER’s failure to make payment when due. CUSTOMER agrees to pay IPROTOVPS’s reasonable expenses, including attorney and collection agency fees, incurred by IPROTOVPS in enforcing its rights for any non payment by CUSTOMER subject to any Order Form signed by IPROTOVPS and CUSTOMER.
4.6 Unless otherwise agreed by IPROTOVPS and CUSTOMER in an Order Form, CUSTOMER is solely responsible for the payment of any local access or other telecommunications charges related to or arising out of CUSTOMER’s connection to and use of IPROTOVPS’s Network and Services. CUSTOMER is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Network and/or through other public and private networks. IPROTOVPS is not responsible or liable for performance or non-performance of such networks or their inter-connection points.
4.7 IPROTOVPS accepts payment via SWIFT transfers, Paypal and bank cards.
6.2 “Maintenance" means IPROTOVPS’s maintenance of the IPROTOVPS Network. CUSTOMER will be notified of Maintenance as set forth in this Section 6 between IPROTOVPS and CUSTOMER. Notification will take place by postings on it’s website, phone, email, or any suitable form elected by IPROTOVPS.
6.3 IPROTOVPS shall be responsible for, and shall bear all costs of, the maintenance of IPROTOVPS’s Network. When circumstances permit, IPROTOVPS agrees to provide prior notice to CUSTOMER of its Network maintenance when such maintenance is expected by IPROTOVPS to cause an interruption or degradation of the Services. IPROTOVPS reserves the right to suspend Services in order to perform maintenance, repairs, modifications or upgrades to its Network. IPROTOVPS shall endeavour to (i) keep the duration of each suspension of Services as short as practicable, and (ii) schedule each suspension, to the extent practicable, so as to minimize interference with CUSTOMER’s use of the Services. CUSTOMER agrees that the suspension, interruption, or degradation of Services pursuant to this Section 6 shall not be a breach of the Master Agreement or any Order Form.
6.4 “Network Status" means an actual status of the network, including any Network Faults and/or Maintenance.
7.2 IN NO EVENT SHALL EITHER IPROTOVPS OR CUSTOMER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE PERFORMANCE OR BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER THE MASTER AGREEMENT OR ANY ORDER FORM, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, ECONOMIC LOSS, LOST PROFITS, LOSS OF DATA, AND LOSS OF CUSTOMERS, CLIENTS, BUSINESS OPPORTUNITIES OR GOODWILL.
7.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS AND NEITHER IPROTOVPS NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS AGREEMENT OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. IPROTOVPS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. IPROTOVPS DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
7.4 NO ACTION OR PROCEEDING AGAINST IPROTOVPS MAY BE COMMENCED BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
8.2 CUSTOMER shall indemnify and hold IPROTOVPS harmless from any and all claims arising out of the content of communications transmitted via the Services by CUSTOMER or by any party to whom CUSTOMER may resell the Services.
8.3 In the event that a Party becomes aware of a claim for which it may seek to be indemnified (the “Indemnified party”), the Indemnified party shall immediately notify the other party (the “Indemnifying party ”). The Indemnifying party, at its option, may settle or compromise such claim or retain counsel and control and prosecute the defense. In no event shall the Indemnified party have the right to pay, settle, or otherwise compromise such claim without the prior written consent of the Indemnifying party, which shall not be unreasonably withheld. The Parties agree that they shall provide each other with reasonable aid and cooperation in the conduct of the defense and/or settlement of such claim as regards to any liability to a third party.
8.4 The CUSTOMER will indemnify, defend and hold harmless IPROTOVPS and its directors, officers, employees, sales representatives, affiliates, agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses (as hereinafter defined), to the extent such Losses arise (a) as a result of non-compliance by the CUSTOMER with its obligations under this Agreement; (b) from any and all claims by any of the CUSTOMER’s customers or other third party end users in connection with the Services (including, without limitation, any claims regarding content transmitted using the Services or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; “Losses” shall mean costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.
10.2 Section 10.1 shall not apply to any Confidential Information which (a) becomes publicly available other than through the recipient, (b) is independently developed by the receiving Party; (c) becomes available to the receiving Party without restriction from a third party; (d) is disclosed with the prior written consent of the disclosing Party; or (e) is required to be disclosed by a governmental or judicial law, order, rule or regulation; provided, however, that the receiving Party required to make a disclosure pursuant to this subsection (e) shall promptly inform the other Party of the requirements of such disclosure, (f) is disclosed by IPROTOVPS to a court of law during legal proceedings.
10.3 Notwithstanding Sections 10.1 and 10.2 above, either Party may disclose Confidential Information to its employees, agents, and legal, financial, and accounting advisers to the extent necessary or appropriate in connection with the negotiation and performance of the Master Agreement or an Order Form or its obtaining of financing, provided, however, that each such employee, agent or adviser is notified of the confidential nature of the Confidential Information and is subject to or agrees to be bound by similar restrictions on its use and disclosure.
11.2 Neither Party shall use any advertising, sales, promotions, or other publicity materials (including, without limitation, publicity regarding the Master Agreement or any Order Form) that includes the other Party’s name, logo, trademarks or service marks without the prior written approval of the other Party, which may be granted or withheld in that Party’s sole discretion.
11.3 IPROTOVPS reserves all rights, title and interest, including all related Intellectual Property Rights, the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by CUSTOMER or any other party relating to the Services. IPROTOVPS owns all proprietary rights (as defined in section 22(g), including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Services. CUSTOMER agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by IPROTOVPS. CUSTOMER shall be entitled to only such rights with respect to the Services as are specifically granted herein.
13.2 IPROTOVPS shall be in default under the Master Agreement, including any Order Form, in the event of IPROTOVPS’s failure to perform any of its obligations under the Master Agreement or any Order Form within sixty (60) days after receipt of written notice from CUSTOMER.
13.3 IPROTOVPS may terminate the Master Agreement, including any Order Form by written notice to CUSTOMER upon CUSTOMER’s failure to cure an event of default as required by this Section 13.
13.4 CUSTOMER may terminate the Master Agreement, including any Order Form by written notice to IPROTOVPS upon IPROTOVPS’s failure to cure an event of default as required by this Section 13.
13.5 No termination or expiration of the Master Agreement or any Order Form shall affect either Party’s rights or obligations with respect to any then existing defaults under the Master Agreement or such Order Form or the obligation to make any payment for the Services rendered prior to the date of termination or expiration. In addition to termination of the Master Agreement due to default, the non-defaulting Party may pursue any legal remedies it may have at law or in equity relating to such default, provided, however that appropriate notice and opportunity to cure has been given pursuant to this Section 13.
13.6 Effect of Termination. Upon expiration or termination of this Agreement: (a) IPROTOVPS will cease providing the Services; (b) except in the case of termination by CUSTOMER pursuant to Section 13.4, all of CUSTOMER payment obligations under this Agreement, including but not limited to monthly Service Charges through the end of the Term indicated on an Order Form will become due in full immediately; and (c) within ten (10) days, CUSTOMER will remove all of CUSTOMER Equipment and any other property from IPROTOVPS’s premises and return the Co-location Space to IPROTOVPS in the same condition as it was prior to CUSTOMER installation. If CUSTOMER does not remove such property within the ten (10) day period, IPROTOVPS, at its option and at CUSTOMER expense, may remove and store any and all such property, return such Equipment to the CUSTOMER, or dispose of such Equipment without liability for any related damages. In addition, IPROTOVPS reserves the right to hold any CUSTOMER Equipment until it has received payment in full. IPROTOVPS reserves the right to sell any CUSTOMER Equipment in case CUSTOMER does not pay the invoice within four (4) months after the invoice date.
13.7 If IPROTOVPS terminates the Master Agreement and/or any Order Form during the Initial or Renewed Term pursuant to Section 13.3 of this Master Agreement, CUSTOMER must pay any outstanding amount due within seven (7) days to IPROTOVPS and this shall not prevent or limit IPROTOVPS from pursuing any and all other available remedies against CUSTOMER.
13.8 This Master Agreement shall take it’s effect from the Effective date and act till its termination or natural expiration.
13.9 All termination notices by CUSTOMER must be sent separately for each Service to IPROTOVPS.
15.2 Loss of CUSTOMER data (bases). IPROTOVPS is not liable for damage to, or loss of any of CUSTOMER data (bases).
15.3 Damage to CUSTOMER Equipment, excluding data (bases). IPROTOVPS is not liable for damage to, or loss of any of CUSTOMER Equipment resulting from any cause, other than IPROTOVPS’s negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged CUSTOMER Equipment.
15.4 Damage to CUSTOMER Business. In no event will IPROTOVPS be liable for any incidental, punitive, indirect or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Services (except as set forth in Section 4) or any other similar claims by CUSTOMER or related to CUSTOMER’s business, even if IPROTOVPS is advised of the possibility of such damages.
15.5 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, either Party’s maximum aggregate liability to CUSTOMER related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by CUSTOMER to IPROTOVPS hereunder for the twelve (12) month period prior to the event or events giving rise to such liability.
If to CUSTOMER:
Customer Account holder email.
If to IPROTOVPS:
Email: [email protected]
or at such other address as either Party may designate from time to time in writing to the other Party.
16.2 Unless otherwise provided herein, notices shall be sent by registered or certified mail, return receipt required, or by prepaid commercial overnight delivery service, or by facsimile transmission confirmed by the receiving Party and shall be deemed served or delivered to the address when received or refused at the address for notice specified above.
Severability: All provisions contained in this Master Agreement and any Order Form shall be applied to the extent permitted by applicable law, and if any term, covenant or condition contained in the Master Agreement or any Order Form shall, to any extent, be invalid or unenforceable in any respect under the laws governing the Master Agreement or such Order Form, the remainder of the Master Agreement or the relevant Order Form shall not be affected thereby, and each term, covenant or condition thereof shall be valid and enforceable to the fullest extent permitted by law;
No Personal Liability: Each action or claim against either CUSTOMER or IPROTOVPS arising under or relating to the Master Agreement or any Order Form shall be made only against such Party as a corporation, and any liability relating thereto shall be enforceable only against the corporate assets of such Party;
Counterparts: The Master Agreement and each Order Form may be executed in counterparts (which may be originals, photocopies, or copies sent by facsimile transmission), each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
IPROTOVPS and CUSTOMER shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither Party shall use such information without permission of the Party that furnished it. As used in this paragraph, “due diligence” means the same precaution and standard of care, which that Party uses to safeguard its own proprietary data, but in no event less than reasonable care. The provisions of this Section shall survive beyond the expiration, non-renewal or termination of this Agreement.
(a) “Agreement” means this General Terms & Conditions Agreement, and any Order Form (as hereinafter defined) as well as any subsequently executed Order Form), the Support and Service Level Agreement (“SLA”), any IPROTOVPS’S Acceptable Use Policy (the “AUP”), and any other documents that are expressly incorporated/referenced herein.
(b) “Order Form” means at IPROTOVPS sole discretion, any order successfully processed through IPROTOVPS dashboard (client.iprotovps.com) and/or any additional written agreement signed between IPROTOVPS and CUSTOMER to order Services in accordance to any specific terms and conditions.
(c) “SLA” means the Support and Service Level Agreement (SLA) uploaded to iprotovps.com/terms or as specifically otherwise agreed between CUSTOMER and IPROTOVPS in any Order Form.
(d) “Services” means a connection to the Internet (IP Connectivity), and/or Content Delivery Network (CDN), and/or Cloud IPROTOVPS, and/or Cloud Storage and/or Colocation services and/or DDoS protection services and/or Equipment Rental services and/or Managed services and/or Software Licenses Rental services. (e) IPROTOVPS “Network” is defined in section 6.
(f) “Force Majeure” is defined in Section 12.
(g) “Proprietary Rights” means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, branding features, and confidential and proprietary information protected under contract or otherwise under law, and other similar rights or interests in intellectual or industrial property.
(h) “IPROTOVPS” means the IPROTOVPS company that is stated on CUSTOMER’s invoice.