3DS OUTSCALE agrees to provide the Services stated in the Order as long as You respect your obligations. 3DS OUTSCALE may modify Services from time to time to optimize the performance of the Services.
You agree to do each of the following:
Comply with applicable law and the 3DS OUTSCALE Cloud Acceptable Use Policy.
Pay when fees for the Services are due.
Use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to or from, or stored on, the 3DS OUTSCALE Services you use.
Cooperate with 3DS OUTSCALE’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement.
Keep your billing contact and other account information up to date.
Immediately notify 3DS OUTSCALE of any unauthorized use of your account or any other breach of security.
In the event of a dispute between us regarding the interpretation of applicable law or the AUP, 3DS OUTSCALE’s reasonable determination shall control.
Mutual Obligation Regarding Confidential Information
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
To our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
To law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
Data and Ownership of Intellectual Property
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property.
Any intellectual property developed by 3DS OUTSCALE during the performance of the Services shall belong to 3DS OUTSCALE unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
Neither party may use the other party’s name or trademark without the other party’s prior written consent.
You agree to maintain a current backup copy of all content hosted by 3DS OUTSCALE notwithstanding any agreement by 3DS OUTSCALE to provide backup services.
The initial service term of the Agreement shall begin on the date that 3DS OUTSCALE activates the Customer’s account (the ‘Service Commencement Date’) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the ‘Initial Term’). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms having the same number of full calendar months as the Initial Term (each a ‘Renewal Term’) unless 3DS OUTSCALE or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the ‘Term.’
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, beginning on the Service Commencement Date. 3DS OUTSCALE may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes 3DS OUTSCALE to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise, 3DS OUTSCALE will invoice Customer via electronic mail to the Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
A customer is responsible for providing 3DS OUTSCALE with changes to billing information (such as credit card expiration, change in billing address). At its option, 3DS OUTSCALE may accrue charges to be made to a credit/debit card until such charges exceed $10.00. 3DS OUTSCALE may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. 3DS OUTSCALE may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay 3DS OUTSCALE’s reasonable reinstatement fee following a suspension of service for non-payment and to pay 3DS OUTSCALE’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees, and court costs.
3DS OUTSCALE may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty-five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event 3DS OUTSCALE terminates the Agreement for Customer’s breach of the Agreement, or Customer terminates the service other than for 3DS OUTSCALE’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law.
Customer agrees to indemnify and hold harmless 3DS OUTSCALE, 3DS OUTSCALE’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney’s fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log in information, regardless of whether such person has been authorized to use the services by Customer.
Disclaimer of Warranties
OUTSCALE DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. 3DS OUTSCALE has no obligation to provide security other than as stated in this Agreement.
You are solely responsible for the suitability of the service chosen.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUTSCALE DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN ‘AS IS’ BASIS.
Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF OUTSCALE AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from 3DS OUTSCALE’s negligence, the maximum aggregate monetary liability of 3DS OUTSCALE and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
3DS OUTSCALE shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond 3DS OUTSCALE control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Independence of the Parties
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be an agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
Amendment & Notifications
This Agreement may be amended only by a formal written agreement, including electronic mail, signed by both parties.
The terms on Customer’s purchase order or other business forms are not binding on 3DS OUTSCALE unless they are expressly incorporated into a formal written agreement signed by both parties.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
There are no third-party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.
Transfer & Assignations
Customer may not transfer the Agreement without 3DS OUTSCALE’s prior written consent. 3DS OUTSCALE’s approval for assignment is contingent on the assignee meeting 3DS OUTSCALE’s approval criteria. 3DS OUTSCALE may assign the Agreement in whole or in part.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
Conflict of Terms
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, and the Acceptable Use Policy.
If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement.