PROFISEA’S TERMS OF SERVICE
These Terms of Service (the “Agreement”) apply to the engagement between Profisea Ltd. (“Profisea” or “Company”) and the individual or entity identified in any relevant purchase order/quotation/proposal referencing this Agreement (the “Customer’’ and the “Quotation“, respectively). The terms of the Quotation are hereby incorporated by reference and form an integral part of this Agreement. If there is any conflict or inconsistency between the terms of this Agreement and those of the Quotation, the terms of the Quotation shall prevail to the extent of such conflict or inconsistency. The Company and the Customer shall each be referred to as a “Party” and together as the “Parties”.
1. Resold Cloud Services
1.1. Profisea is an authorized reseller of Amazon Web Services, Inc. (“AWS”) and of Google LLC. (“Google”), which are, respectively, the owners and providers of the AWS Services and the Google Services (as such terms are defined below).
1.2. To the extent expressly identified in the Quotation, Profisea may resell to the Customer a right to access and use either: (a) the AWS Services; (b) the Google Services; or (c) both the AWS Services and the Google Services, all as expressly set out in the Quotation (the “Resold Cloud Services”). For the avoidance of doubt, the term “Resold Cloud Services” as used herein refers only to AWS Services and/or Google Services that are explicitly identified in the Quotation as being resold to the Customer under such Quotation. If the AWS Services and/or Google Services are not resold to Customer under the Quotation, all references herein to such services (or to AWS/Google, respectively), shall be void and the Agreement shall be interpreted accordingly.
1.3 Upon the execution of this Agreement, and as applicable: (a) the Company and the Customer shall cooperate in order to link the Customer’s existing Member Accounts (as defined below) with the corresponding Company’s Payer Accounts (as defined below); or (b) the Company will create new Member Accounts for the Customer and will link such Member Accounts with the corresponding Company’s Payer Accounts. “Member Accounts” means the Customer’s member accounts on the Resold Cloud Services (i.e., on the AWS Services and/or on Google Services, as applicable). “Payer Account” means the Company’s payer accounts on the Resold Cloud Services (i.e., on the AWS Services and/or the Google Services, as applicable) under which the corresponding Member Accounts are consolidated. The Customer undertakes to follow the Company’s instructions and provide the Company with all necessary information in order to facilitate the creating and linking of its Member Accounts with Profisea’s corresponding Payer Accounts (such as, the Member Accounts ID, relevant root account credentials, etc.). The Customer is solely responsible for ordering any relevant subscriptions to any Resold Cloud Services which are of interest to the Customer through its Member Accounts, and during the Term, all such Resold Cloud Services will be billed by AWS and/or Google (as applicable) to the Payer Accounts instead of directly to the Customer. The Company will charge the Customer, separately, for all such Resold Cloud Services, in accordance with the terms set out in the Quotation. Without derogating from the generality of the above, if the Customer acquires from AWS/Google cloud computing resources under long-term plans (the “Reservations“), the Customer will assume all responsibilities, obligations, and liabilities regarding those Reservations, including all related charges. The Customer represents and warrants that as of the effective date of the Quotation, all Member Accounts are free and clear of any debts, outstanding payments, or other financial obligations to Google, AWS, their affiliates or any third party. Without derogating from Customer’s indemnification obligations below, the Customer will indemnify, defend, and hold the Company and its affiliates harmless from any claims, liabilities, or expenses arising from or related to breach of such representation by Customer. “AWS Services” means the AWS’ cloud products and services that Profisea is authorized to resell from AWS and which are ordered by the Customer through its corresponding Member Account. The term “Google Services” means the Google cloud products and services that Profisea is authorized to resell from Google and which are ordered by the Customer through its corresponding Member Account.
1.4. The Member Accounts shall be owned by the Customer. The Customer is exclusively responsible for the management, administration, security and backups of such Member Accounts and the Content (as defined below) included therein, and the Company bears no liability or responsibility with respect to such Member Accounts and/or for any activity, Content, data or information within such account, regardless of whether the foregoing are authorized by the Customer or undertaken by the Customer, Customer’s End-Users (as defined below) or any third party. For the avoidance of doubt, the Payer Accounts are and shall remain owned exclusively by the Company and the Customer is not granted any right, title or interest under the Payer Accounts. “End-Users” means any person authorized by the Customer to access and use its Member Accounts on its behalf, including without limitation employees and contractors.
1.5. The Customer agrees and acknowledges that the Member Accounts and the AWS/Google log-in credentials and keys generated by AWS/Google with respect thereto are intended for the Customer’s internal use only and Customer may not sell, resell, disclose, transfer or sublicense them to any third party. The Member Accounts credentials and keys are confidential and may not be disclosed to any third party. AWS, Google and the Company are not responsible and shall not be liable for any damages that the Customer may incur as a result of compromise or loss of such credentials and/or keys. The Customer may not sublicense or resell the Resold Cloud Services purchased hereunder to any third party, or transfer or assign its rights in the Resold Cloud Services to any third party.
1.6. The Customer acknowledges that Customer’s use of the AWS Services purchased by Customer hereunder, as applicable, is subject to the terms of the applicable AWS Customer Agreement, currently available at: https://aws.amazon.com/agreement/, and any related Google’s agreement, exhibit, policy or addendum, including without limitation the Program Guide for End Customers (https://s3-us-west-2.amazonaws.com/solution-provider-program-legal-documents/AWS+Solution+Provider+Program+-+Program+Guide+for+End+Customers.pdf), Service Level Agreement (https://aws.amazon.com/legal/service-level-agreements/), Service Terms (http://aws.amazon.com/serviceterms), AWS Acceptable Use Policy (https://aws.amazon.com/aup/, AWS Data Processing Addendum (https://d1.awsstatic.com/legal/aws-dpa/aws-dpa.pdf) and Site Terms (http://aws.amazon.com/terms/), in each case as amended from time to time (collectively, “AWS Customer Agreement“). By executing the Quotation, the Customer also agrees to and accepts the AWS Customer Agreement, as applicable. The AWS Customer Agreement regulates the relationship between the Customer and AWS and the Customer acknowledges that Profisea is not a party to the AWS Customer Agreement, however the terms of the AWS Customer Agreement shall inure to the benefit of the Company. If AWS updates the AWS Customer Agreement, then the Customer, by continued use of the AWS Services, is deemed to have accepted that updated version of the AWS Customer Agreement.
1.7. The Customer acknowledges that Customer’s use of the Google Services purchased by Customer hereunder, as applicable, is subject to the terms of the applicable Google Service Specific Terms, currently available at: https://cloud.google.com/terms/service-terms, and to any related Google’s agreement, exhibit, policy or addendum, including without limitation the Google Service Level Agreement (https://cloud.google.com/terms/sla), Google Cloud Acceptable Use Policy (https://cloud.google.com/terms/aup), Google’s Data Processing Addendum (https://cloud.google.com/terms/data-processing-addendum), and Google’s Technical Support Services Guidelines (https://cloud.google.com/terms/tssg/), in each case as amended from time to time (collectively, “Google Customer Agreement“). By executing the Quotation, the Customer also agrees to and accepts the Google Customer Agreement, as applicable. The Google Customer Agreement regulates the relationship between the Customer and Google and the Customer acknowledges that Profisea is not a party to the Google Customer Agreement, however the terms of the Google Customer Agreement shall inure to the benefit of the Company. If Google updates the Google Customer Agreement, then the Customer, by continued use of the Google Services, is deemed to have accepted that updated version of the Google Customer Agreement.
1.8. The Customer acknowledges and agrees that: (a) Profisea is only the reseller of the Resold Cloud Services and not the provider of the Resold Cloud Services, and therefore Profisea is only responsible, subject to the terms herein, for handling the payments for the Resold Cloud Services to AWS/Google, on the Customer’s behalf, and not for any other aspect of providing the Resold Cloud Services; (b) the Resold Cloud Services are licensed by AWS/Google and AWS/Google will be solely responsible for providing, maintaining, supporting and hosting all Resold Cloud Services and Profisea shall have no responsibility or liability for the Resold Cloud Services, or any act or omission of AWS/Google. For the avoidance of doubt, the Company is not an agent or representative of AWS/Google and is not the creator, manufacturer, distributor or licensor of the Resold Cloud Services; (c) Customer is responsible for managing access rights to its Member Accounts and for using the Resold Cloud Services in a manner that provides security and redundancy, including the implementation of access controls, encryption and backup and for any act or omission of the Customer and/or anyone on its behalf in connection with the Member Accounts; (d) in purchasing the Resold Cloud Services, Customer is relying on AWS’/Google’s documentation and publications only regarding such Resold Cloud Services and not on any statements provided by the Company; and (e) AWS/Google have the right to directly communicate and interact with the Customer without Profisea’s participation, and terminate Customer’s access and use of the Resold Cloud Services in accordance with the terms of the AWS Customer Agreement and the Google Customer Agreement . The Customer represents and warrants that it shall comply with all applicable laws in performance of its obligations hereunder and its use of the Resold Cloud Services. Customer consents to Company sharing any data and/or other information supplied by the Customer, with Google/AWS, in order to enable Google/AWS to engage with the Customer, distribute notifications, offer updates, perform customer service and satisfaction surveys, and deliver technical support related to the Resold Cloud Services.
1.9. PROFISEA IS NOT RESPONSIBLE FOR ANY ERRORS OR FAILURE OF THE RESOLD CLOUD SERVICES, AND BEARS NO LIABILITY OR RESPONSIBILITY FOR THE RESOLD CLOUD SERVICES (DIRECT OR VIA ANY INDEMNITY), INCLUDING FOR UNAUTHORIZED ACCESS, CONTENT OR DATA LOSS, AVAILABILITY, AND THE PERFORMANCE OR FUNCTIONALITY OF THE RESOLD CLOUD SERVICES, OR ANY DAMAGES INCURRED BY THE CUSTOMER OR BY ANY THIRD PARTY IN CONNECTION WITH THE RESOLD CLOUD SERVICES.
1.10. The Customer represents and warrants that any content, including without limitation data, information, software, text, audio, video or images that the Customer or any End User uploads to its Member Accounts or otherwise provides to AWS/Google for processing, storage or hosting in connection with the Member Accounts and results that Customer or any End User derive from the Resold Cloud Services (collectively, the “Content”), uploaded to the Member Accounts or otherwise used or generated in connection with the Resold Cloud Services complies with all applicable laws, the Resold Cloud Services and any applicable policy of AWS/Google, and does not infringe any right of any third party. The Content and use thereof are the Customer’s sole responsibility and risk. As between the Parties, the Customer shall remain at all times the owner of the Content.
1.11. The Customer is solely responsible for End Users’ use of the Content, Member Accounts and the Resold Cloud Services. The Customer will ensure that all End Users comply with Customer’s obligations under this Agreement, and any act or omission of an End-User shall be deemed that of the Customer. If Customer becomes aware of any violation of this Agreement caused by an End User, Customer will immediately suspend access to the Content and the Resold Cloud Services by such End User and notify the Company. The Customer shall use commercially reasonable efforts to prevent unauthorized use of the Resold Cloud Services and to terminate any unauthorized use, and shall promptly notify Google/AWS of any unauthorized use of, or access to the Resold Cloud Services of which Customer becomes aware.
1.12. The Customer represents that it has reviewed the AWS Customer Agreement and the Google Customer Agreement (as applicable) carefully, including any country specific terms, as it defines, inter-alia, the Resold Cloud Services warranties (including with respect to maintenance or support, as applicable), their specifications and AWS’/Google’s contact details for any questions or requests. The Customer acknowledges and agrees that AWS/Google can refuse, in its sole discretion, to make any Resold Cloud Services available to it and that Profisea has no control over, or liability in relation to, any such refusal. In addition, Customer acknowledges that AWS/Google may modify, update, cease to provide, or supplement the Resold Cloud Services (including without limitation any service levels, APIs or features included therein), and Profisea has no control of, and no liability in relation to, any such modification, update, cessation or supplementation. The Customer acknowledge and agrees that Google/AWS may immediately suspend the Resold Cloud Services and/or Customer’s access to any Content therein, including without limitation due to emergency security issues. As such, Customer agrees to approach AWS/Google for satisfaction of any and all license, support and warranty claims, rights or obligations related to the Resold Cloud Services.
1.13. The Customer’s relationship and dealings with providers of any third-party offerings that interoperate with the Resold Cloud Services or that are used by it in connection with the Resold Cloud Services shall in each case be governed by separate agreements between the Customer and the providers of such offerings and shall be outside the scope of this Agreement.
1.14. Customer is entitled to claim service credits from AWS/Google via Profisea, acting as agent for Customer in its capacity as AWS’/Google’s reseller to Customer for failures of the applicable Resold Cloud Services, in accordance with the published service-level agreements which forms part of the AWS Customer Agreement and the Google Customer Agreement, as applicable.. Customer must notify Profisea of any service-level requests by the end of the next month after which the service incident occurred. Profisea will make a claim on behalf of the Customer and will notify Customer of any credits. The Company may charge additional fees for submitting and/or handling such claim, notified to Customer in advance. To the extent that the service credits confirmed by AWS/Google will apply to the fees billed to the Company under the Payer Accounts, and the Company actually receives a corresponding credit or reduction in its fee, the Company will reduce the applicable Fees accordingly on the following invoice. Profisea accepts no liability to Customer in the event that AWS/Google rejects any such service-level request or fails to apply any confirmed service credits to the fees billed to the Company.
1.15. In order to enable the Company to provide billing and administration services in connection with the Members Accounts, the Company may access and process certain information relating to the Customer from the Member Accounts, such as names, contact details and billing information. The Company may also collect and process certain metadata, identifiers and usage statistics and analytics relating to use of the Resold Cloud Services and Member Accounts, as necessary for the performance of this Agreement, to detect fraud, abuse or violations of this Agreement, or as otherwise required by applicable law.
2. Uniskai.
2.1. To the extent expressly identified in the Quotation, the Company may resell to the Customer a right to access and use a third party online console for monitoring and management of the Resold Cloud Services (“Uniskai”). The Company is an authorized reseller of Uniskai, which is not provided, maintained, supported or hosted by the Company.
2.2. As applicable, the Customer’s use and access of Uniskai is subject to acceptance of the Uniskai Terms, currently available at: https://profisealabs.com/terms/, and as amended from time to time (the “Uniskai Terms”). By executing the Quotation, the Customer also accepts the Uniskai Terms, as applicable. The Uniskai Terms, the AWS Customer Agreement and the Google Customer Agreement shall be collectively referred to hereunder as the “Third Party Agreements”.
2.3. The Company bears no liability or responsibility with regard to the Customer’s use of Uniskai, including without limitation their integration and interoperability with other Customer’s systems.
3. Complementary Services.
3.1. During the Term, Profisea may provide to the Customer additional professional services, as may be explicitly set forth in the Quotation (collectively, “Complementary Services”).
3.2. Unless expressly stipulated in the Quotation, Profisea has no obligation to provide support, maintenance, training or other professional services in connection with the Resold Cloud Services or otherwise. Except as expressly stated in the Quotation, the Company shall not be obligated to provide any additional services, and such will require the execution of a separate agreement between the Company and Customer.
4. Prohibited Uses.
Neither the Customer nor any End User will use Resold Cloud Services or Uniskai in any manner or for any purpose other than as expressly permitted by the applicable Third-Party Agreements. Except as explicitly permitted in the applicable Third Party Agreements , neither Customer nor any End User will, or will attempt to, or allow any third party, to (a) modify, distribute, alter, or otherwise create derivative works of any content included in the Resold Cloud Services and/or Uniskai; (b) reverse engineer, disassemble, derive the source code, or decompile the Resold Cloud Services and/or Uniskai, (c) access or use the Resold Cloud Services and/or Uniskai in a way intended to avoid incurring fees or exceeding usage limits or quotas, including without limitation by creating multiple applications, accounts, or projects to mimic a single application, account, or project, (d) resell or sublicense the its right to use and access Resold Cloud Services and/or Uniskai to any third party; (e) use the Google Services to operate or facilitate any telecommunications services or connect with any application that enables Customer’s end users to make or receive calls from any public switched telephone network, unless otherwise specified in the Google Customer Agreement; and (f) access or use the Resold Cloud Services: (i) in order to create, transmit, process, or store Content which is subject to applicable export restrictions; (ii) on behalf of, or for the benefit of, any entity or individual prohibited by law from using the Resold Cloud Services; and (iii) To transmit, store, or process Protected Health Information as defined by HIPAA, unless a HIPAA BAA is executed by Customer and Google/AWS, as applicable. The Customer is prohibited from disclosing the results of any comparative testing, benchmarking, or evaluation (collectively, “Tests“) of the Google Services, whether directly or through a third party, unless such disclosure includes all relevant information needed for Google or a third party to replicate the Test. If the Customer performs, or directs a third party to perform, a Test of the Google Services and discloses the results, Google (or its designated third party) may then perform Tests on the Customer’s products or services. Google may share the results of any such Test, including all information necessary for the Customer or a third party to replicate the Test.
5. Consideration
5.1. During the Term (as defined below), the Customer shall pay to the Company the fees set forth in the Quotation with respect to, as applicable, the Resold Cloud Services, Uniskai, and/or the Complementary Services (“Fees”), in accordance with the payment terms set forth therein. All Fees hereunder will be paid without setoff or counterclaim and without any deduction or withholding. The Company may change any Fees at any time by giving the Customer 30 days’ prior written notice.
5.2. The Customer acknowledges that the Fees for the Resold Cloud Services are based on fees and costs charged by AWS and/or Google (as applicable), which may be modified from time to time by AWS/Google, at their sole discretion, subject to the terms and conditions of the AWS Customer Agreement and the Google Customer Agreement. Profisea will bill the Customer in accordance with the fees charged by AWS and/or the fees charged by Google, as aforesaid.
5.3. Except as expressly set forth in the Quotation, all Fees due hereunder shall be paid net seven (7) days after receipt of an invoice by the Customer. Any amounts not paid when due hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. All taxes, withholdings and duties of any kind payable hereunder, other than taxes based on Company’s net income, shall be borne and paid by Customer.
5.4. Without limiting any other rights or remedies available to the Company under this Agreement or applicable law, in the event of non-payment of any due Fees for more than 3 days following Company’s notice of the issue to Customer, the Company may, at its sole discretion and without prior notice, suspend, restrict, or terminate the Customer’s access to the Resold Cloud Services and/or close Customer’s Member Account, and refer any outstanding amounts to a third-party collection agency or legal counsel for collection, in which event the Customer shall be responsible for any associated costs, including but not limited to collection fees, legal fees, and interest at the maximum rate permitted by law. The Company shall not be liable for any loss or damage incurred by the Customer due to the enforcement of this provision.
5.5 If the Company becomes aware or reasonably suspects that the Customer is unable or will soon be unable to pay some or all invoices issued or to be issued under this Agreement, Company may, with a prior notification of 3 days to the Customer, suspend all Resold Cloud Services provided hereunder, until the Customer offers assurance satisfactory to the Company of its financial ability to pay any outstanding or future invoices.
6. Representations and Warranties
6.1. Each Party represents that: (i) it has the full right, power and authority to enter into this Agreement; and (ii) this Agreement will not constitute a default under or conflict with any agreement or other instrument to which it is a party to or by which it is bound and, when executed, shall constitute valid and legally binding obligation of such Party enforceable against it.
6.2. The Customer represents and warrants that: (i) the Customer or any party that owns or controls Customer, or any End Users, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or operates, including, but not limited to, the lists maintained by the United Nations Security Council and the U.S. Government; (ii) all Customer’s activities and operations related to the engagement hereunder will conform with all applicable laws and regulations; (iii) Customer shall avoid at all times any deceptive, misleading, or unethical practices which are or might be detrimental to the Company or to any third party; (iv) Customer has obtained any and all licenses, permits and other authorizations needed to fulfill its obligations under this Agreement; (v) Customer will to use the Resold Cloud Services and Uniskai in accordance with the applicable Third Party Agreements ; and (vi) Customer shall not resell, transfer or sublicense any rights granted to it hereunder to any third party.
7. Intellectual Property.
It is hereby clarified that any intellectual property rights developed, conceived, or acquired by the Company or on its behalf in connection with the performance of this Agreement, whether or not developed per the Customer’s request and/or in the framework of the provision of any Complementary Services by the Company, shall be owned exclusively by the Company. For the avoidance of doubt, the Customer is not granted with any right or interest under any Company’s intellectual property rights pursuant to this Agreement. If Customer contacts Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Resold Cloud Services, Uniskai or the Complementary Services (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company and its affiliates shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into their other current or future products or services, without the Customer’s approval and without further compensation to the Customer, and the Customer waives on behalf of its personnel any moral rights they may have in such Feedback. AWS and Google or their licensors retain all right, title, and interest in and to the AWS Services and the Google Services, respectively, including any and all intellectual property rights related thereto..
8. Disclaimer.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE RESOLD CLOUD SERVICES, COMPLEMENTARY SERVICES AND UNISKAI ARE PROVIDED ON AN “AS-IS” BASIS AND PROFISEA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO RESOLD CLOUD SERVICES AND/OR UNISKAI AND/OR ANY COMPLEMENTARY SERVICES. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, PROFISEA DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE.
9. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS AFFILIATES, LICENSORS, PERSONNEL MEMBERS, SHAREHOLDERS, DIRECTORS, AND AGENTS (COLLECTIVELY “RELEASED FIRST PARTIES”), AND EXCEPT AS EXPLICITLY STIPULATED IN THE APPLICABLE THIRD PARTY AGREEMENTS, AWS, GOOGLE, PROFISEA LABS LTD. AND ANY OF THEIR AFFILIATES, LICENSORS, PERSONNEL MEMBERS, SHAREHOLDERS, DIRECTORS, AND AGENTS (COLLECTIVELY, “RELEASED THIRD PARTIES”) WILL NOT BE LIABLE TO CUSTOMER, UNDER ANY LEGAL THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, IN CONNECTION WITH THIS AGREEMENT, RESOLD CLOUD SERVICES AND/OR UNISKAI AND/OR ANY COMPLEMENTARY SERVICES, EVEN IF THE RELEASED FIRST PARTIES OR THE RELEASED THIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE FOREGOING, THE RELEASED FIRST PARTIES, AND EXCEPT AS EXPLICITLY STIPULATED IN THE APPLICABLE THIRD PARTY AGREEMENTS, THE RELEASED THIRD PARTIES, SHALL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH CUSTOMER’S INABILITY TO USE THE RESOLD CLOUD SERVICES AND/OR UNISKAI AND/OR ANY COMPLEMENTARY SERVICES, INCLUDING DUE TO TERMINATION OF THIS AGREEMENT OR ANY THIRD PARTY AGREEMENTS, CESSATION OF THE RESPECTIVE SERVICES AND/OR ANY DOWNTIME OF THE RESPECTIVE SERVICES, AND/OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES AND/OR ANY UNAUTHORIZED ACCESS TO OR LOSS OF CONTENT.
WITHOUT DEROGATING FROM THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE RELEASED FIRST PARTIES ’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY THE CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT DURING THE TWO (2) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FORGOING LIMITATION IS CUMULATIVE AND NOT PER INCIDENT. THE LIMITATIONS IN THIS SECTION 9 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Confidentiality.
Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, a recipient Party may disclose the other Party’s Confidential Information to its officers, employees, services providers or advisors solely on a “need to know” basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of its disclosing Party.
11. Export Compliance.
The Resold Cloud Services, Uniskai and the Complementary Services, may be subject to United States and other jurisdictions’ export control and economic sanctions laws and other foreign trade controls. The Customer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. The Customer shall not use the Resold Cloud Services, Uniskai and the Complementary Services or make them available to any person in an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Crimea Region of Ukraine, Russia, Lebanon or any other country/region that becomes an embargoed nation. The Customer agrees to defend and indemnify Company for any breach of this provision.
12. Indemnification.
The Customer agrees to defend, indemnify and hold harmless Profisea, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) incurred in connection with this Agreement, arising as a result of Customer’s or End Users’ violation of applicable law, breach of this Agreement or any Third Party Agreements, or Customer’s or End Users’ gross negligence or willful misconduct.
13. Publicity.
The Customer agrees that the Company and its affiliates may identify the Customer as a reference customer and use the Customer’s name, logo, and related trademarks or service marks in the Company’s marketing and promotional materials, including the Company’s website.
14. Termination.
The Agreement shall be in effect as of the effective date of the Quotation and until terminated in accordance with this Section 14 (the “Term”). For the avoidance of doubt, the termination of this Agreement will result in the automatic termination of the Quotation.
14.1. Each Party may terminate this Agreement for convenience by providing the other Party with a prior written notice of 21 days.
14.2. The Company may terminate this Agreement, including the Customer’s and/or End Users’ access to its Member Accounts, with immediate effect if: (i) the Customer becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared; (ii) any of the Third Party Agreements have expired or been terminated, for any reason; (iii) Profisea ceases to serve as an authorized reseller of AWS, Google and/or Uniskai; (iv) the Customer breaches this Agreement and such breach remains uncured fourteen (14) days after having received written notice thereof; or (v) the Customer has failed to pay the Fees due hereunder by more than seven (7) days.
14.3. Without derogating from the generality of the foregoing, Profisea may by written notice terminate, limit or suspend Customer’s or End Users’ right to access all or some of the Resold Cloud Services purchased hereunder and/or Member Accounts and/or Uniskai in the event that: (i) AWS suspends the AWS Services or Google suspends the Google Services; (ii) Customer’s or End Users’ use of the Resold Cloud Services is deemed, at the Company’s sole discretion, fraudulent, poses a security risk, could adversely impact Company’s or AWS’s/Google’s systems or the Resold Cloud Services; and/or (iii) Customer’s failure to pay Profisea any Fees for more than seven (7) days following their due date. Following termination or suspension of the Member Accounts, the Customer may lose all access to the Member Accounts and the Content included therein, and fully assumes any liability, responsibility and risk with respect to such loss. For the avoidance of doubt, the Customer shall remain responsible for payment to the Company of all Fees and charges due hereunder for the Resold Cloud Services during the period of such limitation or suspension and, if applicable, the Customer will not be entitled to any AWS/Google service credits during such period.
14.4. Upon expiration or termination of this Agreement for any reason: (a) the link between the Member Accounts and their corresponding Payer Accounts shall be disconnected and Customer’s eligibility to access and use any Resold Cloud Services and/or Uniskai will immediately expire and be revoked; (b) Customer will be solely responsible to acquire any necessary rights for any further use of Resold Cloud Services and/or Uniskai directly with the providers or other resellers of such services; (c) the Company explicitly disclaims any liability for any damages that the Customer may incur as a result of loss of access to its Member Accounts and/or any the Resold Cloud Services and/or Uniskai, including without limitation with respect to loss of business, loss of Content and migration costs, and the Customer hereby discharges the Company from any and all liabilities and claims in this respect; (d) the Customer shall remain fully liable for payment of all Fees accrued prior to the termination date, which will become immediately payable upon such termination; (e) the Customer shall be solely responsible, and shall take all actions necessary, in order to update or replace the log-in credentials related to its Member Accounts; and (f) such termination or expiration shall not alter or reduce the Customer’s obligations under any existing Reservations. Furthermore, upon termination of this Agreement: (i) the Company will immediately cease the provision of any Complementary Services; and (ii) any provisions which should survive by their nature the termination of this Agreement shall continue to remain in full force and effect following such termination.
15. Force Majeure.
A Party directly affected by a Force Majeure Event, will be temporarily excused from the performance of its contractual obligations hereunder (except any payment obligations) provided that it will make reasonable efforts to mitigate the impact of the event and resume performance of its obligations as soon as reasonably practicable. “Force Majeure Event” means circumstances beyond the Parties reasonable control which are not foreseeable, such as acts of government, riots, terrorism, fires, floods, strikes, lock outs and epidemics.
16. Changes to this Agreement. Profisea may, at its sole discretion, change this Agreement from time to time. In case of any material change, Profisea will make reasonable efforts to send the Customer an e-mail regarding such change. Such material changes will take effect seven (7) days after such notice was sent via e-mail. The Customer’s continued use of the Resold Cloud Services, Uniskai or Complementary Services following such date shall constitute its agreement to the revised Agreement. In the event that the Agreement should be amended per AWS’/Google’s requirement or to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
17. Miscellaneous.
This Agreement shall be construed and governed in accordance with the laws of the State of Israel (except for conflict of law provisions) and the competent courts of the Tel Aviv-Jaffa, Israel shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement and the Quotation represent the complete agreement between the Parties concerning the subject matter hereof supersedes any prior written or oral agreements. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision this Agreement is held to be unenforceable, such provision shall be reformed only to the maximum extent necessary to make it enforceable. The Customer may not assign its rights or obligations under this Agreement without the prior written consent of the Company. The Company may freely assign its rights or obligations under this Agreement without the Customer’s consent. The Customer agrees and acknowledges that AWS and Google shall be a third party beneficiary of this Quotation and the Terms of Service and may exercise its rights under this Quotation and the Terms of Service and the AWS Customer Agreement and the Google Customer Agreement.
BY EXECUTING THE QUOTATION, THE CUSTOMER WARRANTS THAT THE QUOTATION HAS BEEN EXECUTED BY ITS DULY AUTHORIZED REPRESENTATIVE, AND AGREES TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF THE QUOTATION AND THIS AGREEMENT.
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