GENERAL TERMS FOR SERVICES AGREEMENT
This agreement (“Agreement“) for the provision of services between GNS(A.A.Y) Network Services LTD (“Company“) and the customer that sign on the services agreement with the company (“Customer“). Each of the Company and the Customer shall be referred to as a “Party“, together, the “Parties“.
WHEREAS, Company provides storage, infrastructure and maintenance services (the “Services“) for servers, subject to the terms hereof; and WHEREAS, Customer wishes to receive the Services from the Company;
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows:
1.1. The Company will provide the Services to the Customer in accordance with and subject to the quote that signed by the customer and referred to this Agreement (hereinafter: the “Quote“) and the Services specification, attached hereto as Appendix B of this Agreement (hereinafter: the “Service Specifications“), as amended by the Company from time to time. It is hereby clarified that the Appendixes constitute an integral part of this Agreement.
1.2. Any request for an additional work may be delivered to the Company also by email or fax, or via the CRM system of the Company, and the Company will perform the work on the condition that it is listed in the Service Specifications, according to the rates specified in the Quote. In the event such a work is not included in the Service Specifications such work may be performed subject to and in accordance with a separate service agreement, all subject to the Company’s written approval.
2. CUSTOMER’S REPRESENTATIONS
2.1. The Customer represents and warrants that the content of the server for which the Services are provided (hereinafter: the “Data System“) including, and without derogating from the generality of the aforesaid, text, photos, links, illustrations, video files, advertisements (hereinafter: the “Data System Content“) and/or the services that the Customer provides to its Customers and/or to third-parties within the framework and following the use of the Services provided by the Company is solely under the Customer’s responsibility. The Customer shall have full responsibility and knowledge of the Data System Content. The Company shall not be held liable in any respect or manner for the Data System Content that the Customer or anyone acting on its behalf uploads to the Data System including content that might cause copyright infringement, offensive content and content that is prohibited in accordance with applicable law, and the Customer shall be solely liable in connection therewith.
2.2. The Customer undertakes that the Data System Content will be used solely for legal purposes and undertakes not to use the Service for the purpose of committing any illegal act. Customer acknowledges that to the extent that the Company is of the opinion, at its absolute and sole discretion, that there is a concern that the Data System is used for an illegal purpose and/or prohibited purpose and/or in violation of the legal provisions, this shall entitle the Company to terminate the Agreement subject to delivery of prior notice to the Customer (of a few hours, and subject to the availability of the Customer to receive such notice) and the Company shall be entitled to remove the Data System and terminate the Service, and the Customer shall incur all costs the Company incurs in respect of the aforesaid use and/or in respect of the termination of the Agreement and/or in respect of the removal of the Website – without derogating from any other relief the Company may seek in accordance with this Agreement and in accordance with the provisions set forth in any law.
2.3. Customer acknowledges that the Company is not held liable for performing backups or storing information that is found in the Website and to the extent that the Customer wishes to perform such backup as aforesaid the Customer shall be responsible for performing such backup in person and shall be solely responsible for performing such backup. In the event the Customer purchased backup services from the Company, it is hereby clarified that the Company shall be responsible for operating the backup software that was installed however the Company shall not be responsible, under any circumstances, for the working order of the backup (including, and without derogating from the generality of the aforesaid, to the extent that the backup was not actually performed as a result of a mechanical malfunction or a malfunction in the operating system or a communication malfunction or a recovery malfunction or any other reason).
2.4. Customer acknowledges that the communication facilities and the server farm (Smile 012, Bezeq International etc.) in Israel and overseas and in which the Customer’s Servers might be stored, are under the exclusive responsibility of the telecommunication and infrastructure providers and the facility operators and the Company will not be held liable for the manner of their operation.
2.5. Customer warrants that it shall comply with the terms of this Agreement, the General Terms and any additional policies and instructions, as may be provided by Company from time to time. “General Terms” means the general terms and conditions and any other policies, agreements, and notices which govern the Services, and under which Company provides the Services, as made available and on its websites https://gns.cloud/ and https://gns.co.il/ , or otherwise, as may be amended by the Company from time to time.
3.1. In return for the Service the Customer undertakes to pay to the Company during the Term of Agreement a monthly payment as stated in the Quote against invoice and with the addition of statutory VAT. However, to the extent that the Customer purchases additional services and/or updates the services, the Company will charge payment for the said services according to the Company’s price list as periodically updated by the Company. The Company will issue an invoice until the end of the month prior to the date of the Service. The Customer will pay the consideration on the 1st of each month in respect of that month.
3.2. If Customer will be required by applicable law to deduct or withhold any taxes, fees, duties or other amounts, however designated, from any amount payable hereunder, then the amount payable hereunder shall be increased so that after making all required deductions and withholdings (including deductions and withholdings applicable to any additional amounts payable under this section) Company receives an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer shall provide Company with copies of receipts evidencing payment of such taxes, fees, duties or other amounts.
3.3. If Customer fails to make any payment when due, Company shall have the right to take whatever action it deems appropriate or necessary, including, but not limited to the termination of this Agreement pursuant to the terms hereof, and without derogating from any other right granted to the Company in accordance with the provisions set forth in this Agreement and/or in accordance with applicable law.
THE SERVICES ARE PROVIDED “AS IS”. COMPANY DOES NOT GUARANTEE NOR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE SERVICES. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS WHICH COULD POTENTIALLY CAUSE SYSTEM FAILURE AND/OR BREAKDOWN. RELIANCE ON THE SERVICES IS AT CUSTOMER’S OWN RISK. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES, OR THE USE OR OPERATION THEREOF, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
5. LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY OR ITS AFFILIATES BE LIABLE TO CUSTOMER, (OR ANY THIRD PARTY) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE AND/OR PROFIT, COSTS OF DELAY, ANY FAILURE OF DELIVERY OR SERVICE AND/OR HARDWARE PROVISION, ANY MALFUNCTIONS IN THE DATA SYSTEM, DESTRUCTION OF SERVERS, BREAKDOWN, LOSS OF USE, LOSS OF DATE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LIABILITIES TO THIRD PARTIES ARISING FROM AND/OR RELATED TO THIS AGREEMENT, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE) AND INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY INDEMNIFICATION, SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND TO AMOUNTS ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER HEREUNDER WITH RESPECT TO THE SERVICES IN THE ONE (1) MONTH PRIOR TO THE DATE AT WHICH THE CAUSE OF ACTION AROSE. NO ACTION ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF ITS FORM, MAY BE BROUGHT BY CUSTOMER MORE THAN SIX (6) MONTH AFTER THE CAUSE OF ACTION HAS OCCURRED AND IN ANY EVENT NO LATER THAN THREE (3) MONTHS AFTER THE TERMINATION OF THIS AGREEMENT. THE FOREGOING LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.
Customer agrees to indemnify defend and hold Company, its respective officers, directors and employees, harmless from and against any claim, loss and damage judgment, award, cost and expense (including reasonable attorney’s fees) (“Claim“) that Company may incur as a result of (i) any third party claim against Company arising in connection with the Services, including but not limited to claims arising out of any acts or omissions of Customer, including claims of end users and Customers, or (ii) any and all liability and costs, arising from a breach by Customer of its obligations under this Agreement and/or in connection with the content uploaded by Customer to the Data System (as defined in Schedule A). The indemnification set forth above shall be paid by Customer to Company shall be paid as aforesaid fully in 7 days as of the date of the first written demand of the Company to that effect.
Any confidential information and/or proprietary data provided by one party (“Discloser”) to the other Party (“Recipient”), including but not limited to any know-how, commercial information and/or information regarding the security of the Data System shall be deemed “Confidential Information” of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know such information, and that is bound by written confidentiality obligations at least as strict as those contained herein. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under this Agreement.
8. INTELLECTUAL PROPERTY
All title, intellectual property and any other ownership rights, trade marks, Company’s Confidential Information in the Services, and the results of any services, including any derivative works thereof (and including without limitation any and all related methodology or process, literary works or other works of authorship, or other material in whatever form, unpatented inventions, improvements, discoveries, implementations, developments, translations and reductions to practice, including but not limited to, structural and functional information and other data, formulations, processes, methods, techniques and know-how), whether developed by Company, Customer or any third party, shall at all times remain vested in Company.
9. TERM AND TERMINATION.
9.1. The term of this Agreement will commence on the Effective Date and will continue for 12 months, unless it is terminated earlier in accordance with the provisions hereof (the “Initial Term“). Upon the expiration of the Initial Term the Agreement will automatically renewed by additional periods of 12 months each (“Extended Term“, together with the Initial Term, the “Term“).
9.2. Termination for Cause. Either Party may terminate this Agreement if the other Party breaches or is in default of any obligation hereunder, including the failure to make any payment or renew any letter of credit when due, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (90) days after receipt of written notice from the non-defaulting Party.
9.3. Termination at Will. Either Party may terminate this Agreement at will for any reason or no reason by giving a thirty (90) day written notice to the Customer.
9.4. Notwithstanding the above, if Customer or anybody on its behalf violated applicable law with respect to the Data System, Company is entitled to immediately terminate the Agreement.
9.5. Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Customer shall immediately: (i) cease all use of Services and of all Company’s intellectual property rights; and (iv) return all Company’s Confidential Information and related materials and copies thereof to Company.
9.6. Survival of Terms. The following terms shall survive any expiration or termination of this Agreement: Sections 2.3, 2.4, 4-8, 9.5-9.7, 10.
9.7. For the avoidance of doubt, to the extent that the Customer wishes to terminate the Agreement, in accordance with the above, within the period for which the Customer paid, the Customer shall not be entitled to any reimbursement.
10.1. Force Majeure. Except for the Customer’s payment obligations hereunder, in the event that a delay or failure of a Party to comply with obligation created by this Agreement is caused by a force majeure condition, that obligation shall be suspended during the continuance of the force majeure condition. For the purposes of this Agreement, the term “force majeure” shall mean any event beyond the reasonable control of the Parties, including, without limitation, fire, flood, riots, strikes, epidemics, war, embargoes, and governmental actions or decrees.
10.2. Public Announcement. Customer’s public announcement of its engagement with Company is subject to the prior written approval of the Company. It shall hereby be clarified that Company does not need Customer’s prior approval for such public announcement.
10.3. Assignment. This Agreement and the rights hereunder may not be assigned by either Party without the prior written consent of the other Party, except that Company may assign this Agreement without the written consent of Customer (a) to any affiliate or (b) to any other party in connection with (i) the sale of substantially all of the shares or assets of Company, or (ii) a merger or reorganization of Company with one or more other entities in which Company is not the surviving entity.
10.4. Relationship between the Parties. The Parties hereto are acting hereunder as independent contractors. Nothing in this Agreement be deemed to establish a joint venture, partnership, franchise, agency, or employer-employee relationship.
10.5. Non-Waiver. The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
10.6. Notices. Any notice delivered to the other party in registered mail to the aforesaid address shall be deemed to have reached its recipient in 72 hours from the time it was delivered from the post office, and if delivered in person or transmitted by email or fax – at the time of its transmission or delivery as aforesaid, on the condition that the said notice was delivered or transmitted during customary business days and hours. It is hereby clarified that the Customer is responsible for notifying the Company regarding any change of address (postal mail, email or fax number).
If to Company: If to Customer:
10.7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and supersedes all previous communications, representations, agreements, and understandings, whether oral or written, between the Parties with respect to the subject matter hereof. This Agreement may only be modified by a written instrument signed by both of the Parties hereto.
10.8. Severability. Should any provision of this Agreement be determined to be unenforceable or prohibited by applicable law, such provision shall be ineffective only to the extent of such unenforceability or prohibition without invalidating the remainder of such provision or the remaining provisions of this Agreement.
10.9. Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with the laws of the State of Israel, exclusive of its conflict-of-laws principles. Both the Customer and Company hereby irrevocably consent to the exclusive jurisdiction of the courts of Tel Aviv.
10.10. Counterparts. This Agreement may be executed in any number of counterparts (including facsimile counterparts), each of which shall be original as against the Party whose signature appears thereon, but all of which taken together shall constitute one and the same instrument.
10.11. This Agreement may be signed: (a) in a separate status, where the two signed copies shall form a single agreement between the parties; And (b) by fax, and faxing by each party shall be deemed enforceable as an original signature, (c) an online digital signature system.