By executing a Sales Order (as defined below) that references these Virtuozzo General Terms And Conditions ("GTCs") with Virtuozzo International GmbH, Vordergasse 59, 8200 Schaffhausen, Switzerland or any of its affiliates as identified in the Sales Order ("Virtuozzo"), the entity identified in such Sales Order ("Customer") (each of Virtuozzo and Customer, a "Party", and collectively, the "Parties") agrees to these GTCs, which together with any other documents incorporated by reference into such Sales Order and/or these GTCs, will exclusively govern such Sales Order (collectively "Agreement").
1. DEFINITIONS. Certain capitalized terms, if not otherwise defined, shall have the meanings set forth below in this Clause 1.
1.1 "Affiliate(s)" means any corporation, partnership or other entity that is under the direct or indirect control of the applicable Party or its respective successors and assigns. For purposes of the foregoing, "control" shall exist whenever there is an ownership, profits, voting or similar interest (including any right or option to obtain such an interest) representing at least 51% of the total interests of the pertinent entity then outstanding.
1.2 "Authorized User" shall mean Customer’s employees and other individuals who are permitted to use the Virtuozzo Products as specified in the applicable Sales Order.
1.3 "Business Days" means a day on which banks are open for business in Zurich, Switzerland and which is not a Saturday, Sunday or public holiday in Zurich.
1.4 "Confidential Information" means structural information about the architecture of the Virtuozzo Products and any related information; any material or information that a Party considers confidential and that relates to the Party’s past, present and future research, development, business activities, products, software, services, technical knowledge, designs, methodologies, business plans or forecasts, finances, pricing, marketing plans, customers, prospects or other affairs and has not been explicitly identified as "public" or "non-confidential" or would be understood to be confidential by a reasonable person under the circumstances. Confidential Information does not include information (i) previously known to the receiving Party, before it was received from the disclosing Party without an obligation not to disclose such information, (ii) independently developed by the receiving Party without use of Confidential Information, (iii) acquired by the receiving Party from a third party that was not under an obligation to the disclosing Party not to disclose such information, or (iv) that is or becomes publicly available through no breach of this Agreement by the receiving Party.
1.5 "Documentation" shall mean Virtuozzo’s user manuals, technical manuals and/or related documentation relating to a Virtuozzo Product that Virtuozzo makes available to Customer including by the means of publishing such manuals and/or related documentation on Virtuozzo’s internet resources.
1.6 "EULA" means applicable Virtuozzo Product End User License Agreement that any Authorised User or end user of the Virtuozzo Product must agree to in order to access and use the applicable Virtuozzo Product. Effective version of EULA can be found at: https://www.virtuozzo.com/legal.html, and may be amended, supplemented, or modified by Virtuozzo from time to time.
1.7 "Intellectual Property" means all rights, title, and interest in and to the Virtuozzo Product or any part of it, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and all other types of intellectual property.
1.8 "License Keys" are the serial numbers, provided by Virtuozzo, required to activate a Virtuozzo Product on Customer’s system. The validity of a license key is directly connected to the granted use right in the respective Virtuozzo Product. If the use right, expires, is waived or terminated for any reason, the respective License Key will be terminated, rendering the Virtuozzo Product unusable immediately.
1.9 "Personnel" means any individual that Virtuozzo currently employs as an employee or independent contractor and with which Customer comes into contact in relation to this Agreement.
1.10 "Sales Order" means an order in writing for purchase of Virtuozzo Products concluded between Virtuozzo and Customer.
1.11 "Software" shall mean the executable, object code version of Virtuozzo’s proprietary application software licensed to Customer as specifically identified in a Sales Order.
1.12 "Term" shall mean the period that this Agreement remains in force and effect in accordance with Clause 11.
1.13 "Territory" shall mean the territory specified in the applicable Sales Order, if a Sales Order does not specify the territory then it shall be deemed to be worldwide.
1.14 "Virtuozzo Products" shall mean the Software, the Support Services (as outlined in the Sales Order), and/or other products or services specified in a Sales Order, along with all applicable Documentation.
2.1 Customer may request to purchase Virtuozzo Products by executing a Sales Order, and after the execution of the Sales Order through the KA System (as defined in Clause 5 herein below), if Customer is provided with an access to KA System. The Sales Order shall only be deemed to be accepted by Virtuozzo when Virtuozzo signs the Sales Order or issue a written acceptance of the Sales Order. Virtuozzo may accept or decline any Sales Order in its own discretion.
2.2 Each Agreement shall govern a single Sales Order that forms part of it and shall constitute a distinct contract independent of any other Sales Order and Agreement between Customer and Virtuozzo.
2.3 Any quotation given by Virtuozzo for Virtuozzo Products shall not constitute an offer, and is only valid for the period specified in quotation (or if no such period is specified, twenty (20) business days from the date of issue).
2.4 Any documents or terms issued by Customer of which Customer seeks to impose or incorporate, including any purchase order, shall be for Customer’s internal administrative purposes only and, regardless of what such documents may state otherwise, will have no contractual force or effect on Virtuozzo and shall not operate to govern Parties’ relationship or modify Virtuozzo’s Agreement with Customer.
2.5 Customer acknowledges and understands that these GTCs do not, absent execution of a Sales Order, impose any obligation upon Virtuozzo to provide any license, access or services. In the event of a conflict between these GTCs and any Sales Order, these GTCs shall govern unless the provisions of the relevant Sales Order explicitly state that the particular terms of that Sales Order shall govern. Customer shall assist and cooperate with Virtuozzo whenever reasonably necessary including by performing Customer’s responsibilities as set forth on any Sales Order. Virtuozzo’ performance hereunder is dependent on Customer’s timely and effective performance of Customer’s responsibilities.
3.1 License Grant. Subject to the license terms and restrictions set forth in a Sales Order and the restrictions in Clause 3.2 below, Virtuozzo grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to allow Authorized Users in the Territory to use the Virtuozzo Products as specified in such Sales Order on physical or virtual machines owned or managed by Customer and its Affiliates during the Term which is specified in such Sales Order.
3.2 Prohibited Uses. Customer shall not use the Virtuozzo Products for any purposes beyond the scope of the EULA and licenses granted in this Agreement and the applicable Sales Order. Customer shall require each Authorised User to accept the EULA, which may be embedded in the Virtuozzo Product, prior to granting them access to the Virtuozzo Product. Virtuozzo reserves the right to revoke the license for any Authorised User who does not comply with the EULA. Customer shall provide documented evidence of such acceptance to Virtuozzo in writing upon first request. Without limiting the generality of the foregoing, Customer shall not, unless specifically allowed in the applicable Sales Order or except with the prior written consent of Virtuozzo:
(i) market or distribute the Virtuozzo Products;
(ii) assign (except as permitted by Clause 12.4 herein), sublicense (except as permitted in the applicable Sales Order for providing Application Service Provider ("ASP") and/or hosting services to Customer’s, and Customer’s Affiliates’, clients and customers), sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under the licenses granted;
(iii) modify or create any derivative works of the Virtuozzo Products (or any component thereof);
(iv) combine or integrate the Virtuozzo Products with hardware, software or technology not provided to Customer by Virtuozzo hereunder; or
(v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Virtuozzo Products are compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code.
3.3 Compliance with Laws. Customer shall ensure that its use of the Virtuozzo Products complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the Parties or the Virtuozzo Products are subject to, including, without limitation, by means of obtaining any permits, licenses and/or approvals required with respect to export regulations promulgated by the Bureau of Export Administration or any other agency or department of the federal government of the United States of America, Switzerland or Japan, or any other competent authority. Customer acknowledges that Virtuozzo makes no representation or warranty that the Virtuozzo Products may be exported without Customer first affirming appropriate licenses or permits under applicable law, or that any such license or permit has been, shall be or can be obtained. Customer herewith represents and warrants that Customer and its Authorized Users are not subject to any limitations of sanctions regulations (US, EU and any other applicable regulations).
3.4 Proprietary Notices. Customer shall duplicate all proprietary notices and legends of Virtuozzo and its suppliers or licensors upon any and all copies of the Virtuozzo Products made by Customer. Customer shall not remove, alter or obscure any such proprietary notice or legend.
3.5 Monitoring. Customer understands and acknowledges that Virtuozzo may monitor the operation and usage of the Virtuozzo Products through a reporting function in the Software. Customer agrees to facilitate such monitoring by ensuring that all firewall ports are open and to notify Virtuozzo if there are any operational issues that could prevent remote monitoring. Virtuozzo has the right to use, and Customer warrants that it has obtained all necessary consents and licenses for such use, any and all data and information related to Customer’s use of the Virtuozzo Products for any lawful purpose including, without limitation, invoicing, statistical analysis, benchmarking and research purposes.
4.1 Fees Payable. Customer agrees to pay the amounts specified in Virtuozzo invoice based on the Sales Order, monitoring data and KA System (as defined in Clause 5 herein below) account data, provided that billing shall be based on the actual number of running virtual machines. In case of controversy between the Sales Order, monitoring data and KA System data, for the purpose of invoicing information related to the quantity of purchased/generated Virtuozzo Products provided by monitoring and KA System shall prevail. If no payment terms are specified in the applicable Sales Order, fees and other charges shall be due and payable by the Customer within thirty (30) calendar days of the date of Virtuozzo’ invoice. Virtuozzo may in its own discretion request Customer to pay an advance payment for Virtuozzo Products and set forth amounts of advance payments in the Sales Order. Virtuozzo does not refund fees paid by Customer, and once the fee payment is made to Virtuozzo, Customer shall have no recourse for receiving a refund of any part of the fees and all such fees shall be deemed to have been fully earned, unless Virtuozzo resolve the dispute of the invoice in accordance with the procedure described in the Clause 4.3 in favor of Customer. In case if the payment is conducted by a Customer’s credit card according to terms and conditions in the Clause 4.5 herein below, the credit card will be charged immediately upon Virtuozzo invoice issuance. Virtuozzo reserves the right to add or remove Virtuozzo Products listed in the respective Sales Order, as well as amend any terms related thereto, including pricing at any time upon written (email) notice to Customer to the Customer’s email address identified in the respective Sales Order. The amended list of Virtuozzo Products, terms and/or pricing shall become effective in thirty (30) days upon the date of the email notification.
4.2 Customer’s Operating Expenses. Customer is responsible for all expenses incurred in performance of its obligations or exercise of its rights under this Agreement.
4.3 Disputed Charges. Customer must duly notify Virtuozzo (as defined in Clause 12.4 herein below) of any dispute with invoiced charges within fifteen (15) calendar days of the date of the invoice to email@example.com. Absent such notice, Customer will be deemed to have agreed to the charges as invoiced. No further disputes will be accepted by Virtuozzo after such timeframe.
4.4 Late Charges. In addition to, and without prejudice to any other remedy available to Virtuozzo, if any payment is not received by Virtuozzo from Customer when it is due, and is not the subject of a good faith dispute, Virtuozzo may, at its sole discretion, terminate this Agreement immediately, and/or:
(i) revoke or limit Customer’s KA System access (as defined herein below) and/or terminate any License Keys supplied in connection with this Agreement and respective Sales Order(s), and/or cease provision of any services provided according to respective Sales Order(s); and/or
(ii) assess interest on any unpaid amounts from the due date until paid in full at the rate of 3% above the "LIBOR" rate as published by the Zurich periodical "Finanz und Wirtschaft" or at the maximum rate permitted under applicable law, whichever is less. The payment of such interest will be in addition to and not in substitution for any and all other remedies available to Virtuozzo in respect of such non-payment.
4.5 Credit Card Payment. Customer herewith agrees to provide its credit card details to a third party credit card processing provider as requested by Virtuozzo, and authorizes Virtuozzo to charge the Customer’s credit card through such third party provider monthly according to the amounts of Virtuozzo invoices . Customer herewith agrees that any fees payable under this Agreement and Sales Order shall be charged to Customer’s credit card unless otherwise agreed by the Parties in a Sales Order.
4.6 Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and value added taxes other taxes and all applicable export and import fees, customs duties and similar charges. Customer must pay Virtuozzo the total invoice amount without deductions for taxes, assessments, fees, or charges of any kind. Customer is responsible for paying all sales, use, excise, value-added, withholding or other tax or governmental charges imposed on the licensing or use of the Virtuozzo Products (collectively "Taxes"). Customer shall be responsible for payment of all Taxes resulting from this Agreement (other than taxes based on Virtuozzo income). In the event that such Taxes are imposed and Customer is required to deduct such amounts from the fees payable hereunder, the Parties agree that the original amount invoiced by Virtuozzo will be increased by the amount of such Taxes such that Customer pays Virtuozzo the amount of fees as originally invoiced. The Customer shall apply the provisions of the applicable double taxation treaty to decrease the applicable tax rate or to avoid to the extent possible levying of taxes on Virtuozzo’s profit (fees). For the purpose of applying a double taxation treaty, at Customer’s request, Virtuozzo shall provide Customer a certificate of tax residency or other documentation that may be required to confirm the domicile (tax residency) of Virtuozzo pursuant to the laws of country of incorporation of Virtuozzo.
4.7 Audit Rights and Records. During the Term and for a period of two (2) years following termination or expiration of this Agreement, Customer agrees to keep all usual and proper books and records relating to its performance of and compliance with this Agreement. During that period, upon at least five (5) Business Days’ notice, Virtuozzo shall have the right, at its own expense, to periodically audit the records of Customer with respect to matters covered by this Agreement either by physically visiting Customer’s premises or by remote access (as determined by Virtuozzo). If such audit reveals that Customer has underpaid Virtuozzo, Customer shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest at the rate in Clause 4.4. If the amount of an underpayment equals or exceeds five percent (5%) of the total amounts due during the applicable period, Customer will reimburse Virtuozzo for the cost of such audit.
5.1 Virtuozzo grants Customer a non-exclusive, revocable, non-transferable, non-sublicenseable license to use its KA System to generate, manage, update and terminate Authorised User licenses on demand.
(a) Privilege. Customer agrees that KA access is a privilege of customership and will use KA in good faith.
(b) Revocation. At any time if in Virtuozzo’s sole and exclusive discretion Virtuozzo is of the opinion that Customer is not using KA in a proper or responsible manner, or is in breach of any terms of this Agreement and Sales Order, including delay of any payment due according to this Agreement and Sales Order, Virtuozzo may revoke the KA System license.
(c) License Key Responsibility. Customer is financially responsible for all License Keys created in its KA System account. Customer acknowledges and agrees that it is exclusively responsible for the termination of unused License Keys in its KA System account. Customer can access its KA System account at any time to terminate keys. Customer acknowledges that Virtuozzo is not responsible for the maintenance or termination of any License Keys in Customer’s KA System account whatsoever and that any active License Key in Customer’s KA System account will be billed toward Customer in the following monthly invoice. Active License Keys are considered as any License Key that is not marked for termination. For the avoidance of doubt, some License Keys carry a minimum subscription period and will be billed for the entire subscription period even if marked as terminated. If, in accordance with Clause 5(b) above, Virtuozzo revokes Customer’s license to the KA System, Customer may send License Key termination requests to Virtuozzo via email to firstname.lastname@example.org.
(d) Password Change. If Customer’s KA System account information is or may be compromised, Customer shall notify Virtuozzo within one (1) Business Day from becoming aware of such fact to change its password accordingly.
5.2 Virtuozzo Product Ordering Procedure. Customer shall order License Keys for its Authorised Users by using its KA System account. All orders are subject to the terms and conditions of this Agreement and Sales Order. If there is any conflict between this Agreement and the terms of an order or any other correspondence transmitted to Virtuozzo by Customer, the terms and conditions of this Agreement shall prevail. Upon receipt of orders from Customer, Virtuozzo shall ensure that the requested Virtuozzo Products are made available to Customer by download, accompanied by corresponding invoices. Customer shall not accept, alter, enlarge, limit, or accept the return of any License Keys on behalf of Virtuozzo, or in any manner assume or create any obligation, express or implied, on behalf of or in the name of Virtuozzo, or act for or bind Virtuozzo in any other matter. Virtuozzo may in its ultimate and sole discretion accept, reject, or cancel any order submitted by Customer through KA System. Virtuozzo shall promptly notify Customer (as defined in Clause 12.4 herein below) if it decides to reject or cancel any orders submitted by Customer through KA System. Virtuozzo is not liable for damages to Customer or to any third party caused by Virtuozzo’s delay or error in filling, or failure to fill, any orders for any reason.
5.3 Support. Unless otherwise agreed between the Parties in a Sales Order or in a separate written agreement, Virtuozzo shall provide to Customer only basic support services, according to the terms and conditions of support services provided at https://www.virtuozzo.com/support/all-products/scope-of-support.html.
6.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party shall have access to Confidential Information of the other Party. Both Parties agree that, as between the Parties, Confidential Information is owned by the disclosing Party.
6.2 Mutual Confidentiality Obligations. Each Party agrees: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party shall not reproduce the Confidential Information except as necessary to comply with this Agreement and shall hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party and such Party shall treat the Confidential Information and keep it confidential with the same duty of care as it uses with regard to its own Confidential Information, but at least the duty of care of a reasonable professional in the same circumstances; (iii) that neither Party shall create any derivative work from the other Party’s Confidential Information; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
7. OWNERSHIP. Customer acknowledges that Virtuozzo owns all right, title, and interest, including all Intellectual Property in and to the Virtuozzo Products and all work products, derivative works, developments, inventions, technology or materials provided under or otherwise in connection with a Sales Order(s), (including all related components) and Customer hereby assigns all such rights, if any, to Virtuozzo. Virtuozzo expressly reserves all rights not expressly granted to Customer in this Agreement.
8.1 Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument and that it has the legal power and authority to enter into the Agreement and each applicable Sales Order. Virtuozzo’s obligations with respect to any warranties specified in this Agreement are contingent on Customer’s use of the Virtuozzo Products in accordance with this Agreement and in accordance with EULA.
8.2 No Other Warranties. Except as otherwise expressly warranted in this Agreement, the Virtuozzo Products and any other materials, software, data and/or services provided by Virtuozzo in accordance with this Agreement are provided "AS IS" and Virtuozzo expressly disclaims all other warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of operability, condition, title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose, or the absence of any defects therein. No warranty is made by Virtuozzo on the basis of trade usage, course of dealing or course of trade. Virtuozzo does not warrant that the Virtuozzo Products or any other materials, Software, data and/or services provided under this Agreement shall meet Customer’s requirements or the requirements of Authorised Users or that the operation thereof shall be uninterrupted or error-free, or that errors shall be corrected.
9.1 LIMITATIONS. The cumulative liability of Virtuozzo to Customer for all claims arising from or relating to this Agreement and any Sales Order(s) shall be a maximum of the fees paid to Virtuozzo by Customer under this Agreement during the three months period immediately preceding the event which gave rise to the claim. In no event shall Virtuozzo or its licensors or suppliers be liable to Customer for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Virtuozzo has been advised of the possibility of such damages.
9.2 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement and Sales Order(s), including, without limitation, the economic terms, would be substantially different.
10.1 Indemnification by Virtuozzo.
(a) Virtuozzo shall indemnify, hold harmless, and, at Virtuozzo’s option, defend Customer from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party that any use of, or access to, the Virtuozzo Products expressly authorized under this Agreement infringes any Intellectual Property under applicable laws of any jurisdiction. Notwithstanding the foregoing, Virtuozzo shall have no obligation or liability to Customer to the extent that the alleged infringement arises from (i) the combination, operation, or use of the Virtuozzo Products with products, services, information, materials, technologies, business methods or processes not furnished by Virtuozzo; (ii) modifications to the Virtuozzo Products not made by Virtuozzo; (iii) failure to use updates to the Virtuozzo Products provided by Virtuozzo; or (iv) use of the Virtuozzo Products in violation of any applicable user documentation or specifications (circumstances under the foregoing clauses (i), (ii), (iii) and (iv), are collectively referred to as, "Customer Indemnity Responsibilities").
(b) Upon the occurrence of a claim that indemnity is or may be due under this Clause 10.1, or in the event that Virtuozzo believes that such a claim is likely, Virtuozzo may, at its option (i) appropriately modify the applicable Virtuozzo Products so that it becomes non-infringing without a material loss of functionality, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party Intellectual Property to allow for Customer’s continued use of the applicable Virtuozzo Products as contemplated by this Agreement; or (iii) if the options in both Clause 10.1(b)(i) and Clause 10.1(b)(ii) are not commercially practicable, terminate the applicable Sales Order on a due notice (as defined in Clause 12.4 herein below) to Customer and refund any amounts paid in advance for services not yet received. The obligations set forth in this Clause 10 shall constitute Virtuozzo’s entire liability and Customer’s sole remedy for any actual or alleged infringement.
10.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Virtuozzo’s option, defend Virtuozzo from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities or Customer’s breach of this Agreement.
10.3 Indemnification Process. The Party seeking indemnification agrees to give the indemnifying Party (i) prompt a due notice (as defined in Clause 12.4 herein below) of such claim; (ii) authority to control and direct the defense and/or settlement of such claim (directly or indirectly as permitted by the relevant procedural rules); and (iii) such information and assistance as the indemnifying Party may reasonably request, at indemnifying Party’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the indemnifying Party shall not settle any third-party claim against the indemnified Party unless such settlement completely and forever releases the indemnified Party with respect thereto or unless the indemnified Party provides its prior written consent to such settlement. Indemnified Party has the right but no obligation to participate in any action controlled by indemnifying Party pursuant to Section 9.3(ii), at Indemnified Party's own expense and by counsel of its choice.
11.1 Term. This Agreement shall become effective upon the Effective Date and shall continue for one (1) year from the Effective Date ("Initial Term") unless terminated earlier in accordance with this Clause 11. After the Initial Term, it shall renew for successive one (1) year periods ("Renewal Term") unless either Party gives a due notice (as defined in Clause 12.4 herein below) to the other Party that it does not intend to renew this Agreement at least thirty (30) days before the end of the Initial Term or any Renewal Term. Notwithstanding the foregoing, this Agreement shall remain in full force and effect until the expiration or termination of any and all Sales Orders executed prior to the end of the Term. The Term of individual Sales Orders shall be as set forth therein.
11.2 Termination for Breach. Either Party may terminate this Agreement or a Sales Order immediately upon a due notice (as defined in Clause 12.4 herein below)if the other Party breaches a material term of this Agreement or the applicable Sales Order and thereafter (i) in the case of a breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within three (3) calendar days after receiving a due notice thereof (as defined in Clause 12.4 herein below); or (ii) has failed to cure any other breach (or fails to commence diligent efforts to cure such breach that are reasonably acceptable to the non-breaching Party) within ten (10) calendar days after receiving a due notice (as defined in Clause 12.4 herein below) thereof.
11.3 Termination for Insolvency. Either Party may terminate this Agreement immediately upon a due notice (as defined in Clause 12.4 herein below) after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such Party, that has not been dismissed, vacated, or stayed within thirty (30) calendar days.
11.4 Accrued Obligations. Termination of this Agreement and/or any particular Sales Order shall not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue with respect to any act or omission before termination, or from any obligation that is expressly stated in this Agreement and/or any applicable Sales Order to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement or any Sales Order as permitted by any provision in this Clause 11 or in such Sales Order shall incur no additional liability merely by virtue of such termination.
11.5 Effect of Termination. Upon any termination of this Agreement or any Sales Order, Customer shall (i) immediately discontinue all use of the Virtuozzo Products licensed under the applicable Sales Order (unless otherwise specified in such terminated Sales Order); (ii) promptly pay to Virtuozzo all amounts due and remaining payable; and (iii) if applicable pursuant to a terminated Sales Order, pay any applicable termination fee.
11.6 Survival. The provisions of Clauses 1, 3.2, 4, 5, 6, 8.2, 9, 10, 11.4, 11.5, 11.6 and 12 shall survive any termination of this Agreement.
12.1 Applicable Law. This Agreement shall be governed by and construed in accordance with Swiss law without giving effect to conflict of law rules and with the Vienna Convention on the Sale of Goods being expressly excluded. The Parties agree that any and all disputes between the Parties arising out of or in relation to this Agreement shall be resolved amicably between the Parties. Should the Parties fail to resolve the dispute amicably within thirty (30) calendar days upon written request by one Party to the other Party, such dispute shall be exclusively submitted to the courts of Zurich, canton of Zurich, Switzerland. The prevailing Party in any action under this Agreement is entitled to recover reasonable attorneys’ fees and related costs.
12.2 Anti-Corruption. The Parties acknowledge that the giving and taking of bribes can lead to criminal proceedings in accordance with art.102 para. 2, art. 322 and art. 322 of the Swiss Federal Criminal Code. In this context, Virtuozzo is entitled to solicit information from Customer.
12.3 Force Majeure. Virtuozzo shall be excused from any delays in performance of its obligations under this Agreement if such a delay results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Virtuozzo. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances. However, the Customer shall be entitled to terminate this Agreement when such delay lasts for ninety (90) calendar days consecutively.
12.4 Notices. Any notice to be given pursuant to this Agreement must be sent on email addresses provided by the Parties in the Sales Order in English. If the Party change its email addresses, new email addresses shall be communicated by such Party to another Party by an email notification. Notice will be deemed duly given in writing when delivered to an email provided by the Party in the Sales Order, or sent by confirmed facsimile transmission, or sent by certified or registered mail or nationally-recognized express courier, return receipt requested, to the address shown on the Sales Order. To be effective all notices to Virtuozzo: (i) if other than by email, shall be sent to Virtuozzo International GmbH, Vordergasse 59, 8200 Schaffhausen, Switzerland; (ii) if by email, shall be sent to email@example.com, if another email is not provided in the Sales Order.
12.5 Assignment. Customer shall not assign its rights or delegate its obligations under this Agreement without Virtuozzo’s prior written consent; any such consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of Virtuozzo and Customer and their successors and permitted assigns. Virtuozzo may assign this Agreement or any Sales Order without changes of contractual contents in its totality to any subsidiary or Affiliate of either Virtuozzo or Parallels Holdings Ltd.* with ten (10) calendar days’ prior due notice (as defined in Clause 12.4 herein above) to Customer.
12.6 Independent Contractors. Customer and Virtuozzo acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
12.7 Amendment. Virtuozzo may modify and/or amend this Agreement and any or all documents incorporated by reference including EULA from time to time. Any such amendment or modification will become effective immediately from when it is uploaded to https://www.virtuozzo.com/legal.html and Customer continued use of Virtuozzo Products shall constitute acceptance of such amendment and/or modification.
12.8 Waiver. Failure by either Party to enforce the provisions of this Agreement will not represent a waiver of such rights and will not affect the validity of this Agreement nor affect that Party’s rights to take subsequent action.
12.9 Severability. If any provision, or portion thereof, of the Agreement is held unenforceable or invalid by a court of competent jurisdiction, the enforceability of the remaining provisions shall not be affected.
12.10 No Third Party Beneficiaries. Except for those third parties that have licensed software or other intellectual property to Virtuozzo and that is included as part of the Virtuozzo Products, no person or entity shall be a third party beneficiary of these GTCs or have any right or cause of action hereunder.
12.11 U.S. Government End-Users. The Virtuozzo Products include commercial technical data and/or computer licensed databases and/or commercial computer software and/or commercial computer software documentation, as such terms are used in 48 C.F.R. 12.212, that were developed exclusively at private expense by Virtuozzo and/or its licensors. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 all U.S. Government end users acquire the Virtuozzo Products with only those rights set forth herein.
12.12 Non-Solicitation. Customer will not, without the prior written consent of Virtuozzo solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of its affiliates, any of Virtuozzo’s Personnel or the Personnel of its affiliates during the Term of this Agreement or during the twelve (12) months following termination of this Agreement. For purposes of this Clause, "Personnel" includes any individual that Virtuozzo employs or has employed as a partner, employee or independent contractor and with which Customer comes into direct contact in the course of the Services. If Customer breaches this Clause, Customer will pay Virtuozzo EUR 1,500,000.00 (One million five hundred thousand Euro), payable net thirty (30) calendar days from the date of invoice, as liquidated damages for breach of this Clause.
12.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
12.14 Publicity. Virtuozzo may include Customer’s name and corporate logo (if applicable) in any presentation, marketing materials, and/or customer lists (including, without limitation, customer lists posted on Virtuozzo web sites).
12.15 Entire Agreement. This Agreement (including all Sales Orders) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof.
If you have any questions or concerns about our use of your personal information, then please contact us using the contact details provided at the bottom of this Privacy Notice.
The types of data we collect
How we use your data
Cookies and similar tracking technology
Our basis for using your data
Measures to keep your data safe
Your choices and rights
How to contact us
Collecting this information enables us to better understand the visitors who come to our website and/or use our product, where they come from, and what content on our website is of interest to them. We use this information for our internal analytics purposes and to improve the quality and relevance of our website and/or products to our visitors.
Some of this information may be collected using cookies and similar tracking technology, as explained further under the heading “Cookies and similar tracking technology” below.
In some cases, your personal data will be supplemented by information retrieved from public sources, such as online media or employer websites, for the purpose of confirming your current professional position or address.
We use the personal data for communication purposes, including to send you newsletters, promotions, surveys and other product-related information and to maintain our list of contacts. We do not sell or otherwise make your personal data available to third parties, although we may disclose your personal information to the following categories of recipients: to our group companies (including those in Cyprus, Estonia, Germany, Malta, Russia, Spain, the United Kingdom and United States), third party services providers and partners who provide data processing services to us (e.g., to support the delivery of, provide functionality on, or help to enhance the security of our website and/or products), or who otherwise process personal information for purposes that are described in this Privacy Notice or notified to you when we collect your personal information (when they perform services on our behalf, mainly to maintain and support our IT systems).
We may also disclose your personal data to third parties including law enforcement bodies, regulatory, government agencies or other third parties in the following circumstances: (a) to undertake the activities listed above; (b) to conform to legal requirements or comply with legal process (including assisting in the investigation of suspected illegal or wrongful activity or to deal with any misuse of the product); (c) to sell, make ready for sale or dispose of our business in whole or in part including to any potential buyer or their advisers.
If you are based in the European Union (“EU”), any international transfers of your personal data outside the EU/European Economic area (“EEA”) are based on the EU Commission’s standard contractual clauses, which may be read here. Your personal data will only be saved for these purposes and for as long as you are a business contact to us.
We employ appropriate technical and organisational measures to help protect your personal data against loss and unauthorised access. We regularly review our security policies and procedures to ensure our systems are secure and protected.
We retain personal information we collect from you where we have an ongoing legitimate business need to do so (e.g., to provide you with a service you have requested or to comply with applicable legal, tax or accounting requirements).
When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymise it or, if this is not possible (e.g., because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
We welcome your inquiries and comments. You have the right to know what personal data we process about you and may request a copy. You are also entitled to have incorrect or incomplete personal data about you corrected or completed and you may, in certain circumstances, ask us to delete or erase some or all of your personal data. You can also object to certain personal data about you being processed and request that processing be limited. Please note that the limitation or deletion of your personal data may mean we will be unable to provide the services described above. You also have the right to receive your personal data in a machine-readable format and have the data transferred to another party responsible for data processing. To opt out of any received emails, please unsubscribe by selecting “unsubscribe” at the bottom of a received e-mail.
If you have any questions about how we process your personal data, please feel free to contact us at firstname.lastname@example.org.
Our Site also captures limited information (user-agent, HTTP referrer, last URL requested by the user, client-side and server-side clickstream) about visits to our Site; we may use this information to analyze general traffic patterns and to perform routine system maintenance.
You have many choices with regards to the management of cookies on your computer. All major browsers allow you to block or delete cookies from your system. To learn more about your ability to manage cookies and web beacons, please consult the privacy features in your browser.
This website uses Google Analytics, a web analytics service provided by Google, Inc. ("Google") to help us understand how users use our web site and our mobile applications. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States. Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google's behalf. Google will not associate your IP address with any other data held by Google.
How can I control cookies and/or remove them?
Virtuozzo uses your information to serve you and meet your needs to our best ability. For example, when you use our website, the cookie helps recognize you and your preferences. We use your product purchase and registration information to keep you informed about updates, patches and other advisories. We use it to process your purchases, manage subscriptions, send messages and provide product support.
Individuals who have questions about our personal information handling policies and procedures can contact us at email@example.com.
This End-User License Agreement (this “Agreement”) is a legal contract between you, as either an individual or an Entity (as defined below), and Virtuozzo International GmbH (“Virtuozzo”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING VIRTUOZZO’S PROPRIETARY SOFTWARE ACCOMPANIED BY THIS AGREEMENT (the “Software”). THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, OR AGENCY, INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (AN “ENTITY”) AS ITS AUTHORIZED LEGAL REPRESENTATIVE, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO “YOU” HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT. IF AT ANY TIME YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD CLICK THE “I DO NOT ACCEPT” OR SIMILAR BUTTON, TERMINATE THE DOWNLOAD AND/OR INSTALLATION PROCESS, IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE AND DELETE ANY COPIES YOU MAY HAVE. THIS AGREEMENT, ALONG WITH ANY ADDITIONAL TERMS OR POLICIES INCORPORATED HEREIN BY REFERENCE, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND VIRTUOZZO CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL,REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH VIRTUOZZO RELATING TO THE SOFTWARE, WHETHER ORALLY OR IN WRITING.
1.1. Grant of License. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, including without limitation payment of all applicable license fees, the applicable Virtuozzo entity from which you obtained the Software hereby grants to you, and you accept, a personal, limited, nonexclusive, nontransferable (except as set forth in Section 1.5 below), non-assignable, revocable license to use the Software during the Term (as defined below) in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by Virtuozzo and made available to end-users. Notwithstanding the foregoing, Virtuozzo shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
1.2 Scope of Use. Your license to use the Software is conditioned on the following license restrictions, and any use of the Software in violation of any of these restrictions, or any of the other terms of this Agreement is a breach of this Agreement and is unlicensed. You may use one copy of the Software activated by a license key on a single device owned, leased, or otherwise controlled by you, at a single time (the “Authorized Device”). If you have multiple license keys for the Software, you may install and use as many copies of the Software as you have license keys, in each case, on an Authorized Device and only as authorized herein. For purposes of this Agreement, “use” of the software means loading the Software into the temporary or permanent memory of an Authorized Device. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, provided that you have a valid license key for each Authorized Device on which the Software is installed. The Software may not be used on, distributed to, or installed on a greater number of computers than you have license keys. If you use or distribute the Software to multiple users, you must ensure that the number of Authorized Devices does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement and such use and distribution is unlicensed.
1.3. Evaluation Licenses. In the event you obtained a trial or evaluation version of the Software, it will come with a trial activation key that activates the Software for a limited time period (the "Trial Period"). You may use the Software during the Trial Period for internal noncommercial purposes, solely to evaluate the suitability of the Software for your needs. Upon the expiration of the Trial Period you must either purchase an activation key or destroy the Software, Documentation, all backup copies thereof, and all trial activation keys that you have obtained. If you do not purchase an activation key prior to the expiration of the Trial Period, this Agreement, and all your rights and licenses hereunder will terminate at the expiration of the Trial Period.
1.4. Copies and Modifications. Except and solely to the extent that such a restriction is prohibited under applicable law, you may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control.
1.5. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, without prior written consent of Virtuozzo, except that you may transfer this Agreement in full in connection with the sale of all or substantially all of the assets related to this Agreement, provided that the assignee assumes all of your obligations hereunder, and the licenses granted hereunder will only extend to use of the Software on the Authorized Device on which the Software was installed immediately prior to the assignment. Virtuozzo may assign this Agreement without limitation. Any assignment in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
1.6 Support and Maintenance Services; Updates; Upgrades. Virtuozzo will not provide any support or maintenance services under this Agreement. You acknowledge that Virtuozzo has no express or implied obligation to announce or make available any updates, enhancements, modifications, revisions, or additions to the Software and that this Agreement does not give you any rights in or to any of the foregoing. Virtuozzo may offer support and/or maintenance services separately. If you have purchased Virtuozzo support and/or maintenance services with the Software, these services are provided to you under the terms and conditions accompanying the applicable service. Any supplemental software code or related materials that Virtuozzo provides to you as part of any support and/or maintenance services are considered part of the Software and are subject to the terms and conditions of this Agreement. If you purchase an upgrade (a new version of the Software) from a perpetual license to a newer version of the perpetual license, then your license keys to the prior perpetual license will continue to operate. However, if you purchase an upgrade from a perpetual license to a term-based license, then the license keys to the perpetual license will terminate upon activation of the term-based license.
2.1. Use Reporting, License Violations and Remedies. Virtuozzo reserves the right, and you authorize Virtuozzo, to gather data on key usage including license key numbers, Authorized Device IP addresses or other applicable device identifier (including MAC address or UDID), domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Virtuozzo reserves the right to remedy violations of any of the terms of this Agreement immediately upon discovery, by charging the then current list price of unauthorized keys to the payment instrument used to make the original, authorized purchase, or by any other means necessary, including remotely disabling the Software. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement pursuant to Section 4.
2.2. License Expiration. Your license may include an expiration date that can result in the termination of the license. If your license key is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify Virtuozzo of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For lease licenses, your monthly payment for each month must be processed prior to the expiration date in order for the license updates to be performed. For your convenience Virtuozzo may, but has no obligation to, provide license expiration warnings in the product interface. It is your responsibility to contact Virtuozzo regarding any potential expiration that you deem inappropriate. Virtuozzo shall not be liable for any damages or costs incurred in connection with the expired licenses.
2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Virtuozzo, and the Software and Documentation are protected under United States copyright and other intellectual property laws and international treaties. You further acknowledge and agree that, as between you and Virtuozzo, Virtuozzo and its third party licensors own and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Except for the limited, revocable license expressly granted to you herein, this Agreement does not grant you any ownership or other right or interest in or to the Software or the Documentation or any other intellectual property rights of Virtuozzo, whether by implication, estoppel, or otherwise. Any and all trademarks or service marks that Virtuozzo uses in connection with the Software or with services rendered by Virtuozzo are marks owned by Virtuozzo. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2.4. Confidentiality. You shall permit only authorized users, who possess rightfully obtained license keys, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party, or use the Software, Documentation, or any license key for any purpose other than exercising rights expressly granted to you hereunder. You agree to cooperate with and assist Virtuozzo in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
2.6. Audit Rights. During the term of this Agreement and for two (2) years after termination or expiration of this Agreement, Virtuozzo may audit, upon written notice to you, your books, records, and computing devices to determine your compliance with this Agreement and your payment of the applicable license fees, if any, for the Software. In the event that any such audit reveals an underpayment by you of more than five percent (5%) of the license fees due to Virtuozzo in the period being audited, or that you have breached any term of this Agreement, then, in addition to any other rights and remedies Virtuozzo may have, you will promptly pay to Virtuozzo any underpayments plus the cost of the audit.
3. License Fees. The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement, you may obtain one or more license keys by paying the requisite license fees, using the procedure set forth on Virtuozzo’s web site. License fees for term-based licenses are due prior to the commencement of the applicable term, and may be re-billed to the payment instrument you used for your initial purchase upon the commencement of any renewal term. Your license to the Software will terminate automatically without notice if you notify Virtuozzo in advance that you do not intend to renew a term-based license or if you fail to pay a renewal fee for a term-based license. The license fees paid by you are paid in consideration of the license granted under this Agreement. License sales are final and Virtuozzo does not refund license fees under any circumstances. By accepting this Agreement you fully understand that once license fee payment is made to Virtuozzo you will have no recourse for receiving a refund of any part of the fees.
4. Term and Termination. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration or termination as provided herein (the “Term”). Term-based licenses terminate upon the expiration of the prepaid term, unless you have paid all applicable fees to extend the term. Without prejudice to any other rights, this Agreement will terminate automatically without notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees, and you agree that in any such case Virtuozzo may, in addition to any other remedies it may have at law or in equity, remotely disable the Software. You may terminate this License Agreement at any time by providing written notice of your decision to terminate the Agreement to Virtuozzo and ceasing use of the Software and Documentation. Upon any termination or expiration of the Agreement for any reason, you agree to uninstall the Software and either return to Virtuozzo the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Virtuozzo.
5. Indemnification. You will, at your own expense, indemnify and hold Virtuozzo, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Package (as defined below) by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
6. Third Party Software. The Software which is distributed to you may include various third party software components or software services ("Third Party Software" and together with the Software, the “Package”) which are provided under separate license terms (the "Third Party Terms"), as may be described in more detail in the “Notices.txt” file (if applicable) included in the Documentation. Information regarding Third Party Software included in the Package is also available on our website at www.virtuozzo.com. You are permitted to use the Third Party Software in conjunction with the Software, provided that such use is consistent with the terms of this Agreement. You may have broader rights to use the Third Party Software under the applicable Third Party Terms. Nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software in accordance with any Third Party Terms. The Software may also enable interoperation with certain other third party operating systems and applications. Virtuozzo does not provide you with any such third party licenses and it is solely your responsibility to obtain all necessary software licenses from respective vendors.
7.1. WARRANTY DISCLAIMER. THE PACKAGE AND DOCUMENTATION ARE LICENSED “AS IS,” AND VIRTUOZZO DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE FULLEST EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIRTUOZZO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND FOR THE THIRD PARTY SOFTWARE, AND DOES NOT WARRANT THAT THE PACKAGE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE PACKAGE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS OR ERRORS IN THE PACKAGE WILL BE CORRECTED OR THAT THE PACKAGE WILL BE COMPATIBLE WITH FUTURE VIRTUOZZO PRODUCTS, OR THAT ANY INFORMATION OR DATA STORED OR TRANSMITTED THROUGH THE PACKAGE WILL NOT BE LOST, CORRUPTED OR DESTROYED. YOU ASSUME RESPONSIBILITY FOR SELECTING THE PACKAGE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE PACKAGE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE PACKAGE.
7.2. LIMITATION OF LIABILITY. IN NO EVENT SHALL VIRTUOZZO BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF VIRTUOZZO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VIRTUOZZO’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3. CERTAIN LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OR EXCLUSION OF CERTAIN TYPES OF WARRANTIES, DAMAGES, OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
8.1. Feedback. If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Virtuozzo (“Feedback”), regardless of any accompanying communication, Virtuozzo has no obligation to review, consider, or implement your Feedback, all such submissions are made on a non-confidential basis, Virtuozzo and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution, and you waive and agree not to assert any so-called “moral rights” you may have in the Feedback.
8.2. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Washington, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated within the Western District of Washington. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8.3. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the Agreement.
8.4. Survival. Articles 3, 6, 8, and 9 of this Agreement and all Sections thereof, shall survive the termination or expiration of this Agreement, regardless of the cause for termination or expiration, and shall remain valid and binding indefinitely.
8.5. Headings. The Article and Section headings contained in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.6. No Waiver. 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.
8.7. Amendment. Virtuozzo reserves the right, in its sole discretion, to amend this Agreement from time to time by posting an updated version of the Agreement on www.virtuozzo.com, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. We encourage you to review the published Agreement from time to time to make yourself aware of changes. Material changes to these terms will be effective upon the earlier of (i) your first use of the Software with actual knowledge of such change, or (ii) 30 days from publishing the amended Agreement on www.virtuozzo.com. If there is a conflict between this Agreement and the most current version of this Agreement, posted at www.virtuozzo.com, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective constitutes your acceptance of the amended Agreement. If you do not accept amendments made to this Agreement, then it is your responsibility to terminate this Agreement pursuant to Section 4.
8.8. Taxes. You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of Virtuozzo. You shall reimburse Virtuozzo for the amount of any such taxes or duties paid or incurred directly by Virtuozzo as a result of this transaction, and you agree that Virtuozzo may charge any such reimbursable taxes to the payment instrument you used for your initial payment.
8.9. Export Controls. You may not use, export, re-export, import, sell or transfer the Software except as authorized by United States (U.S.) law, the laws of the jurisdiction in which you obtained the Software, and any other applicable laws and regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also acknowledge that the Software may be subject to other U.S. and foreign laws and regulations governing the export of software by physical and electronic means. You agree to comply with all applicable U.S. and foreign laws that apply to Virtuozzo as well as end-user, end-use, and destination restrictions imposed by U.S. and/or foreign governments. You also agree that you will not use the Software for any purposes prohibited by U.S. law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
8.10. United States Government Use Rights. The Software as defined herein and any related technical data, including manuals and Documentation, are commercial as defined in the Federal Acquisition Regulation (FAR) at 2.101. If the Software is acquired by or on behalf of an agency, department, or other entity of the U.S. Government (“Government”), the use, duplication, reproduction, release, modification, disclosure, or transfer (“use”) of the Software, and any related technical data of any kind, including manuals and Documentation, no matter how received by the Government, is restricted by the terms and conditions of this Agreement in accordance with FAR 12.212 for civilian agencies, and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. All other use is prohibited.
8.11. Governing Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.
8.12. Trademark Notice. The Virtuozzo logo, Virtuozzo, OpenVZ and CRIU are registered trademarks or trademarks of Virtuozzo International GmbH, in the United States and/or other countries. All other trademarks referenced in the Software or Documentation are the property of their respective owners.
8.13 Contact Information. You may contact Virtuozzo for more information about the Software, other Virtuozzo products and services at Virtuozzo International GmbH, Vordergasse 59, Schaffhausen, Switzerland, or by visiting our website: http://www.virtuozzo.com.
Except as expressly set out below or as otherwise mutually agreed to by the parties in writing, these Virtuozzo Extended Support Service Terms and Conditions For Customers together with the terms and conditions in the applicable End User License Agreement (collectively, the "ELS Terms and Conditions") set out the terms and conditions pursuant to which Virtuozzo will provide extended support services to Customers ("Customer", "You" or "Your") based upon such Extended Support Service Programme which Customer has purchased from Virtuozzo. By submitting a purchase order for the Extended Support Services Programme to Virtuozzo, Customer agrees to be bound by these ELS Terms and Conditions. Unless otherwise agreed in writing by Virtuozzo, no other terms and conditions endorsed upon, delivered with or contained in a Customer’s purchase order, or in any other similar document, will amend, or vary the provisions of these ELS Terms and Conditions.
Pursuant to your purchase order, placed with Virtuozzo, you have ordered the Extended Support Programme related to certain Virtuozzo Products. In order to receive Services under the Extended Support Programme pursuant to the ELS Terms and Conditions, you must submit a purchase order to Virtuozzo for a validly quoted Extended Support Programme. Virtuozzo will determine the pricing and payment terms associated with any Extended Service Programme which you purchase. All orders are subject to acceptance by Virtuozzo, and no obligation, including a purchase order, shall be binding on Virtuozzo unless and until such order is accepted by Virtuozzo, or, if earlier, Services are provided to Customer. Please note that only those Virtuozzo Products listed on a valid quotation applicable to your purchase order will be covered by the Extended Support Service Programme under these ELS Terms and Conditions.
Extended Support may be available for the following two Virtuozzo Products:
(hereinafter - "Virtuozzo Product(s)").
The Extended Support Service Programme is available for Virtuozzo Container for Linux 4.7 and Parallels* Server Bare Metal 5.0 for the period beginning on 1 October 2018 and ending on 30 November 2020. The Extended Support Service Programme for Virtuozzo Products listed in this paragraph must be purchased by You for a period of 12-months beginning on the date Virtuozzo accepts your purchase order. Should you purchase the Extended Support Service Programme for Virtuozzo Products listed in this paragraph after 1 December 2019 the Extended Support Programme will only be available up to and including 30 November 2020.
The Extended Support Service Programme is available for Virtuozzo 6 for the period beginning on 1 July 2019 and ending on 30 November 2021. The Extended Support Service Programme for Virtuozzo Product listed in this paragraph must be purchased by You for a period of 12-months beginning on the date Virtuozzo accepts your purchase order. Should you purchase the Extended Support Service Programme for Virtuozzo Product listed in this paragraph after 1 December 2020 the Extended Support Programme will only be available up to and including 30 November 2021.
Unless otherwise stated in this section Virtuozzo will provide Support Services to You, limited to the following:
Virtuozzo and Customer acknowledge that during the performance of this Agreement, each Party may have access to Confidential Information. Virtuozzo and Customer agree that, as between the Parties, Confidential Information is owned by the disclosing Party.
Each Party agrees: (i)to use the Confidential Information only for the purposes described in this Agreement; (ii)that such Party shall not reproduce the Confidential Information except as necessary to comply with this Agreement and shall hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii)that neither Party shall create any derivative work from the other Party’s Confidential Information; (iv)to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to know and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v)to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement and certify compliance with this obligation to return or destroy upon first request of the other Party.
You acknowledge that Virtuozzo owns all right, title, and interest, including all Intellectual Property in and to the Virtuozzo Products and all work products, derivative works, developments, inventions, technology or materials provided under or otherwise in connection with the support services, (including all related components) and You hereby assign all such rights, if any, to Virtuozzo. Virtuozzo expressly reserves all rights not expressly granted to You.
You will, at your own expense, indemnify and hold Virtuozzo, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Support Services by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument and that it has the legal power and authority to agree to these ELS Terms and Conditions.
Except as otherwise expressly warranted in these ELS Terms and Conditions, the Virtuozzo Products and any other materials, software, data and/or support services provided by Virtuozzo in accordance with these ELS Terms and Conditions are provided “as is” and Virtuozzo expressly disclaims all other warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of operability, condition, title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose, or the absence of any defects therein. No warranty is made by Virtuozzo on the basis of trade usage, course of dealing or course of trade. Virtuozzo does not warrant that the Virtuozzo Products or any other materials, Software, data and/or services provided under these ELS Terms and Conditions shall meet Your requirements or the requirements of Authorised Users or that the operation thereof shall be uninterrupted or error-free, or that errors shall be corrected.
In no event shall Virtuozzo or its licensors or suppliers be liable to You for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Virtuozzo has been advised of the possibility of such damages. In no event will Virtuozzo’s total aggregate and cumulative liability to you for any and all claims of any kind arising hereunder exceed the amount of fees actually paid by you for the Extended Support Services Programme giving rise to the claim in the twelve months preceding the claim. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
11.1 Except as otherwise set forth in these ELS Terms and Conditions, Virtuozzo may modify and/or amend these ELS Terms and Conditions and any or all documents incorporated by reference including EULA from time to time and will notify You accordingly on at least ten (10) calendar days’ written notice. Any such amendment or modification will become effective immediately from when it is uploaded to https://www.virtuozzo.com/legal.html and Your continued use of the Extended Support Services Programme shall constitute acceptance of such amendment and/or modification.
* Please Note: Parallels International GmbH and its affiliates are no longer affiliated/related with Virtuozzo International GmbH and its affiliates. Parallels International GmbH and its affiliates do not endorse or sponsor Virtuozzo International GmbH or any of its affiliates or any of their products.