Virtuozzo Sanction Compliance Terms
Updated November 2021
Since Virtuozzo International GmbH, Vordergasse 59, 8200 Schaffhausen, Switzerland and its affiliates (“Virtuozzo”) shall comply with sanctions and export controls maintained by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), European Union, Switzerland and other applicable sanctions and export controls legislation, Virtuozzo applies the same requirements to its customers, resellers and distributors, and all of their owners, directors, officers, employees, agents, or contractors (collectively “Customer(s)”) acting as a party to the respective agreement concluded with Virtuozzo, including without limitation a Sales Order and applicable General Terms and Conditions (“GTCs”), current version available at: https://www.virtuozzo.com/legal/terms-and-conditions/ (“Customer Contract(s)”). Certain capitalized terms used in these Sanction Compliance Terms (“SCTs”) shall have the meanings cross-references herein. Capitalized terms used in the SCTs, which are not otherwise defined in the SCTs have the meaning set forth in GTCs. STCs are in addition to Customer Contract and GTCs. As a result, Virtuozzo Customers shall comply with applicable sanctions and export controls legislation in order to use, distribute or resell Virtuozzo Products and where applicable Third Party Software. Without limiting the foregoing:
1. Customer will use Virtuozzo Products, and where applicable Third Party Products, only in accordance with the GTCs, STCs and with all applicable laws. Without limiting the foregoing:
(a) Customer acknowledges and agrees that Virtuozzo Products, and where applicable Third Party Products, may be subject to economic sanctions and export controls of the United States of America (“US”), European Union (“EU”), and Switzerland. Customer agrees not to engage in any transaction or activity that would result in liability to Virtuozzo under EU, US or Swiss sanctions or export control laws or regulations. Customer agrees to comply with all US, EU and Swiss economic sanctions and export control laws and regulations as if it were a US, EU and a Swiss company and a US, EU and Swiss exporter, and with all otherwise applicable export or import regulations of other countries, and will not allow any Third Party to remove or export from the US, EU or Switzerland or allow the export or re-export of any part of Virtuozzo Products, and where applicable Third Party Products, or any direct product thereof (I) into (or to a resident or entity incorporated under the laws of) any country subject to a comprehensive US, EU or Swiss embargo, (II) to anyone on the US Commerce Department’s Denied Persons List, Entities List or Unverified List, the US Treasury Department’s Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List or the Sectoral Sanctions Identifications List, the US Department of State’s List of Statutorily Debarred Parties, the EU’s Consolidated Sanctions List, or the Swiss Secretariat of Economic Affairs Overall list of sanctioned individuals, entities and organizations (collectively, the “Lists”), or (III) to any country, entity or person to which such export or re-export is restricted or prohibited, or as to whom the US, EU or Switzerland requires an export license or other governmental approval at the time of export from the US, EU or Switzerland, respectively, or re-export without first obtaining such license or approval. Customer assumes sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any export law or regulation.
(b) Customer represents and warrants that Customer is not included on any of the Lists. Customer will immediately inform Virtuozzo of any inclusion of Customer on any of the Lists and will cooperate with Virtuozzo’s investigation and/or reporting of such action to appropriate US, EU or Swiss authorities, which may occur at Virtuozzo’s sole discretion.
(c) Customer may not use or enable the use of the Virtuozzo Products, and where applicable Third Party Products, by any Authorized User or any other third party whose rights are derivative of any of them (e.g., downstream of authorised users) who is a resident of, entity incorporated under the laws of, or under control of any of the governments of any country subject to a comprehensive US, EU or Swiss embargo, which as of the date hereof includes: Cuba, Iran, North Korea, Syria and the Crimea region of the Ukraine (which for the purpose of this paragraph may be referred to as a country). Each time Customer uses or enables the use of the Virtuozzo Products, and where applicable Third Party Products, Customer represents, warrants, and covenants that none of Customer, its Authorized Users, or any other third party whose rights are derivative of any of them (I) is a resident of, an entity incorporated under the laws of, or under the control of the government of any country subject to a comprehensive US, EU or Swiss embargo; (II) will download or otherwise export or re-export any Virtuozzo Products, and where applicable Third Party Products, directly or indirectly, to the above mentioned countries or to residents or entities incorporated under the laws of those countries, or permit any third party to do so; (III) are listed in any of the Lists or subject to US, EU or Swiss sanctions; or (IV) will use or allow the use of Virtuozzo Products, and where applicable Third Party Products, for any purposes prohibited by US, EU or Swiss law, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons, weapons of mass destruction or their proliferation; or (V) are using or permitting others to use Virtuozzo Products, and where applicable Third Party Products, to create, store, backup, distribute, or provide access to child pornography or any other content or data which is illegal under the applicable law, including that where Customer is domiciled.
(d) Virtuozzo will not be liable to Customer or any of its officers, directors, employees, agents, contractors, designees, customers and/or any other party, for any refusal or failure to provide goods, software, services or technical data as a result of any action taken as a result of any inclusion of Customer on any of the Lists.
(e) If Virtuozzo has a good faith belief that Customer, or any third party acting on Customer’s behalf, intends to violate, has violated, or causes Virtuozzo to violate, any EU, US or Swiss export controls or sanctions law or regulation, Virtuozzo may terminate the Customer Contract immediately, notwithstanding any other provision of the Customer Contract to the contrary. In the event of such termination, Virtuozzo will be relieved of all liability and obligations of any kind under the Customer Contract.
(f) Customer will indemnify and hold Virtuozzo harmless for any and all claims, losses, damages, liabilities, expenses and costs of whatever nature, including reasonable attorneys’ fees and expenses, arising out of Customer’s non-compliance with US, EU or Swiss export controls or sanctions laws or regulations or Customer’s inclusion on any of the Lists. Virtuozzo will be relieved of all claims and liabilities arising from (I) termination of the Customer Contract pursuant to this Clause 1 and (II) Virtuozzo’s failure to perform, or inability to perform, as a result of Customer’s inclusion on any of the Lists.
(g) Customer will, at its own cost and expense, screen against the Lists all new Authorized Users and all third parties whose rights to use the Virtuozzo Products, and where applicable Third Party Products, are derivative of any of them, and will not contract with anyone who is included on one of the Lists.
(h) Virtuozzo may at Virtuozzo’s option, exercisable by notice to Customer at any time (the “Pre-Screen Notice”), direct Customer not to authorize or permit the use of Virtuozzo Products, and where applicable Third Party Products, by any Authorized User or any third party whose rights to use Virtuozzo Products, and where applicable Third Party Products, would be derivative of any of them unless Virtuozzo will have first approved such use in writing, including by email. After Customer receives the Pre-Screen Notice, Customer will give Virtuozzo advance written notice, including by email, of the identity of any such Authorize Users or third party, with such accompanying detail and additional information as Virtuozzo may request. Virtuozzo will use that information to determine whether any such person is on any of the Lists. Virtuozzo will give notice to Customer of its approval of any such person not on any of the Lists. Any such person who is, or who appears to be on any of the Lists will not be approved and Virtuozzo will not deal with them regarding the Virtuozzo Products, and where applicable Third Party Products.
(i) Virtuozzo may audit Customer’s compliance with this Clause 1 on such terms as Virtuozzo determines reasonable. Customer will also, upon request of Virtuozzo, provide to Virtuozzo the names of all Authorized Users and all third parties whose rights to use Virtuozzo Products, and where applicable Third Party Products, are derivative of any of them.
(j) Virtuozzo may at any time suspend Customer’s access to Virtuozzo Products, and where applicable Third Party Products, in whole or in part, for the following reasons:
(i) In order to comply with any contractual, statutory, and/or regulatory obligation, a request or order from law enforcement, or a competent judicial, governmental, supervisory or regulatory body;
(ii) If Virtuozzo has reasonable grounds to suspect that Customer, Authorized Users or other third parties have acted or will act fraudulently, unlawfully, in a criminal way or in a way which could prejudice Virtuozzo, any Authorized User or any other third party;
(iii) If Customer, any Authorized Users or other third parties violates any contractual, legal, regulatory, statutory, or administrative obligation, or if any Authorized User or other third party is subject to US, EU or Swiss sanctions.
2. Certification. Upon Virtuozzo’s request, Customer shall certify to Virtuozzo in writing compliance with its obligations under these SCTs within a reasonable term upon receipt of Virtuozzo’s request.