====== Section 16-21 ====== ===== 16. Indemnification ===== 16.1 Without limiting any other legal remedy available to LeaseWeb, if there is any breach by Customer of a warranty or any other provision of the Agreement, Customer shall: a) indemnify and hold harmless LeaseWeb against all actions, losses, costs, damages, awards, expenses, fines, fees (including legal fees ‐ including attorney and collection agency fees ‐ incurred and/or awarded against LeaseWeb), proceedings, claims or demands in any way connected with the Agreement, arising out of any infringement or misappropriation or alleged infringement or misappropriation of any United States or foreign copyright, trade secret or other proprietary right related to any Equipment utilized by Customer in connection with any of the software or Services, and including claims brought or threatened against LeaseWeb by a third party related to content or arising out of the use by Customer of the Services, or any wilful or negligent act or omission of Customer; \\ b) provide, at Customer's sole expense, LeaseWeb with full authority, information and assistance as is reasonably necessary for the defence, compromise or settlement of such claim; and \\ c) at the request of LeaseWeb, take those steps that are reasonably required to put LeaseWeb in the financial position it would have been in if that breach did not occur. ===== 17. Limitation of liability ===== 17.1 LeaseWeb does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Equipment, the software, and Services or any information that may be obtained therefrom is at Customer’s own risk. Notwithstanding anything else to the contrary contained in this Agreement, LeaseWeb's maximum aggregate liability to Customer for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the lesser of five hundred thousand US Dollars (US$ 500,000.‐‐) or the total amount of fees paid by Customer to LeaseWeb for the prior twelve (12) months. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF LEASEWEB’S EQUIPMENT, SOFTWARE AND SERVICES BY CUSTOMER OR ANY THIRD PARTIES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. For the purpose of this Section 17.1, any ‘direct damages’ shall be limited to damages caused by, or in connection with, the performance of the Services, or which are the result of, or the consequence of, a breach of an obligation, warranty or guarantee under the Agreement, for which Customer bears the burden of proof, and such damages are caused by, or resulting directly from an intentional act or the gross negligence by LeaseWeb or by persons employed by or engaged by LeaseWeb. 17.2 LeaseWeb shall not be liable for: a) any harm or personal injury to Customer or Customer’s employees, clients, representatives or agents, except when such harm or personal injury is the direct result of gross negligence or wilful misconduct on the part of LeaseWeb; \\ b) any transaction, which Customer may enter into with a third party using the Services; \\ c) the contents of any information and/or communications transmitted via the Equipment and/or Services or for any information or content on the Internet; \\ d) the contents of any information and communication, in whatever form, transmitted by Customer over the Network; \\ e) the accuracy or quality of information obtained through the Services; \\ f) damage to or loss of any of Customer’s data (bases) or loss of technology, except when such damage or loss is the direct result of gross negligence or wilful misconduct on the part of LeaseWeb; \\ g) damage to or loss or destruction of Colocated Equipment, except when such damage or loss is the direct result of gross negligence or wilful misconduct on the part of LeaseWeb; \\ h) damage that is the direct or indirect result of the actions of Customer contrary to (one of) its obligations under the Agreement; \\ i) damage that is the direct or indirect result of an inaccuracy of the information provided by or on behalf of Customer; \\ j) damage that is the direct or indirect result of the suspension of Services by LeaseWeb, as referred to in Section 11 and Section 13; \\ k) damage that is the direct or indirect result of the Customer Portal being (temporarily) offline or otherwise unavailable; \\ l) damage that is the direct or indirect result of the Customer’s use of the Customer Portal; \\ m) damage that is the direct or indirect result of a Denial‐of‐ Service (DoS) attack, or other attack that results in a peak in data traffic, or any damage resulting from successful or unsuccessful hack attempts, regardless whether protected by an SSL certificate or (hardware) firewall provided by or through LeaseWeb; \\ n) damage in case LeaseWeb has not been notified of such damage in writing within eight (8) days after Customer has come to know of the damaging event, or should reasonably have known of it; or \\ o) any damage in case and insofar as such damage is covered by any insurance effected by or for the benefit of Customer. 17.3 Notwithstanding any other provision of the Agreement, LeaseWeb shall not be liable to Customer, if changes in any of its facilities, procedures, or Service: (i) render obsolete Colocated Equipment in conjunction with its use of the Service; (ii) require modification, alteration or relocation of such Colocated Equipment; or (iii) otherwise affect the performance of such Colocated Equipment. 17.4 The legal remedies outlined in Sections 6.3 and 20.4a) constitute all legal remedies available to Customer in relation to a delay of the RFS Date by LeaseWeb. LeaseWeb shall have no other liability to Customer if the Service is not ready for Customer’s use on or before the initial or delayed RFS Date; or ‐ if the installation is to be performed by LeaseWeb ‐ the installation is not completed by the initial or delayed RFS Date. 17.5 The legal remedies outlined in Section 12.4 and Section 20.4b) constitute all legal remedies available to Customer in relation to a Service Disruption and any failure by LeaseWeb to meet the agreed Service Levels. 17.6 All Customer’s claims for compensation end in any case twelve (12) months after the damaging event has taken place, unless: (i) Customer and LeaseWeb have come to a written arrangement; or (ii) Customer has commenced legal action in accordance with Section 27. 17.7 Nothing in the Agreement shall exclude or limit the liability of Customer to: (i) pay the Service Charges; or (ii) repair (or if repair is not practicable, replace) any tangible physical property intentionally or negligently damaged by Customer or its representatives or employees. 17.8 Nothing in this Agreement shall operate to exclude or limit a Party’s liability resulting from (i) wilful misrepresentation or fraud; or (ii) wilful misconduct; or (iii) gross negligence. ===== 18. Insurance ===== 18.1 Customer shall obtain and ‐ at least for the duration of the Agreement ‐ maintain the following insurances with a reputable insurance company, which (at minimum) covers: a) third party liability; \\ b) Customer’s liability towards LeaseWeb; and \\ c) Customer’s liability as an employer towards Customer’s employees; in each case up to an amount per event of – at least – three (3) times Customer’s total annual Service Charges, with a minimum of one million US Dollars (US$ 1,000,000.‐‐). 18.2 Without prejudice to Section 17.2g), the Colocated Equipment shall at all times be at Customer's risk. Therefore, during the continuance of the Agreement, it shall be Customer's responsibility to insure at its own expense, and keep insured the Colocated Equipment, with a reputable insurance company against loss, theft, damage or destruction howsoever arising at an amount not less than the full replacement value of the Colocated Equipment. Under no circumstances shall LeaseWeb be obligated to provide insurance coverage for any of the Colocated Equipment or other Customer property installed within the POP and/or the LeaseWeb Datacenter. 18.3 Customer shall provide LeaseWeb with documentation evidencing Customer’s compliance with the provisions set forth above in this Section 18, within ten (10) days of LeaseWeb’s request to that effect. In general LeaseWeb considers a written statement by Customer’s insurance company, confirming Customer’s compliance, to be sufficient evidence. ===== 19. Term / renewal ===== 19.1 At the end of the Initial Term of a Web Order, the Web Order shall be renewed for successive terms equal to the Initial Term (“Renewal Term” or “Renewal Terms”), unless either Party notifies the other in writing that it does not agree to the renewal of the Web Order, taking into account a notice period of at least: a) one (1) hour, provided that such notice is submitted by means of the Customer Portal; or \\ b) five (5) Business Days, in the event that notice is submitted by other means than the Customer Portal. 19.2 At the end of the Initial Term of a non‐Web Order, (the term of) the Web Order shall be renewed for successive terms equal to the Initial Term, unless either Party notifies the other in writing that it does not agree to the renewal of (the term of) the Web Order, taking into account a notice period of at least: a) one (1) hour, in the event of an Initial Term / Renewal term of one (1) month, provided that such notice is submitted by means of the Customer Portal; \\ b) five (5) Business Days, in the event of an Initial Term / Renewal term of one (1) month, in the event that notice is submitted by other means than the Customer Portal; \\ c) two (2) months, in the event of an Initial Term / Renewal term of three (3) months or longer. ===== 20. Termination ===== 20.1 A Party is entitled to terminate the Agreement by giving written notice to the other Party, in accordance with Section 25, effective immediately, if: a) the other Party has ceased to exist or has been dissolved; \\ b) the other Party has been declared bankrupt, or it has been granted suspension of payments or entered into voluntary liquidation; \\ c) the other Party’s business has been discontinued; \\ d) the other Party is in breach of any of the other terms of the Agreement and, if and to the extent such breach can be remedied, fails to remedy such breach within a period of thirty (30) days after having received notice with respect to the breach; and/or \\ e) the other Party is unable to perform its obligations due to an event of Force Majeure, provided that the event of Force Majeure has lasted more than sixty (60) days and the Parties are unable to reach a temporary solution for the Force Majeure period in spite of having negotiated in good faith with respect to such temporary solution. 20.2 LeaseWeb is entitled to terminate the Agreement with immediate effect, by giving written notice to Customer, without an obligation to take into account a notice period, in the event: a) the provision of the Services and/or access to the Equipment has been suspended in according with Section 11.1 for seven (7) or more consecutive days; \\ b) Customer has –according to LeaseWeb’s findings‐ repeatedly materially breached the LeaseWeb Policies; \\ c) Customer does not pay an invoice within the payment term and fails to pay such invoice, plus the interest referred to in Section 9.11, within a period of fourteen (14) days after having received notice thereof; and/or \\ d) of a change of ownership or Control of Customer if, in LeaseWeb’s opinion, (i) the party that acquires ownership or Control of Customer is of lesser socio‐economic standing than the party which owned Customer or had Control of Customer as at the Effective Date; and/or (ii) Customer’s credit situation is adversely affected by such change of ownership or Control; and/or \\ e) a court has ruled or decided, or LeaseWeb reasonably expects that a court will rule or decide, that the provision of any Service infringes upon the Intellectual Property Rights of a third party. 20.3 LeaseWeb is entitled to terminate the Agreement by giving prior written notice to Customer of at least thirty (30) days, in accordance with Section 25 in the event that: a) LeaseWeb has received notification from its lessor or landlord with respect to termination or expiration of the Facility Agreement where the Housing Space ‐ that has been licensed to Customer ‐ is located; and \\ b) LeaseWeb will, for any reason, not be able to arrange for an alternative and suitable location for the Housing Space within a period of thirty (30) days after having received notification from its lessor or landlord, such to be determined at LeaseWeb’s sole discretion. 20.4 Customer shall be entitled to terminate the relevant Order with immediate effect, by giving written notice to LeaseWeb, effective immediately, if: a) LeaseWeb unilaterally delays the RFS Date, and such delay continues for thirty (30) days after having received notification of Customer’s intention to terminate; and/or \\ b) LeaseWeb fails to remedy a Service Disruption that results in the Service provided under the Order being fully unavailable or unusable, within thirty (30) days after having received notification of Customer’s intention to terminate. ===== 21. Consequences of termination ===== 21.1 Termination or expiration of the Agreement shall be without prejudice to any rights or remedies available to, or obligations or liabilities accrued to the Parties, as at the date of termination or expiration. 21.2 Upon expiration or termination of the Agreement: a) LeaseWeb shall cease to provide all Services; \\ b) LeaseWeb shall be entitled to erase and delete any and all data of Customer ‐and any and all data of Customer’s End Users‐ from LeaseWeb’s Equipment, including from the Dedicated Equipment;\\ c) LeaseWeb shall be entitled to make the Dedicated Equipment available for use by other Customers; \\ d) all sums due to LeaseWeb up to the date of termination shall become due and payable in full immediately, except when Customer has terminated the Agreement in accordance with Section 20.1 or Section 20.4, in which case the regular payment terms shall apply; \\ e) Customer shall, subject to Section 21.5, remove all of the Colocated Equipment from the LeaseWeb Datacenter and shall return the Housing Space to LeaseWeb in the same condition it was in prior to Customer’s use thereof; and \\ f) Customer shall ensure that all (Internet) domains which have been registered through LeaseWeb are transferred to another registrar. 21.3 If Customer does not timely remove the Colocated Equipment in accordance with Section 21.2e), (i) LeaseWeb may, at Customer’s expense, remove and store the Colocated Equipment or return such Equipment to Customer, or dispose of such Equipment without liability for any related damages, and (ii) Customer shall be liable to pay to LeaseWeb a penalty equal to one month’s Service Charges for the terminated Colocation Services for each month, or part of a month, that Customer has failed to remove the Colocated Equipment. 21.4 If Customer has not transferred the (Internet) domains to another registrar ultimately within five (5) Business Days of the date of expiration or termination of the Agreement, in accordance with Section 21.2f), LeaseWeb shall be entitled to deregister or cancel the registration of such (Internet) domains, without any obligation to provide Customer prior notice thereof. 21.5 LeaseWeb will have the right to retain any Colocated Equipment until it has received payment in full of all sums due and/or payable by Customer to LeaseWeb. If LeaseWeb has not received such sums within a reasonable time frame after termination or expiration of the Agreement, such to be determined by LeaseWeb, LeaseWeb shall be entitled to sell any Colocated Equipment, necessary to recoup all sums due and/or payable, at such price as LeaseWeb is able to obtain in the open market. 21.6 In the event that the Agreement is terminated by LeaseWeb in accordance with Section 20.1, 20.2a), 20.2b), 20.2c), or 20.2d), Customer shall: a) reimburse LeaseWeb for any third party cancellation/termination charges associated with the Services so terminated; \\ b) pay to LeaseWeb the amount of any Services Charges discounts granted to Customer by LeaseWeb in consideration of the length of the Term; and \\ c) – without prejudice to any other rights or remedies that LeaseWeb may have, within five (5) Business Days after the effective date of termination pay to LeaseWeb one hundred percent (100%) of the Service Charges, actual or projected, for the period from the effective date of termination up to and including the last day of the then current Term. 21.7 In the event that the Agreement, or an affected Service, is being terminated by LeaseWeb in accordance with 20.2e), LeaseWeb shall refund to Customer: a) any non‐recurring initial charges or setup charges that have been paid by Customer to LeaseWeb in respect of the Service so terminated, in the event that the Agreement or affected Service is terminated prior to the RFS Date; and \\ b) a pro rata portion of any recurring Service Charges that have been prepaid by Customer to LeaseWeb in respect of the Service so terminated, if and to the extent that such prepayment exceeds the Service Charges that will accrue until the date of termination of the affected Service. 21.8 The following Sections shall survive termination or expiration of the Agreement and continue in full force and effect, in addition to those Sections the survival of which is necessary for the interpretation or enforcement of this Agreement: Indemnification (Section 16), Limitation of Liability (Section 17), Confidentiality (Section 23), Notices (Section 25), Miscellaneous (Section 26), Governing Law and Dispute Resolution (Section 27).