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en:help_system:rules_leaseweb:obschie_uslovija:razdely_16-21

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).