Acronis Services Agreement

CONTRACT DETAILS

1. This Contract is made up of the following:

(a) The Contract Details.

(b) The Conditions.

2. If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

Agreed terms

1. Interpretation
   • Definitions:

• Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
• Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details.
• Conditions: these terms and conditions are set out in clause 1 (Interpretation) to clause 9 (General) (inclusive).
• Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details and these Conditions.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
• Customer Materials: all materials, equipment and tools, drawings, specifications, and data supplied by the Customer to the Supplier.

Data Protection Legislation: means any law, enactment, regulation, regulatory policy, by law, ordinance, or subordinate legislation relating to the processing, privacy, and use of Personal Data, that applies to the Customer, the Supplier, and/or the Services, including:

• the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws or regulations implementing EU Directives2002/58/EC (ePrivacy Directive);
• the General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679) and/or any corresponding or equivalent national laws or regulations, including the Data Protection Act 2018; and
• any judicial or administrative interpretation of any of the above, and any guidance, guidelines, codes of practice, approved codes of conduct, or approved certification mechanisms issued by any relevant DP Supervisory Authority,

In each case, as in force and applicable, and as amended, supplemented, or replaced from time to time.

• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill, and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Licence Agreements: any end-user licence agreement or other agreements issued by Third Party Licensors to the Customer directly.
• Services: the subscription services to be provided by the Supplier pursuant to the Contract, as described in the Contract Details.
• Services Start Date: for each respective Service purchased by the Customer during the Term and/or the Subsequent Term, either (i) the date of activation of the Service(s); or (ii) the shipment date of the Service(s), whichever date is latest.
• Subsequent Term: means 12 months commencing on the last day of the Term (as defined in clause 2) or previous Subsequent Term.
• Supplier IPRs: all Intellectual Property Rights subsisting in the Services excluding any Customer Materials incorporated in them.
• Third-Party: a person or entity who is not a party to this Contract.
• Third-Party Licences: means third-party licenses sold as part of the Services.
• Third-Party Licensors: means licensors who own or licence the Third-Party Licences and which are transacted through the Supplier and form part of the Services.
• Interpretation:
  • A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
  • Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
  • A reference to writing or written includes email.

2. Commencement and term

• The Contract shall commence on the date when it has been signed by both parties and shall continue 12 months after the Services Start Date (the Term) unless terminated earlier in accordance with the terms of this Contract. Thereafter, this Contract shall continue to automatically renew for a Subsequent Term on each annual anniversary of the Term, unless a party gives written notice to the other party, not less than 30 days’ written notice to terminate, expiring on or after the end of the Term or the relevant Subsequent Term, as the case may be.
• Any written notice given by the Customer to the Supplier under this Clause shall be sent to cloud@greymatter.com.
• For the avoidance of doubt, any Services added by the Customer during the Term or the Subsequent Term shall carry its own 12-month term from the start of that particular Services Start Date and the definition of Term shall be construed accordingly.
• Supply of services
  • The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract. The Supplier shall provide the Services based on the information provided by the Customer.
  • In supplying the Services, the Supplier shall:
    • perform the Services with reasonable care and skill;
    • perform the Services in accordance with the service description set out in the Contract Details;
    • observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer's premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
    • take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
  • The Customer acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Services. Examples of such conditions are listed below:
    • failure of any Customer hardware, software, or operating system; and
    • partial or full failure of Third-Party Licenses.
  • The Customer confirms that the Supplier may employ sub-contractors without seeking the prior consent of the Customer. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under this Contract, whether such obligations are performed by the Supplier itself, or any sub-contractor engaged by the Supplier and under the supervision of the Supplier. For the avoidance of doubt, the Supplier shall not be held liable for the actions or omissions of any (1) Third Party Licensors; and (2) Third Parties that are not its subcontractors.
  • The Supplier shall use all reasonable endeavours to meet any performance timelines specified under the Contract Details but any such timelines shall be estimates only and time shall not be of the essence for the performance of the Services. Further, the Supplier shall not be held liable to the Customer in the event of any delays in delivery or errors in the Contract Details.
• Customer's obligations
  • The Customer shall:
    • co-operate with the Supplier in all matters relating to the Services;
    • provide, for the Supplier, its agents, subcontractors, consultants, and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data, and other facilities as reasonably required by the Supplier;
    • provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and complete in all material respects.
  • If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
    • not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
    • be entitled to payment of the Charges despite any such prevention or delay; and
    • be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
  • The Customer agrees and acknowledges the terms of the applicable Licence Agreements shall form part of this Contract. For the avoidance of doubt, in the event Licence Agreements do not apply to the Services being received or delivered by the Supplier to the Customer under this Contract, such agreements shall not apply.
• Intellectual property
  • The Supplier and its licensors shall retain ownership of all Supplier IPRs. All Third Party Licensors shall retain ownership of all of their Intellectual Property Rights. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
  • The Supplier grants the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, license to use the Supplier IPRs for the purpose of receiving and using the Services in the Customer's business during the term of the Contract.
  • The Supplier shall procure the grant to the Customer from Third Party Licensors to use the Third Party Licences in accordance with the respective rights received from that Third Party Licensor and as more fully set out in the respective Licence Agreement.
  • The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
• Charges and payment
  • In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 6.
  • All amounts payable by the Customer exclude amounts in respect of value-added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
  • The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly unless set out in the Contract Details or as per the terms of this Contract. Each invoice shall include all reasonable supporting information required by the Customer.
  • Deliberately removed
  • The Supplier shall have the right to monitor the usage of the Services from time to time and Charge the Customer on its actual usage (such Charges will be reflected accordingly in the monthly subscription invoices for the following month). The Customer further agrees that the pricing in the Contract Details is subject to increases as per clause 6.10 of the Contract.
  • The Charges shall be based on actual usage of the Services and shall be payable by the Customer as more fully set out in the Contract Details. Such Charges shall apply irrespective of whether this Contract has been terminated if the Customer continues to use such Services after such termination.
  • The Customer shall pay each invoice due and submitted to it by the Supplier, within [30] days of receipt, to a bank account nominated in writing by the Supplier unless otherwise set out in the Contract Details. The Customer authorises the Supplier to charge all fees and amounts owing by the Customer as they become due and to charge all unpaid fees upon termination of the Contract to the credit card held on file. The Customer shall ensure that it updates any credit card authorisation within 15 days after an unsuccessful attempt by the Supplier to charge the primary or secondary card for unpaid fees. A fee may be charged by the Supplier if all credit cards are expired, declined, or late in making payments.
  • If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 8 (Termination):
    • the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at [4]% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0% and
    • the Supplier may suspend all Services until payment has been made in full; and
    • the Customer shall pay any and all costs and expenses of the Supplier which the Supplier incurs in collecting and receiving payment including any wire transfers or bank fees associated with the payment including without limitation any and all reasonable lawyer’s costs and expenses in regard to any collection of unpaid invoices.
  • All amounts due under the Contract from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law). The Customer must notify the Supplier of any disputed amounts on an invoice within ninety (90) days of the date of invoice. The Customer’s failure to make a claim within ninety (90) days will forfeit any dispute.
  • For the avoidance of doubt, the Supplier may increase any Third Party Licence fee in line with any increases imposed upon the Supplier by such Third Party. Such increases shall apply to any new purchase of the Services during the Term and/or the Subsequent Term.
• Warranties and Limitations of liability
  • Save as expressly provided in clauses 7.2 and 7.3 below, all warranties, conditions, and other terms implied by statute or common law or in any way otherwise are, to the fullest extent permitted by law, excluded from the Contract, including but not limited to warranties and conditions of satisfactory quality, fitness for a particular or any purpose, or ability to achieve any particular result.
  • Each of the parties warrants to the other that it has full power and authority to carry out the actions contemplated under the Contract and that its entry into and performance under the terms of the Contract will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.
  • Subject to the exceptions set out in the Contract and the limitations upon the Supplier's liability in clause 7.5, the Supplier warrants that:

• the Services will be carried out with reasonable skill and care;
• the Services will conform and operate in all material respects in accordance with the Contract Details;
• the Supplier does not warrant that the use of the Services comprised of software will be uninterrupted or error-free.

7.4        The sole remedy for breach of the warranty given in clause 7.3 (a) or 7.3 (b) is, at the Supplier's option (as applicable) to:

• repair the Services if it is capable of doing so;
• replace the Services if it is capable of doing so;

provided that the Customer provides the Supplier with all information that may be reasonably necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

• Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  • death or personal injury caused by negligence;
  • fraud or fraudulent misrepresentation; and
  • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
• Subject to clause 4, the Supplier's total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
• In clause 5:
  • The cap is the greater of £10,000 and 100% percent of the total charges in the contract year in which the breaches occurred;
  • contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it; and
  • total charges. The total charges mean all sums paid by the Customer under the Contract in respect of the Services actually supplied by the Supplier, whether or not invoiced to the Customer.
• This clause 7 sets out specific heads of excluded loss:
  • The following types of loss are wholly excluded:
    • loss of profits;
    • loss of sales or business;
    • loss of agreements or contracts;
    • loss of anticipated savings;
    • loss of use or corruption of software, data or information;
    • loss of or damage to goodwill; and
    • indirect or consequential loss.
  • Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8. Termination
   • Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
     • the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
     • the other party takes any step or action in connection with its entering administration, provisional liquidation, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceases to carry on business;
     • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
     • the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfill its obligations under the Contract has been placed in jeopardy.
   • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
     • the Customer fails to pay any amount due under the Contract on the due date for payment; or
     • there is a change of control of the Customer; or
     • if in the Supplier’s reasonable opinion, it considers that the Customer has brought disrepute to the name, reputation, services, or personnel of the Supplier; or
     • if the Supplier’s reasonable opinion, any information provided by the Customer to the Supplier as part of the order process prior to the execution of this Contract was misleading and/or inaccurate.
   • On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.
   • In the event of termination of the Contract, the Supplier shall be entitled to reject all or part of any additional Services purchased by the Customer after notice received but prior to the expiry of that notice. Furthermore, the Supplier may cancel shipment of any Services ordered by the Customer that has not yet been shipped provided such Third Party has enabled the Supplier that right. In the event any Third-Party Licences have been shipped during the notice period for termination, the Customer shall pay for these Services immediately.
9. General
   • Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances, or causes beyond its reasonable control.
   • Assignment and other dealings.
     • The Customer shall not assign, transfer, charge, subcontract, declare a trust over, or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier's prior written consent.
     • The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over, or deal in any other manner with any or all of its rights under the Contract.
   • • Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 3. For the purposes of this clause 9.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
     • Each party may disclose the other party's confidential information:
       • to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party's confidential information comply with this clause 3; and
       • as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
     • Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
   • Data Processing

The Customer acknowledges that by placing an order with the Supplier that the parties are bound by the Data Protection Legislation and the terms of the Supplier’s data protection requirements can be found at https://www.greymatter.com/corporate/wp-content/uploads/2018/06/Website-privacy-policy-GM.pdf.

• Entire agreement.
  • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
  • Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
• No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  • A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
• If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 9.8 shall not affect the validity and enforceability of the rest of the Contract.
• • Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
    • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    • sent by email to the address specified in the Contract Details.
  • Any notice or communication shall be deemed to have been received:
    • if delivered by hand, on signature of a delivery receipt;
    • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
    • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 9.8(b)(iii), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  • This clause 9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
• Third-party rights.
  • Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
  • The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
• Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
• Licensing Policy. This licence is subject to the terms of the Acronis Licensing Policy, which can be found at acronis.com/legal/licensing.html.
• This licence is subject to the End User Licence Agreement, which can be found at http://www.acronis.com/legal.html