These terms outline the general provisions governing you and OptimiCDN with regards to our services.
Revised: January 1st, 2015
By signing a Service Order Form, you (“Client”, “You”) accept these terms of service (the “Client Agreement”, “Terms of Service”, “Terms” or “Agreement”) and agree to be bound as well as comply with them. Please read these Terms of Service carefully before You start using Our services. We recommend that You print a copy of this for future reference, beware that We may change these Terms from time to time as stated below.
OptimiCDN Limited is a limited liability company registered in England under company number 9054201, whose registered offices are located at 38 Berkeley Square, London – W1J 5AE, (“OptimiCDN”, “We”, “Us”, “OCDN” or “Our”).
All terms starting by a capital letter shall be defined in OptimiCDN’s glossary available on Our website.
1.1 OptimiCDN shall provide services in conformity with the characteristics set in the Service Order Form (“Order”) and in accordance with the Service Level Agreement. Orders will be binding only when signed by both parties, or when OptimiCDN acknowledges and accepts in writing (which may be electronic) an Order transmitted to OptimiCDN by Client.
1.2 The specifications of the services governed by the Agreement is described on the web pages describing the particular service Client purchased based on the description as it stands on the Effective Date. OptimiCDN may modify products and services from timeto-time. Should the description of services change subsequent to the Effective Date, OptimiCDN has no obligation to modify services to reflect such change.
1.3 Services may include OptimiCDN’s own services and services that it resells from its suppliers (“OptimiCDN’s Suppliers”). Client acknowledges that OptimiCDN’s ability to grant Client a license to use certain Services or OptimiCDN’s ability to provide certain resold Services is subject to all leases, licenses, and/or other agreements (each a “Resale Agreement”) between OptimiCDN and OptimiCDN’ Suppliers. In the event of the expiration or termination of any applicable Resale Agreement, OptimiCDN may terminate the affected resold Service upon written notice to Client without any liability to Client. OptimiCDN agrees to give as much notice as possible under the circumstances of the termination or expiration of the Resale Agreement governing OptimiCDN delivery of the resold Service to Client, or any other condition arising under such Resale Agreement which may adversely affect Client’s use of the resold Service or OptimiCDN’s ability to provide such resold Service.
2. OBLIGATIONS OF OptimiCDN
2.1 It is OptimiCDN’s mission to provide a high quality, cost effective Service to Client. OptimiCDN shall provide the Service on a best effort basis, with no guarantee of uptime.
2.2 OptimiCDN shall use reasonable endeavors to maintain the Service in an operational state
2.3 OptimiCDN will use reasonable endeavors to repair or replace the defective part as soon as is reasonably possible unless that failure is not of its making, or any other procedure that would require an interruption of service exceeding the usual time of replacement. In the latter case, OptimiCDN will notify Client.
2.4 OptimiCDN reserves the right to modify its Network, system configuration or routing configurations. Nothing in this Agreement shall create or vest in Client any right, title or interest in the Service, its configuration or associated telephone numbers or addresses. OptimiCDN may, at its sole discretion and without liability, change or modify the features and functionalities of the Service or modify or replace any hardware or software in the Network provided that it does not have a material adverse effect on the committed Service.
3. OBLIGATIONS OF CLIENT
3.1 Client undertakes to cooperate with OptimiCDN in the performance of the Services, and shall timely provide OptimiCDN assistance, access to materials, information, and facilities as reasonably necessary for OptimiCDN to provide the Service.
3.2 Client agrees to participate as requested in any testing procedures and provide technician support services and a secure and safe environment to any of OptimiCDN’s employees, agents or subcontractors working on Client’s premises for installation, testing or maintenance of the Services or Supplied Equipment.
3.3 Client undertakes to provide and keep up to date valid contact information: including a Surname, First name, organization name if applicable, mailing address, telephone number and email address. Client shall provide OptimiCDN with the name of a Client representative who can be reached, in person, at all times, regarding technical support, the Services, DMCA or other Intellectual Property infringement takedown notices, the Network, security and abuse issues, and matters related to any of the foregoing.
3.4 Client shall ensure that all of the Client Equipment used in connection with the Services performs according to the applicable manufacturer’s published technical specifications and applicable interface specifications as defined for the Services. As such, except as may be specifically provided in an Order or Schedule, OptimiCDN shall have no obligation to install, maintain or repair any Client Equipment.
3.5 Client shall take reasonable steps to ensure that Client, Client’s customers and end users do not interfere with or disrupt other users of the Services or OptimiCDN’s Network.
3.6 Client undertakes to use the Service, including the network resources allocated to it, in good faith and only in accordance with the terms of this Agreement. In case of abnormal use of features and resources generated by the Service, OptimiCDN reserves the right to terminate Client’s Service according to the provisions of Clause 10 hereof.
3.7 Client is the sole administrator of the Service and is solely responsible for the management of the Service. Client is responsible for making the required backups to ensure the continuity of its activities.
3.8.1 Client shall comply with any and all laws, directives, regulations and conventions, and with any public policy related laws, that may be applicable to the use of the Services by Client and/or Client’s clients and end users and/or relating to the provision of those Services by Client to its own clients or end users, including, without limitation, all laws and regulations relating to the use of the Services, Network and Supplied Equipment.
3.8.2 Client shall obtain, as required by law or in accordance with the terms of this Agreement, any necessary permission or cooperation of a telecommunications network provider or other relevant person for the connection or maintenance of Client Equipment and Supplied Equipment.
3.9 Acceptable Use Policy (AUP). Client acknowledges that OptimiCDN exercises no control over the Content of the information available on the Internet or accessed through the Network. Client agrees that it is the sole responsibility of Client to ensure that the Content it and third parties (including, without limitation, Client’s own clients and end users) access online through Client’s use of a OptimiCDN Service complies with all applicable laws and regulations and this AUP clause. When OptimiCDN receives a complaint regarding an alleged violation of this AUP clause by Client’s user, OptimiCDN may notify the Client of such complaint, inform the complainant that Client is investigating the complaint and provide the complainant with the necessary information to contact Client directly to resolve the complaint.
4 TECHNICAL SUPPORT
4.1 OptimiCDN will use its best efforts to cure reported and reproducible errors in the Service. In conformity with Clauses 4.2 and 4.3 OptimiCDN, upon such notice as is reasonably practicable under the circumstances, shall perform scheduled or emergency maintenance (including temporary suspension of the Service if necessary) to maintain or modify the Network or the Service. Service suspensions for the purposes of scheduled or emergency Network modification or preventative maintenance shall be counted as downtime time.
4.2 For all other support issues, OptimiCDN shall provide basic email technical support (firstname.lastname@example.org) for both emergency and routine issues of the Service on a business day (9:30 am through 6:00 pm Amsterdam time, excluding holidays and weekends) basis.
4.3 To report critical support issues, strictly referring to the total and complete cease of Service delivery, CLIENT shall contact OptimiCDN (24×7 NOC) after the service issue arises.
5 LICENCE GRANT
5.1 Subject to the terms and conditions of this Agreement, OptimiCDN grants Client a limited, non-exclusive, non-transferable, nonsublicensable, revocable license during the Term of this Agreement to use the Software solely to support Client’s use of the Service ordered. “Software” means the object code form of the software and related documentation owned or licensed by OptimiCDN that may be provided to Client under this Agreement for use with the applicable Service ordered.
5.2 Client acknowledges that it is not obtaining any ownership or exclusive rights in the Software, notwithstanding any language to the contrary in this Agreement. Nothing in this Agreement should be construed as a sale of the Software or any copy of the Software. Client shall not for itself or for another party, without prior written consent of OptimiCDN:
5.2.1 reverse engineer, disassemble, decompile, recompile, update, or modify the Software, OptimiCDN Technology, the OptimiCDN Network, the Services or related materials or part thereof;
5.2.3 reproduce or make copies of the Software or any portion thereof, OptimiCDN Technology, the OptimiCDN Network, the Services or related materials or part thereof;
5.2.4 sublicense, provide access to, distribute or otherwise transfer the Software, OptimiCDN Technology, the OptimiCDN Network, the Services or related materials or part thereof, to any other person or entity;
5.2.5 remove any identification or notices of any proprietary or copyright restrictions from any Software, OptimiCDN Technology, the OptimiCDN Network, the Services or related materials or part thereof, related documentation or support or training material; or
5.2.6 compile or use the Software OptimiCDN Technology, the OptimiCDN Network, the Services or related materials or part thereof, or any part thereof for the purpose of any activities that violate any laws or regulations, including, without limitation, any anti-spamming laws and regulations. Client agrees that OptimiCDN may crawl or otherwise monitor the external interfaces of the Software for the purpose of verifying Client’s compliance with this Agreement. Client may not attempt to block or otherwise interfere with such crawling or monitoring.
5.3 OptimiCDN and OptimiCDN’ Suppliers expressly retain, and Client hereby waives any claim that it may have had or has to, title and ownership in and to all worldwide intellectual property rights in and to the OptimiCDN Technology, Services, Supplied Equipment, Network, Software, any documentation related to or provided with the OptimiCDN Technology, Services, Supplied Equipment, Network, or Software, and any improvements, extensions, modifications, adaptations, derivative works, and enhancements made thereto. Except as expressly set forth in this Agreement, no express or implied license, moral rights, or other rights of any kind are granted to Client regarding the Software, Supplied Equipment, Services, Network or the OptimiCDN Technology.
6 INTELLECTUAL PROPERTY
6.1 Client may not use the name, logo, trademarks, service marks, trade dress or other proprietary indicia owned or used by OptimiCDN (the “Marks”) without OptimiCDN’s prior written approval, including, without limitation, using OptimiCDN Marks (or any one of them) to identify OptimiCDN as the supplier or source of the Services provided to Client hereunder. Client acknowledges the validity and ownership of the Marks by OptimiCDN and agrees not to challenge or assist any entity in challenging the Marks.
6.2 Client authorizes OptimiCDN to publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of Client as a business reference.
6.3 Client agrees that it will comply with Intellectual Property legislation, namely:
- i) maintain a Designated Agent for takedown notices pursuant to the terms of the Digital Millennium Copyright Act of 1998 or any other equivalent Intellectual Property legislation;
- ii) take expeditious action to remove allegedly infringing material contained in the Client Content and of which it actually becomes aware; and
- iii) maintain and enforce a policy of terminating any repeat infringers who are Client’s end users or who access the Network through Client. Client will act expeditiously to OptimiCDN’s requests with respect to Network abuse and actions needed to be undertaken for Client’s or OptimiCDN’s compliance with the DMCA and any safeharbor requirements thereunder or any other equivalent Intellectual Property legislation.
6.4 Client assumes full responsibility for all Client Content. Client represents and warrants that:
6.4.1 It holds the requisite Intellectual Property Rights to the Client Content;
6.4.2 The Client Content (and the related rights granted to OptimiCDN under this Agreement) will not violate or infringe upon the Intellectual Property Rights of any person or entity; and
6.4.3 The Client Content will not constitute libel, defamation or disparagement of any third party.
6.5 OptimiCDN reserves the right without prior notice to Client to suspend Client’s or the Client’s customers or agents use of the Services (or remove Client Content) when OptimiCDN in its discretion believes Client or Client’s customers has transmitted, received, posted, stored, or displayed any Client Content that may result in a violation of (a) any Intellectual Property Rights, (b) any applicable federal, state, common, or international laws or regulations, including the laws or regulations of any foreign jurisdiction.
7.1 OptimiCDN’s liability
7.1.1 Due to the highly technical nature of their Service, OptimiCDN shall not be liable for downtime to the Service caused by routine or emergency maintenance by OptimiCDN or occasioned by the acts or omissions of third parties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OptimiCDN, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO CLIENT FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PURE ECONOMIC LOSS, PUNITIVE DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, OR REVENUES, DEPLETION OF GOODWILL OR SIMILAR LOSSES, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODS, LOSS OF CONTRACT, LOSS OF USE, LOSS OR CORRUPTION OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT TORT AND BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT, EVEN IF OptimiCDN, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. IN NO EVENT WILL OptimiCDN, ITS AFFILIATES OR SUPPLIERS, BE LIABLE TO CLIENT, ITS CLIENTS OR END USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY OptimiCDN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM. OptimiCDN LIABILITY SHALL BE LIMITED UNDER ANY CIRCUMSTANCES TO USD $10 000 (TEN THOUSAND DOLLARS) REGARDING THE PRICE PAID FOR THAT PART OF THE SERVICE TO WHICH THE LIABILITY RELATES.
7.1.2 OptimiCDN shall have no liability to Client under the Agreement if OptimiCDN’s performance of its obligations under the Agreement is prevented or delayed by any act, omission, fault or negligence of Client or Client’s agents, sub-contractors or employees, and in particular due to:
- (i) Damage to Client’s equipment, software or telecommunications links;
- (ii) Wrongful use of the software, including by Client or Client’s clients, or non-compliance with any operating instructions given by OptimiCDN;
- (iii) Fault, negligence or omission by a third party not connected to OptimiCDN;
- (iv) Issue by a competent authority of an order which is binding on OptimiCDN and which affect the Services;
- (v) Total or partial loss of the material and/or data uploaded due to an error by Client; or
- (vi) Incompatibility of the software with any of Client’s equipment, software or telecommunications links.
7.1.3 The following provisions set out the entire financial liability of OptimiCDN (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Client in respect of any:
- (i) Breach of the Agreement;
- (ii) Use made by Client of the Services;
- (iii) And representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement; or
- (iv) Otherwise howsoever arising.
7.1.4 Subject to condition 7.1.5, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
7.1.5 Nothing in the conditions excludes the liability of OptimiCDN for:
- (i) Death or personal injury caused by OptimiCDN’s negligence; or
- (ii) Fraud or fraudulent misrepresentation.
7.2 Client’s liability
7.2.1 Client shall be responsible for maintaining any master or back-up copies of its streaming media or other Content in all situations, including for clarity, where OptimiCDN is providing any storage services for Client. OptimiCDN shall have no liability for any claims relating to the destruction, loss or corruption of its streaming media or other Content.
7.2.2 Any Service malfunction resulting from any use by Client or its staff or any person to whom Client has provided a password or passwords for the Service, shall result in Client’s full responsibility. Client must keep its passwords, for the Service, confidential as well as its allocated private network connection. Client will be otherwise liable.
7.2.3 Client acknowledges and agrees that Client shall bear sole responsibility for adequate security, protection and backup of the Client Content, Client Technology and Client Equipment. OptimiCDN disclaims all responsibility or liability to Client for unauthorized access or use, corruption, deletion, destruction or loss of any Client Content, Client Technology or Client Equipment. OptimiCDN recommends Client to back up its material at least once a month.
7.3 Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from circumstances beyond its reasonable control, including without limitation, any act of God or of any governmental body, riot, war, civil unrest, sabotage, strike or other labor disturbance, fire, flood, earthquake, interruption or delay in transportation, or mechanical, electrical or communications failure or delay beyond the party’s control, but excluding failures caused by a party’s financial condition or negligence (“Force Majeure”). If either party is unable to perform under this agreement because of the occurrence of an event of Force Majeure lasting more than thirty (30) days, then the other party may terminate the Order applicable to the affected Service(s) only upon written notice to the other party delivered during the event of Force Majeure.
8 INDEMNIFICATION BY OptimiCDN AND CLIENT
8.1 Client will indemnify, defend and hold OptimiCDN, its affiliates and their respective directors, officers, employees, agents, shareholders, successors and assigns (each a “OptimiCDN Indemnitee”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and costs) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against a OptimiCDN Indemnitee relating to (i) a claim of infringement, misappropriation or violation of patent, copyright, trademark, trade secret, or other proprietary rights of a third party, defamation, publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or violation of data protection legislation, based on or involving (1) Client Content, Client Equipment, Client Technology or any other content or information transmitted by Client or its clients or end users using the Services, Network or OptimiCDN Supplied Equipment; or (2) the use and/or publication of all communications or information transmitted by Client or its clients or end users using the Services, Network or OptimiCDN Supplied Equipment; or (ii) Client’s misuse of the Service, Network or OptimiCDN Supplied Equipment; or (iii) Client’s gross negligence or willful misconduct; or (iv) breach of any of Client’s representation, warranties, covenants or obligations in this Agreement. THIS SECTION STATES CLIENT’S ENTIRE LIABILITY AND OptimiCDN’s SOLE AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS AND ACTIONS
8.2 OptimiCDN will indemnify, defend and hold harmless Client, its affiliates and their respective directors, officers, employees, agents, shareholders, successors and assigns (each a “Client Indemnitee”) from and against any and all Losses resulting from any Action brought by any third party against a Client Indemnitee relating to (i) a claim that the Services infringe, misappropriate or violate patent, copyright, trademark, trade secret, or other proprietary rights of a third party; and (ii) gross negligence or willful misconduct; provided, however that OptimiCDN shall have no obligation under this Section 8.2 to the extent such Action is caused by (1) Client’s or a third party’s modification of a Service or OptimiCDN Supplied Equipment; (2) OptimiCDN’s adherence to Client’s instructions or specifications; (3) infringing items of Client’s or third party’s origin, design or selection, including, without limitation, Client Content; (4) the operation, combination or use of Service or OptimiCDN Supplied Equipment with products or services provided by Client or third parties; or (5) Client’s misuse of the Services or OptimiCDN Supplied Equipment, negligence, willful misconduct or intentionally wrongful conduct. THIS SECTION STATES OptimiCDN’s ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS AND ACTIONS.
8.3 Each party’s indemnification obligations hereunder shall be subject to:
- (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby);
- (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages);
- (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party’s option and expense; and
- (iv) receiving full cooperation of the indemnified party in the defense thereof. In the event Client notifies OptimiCDN of any Action against Client, OptimiCDN’s indemnification obligations shall be further conditioned on OptimiCDN having the option to do one or more of the following:
- (1) to permit any party obligated to indemnify OptimiCDN in such circumstances to defend or settle, at such party’s own expense, such a claim or suit;
- (2) to procure a license sufficient to continue offering the Services or products (including, without limitation, Client’s use thereof);
- or (3) to terminate the applicable Service or provision of equipment (provided that in the event of terminating the applicable Service, OptimiCDN shall continue to remain liable for its indemnification obligations).
9.1 Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, pricing, financial data, vendors, employees, customers, technology, know-how, ideas, trade secrets, products, specifications, software, designs, services, forecasts, strategies, and other information held in confidence by the other party (collectively, “Confidential Information”). The parties also agree that the terms of this Agreement shall be deemed Confidential Information of OptimiCDN. Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. . Confidential Information will also include, but not limited to, OptimiCDN Technology, Client Technology, and the terms and conditions of this Agreement, but shall not include Client Content. Notwithstanding anything contained to the contrary herein, information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
9.2 Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. The obligations of this Section 9.2 shall survive the expiration or termination of this Agreement.
9.3 In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 9 the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this Section 9 would cause irreparable harm and that all other remedies are inadequate.
9.4 Personal Data. In the event that Client (or Client’s own clients or end users) discloses any personal data to OptimiCDN (“Personal Data”), Client (i) agrees that OptimiCDN, OptimiCDN’s Suppliers and their affiliates may store, process and use such Personal Data consistent with applicable laws and regulations, only for the purpose of the provision of Services by OptimiCDN to Client or for purposes connected with the subject matter of the disclosure and/or business relationship between the parties; (ii) acknowledge that such use and processing may include the transfer of such Personal Data to OptimiCDN’s Suppliers and OptimiCDN’s affiliates worldwide and/or its storage in a local or foreign database; and (iii) agree that Client will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned. OptimiCDN warrants that any sub-processing of Personal Data will fulfill all the legal requirements to ensure that the personal data being transferred continue to be protected notwithstanding the transfer to a sub-processor.
10 PAYMENT TERMS
10.1 Client shall pay OptimiCDN for the provision of Services accordingly with the fees and terms set forth in the applicable Service Order Form(s), together with all reasonable fees or costs for third party products or services that OptimiCDN procures on behalf of Client, to the extent such third party fees and costs are approved by Client in writing. Unless specifically indicated in an Order, Client is responsible for all cross connects and any associated costs.
10.2 Prior to rendering any Service under an Order, OptimiCDN shall bill Client for all non-recurring fees indicated in the Order and for the first month’s MRC (“Initial Invoice”). Client will be required to pay the Initial Invoice for each Order prior to OptimiCDN rendering any Service under that Order to Client.
10.3 The fees and all other amounts due to OptimiCDN, exclusive of all taxes, duties, and assessments, including without limitation all sales, withholding, VAT, excise, ad valorem, and use taxes (collectively, the “Taxes”) and are not subject to offset or reduction because of any Taxes incurred by Client or otherwise due as a result of this Agreement. Client shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement; provided, however, that this Section shall not apply to taxes based solely on OptimiCDN’s income. In the event Client or the transactions contemplated by this Agreement are (or, after the Effective Date, become) exempt from the foregoing, Client shall promptly provide to OptimiCDN evidence of such tax exempt status.
10.4 The fees for a Service listed in an Order will remain in effect during the Initial Term of the Service. OptimiCDN may change its fees for a Service during a Renewal Term upon thirty (30) days’ prior written notice to Client may terminate such Service by written notice to OptimiCDN at least fifteen (15) days prior to any increase in fees; otherwise the Client will be deemed to have accepted the new fees.
10.5 OptimiCDN accepts payment by wire transfer. Payment occurs on a monthly basis upon reception of the bill and must not exceed eight (8) days of the said reception.
10.6 Without prejudice to any other rights it may have, OptimiCDN may in its discretion refuse to accept any order placed by Client if Client defaults in respect of any payment due to OptimiCDN.
11 AGREEMENT DURATION AND RENEWAL OF SERVICE
11.1 This Agreement shall be effective as of the Effective Date or upon execution by both Client and OptimiCDN, whichever is earlier, and shall continue in full force until the termination of the last Order in effect, unless earlier terminated pursuant to the terms outlined in Clause 12.2 below.
11.2 The initial term of a Service Order Form is set forth in the Service Order Form (the “Initial Term”). Thereafter, the Service Order form shall automatically renew for consecutive terms of one (1) year each (each, “Renewal Term”), unless Client provides a written notice to OptimiCDN at the following address: email@example.com, no later than sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term of such Party’s decision not to renew the Service Order Form. The Agreement Term, the Initial Term, and Renewal Term are collectively referred to as the “Term”.
12 TERMINATION AND SUSPENSION OF SERVICE
12.1 Either Party may terminate this Agreement or an Order immediately upon written notice to the other Party (or OptimiCDN may, in its sole discretion, suspend or cancel the provision of Services under any Order) if:
- (i) the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the same, except in the case of Client’s failure to pay fees; or
- (ii) the other party becomes the subject of any voluntary or involuntary proceeding relating to bankruptcy, insolvency, receivership, liquidation, or composition for the benefit of creditors; or
- (iii) the other Party commits a material breach of this Agreement that is incapable of remedy, including, without limitation Client’s breach of its representations and warranties or obligations of confidentiality, or if Client makes available Client Content that is or is alleged to be illegal or in violation of the rights of third parties.
In addition to the foregoing, OptimiCDN party may terminate this Agreement or an Order (or suspend or cancel the provision of Services under any Order) immediately upon written notice to Client, if (a) Client commits or omits from taking any action which causes, or can reasonably be expected to cause, imminent harm to OptimiCDN, OptimiCDN’s Suppliers or any of the foregoing parties’ property or network; (b) Client repeatedly breaches this Agreement; (c) OptimiCDN believes that provision of Services is or will be a violation of applicable law or regulation or of any OptimiCDN’s licenses (or similar provision) in any jurisdiction.
12.2 OptimiCDN may terminate the Agreement or an Order on prior written notice, if OptimiCDN determines in its sole discretion that:
- (i) Client’s traffic pattern is not what was anticipated by OptimiCDN; or
- (ii) the Services used by Client are, or are reasonably anticipated to, negatively affect OptimiCDN’s own network or the use of OptimiCDN’s own network or the use of OptimiCDN’s services by other clients.
12.3 Subject to the payment of any fees due to OptimiCDN, including without limitation, the early termination fees, Client may terminate the Agreement or any Order but not an individual Service), without any cause, upon a thirty (30) days prior written notice to OptimiCDN.
12.4 Clauses 6, 9 and 10 shall survive termination or expiration of this Agreement.
12.5.1 Without prejudice to any other rights it may have, OptimiCDN may in its discretion and without notice limit or suspend Client’s rights and/or access to the Service if:
18.104.22.168 OptimiCDN reasonably believe that the Service is being used in violation of the Agreement;
22.214.171.124 Client does not cooperate with OptimiCDN’s reasonable investigation of any suspected violation of the Agreement;
126.96.36.199 OptimiCDN reasonably believes that Client’s use of the Service poses a security risk to the Infrastructure, to OptimiCDN, or to any third party, may adversely affect the systems or content of OptimiCDN or any third party, or may subject OptimiCDN, its affiliates or any third party to liability;
188.8.131.52 OptimiCDN reasonably believes that Client’s Service has been accessed or manipulated by a third party without Client’s consent; or
184.108.40.206 As required by law, OptimiCDN will give Client reasonable advance notice of suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless OptimiCDN determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Service from its imminent and significant operational or security risk.
12.5.2 If the suspension is based on Client’s breach of its obligations under this Agreement, then OptimiCDN may continue to charge Client the fees for the Service during the suspension, and may charge Client a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Service.
13 GENERAL PROVISIONS
13.1 Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity. Client shall not sub-license or commercialize the Service to any third party.
13.2 Independent contractor. The relationship of the Parties established by the Agreement is that of independent contractor. Nothing contained in this Agreement shall be construed to create any agency, partnership, franchise, joint venture, employment or other association. Neither Party shall have authority to act or make any representations or warranties on behalf of the other Party, or to create or assume any obligation on behalf of the other Party for any purpose.
13.3 Entirety. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
13.4 Severability. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would be valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
13.5 Amendment. This Agreement may be modified or amended in writing, if the writing is signed by the party obliged under the amendment.
13.6 Notice. Any notice or communication or permitted under this Agreement shall be sufficiently given if delivered in person or certified by mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
13.7 Governing Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of England and Wales, without regard to conflicts of laws rules. THE PARTIES HEREBY CONSENT TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF ENGLAND AND WALES.
13.8 Waiver of contractual right. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.