WARPCACHE B.V. MASTER SERVICES AGREEMENT
YOU MUST CAREFULLY READ THIS WARPCACHE B.V. MASTER SERVICES AGREEMENT (“AGREEMENT” or “MSA”) BEFORE SIGNING, EXECUTING OR OTHERWISE PLACING YOUR SERVICE ORDER FOR WARPCACHE SERVICES. BY ORDERING WARPCACHE SERVICES, YOU AGREE TO BE BOUND BY THE LATEST AMENDED VERSION OF THIS AGREEMENT.
This Agreement is entered into between Warpcache B.V., a private company, established under laws of the Netherlands with limited liability according to Dutch law, and having its registered office at Nieuwravenstraat 5 Bis A in Utrecht, the Netherlands, (hereinafter referred to as “Warpcache”), and you, the Customer, (hereinafter referred to as “Customer”), who executed a Service Order or Statement of Work document with reference to this Agreement,
“Warpcache Content Optimization Platform” also referred to herein as the “Warpcache Platform” that optimally routes content through one or more CDN’s.
“Acceptable Use Policy” “AUP” means the policy currently available at http:// warpcache.com/acceptable-use-policy/, as it may be updated by Warpcache from time to time.
“Accepted” or “Acceptance” means a Party’s authorized execution and acceptance of a document.
“Subscription” to the Warpcache Platform services pursuant to the scope and the terms and conditions set forth in this Agreement.
“API” An application programming interface (API) is a set of definitions that allow a computer program to communicate with another program or component, in this case the Warpcache Platform.
“Customer Content” means content, software, data, video or information of Customer and/or End Users, including third-party content, software, data and equipment, provided or made available to Warpcache for storage, delivery or otherwise in connection with Services.
“End User” means a subscriber, member, end-user, customer or other visitor of an online site or service owned and/or operated by Customer.
“Customer Data” includes all data that identifies Customer, or their respective End Users. Customer Data may include Customer name, employee contact information, End User Data, data necessary for account establishment, billing data or content transmission data when such data identifies Customer.
“End User Data” includes End User name, address, contact information, usage, billing or any other data that personally identifies authorized End Users of the Services.
“Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and trade names, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.
“Quotation” or “Quote” means a non-binding proposal communicated to Customer, specifying Services to be performed and the associated fees and charges (collectively “Fees”). Upon Customer’s approval of a Quotation, Warpcache will send to Customer a Service Order or Statement of Work for Acceptance.
“Service Order” means a service specification, price, quantity and Customer commitment for Warpcache services, based on a mutually accepted Quotation, of standard or non-standard Services to be performed by Warpcache for the specified time period.
“Service Start Date” means the Service start date set forth in the applicable Service Order
“Service Level Agreement” “SLA” means all service level agreements that we offer with respect to the Warpcache Services and post on the Warpcache site, which may be updated by Warpcache from time to time.
“Services” means all of the Warpcache services as set forth in any applicable Service Order that Warpcache provides to Customer pursuant to this Agreement.
“Service Terms” means the rights, limitations and restrictions and other service specific details for particular Services located at: https://www.warpcache.com/legal, which may be updated by Warpcache from time to time, and are incorporated into this Agreement by reference.
“Warpcache Provisioning and Support Portal” means the method and process Customer uses to set up, configure, manage CDN’s, DNS and other CDN & DNS usage analytics.
“Taxes” means any applicable foreign or domestic taxes, tax-like charges, tax-related charges and other charges or surcharges assessed in connection with Services, including all excise, use, sales, value-added and other fees, surcharges and levies.
2.1 Warpcache will provide Services to Customer as specified in a mutually Accepted Service Order, subject to the terms and conditions herein. Within five Days after Customer has submitted to Warpcache an Accepted Service Order, Warpcache will respond with Acceptance or reason for non-Acceptance. Warpcache will not be bound to provide Services until the applicable Service Order has been mutually Accepted. However, if Customer begins using Services before the Service Start Date in an applicable Service Order, the provision and use of such Services nonetheless will be governed by the terms of this Agreement, Service Terms, SLA, AUP and the Service Orders.
2.2 Customer acknowledges that Warpcache (a) does not own or control any of the CDN services provided as a service, including local circuit links, leased co-location spaces, leased space cross-connects, Internet service providers (“ISP”) providing connectivity to Warpcache, other networks outside the connectivity to Warpcache or ISPs, or the “Internet”. Warpcache will not be responsible for performance or non-performance within such networks or within non-Warpcache operated interconnection points between the connectivity and other networks, (b) is a mere intermediary conduit for the transmission of Customer Content and does not exercise editorial or other control over such materials and (c) will not be responsible for, and expressly disclaims any liability arising from, any such materials or other data accessible on the Internet or for any actions taken on the Internet.
2.3 Warpcache may at any time, and without notice, use the services of one or more affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement, and Customer’s obligations to Warpcache extend to those parties when acting on Warpcache’s behalf.
2.4 To be eligible for a Service Credit under the SLA, which is incorporated herein by reference, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements.
2.5 Given the nature of the Services, Customer, and not Warpcache, is solely responsible for (i) all bandwidth abuse, theft or other unauthorized usage or activity occurring on Customer ‘s account (e.g., leeching or hotlinking/direct linking to content), (ii) all resulting Fees and costs, (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by Warpcache or a third party) related to Customer’s account and (iv) regularly monitoring all usage of bandwidth and Services and other activity on Customer’s account. Warpcache makes available to Customer, through Warpcache reporting tools and the Warpcache Provisioning and Support Portal, data regarding Customer’s billable usage of bandwidth or Services; but Warpcache is not responsible for notifying Customer of usage or activity patterns occurring on Customer’s account.
2.6 Warpcache may modify the configuration of the Services, provided such modifications are necessary due to technical, economic or regulatory developments or to maintain the quality standard of Services and such modification will not affect the essential characteristic features of Services ordered. In such event, Warpcache shall use commercially reasonable efforts to notify Customer prior to any such modification becoming effective. Customer’s continued use of Services following the modification will constitute Customer’s acceptance of the modification.
3. Customer Obligations
3.1 For Services to function as intended, Customers must cooperate in good faith with Warpcache to configure and enable Services. When Customer elects to send or receive Customer Content using Services, Customer is solely responsible for modifying its content identifiers, consistent with instructions that Warpcache provides, to enable Warpcache to deliver the selected content. This may include changing the alias information in Customer’s DNS record so that hostname addresses of page objects resolve to Warpcache’s servers.
3.2 Customer acknowledges that the timely and successful performance of Services requires good faith cooperation by the Customer. Therefore, Customer will (a) furnish all information reasonably requested by Warpcache, (b) comply with all laws, regulations, orders and statutes which may be applicable to Customer, and (c) timely perform its obligations as necessary to meet any schedule or deadline in the applicable Service Order. In the event that any failure by the Customer to comply with the provisions of this Section 4 results in any delay, deficiency or interruption in the performance of Services, Warpcache shall not be deemed in breach of the applicable Service Order for such delay and Customer shall be responsible for any costs reasonably incurred by Warpcache in addressing and remedying such delay, deficiency or interruption.
3.3 The Services provided by Warpcache pursuant to this Agreement and under any Service Order shall only be used for purposes assumed under this Agreement, and in accordance with applicable local legislation, rules and regulations. Warpcache shall be entitled, at its reasonable option, to immediately suspend Services if in its sole opinion Services are being used in a manner that may result in liability or other damage for Warpcache.
4. Acceptable Use
4.1 As between the Parties, Customer is solely responsible for any Customer Content stored, reproduced, displayed or distributed using Services. All use of Services, unless otherwise indicated in a Service Order, is governed by the AUP”, which is made a part of this Agreement.
4.2 If Warpcache determines, in its sole reasonable discretion, that Customer Content or Customer’s use of Services violates the AUP or otherwise adversely impacts the Services, Warpcache reserves the right to take remedial measures including blocking or disabling access. Warpcache will use commercially reasonable efforts to limit the measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties will work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact. For purposes of this Agreement, “adversely impacts” does not mean an unscheduled increase in End User traffic.
5. Fees and Payments
5.1 Customer will pay to Warpcache all Fees incurred on Customer’s account in full, as set forth in this Agreement and any Service Order, without off-set, withholding or deduction by Customer. Warpcache will provide Notice of all changes to the Services, including new features, functions or services. The new Services will be effective on the date set forth in the notice. For Services purchased without a monthly or other rate commitment or where such commitment has terminated or expired, Warpcache will provide at least 30 days’ written Notice of rate increases.
5.2 All charges are exclusive of Taxes, Customer is solely responsible for all Taxes payable in connection with Services. If Customer provides Warpcache with a valid, duly executed tax exemption certificate, Warpcache will exempt Customer from Taxes in accordance with the law, effective on the date Warpcache receives the exemption certificate. If Customer is required by law to make any deduction or withholding from any payment due hereunder to Warpcache, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer to Warpcache will be increased so that, after any such deduction or withholding for taxes, the net amount received by Warpcache will not be less than Warpcache would have received had no such deduction or withholding been required.
5.3 Upon mutual Acceptance of a Service Order, Warpcache will begin billing Customer for all monthly recurring charges (each, an “MRC”) as of the Service Start Date as defined on the Service Order. Warpcache will bill Customer for MRCs at the beginning of a calendar month for the Services provided in the previous month. Warpcache will invoice Customer for any overage and other usage charges, if applicable, the following month the usage occurred.
5.4 All Fees will be billed and payable in the currency specified on the Service Order, unless otherwise mutually agreed in writing. Customer will pay all MRCs through the Service Term, regardless of whether or how much Customer uses the committed Services. If Warpcache cannot begin timely delivery of Services for any reason caused by Customer, Warpcache nonetheless may, in its sole discretion, begin billing Customer for MRCs as of the Service Start Date. Any Service Credit granted under the SLA for a Platform (as defined in the SLA) will be applied to the next applicable invoice, against any charges for MRCs and/or overages.
5.5 Unless otherwise agreed to in writing by the Parties, Customer shall pay all invoices within Fifteen (15) calendar days of the invoice date by transferring the invoiced amounts to the bank account designated on the invoice. All invoices may be provided to Customer electronically. In respect of all due and unpaid invoiced amounts, Warpcache reserves the right to charge an interest of one and half percent (1.50%) per month of all invoiced amounts from the due date as set out above until full and final payment of such amounts and (ii) reasonable collection costs incurred in respect of such unpaid invoiced amounts, including but not limited to reasonable legal expenses.
6. Grant of Rights, Intellectual Property
6.1 Warpcache grants to Customer, as applicable, the non-exclusive right to access and use the Warpcache Services during the Term solely for the purposes of this Agreement. As between the Parties and subject only to the rights of use expressly granted by Warpcache herein, Warpcache retains all worldwide rights, title and interest in and to the Services, Warpcache equipment, network and methodologies, software or other Intellectual Property Rights embodied therein provided in connection with the Services, Warpcache Confidential Information, all revisions thereto, derivatives thereof and all Intellectual Property Rights therein, whenever developed. Customer will not, except insofar as permitted by applicable law, and will require End Users to not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Services or Warpcache Confidential Information. Customer will provide reasonable assistance to Warpcache, at Warpcache’s cost, to secure protection of Warpcache’s Intellectual Property Rights, including assistance in preparing and filing applications, registrations, assignments and other instruments to perfect title.
6.2 Customer grants to Warpcache, and its agents, suppliers and subcontractors, the non-exclusive right to access and use, ingest, reproduce, format, store, distribute, display, perform and make modifications to Customer Content, including encoding, decoding, translating, compressing, decompressing, encrypting, decrypting, repackaging, encapsulating, de-encapsulating, chunking, segmenting, storing, transmitting, distributing, making derivative works of and otherwise managing instances of such Customer Content and associated metadata, solely for the purposes of this Agreement. The foregoing license includes the creation, storage, duplication, modification and distribution of packages that include Customer Content in connection with the performance by Warpcache of the Services requested by Customer pursuant to this Agreement. As between the Parties and subject only to the licenses expressly granted by Customer herein, Customer or End Users, as applicable, retain all rights, title and interest in and to Customer Content, Customer Confidential Information and other Customer Intellectual Property Rights. Except insofar as permitted by applicable law, Warpcache will not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content or Customer Confidential Information.
7. Customer Data
7.1 Customer acknowledges that Warpcache, its Affiliates and their respective agents will, for the purpose of the provision of Services, come into processing of Customer Data. However, Customer shall remain the data controller for the purposes for the applicable data protection laws with Warpcache, its Affiliates and their respective agents having only the functions of data processor acting on behalf the Customer.
7.3 Customer acknowledges and agrees that Warpcache, its Affiliates and their respective agents may use, process and/or transfer Customer Data (including transfers to entities in non-EEA countries that do not offer an adequate level of protection for the processing of personal data as required under the EU Directive 95/46/EC, as may be amended and replaced in the future): (i) in connection with the provision of Services; and (ii) to incorporate Customer Data into databases controlled by Warpcache and its Affiliates for the purpose of administration, provisioning, billing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis.
7.4 Customer warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of End User Data and other Customer Data as described in this Section. Customer shall comply with all applicable data protection laws, specifically execute all respective Model Contracts for the transfer of personal data to third countries and take other actions required. This shall include inter alia making notifications or obtaining authorisation from authorities of the relevant jurisdictions regarding the transfer of End User Data and other Customer Data by Warpcache outside the EU/EEA.
7.5 Customer will not provide to Warpcache any Customer Content: (a) that is inappropriate or unlawful; (b) contains viruses, worms, corrupt files, Trojan horses and other forms of corruptive code or any other content, which may compromise the Services or Warpcache’s network; (c) that violates the property rights of others, including unauthorized images, programs, trademarks or other Intellectual Property Rights; or (d) that has any links or connections to any of the above.
8. Processing of End User Data
8.1 Customer acknowledges that Warpcache, its Affiliates and agents will, by virtue of providing Services, can process End User Data with Customer remaining the controller of such data.
8.2 Customer acknowledges that any processing of End User Data occurs exclusively at the direction and discretion of the Customer, such direction and discretion exercised through workflows or other agreed upon means.
8.3 Nothing in this Section is intended to restrict the rights and obligations of Warpcache and Customer in respect of Customer Data as defined and as set forth above.
9.1 “Confidential Information” means, with respect to a Party (the “Disclosing Party”), all non-public confidential information pertaining to such Party’s business (including such information of a Party’s subcontractor or a Party’s Affiliate), in particular information containing customer lists, customer information, technical information (including technical layouts and designs, configurations of cables, network etc.), pricing information, trade secrets, financial positions, customer communications or proposals, benchmarking information, satisfaction surveys or information relating to business planning or business operations and the terms of this Agreement including any Service Order. Warpcache and Customer will comply with this Section 9 when exchanging Confidential Information under this Agreement, including any Service Order. Confidential Information will be designated and/or marked as confidential when disclosed. However, any information that the Party receiving such information (the “Receiving Party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such.
9.2 The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees of the Receiving Party with a need to know such information. Warpcache may, for the purpose of exercising rights and performing obligations under this Agreement, disclose Confidential Information of Customer also to Warpcache’s Affiliates and Warpcache’s subcontractors.
9.3 The Receiving Party shall not be liable to the Disclosing Party for the release of Confidential Information if such information: (a) was known to the Receiving Party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the Receiving Party; (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceedings or otherwise required by law.
9.4 The Receiving Party’s obligation under this Section 9 shall expire five (5) years after termination of this Agreement.
10.1 Warpcache warrants that it shall provide Services in compliance with applicable laws and regulations and in a professional and workmanlike manner. Warpcache shall use all commercially reasonable efforts to provide Services without interruptions (including the Service Levels) as set forth in the applicable SLA. The Parties acknowledge, however, that it may be technically impracticable to provide Services free of any defects or interruptions. Therefore, Warpcache cannot and does not guarantee that Services will be uninterrupted or error free.
10.2 In the event of defects or interruptions of Services, Customer shall only be entitled to the remedies, if any, as specified in the relevant Service Order or the SLA.
10.3 Except as otherwise set forth in Sections 10, Warpcache does not make and disclaims (i) all warranties that the Services will be uninterrupted, defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Services are provided on an “as is” basis and Customer’s use of the Services is solely at its own risk.
10.4 Customer represents and warrants that it owns, controls or possesses all necessary rights to the Customer Content and any materials it supplies to Warpcache, including the programs and any advertising therein, free and clear of any and all claims, rights and obligations whatsoever and is empowered to grant the rights, licenses and privileges granted in this Agreement.
11.1 Customer will, at its cost, defend, indemnify and hold harmless Warpcache and its officers, directors, employees, agents and permitted successors and assigns (each a “Warpcache Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) brought against a Warpcache Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or wilful misconduct of Customer or their respective agents or employees; (b) operation or use of Customer’s products, websites or services; (c) Customer Content, including any allegation that Customer Content or any other data or information provided by Customer infringes any third party Intellectual Property Rights or otherwise violates applicable law; (d) Customer’s failure to comply in any material respect with the AUP or applicable law; (e) the unauthorized use of or access to Services by any person using Customer’s systems or network; (f) Warpcache’s compliance with Customer specifications; (g) a combination or modification of the Services by or on behalf of Customer by anyone other than Warpcache or its authorized agents; (h) distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer information by any entity other than Warpcache; or (i) information, data, or other Customer Content provided by or on behalf of Customer to Warpcache.
11.2 Warpcache will, at its cost, defend, indemnify and hold harmless Customer and its officers, directors, employees, agents and permitted successors and assigns (each a “Customer Indemnitee”) from and against any third-party Claim brought against Customer Indemnitee based upon allegations that Services directly infringe any patent issued as of the Effective Date of this Agreement under the laws of the country in which the Services are being provided to Customer or any third-party copyright. Notwithstanding the foregoing, Warpcache will have no liability for any infringement of patents, copyrights or other intellectual property rights based upon or resulting from Customer Content, use of Services in a manner not specified in applicable Warpcache documentation, or services or products not supplied by Warpcache. If Services, or any material portion thereof are determined to infringe and the use enjoined, Warpcache will have the option, at its sole cost, to (i) obtain the right for Customer to continue using Services, (ii) modify Services so that they are non-infringing, (iii) substitute functionally similar, non-infringing services or (iv) if none of the foregoing is available to Warpcache on commercially reasonable terms, terminate the Agreement and return to Customer any unused Customer prepaid Fees for which Services have not been provided as of the date of termination.
11.3 The Warpcache Indemnitee or Customer Indemnitee as applicable (each an “Indemnified Party”) will (a) promptly provide Notice to the indemnifying Party (“Indemnifying Party”) of any Claim for which indemnity is claimed (provided, that, any delay in providing Notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such delay), (b) permit Indemnifying Party to control the defence of any such Claim and (c) provide reasonable assistance at Indemnifying Party’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Indemnifying Party may select legal counsel to represent Indemnified Party (such counsel to be reasonably satisfactory to Indemnified Party) and to otherwise control the defence. If Indemnifying Party elects to control the defence, Indemnified Party may fully participate in the defense at its own cost. If Indemnifying Party, within a reasonable time after receipt of notice of Claim, fails to defend Indemnified Party, Indemnified Party may defend and compromise or settle the Claim at Indemnifying Party’s cost. Notwithstanding the foregoing, Indemnifying Party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on Indemnified Party or diminishes Indemnified Party’s rights, without obtaining Indemnified Party’s express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by the Indemnifying Party under this Agreement.
11.4 This Section 11 provides the sole and exclusive remedy of Customer and the exclusive obligations of Warpcache in connection with any third-party claim, action, suit or other demand asserted against Customer as described in subsection 11.2 above (in respect of Warpcache’s obligations to indemnify Customer only) and Warpcache disclaims all other warranties and obligations with respect thereto. Warpcache’s obligations under this Section 11 are subject to the limitations in Section 12 below.
12.1 With the sole exception of wilful misconduct or fraud and without prejudice to any limitation of liability contained elsewhere in this Agreement or in any other contractual documents being part of this Agreement, especially in any relevant Service Order concluded hereunder, Warpcache’s total liability to Customer in the aggregate for the entire Term as defined in Section 13 below (regardless of whether the claims are brought during or after the term) with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Order hereunder) will at no time exceed fifty per-cent (50%) of the amount of Fees actually paid by Customer to Warpcache under this Agreement and any Service Orders concluded hereunder. As a further limitation, Warpcache’s maximum liability for any claims relating to Services offered or provided by Warpcache (i) for non-recurring Fees shall not exceed the amount of the Fees for the Services provided on the occasion giving rise to the claim; (ii) for recurring Fees shall not exceed the amount of Fees due for one month for the Services provided on the occasion giving rise to the claim.
12.2 Subject only to the exception of wilful misconduct or fraud, Warpcache shall under no circumstances be held liable for any (a) economic loss, loss arising from or in connection with loss of revenues, profits, contracts, goodwill, customers or business or from failure to realize anticipated savings; (b) loss or corruption of any software; (c) loss or corruption of any data; (d) loss of use of hardware or other equipment, of software or data; (e) wasted administrative time or management time; (f) cost of procuring or migrating to substitute services; and (g) any indirect, consequential or special loss.
12.3 Customer’s liability claims shall expire after one (1) year following the damaging incident.
12.4 The limitations of liability set forth in this Section 12 apply to all claims and causes of action by Customer with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Orders thereunder), regardless of whether for breach of contract, tort (including negligence) or for any other reason.
13. Term and Termination
13.1 This Agreement will commence on the Effective Date and will remain in effect as agreed in the Service Order (“Initial Period”). The Services will renew automatically as defined on the Service Order (each, a “Renewal Term”) unless, at least 30 Days before expiration of the Initial Period or, subsequently, the Renewal Term, either Party provides Notice of non-renewal. The Initial Term and all Renewal Terms are collectively, the “Term”. If the Parties enter into a Service Order that expires after the Term, the Term will be deemed to expire on the same date as such Service Order.
13.2 Customer may terminate this Agreement for cause, upon Notice to Warpcache, if (i) a receiver or administrator is appointed for Warpcache or its property; (ii) Warpcache makes a general assignment for the benefit of its creditors; (iii) Warpcache commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 Days; (iv) Warpcache is liquidated or dissolved; (v) Warpcache ceases to do business or otherwise terminates its business operations; or (vi) Warpcache materially breaches this Agreement and such breach continues unremedied for 30 Days after receipt of Notice from Customer. For clarity, a CDN Service Outage (as defined in the SLA) is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Delivery Service Outage is set forth in the SLA.
13.3 Warpcache may terminate this Agreement for cause and/or suspend Services upon Notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 Days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced Fees within 30 Days from the invoice date; (vii) any use of Services, including Customer Content, actually or allegedly infringes or misappropriates any Intellectual Property Rights or otherwise violates the AUP or any applicable law, regulation or order; or (viii) Customer otherwise materially breaches this Agreement and such breach continues unremedied for 20 Days after receipt of Notice from Warpcache. Warpcache may terminate, interrupt or suspend Service without prior Notice if necessary to (1) prevent or protect against fraud, (2) protect Warpcache’s personnel, facilities, equipment, network or services, (3) prevent violation of Section 10 or infringement upon the rights of others or (4) prevent potential material liability.
13.4 Upon expiration or termination of the Agreement for any reason, (i) all rights to access or use Services and any other Warpcache Intellectual Property Rights will terminate and Warpcache will cease providing same, (ii) Customer will pay to Warpcache all Fees accrued but unpaid as of the date of expiration or termination, (iii) all liabilities accrued before the date of expiration or termination will survive and (iv) Customer will return or destroy, and certify in writing to Warpcache such destruction of, all copies of Warpcache Confidential Information.
13.5 If Customer terminates the Agreement, a Service Order without cause or if Warpcache terminates the Agreement for cause pursuant to Section 13.3, Customer will be billed and pay to Warpcache an amount equal to Customer’s MRCs multiplied by the number of months remaining in the Term (“Early Termination Fee”). The Parties agree that Warpcache’s damages in the event of the foregoing will be difficult or impossible to ascertain; therefore, the foregoing is intended to establish liquidated damages in such event and is not a penalty. If Customer terminates the Agreement for cause pursuant to Section 13.2, Customer will not be obligated to pay Early Termination Fee.
13.6 In preparing a final invoice to Customer, which Customer will pay pursuant to the terms of this Agreement, Warpcache will (i) calculate the balance due, (ii) deduct from such balance the unused portion, if any, of any prepaid Fees or Customer deposit and (c) bill Customer for the remaining balance due. If there remains an unused portion of any prepaid Fees or Customer deposit after satisfaction of the balance due, Warpcache will refund to Customer such unused portion.
14. Suspension of Services
14.1 Warpcache may, upon giving Notice to Customer, without prejudice to any of Warpcache’s rights to terminate this Agreement or any Service Order hereunder, suspend provision of all or any of Services in the event that
(a) suspension of Services is required in order to comply with the directive of an authority and/or court;
(b) Warpcache has grounds for suspecting that Customer is committing any illegal or unlawful act in connection with the use of Services;
(c) if Customer is in default with its payment obligations under any Service Order for more than 30 Days, and/or
(d) any other provision within this Agreement or Service Order allows Warpcache to suspend provision of all or any of Services.
14.2 If any Services are suspended as a consequence of Customer’s act or omission, (i) Customer shall remain liable to pay the respective Fees as if Services had been properly provided by Warpcache, and (ii) Customer shall reimburse Warpcache for any additional charges and expenses incurred due to the suspension and/or recommencement of Services.
15. Resale Restriction.
Notwithstanding anything to the contrary in the Agreement, Customer is prohibited from Reselling any Warpcache services provided pursuant to these Service Terms, unless the Service Order for the Warpcache End-Customer License is labeled as Reseller End-Customer License.
16.1 During the Term, Warpcache may publicize the existence of the relationship between the Parties for the purpose of its marketing activities. Subject to the foregoing, neither Party shall make any press announcements concerning the Agreement or publicize the Agreement in any way without the prior written consent of the other Party.
16.2 All notices, requests, approvals, consents and other communications required or permitted herein (each, a “Notice”) will be in writing and in English. Either Party may change its contact information upon Notice to the other Party. For clarity, if a Notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such Notice nonetheless will be deemed to have been conclusively made seven Days after delivery was reasonably initiated.
16.3 If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding will not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
16.4 This Agreement, Service Terms, SLA, AUP and all Service Orders between the Parties are incorporated herein by reference Unless specfied in this Agreement or Service Order, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.
16.5 From time to time, this Agreement, the Service Terms, SLA and AUP (together “Warpcache Legal Documents”) can be modified by Warpcache Unless specfied in this Agreement or Service Order. Such modifications will not apply retroactively. The Customer will be notified by Warpcache by e-mail or a 30-day written notification in advance of such changes if any material changes are made to the Warpcache Platform that would impact the Customer as to service quality and or price.
16.6 If there is an irreconcilable conflict between the terms and conditions of the Agreement and any other documents referenced herein, the conflict will be resolved in the following order of precedence: (a) Agreement, (b) Service Terms, (c) SLA and (d) AUP Unless specfied in this Agreement or Service Order. If a provision of this Service Order conflicts with the Warpcache Legal Documents, the Warpcache Legal Documents will take precedence, unless the conflicting provision noted on the Service Order explicitly amends the Warpcache Legal Documents.
16.7 Force Majeure Force Majeure means any circumstance not within a party’s reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; and (h) non-performance by suppliers or subcontractors (other than by Affiliate of party seeking to rely on this section).
16.8 Provided it has complied with subsection 16.7, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by an event of Force Majeure (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. The Affected Party shall: (a) as soon as reasonably practicable after the start of the event of Force Majeure but no later than three Days from its start, notify the other party in writing of the Force Majeure, the date on which it started, its likely or potential duration, and the effect of the Force Majeure on its ability to perform any of its obligations under the agreement; and (b) use all reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations. If the Force Majeure prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than ten weeks, the Party not affected by the Force Majeure may terminate this agreement by giving two weeks’ written notice to the Affected Party.
17. Governing Law; Entire Agreement; Amendment.
17.1 This Agreement shall be governed and construed in accordance with the laws of the Netherlands, without regard to its choice of law rules, unless specified on the Service Order. This Agreement, including any Service Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior written or oral agreements relating to the Service. The parties confirm that no reliance has been placed on any representations other than those set forth in this Agreement. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
Exhibit 1 – WARPCACHE B.V. PLATFORM SERVICE DESCRIPTION & TERMS
1. Service Description. Warpcache provides a content delivery optimization service, that optimally routes content through 1 or more CDNs.
1.1 These Service Terms are applicable where Customer orders the Warpcache Platform with or without Warpcache provided as a service for one or more CDN‘s and or DNS services. Warpcache provides the following services; Caching, Streaming, Storage, DNS, Load Balancing and any other services that may be added in the future via Warpcaches supplier partners that provide the underlying network and computing infrastructure necessary to operate the Warpcache Platform.
2. Charges. The manner of billing and applicable charges shall be set forth in the Service Order for each applicabable service and shall remain in effect during the Service Term period. Billing options may include the following:
(A) Caching Usage: Warpcache will invoice Customer for the total outbound bytes of content transferred utilizing the Warpcache Platform at the price per TB set forth in the applicable Service Order.
(B) Committed Data Rate (CDR): Customer shall be billed based on a Committed Data Rate (“CDR”) which is the base minimum number of Terabytes (TB) delivered. CDR charges for the Service consist of four components: (a) a non-recurring installation charge per End-Customer v-hosts; (b) a monthly recurring charge (if applicable); (c) a monthly recurring charge based on the CDR; and (d) monthly usage charges to the extent usage exceeds the CDR.
(C) Platform End-Customer License: Monthly or Pre-Paid 1 & 2 year invoicing
(D) Unified Multi-CDN Reporting: Monthly or Pre-Paid 1 & 2 year invoicing
2.1 CDN & DNS Ratio. In Customer deployments where CDN & DNS are included in the per TB rate as a blended one price per TB, the DNS request ratio to 1 TB Delivered if exceeds 500K or greater to 1 TB delivered – if exceeds this ratio, additional DNS charges will be charged at the per 1 million DNS rate specified on the Service Order.
Exhibit 2 – WARPCACHE B.V. PLATFORM SLA
I. Service Levels Agreements. As specfied in this Agreement, the Service Level Agreements (each an “SLA”) are defined in this Agreement
II. Warpcache Platform Service Level Agreement (SLA)
These Service Levels provide to Customer certain rights and remedies regarding the Warpcache Platform.
1. Service Specific SLA’s
1.1 AS it pertains to the following Services: Caching, Streaming & Storage Services: Warpcache does not provide any SLA’s for these Services. This applies to all CDN’s deployed by the Customer. CDN’s are by themselves designed for redundancies and multiple CDN’s provide even more redundancies, as such, Warpcache acts as an intermediary conduit for the transmission of Customer Content and provides Customers debugging tools and the ability for the Customer to be able to add and remove a troubled CDN in real time. Customer is responsible solely for making sure that all CDN configurations are working and tested before being deployed into any production environment.
1.2 DNS & Load Balancing Services: Warpcache acts as an intermediary conduit for the transmission of Customer Content with the use of leading Third-Party DNS & Load Balancing service providers. Customer is responsible solely for making sure that all CDN configurations are working with the DNS services and are tested before being deployed into any production environment.
1.3 Warpcache Provisioning & Support Portal: Monthly availability per the SLA table below
1.4 “Services Outage” means an instance in which the Warpcache Provisioning & Support Portal is not available for more than 20 consecutive minutes.
2. Warpcache Provisioning & Support Portal Availability
Subject to the SLA Exceptions set forth in the Agreement, Warpcache provides a 99.9% Uptime Guarantee on the Availability of the Warpcache Provisioning & Support Portal. Subject to the terms and conditions of this SLA that covers the monthly or other term as defined on the Service Order for the Warpcache End-Customer Platform License. Warpcache shall issue to Customer a credit for a Services Outage based on the percentage availability in a given monthly billing period as follows (credit amounts expressed as a percentage of the fee for the affected Service).
|Availability Percent||Monthly Credit Percent|
|99.99% – 99.9%||5%|
|99.80% – 99.0%||15%|
|less than 99.0%||25%|
3. SLA Credit Request
To receive Credit under this Services SLA, Customer must submit a request in writing via e-mail to firstname.lastname@example.org. The request must include Customer’s (a) company name, (b) contact name, (c) e-mail address and (d) phone number, as well as (e) the date of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request. Warpcache must receive the Credit request within 30 Days after the suspected Services Outage has occurred. The suspected Services Outage must be capable of confirmation by Warpcache’s measurement tools. Any issued Credit shall be applied to Customer’s next applicable invoice after Warpcache initially received the Credit request. Credits are exclusive of any Taxes charged to Customer or collected by Warpcache.
4.1 Service Credits shall not entitle Customer to any refund, reimbursement or other payment from Warpcache. Service credits shall not be applied or transferred to other accounts of the Customer or of third parties.
4.2 Notwithstanding anything in this SLA to the contrary, total Credits issued to Customer in connection with any calendar month shall not exceed the Base End-Customer Platform Fee paid by Customer for such month. All Credit is calculated on the basis of a 30-day month. To be eligible for Credit, Customer must follow Warpcache’s published instructions for use of Services; improper use shall result in ineligibility. Credit shall not be issued if Customer is in breach of the Agreement, including an applicable Service Order, including breach for non-payment. Credit will only be issued if Customer has paid in full for Services covering the time period within which the Credit is requested. This SLA sets forth Customer’s sole and exclusive remedy for a Services Outage.
WARPCACHE B.V. ACCEPTABLE USE POLICY
Any right to use the Warpcache Service is at all times restricted to acceptable use as described in this Acceptable Use Policy (“AUP”). Warpcache reserves the right to modify this AUP from time to time. The most recent and applicable version is always posted here at www.warpcache.com/legal. Any use of the Warpcache Service shall constitute acceptance of the AUP as published at that time.
Any reports of violations must be sent to email@example.com, in accordance with our Notice and Takedown policy.
RESPECT THE LAW AND THE RIGHTS OF OTHERS
The Warpcache Service may never be used to break the law or violate anyone’s legal rights. In particular, but without limitation, the Warpcache Service may never be used to publish, disseminate or transmit any content which: (a) violates intellectual property rights or the right to privacy of individuals, (b) contains illegal unsolicited e-mail messages (“spam”), (c) enables illegal online gambling, (d) contains malware, (e) child pornography, or (f) defamatory content.
RESPECT SECURITY MEASURES
Customer is prohibited from violating or attempting to violate the security of the Warpcache Service or any system, network, server or account. This includes, without limitation, (a) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (b) using false or fictitious credentials or a fake identity, (d) attempting to interfere with, disrupt or disable service to any network, host or user, including, without limitation, by means of overloading (e.g. ‘denial of service’ attacks) (e) taking any action in order to obtain services to which Customer is not entitled.
TAKE RESPONSIBILITY FOR YOUR CONTENT
Warpcache does not monitor or exercise editorial control over any content delivered using the Warpcache Service. Warpcache operates (as well as any connected CDNs) merely as a conduit to enable a faster and/or more reliable delivery of content via the Internet. Customer shall indemnify and hold harmless Warpcache from any claim asserting that any content distributed by Customer using the Warpcache Service is illegal or unlawful under any applicable law.
NO ASSIGNMENT OR RESELLING
Unless expressly permitted in writing by Warpcache, Customer may not assign, transfer, distribute, resell, lease or otherwise provide access to the Warpcache Service to any third party.
Customer shall ensure that any person rightfully authorized to use the Warpcache Service on its behalf or for its benefit (such as employees), shall at all times fully comply with this AUP, and Customer shall be responsible for any violations committed by its users.
Warpcache informs Customer as soon as possible about the content and purpose of any notification concerning Customer’s alleged violation of the AUP. Warpcache normally provides the name of the notifying party and a copy of the content of the notification to Customer, unless Warpcache believes this would expose the notifying party to a substantial risk of (further) abuse.
Normally Warpcache allows Customer 7 days to respond to the notification, unless Warpcache is immediately sure that the notification is correct and immediate action is required.
Before resorting to harsh measures, such as a complete suspension or termination of the services, Warpcache normally provides a warning and a period of at least 48 hours to respond in writing.