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These terms and conditions (“Cloud Terms of Sale” or “Agreement”) entered into between the Client and the Insight entity identified on the website where the Cloud Services are purchased (“Insight”) will govern your purchase from Insight of the Cloud Services from Insight. This Agreement is effective upon your (a) placement of an order with Insight for Cloud Services; (b) accessing, accepting or using the applicable Cloud Services purchased from Insight; or (c) acceptance of this Agreement between you and Insight upon completion of an order.
1.1. “Chargeable Units” means the metric or other unit of measure for the usage of the Cloud Services upon which Service Fees are calculated and charged. For illustration purposes and not by way of limiting this definition, a Chargeable Unit may be a User, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Cloud Services (such applicability will be determined by Insight or Vendor).
1.2. “Client” shall mean the entity entering into these terms which can be the end customer or reseller as applicable.
1.3. “Cloud Services” means the cloud computing products or services ordered by Client through Insight.
1.4. “Data Protection Legislation” means all applicable data protection legislation including the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or succeeded from time to time, in the EU and any individual jurisdiction. Terms used throughout this clause including “data controller”, “data processor”, “data subject”, “personal data” and “processing” are as defined in the Data Protection Legislation.
1.5. "Minimum Usage Commitment” means the minimum Usage Commitment in additional terms for Cloud Services.
1.6. “Registered Usage” means the number or quantity of Chargeable Units provisioned online by Client directly or through Insight at the direction of Client as calculated on a prorated basis by Vendor.
1.7. “Service Fees” means the total fees for services purchased by Client under this Agreement, including without limitation, Subscription Fees, as described in this Agreement.
1.8. “Service Level Agreement” or “SLAs” means the service levels or service level agreements pertaining to, among other things, the nature and quality of the Cloud Services. Any SLAs shall be described in the Special Terms.
1.9. “Vendor” means the entity that provides the Cloud Services, as described in the Vendor Terms and offered by Insight under this Agreement.
1.10. “Vendor Facilities” means any infrastructure of Vendor or its licensors in connection with the provision of the Cloud Services, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Vendor or its licensors in connection with the provision of the Cloud Services.
1.12. “Special Terms Addendum” or “Special Terms” means any terms and conditions that are specific to the particular Cloud Services and added as an addendum to the Cloud Terms of Sale or provided to Client at the time of purchase. To the extent such terms differ or conflict with these Cloud Terms of Sale, the Special Terms shall take precedence.
1.13. “Statement of Work” or “SOW” means a mutually agreed upon written statement of work describing the Insight Offering performed by Insight for Client.
1.14. “Subscription Fees” means recurring fees for Cloud Services during the applicable Subscription Period based on the actual Chargeable Units and Cloud Services ordered by Client.
1.15. “Subscription Period” means a monthly, yearly or other mutually-agreed-upon billing period, as indicated online in Insight’s cloud management portal or as my be set forth in Schedule 1.
1.16. “Term” means collectively, the “Initial Term” and, if applicable, any “Renewal Term,” as defined in subsection 4.1 (Term of Agreement).
1.18. “Territory” means the country in which the Insight entity identified on the website where the Cloud Services are purchased is located unless otherwise provided in the Special Terms. Alternative wording: means the territory defined in the Special Terms or Vendor Terms, in event of conflict, the applicable Vendor Terms shall prevail.
1.19. “Export Laws” means applicable laws, regulations, rules, ordinances, governmental orders, administrative acts, and the like relating to export.
1.20. “Usage Commitment” means the greater of: (i) the Registered Usage selected by Client, or (ii) the then-current Registered Usage as reported to Insight by Vendor and upon which Insight invoices Client for the applicable Usage and Subscription Period during the applicable Term.
SCOPE OF SERVICES.
Insight is reselling the Cloud Services which are performed or otherwise provided by Vendor or its affiliates, subcontractors, successors or assignees. Insight is not responsible for any third party services related to the implementation or configuration of Cloud Services.
2.1. Sale of Cloud Services
(a) Description of Services; Order Placement. Description of Cloud Services may be amended or otherwise updated unilaterally by Vendor from time to time and without notice. Any order for such services by Client shall incorporate the terms and conditions of this Agreement. Any pre-printed, different or additional terms and conditions sent by Client to Insight are expressly rejected and will not be binding upon Insight.
(b) IP Rights. Vendor or its licensors, subcontractors, or suppliers will retain all rights, title, and interests in and to the Cloud Services and Vendor Facilities as well as any derivative works thereof, including, without limitation, any intellectual property rights in and to the Cloud Services and the Vendor Facilities. Client shall not infringe, misappropriate, or otherwise violate such rights, title, or interests. Client’s access to Cloud Services shall be subject to the terms and conditions of the Order, as well as the Vendor Terms.
(c) Use of Cloud Services. Client’s access to, and use of, the Cloud Services shall be subject to the terms and conditions of this Agreement, including the Vendor Terms. Client shall be solely responsible for periodically reviewing designated URLs or successor URLs of the Vendor to understand and perform in accordance with such amended or otherwise updated versions of Vendor Terms. Client assumes all risks, costs, and expenses in connection with the use of the Cloud Services.
1. Territory. Client is purchasing Cloud Services for use within the Territory, unless otherwise agreed between the parties.
2. Vendor Facilities. Client acknowledges that the Cloud Services may be provided by Vendor from Vendor Facilities anywhere in the world and Vendor may, at any time, transfer the provision of the Cloud Services from one installation to another. There is no guarantee that any such installation, or part thereof, is dedicated to the sole use of Client. Transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject Export Laws, privacy, or data security laws.
3. High Risk. Cloud Services sold by Insight are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
2.2. Client’s Responsibilities. In addition to other duties of Client set forth in this Agreement, Client is responsible for the following:
(a) Client shall provide information reasonably requested by Insight or Vendor, including, without limitation, any technical and related information, and any consents that Vendor may need from Client necessary for Vendor to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Client set forth in the Vendor Terms; and
(b) Client agrees to cooperate with Insight in good faith by taking such further actions and/or executing such further agreements or instruments as may be reasonably required under the circumstances by Insight or Vendor.
3. SERVICE FEES AND INVOICING
3.1. Service Fees. Subject to subsection paragraph (b) below (Changes in Usage), as consideration for the services purchased by Client under this Agreement, Client shall pay Insight the Service Fees, which will be based upon the applicable pricing rate for the Cloud Services and the Usage Commitment, and/or for any Insight Additional Services. Insight reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, Vendor price changes based on general partner/distributor program changes or errors in advertisements.
(a) Pricing Rates. For the Initial Term, the pricing rates for Cloud Services ordered under this Agreement shall be set forth online by Insight in its cloud management portal, which rates will be based upon the Registered Usage and Cloud Services described therein. For any Renewal Term, the pricing rates shall be Insight’s then-current rates for such Cloud Services based upon the applicable Usage Commitment at commencement of the then-current Renewal Term, unless otherwise agreed upon by Insight in writing.
(b) Changes in Usage. Upon execution of an order, the parties agree that all future changes in quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis. If new Cloud Services or features are procured, Client will need to execute a new order with Insight for any such net-new Cloud Services. Fees payable by Client for the then-current Usage Commitment shall be based upon the applicable online pricing rates set by Insight in its cloud management portal.
3.2. Invoicing. Charges for Cloud Services will accrue on the date the Cloud Services are activated or made available by Vendor to Client and are non-refundable, except as expressly provided in this Agreement. Insight will invoice Client the Service Fees on a monthly basis. Service Fees include: (a) Subscription Fees; and (b) non-recurring set up and other one-off charges (including, but not limited to, domain set-up charges and/or Insight Additional Services), if any, for a calendar month. Insight Additional Services will be invoiced in accordance with the applicable mutually agreed upon Statement of Work between the parties.
3.3. Payment Terms. Client must pay all undisputed invoices in full within 30 days of the invoice date. All payment terms are measured from the date of invoice. Each invoice shall be paid in the currency specified on such invoice. If an invoice is the subject of a bona fide dispute, Client shall notify Insight in writing, including a description of the nature of such dispute in sufficient detail, within such 30 day period. Failure to comply with the requirements of this provision shall preclude the Client's right to dispute such invoice. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by local country governing, whichever is less, for any undisputed past due invoices. Client is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed Service Fees.
3.4. Taxes. Fees or prices exclude taxes of any kind and any travel expenses that may be incurred by Insight in connection with this Agreement. The Client shall pay Insight’s invoices in full without off-set or withholding of taxes. If any such deduction or withholding is required by law, the Client shall pay to Insight such additional amount so that the net amount Insight receives is equal to the full amount invoiced and Insight would have received had such deduction or withholding not been made.
3.5. Service Credits. In the event that a credit for Cloud Services is due to Client in accordance with the Vendor Terms, the parties agree that any credit due will be credited by Insight to Client’s account within a reasonable time after Insight’s receipt the corresponding credit amount from Vendor following Vendor’s verification of Client's claim. Client expressly acknowledges and agrees that Insight is not obligated to provide any Service credit if Vendor is unable to verify, or otherwise rejects, Client’s claim for any reason or if Vendor fails to provide the Service credit for any reason even if it has verified Client’s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER VENDOR’S SLAs SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT IN CONNECTION WITH ANY UNAVAILABILITY OF THE SERVICES OR BREACH OF SUCH SLAs.
4. TERM; SUSPENSION; TERMINATION
4.1. Term of Agreement.
(a) Initial Term. Unless earlier terminated in accordance with this Section (Term; Suspension; Termination), the initial term of Client’s subscription of the Cloud Services shall be as indicated in Special Terms, commencing on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Vendor as notified by the Vendor to Insight, (the “Initial Term”).
(b) Renewal Term. Upon expiration of the Initial Term, Client’s Cloud Services subscription will automatically renew for additional, successive Subscription Periods as indicated in Special Terms (each a “Renewal Term”), unless Client or Insight provides notice of non-renewal at least 60 days prior to the end of the Initial Term or the Renewal Term then in effect.
CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT’S CLOUD SERVICES SUBSCRIPTION WILL BE SUBJECT TO: (i) THIS AGREEMENT (ii) THE VENDOR TERMS, AND (iii) SPECIAL TERMS, EACH AS THEY EXIST ON THE FIRST DAY OF ANY RENEWAL TERM. SUCH TERMS MAY BE DIFFERENT THAN THOSE IN EFFECT DURING THE IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD AND MAY BE FURTHER AMENDED DURING THE RENEWAL TERM BY INSIGHT AND/OR THE VENDOR, AS PROVIDED IN THE THEN-CURRENT TERMS. CLIENT IS SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING THE RELEVANT TERMS TO ENSURE THAT CLIENT UNDERSTANDS AND PERFORMS IN ACCORDANCE WITH THE TERMS AND CONDITIONS THEN IN EFFECT.
4.2. Insight/Vendor Suspension/Termination Rights.
(a) Client’s Breach. Without prejudice to any other rights to which it may be entitled, Insight may terminate this Agreement, in whole or in part, with immediate effect, if Client materially breaches this Agreement and fails to remedy that breach within 30 days of receipt of Insight’s written notice of such breach and its intent to terminate the Agreement unless the breach is remedied. A material breach of this Agreement, includes but is not limited to: (i) Client’s failure to pay Service Fees when due, (ii) rejection of payment for any reason of any Service Fees using a credit card provided by Client, (iii) Client’s breach of subsection 5.3 (Compliance With Laws), or (iv) Client’s use of the Cloud Services in violation of the terms and conditions of this Agreement, Special Terms or Vendor Terms (“Use Issues”). Notwithstanding anything to the contrary in this paragraph, Insight is not required to provide Client the aforementioned notice and cure period and may immediately terminate this Agreement, in whole or in part, if Vendor does not provide corresponding adequate notice and cure period to Insight in connection with Vendor’s termination of Cloud Services due to Use Issues. In addition, Insight may terminate this Agreement effective upon notice, if Client: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Suspension; Fee Accrual/Reinstatement. If any Cloud Services, or part thereof, are withheld or suspended by Vendor as a result of Use Issues, Service Fees will continue to accrue and will be based upon the Usage Commitment. Any such terminations or suspensions shall be in accordance with the notice requirements of the relevant Vendor Terms. Client shall continue to be responsible for payment of Service Fees in accordance with this Agreement. If Vendor charges Insight for any remedial work, reconnection or reinstatement fees that are a direct result of any Use Issues, Insight shall charge Client. Client agrees to pay such additional Service Fees in accordance with this Agreement if invoiced by Insight. Insight shall not be liable to Client if Vendor withholds provision of Cloud Services or suspends or terminates Client’s access to, or use of, Cloud Services, or any part thereof, as provided in this Section. In addition, any such action by Vendor does not give Client the right to terminate this Agreement.
4.3. Client Termination Rights.
(a) Client Termination under the Agreement. This Agreement may not be terminated or suspended by Client for convenience. Client has the right to terminate this Agreement only if Insight materially breaches this Agreement and fails to remedy that breach within 30 days after receipt of Client’s written notice of such breach and Client’s intent to terminate this Agreement unless the breach is remedied. Client may terminate this Agreement effective upon notice, if Insight: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Client Termination under Vendor Terms. Client may have certain rights to terminate some Cloud Services (but not the entire Agreement) only as expressly provided under the Vendor Terms; provided, however, that Client must first be in compliance with all termination-related processes and other applicable requirements set forth in the Vendor Terms. Client must provide Insight prior written notice of Client’s election to exercise such termination rights, and any such election must be exercised in accordance with the applicable Vendor Terms.
4.4. Insight/Vendor Agreement Termination. This Agreement will immediately terminate, without any liability for such termination if: 1) the Insight/Vendor Agreement terminates for any reason or otherwise expires; or 2) Vendor refuses to provide such Cloud Services to Client for any reason.
4.5. Effect of Termination.
(a) Payment upon Breach. If all or part of this Agreement is terminated by Insight as provided in the subsection paragraph titled “Client’s Breach,” Client shall pay Insight the Subscription Fees that would be due for the remainder of the unexpired Subscription Period and any Service Fees for Cloud Services performed prior to termination. All such fees shall become immediately due and payable upon any such termination.
(b) Provision of Cloud Services after Client’s Termination. Notwithstanding anything to the contrary in this Section (Term; Suspension; Termination), if despite Client’s election of termination, or any notice to terminate Cloud Services, or any part thereof, Client: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Client’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Vendor invoices Insight for the provision of such Cloud Services to Client, Client shall pay Insight the Service Fees. The terms of this Agreement shall govern the provision of any Cloud Services until terminated by Vendor.
(c) Payment upon Termination. Service Fees to be paid by Client to Insight as provided in subsection paragraphs 4.5(a) and (b) shall continue to be based upon the Usage Commitment in the Term immediately preceding termination, or as otherwise provided in Schedule 1 hereto. Except for termination for breach as indicated in subsection paragraph (a) above, upon termination or expiration of Cloud Services, payment shall be made in accordance with the terms of payment provided under this Agreement. Termination or expiration of this Agreement shall not relieve either party of its rights or obligations incurred prior to termination or expiration that by their nature or term survive, including any and all payment due under this Agreement.
5. ADDITIONAL TERMS AND CONDITIONS:
5.1. Authority. Each party represents and warrants that it has the full power and authority to enter into this Agreement, and that it possesses all other rights necessary for the performance of its obligations under this Agreement, without violating any right of any other party. Client further represents and warrants that Client is purchasing Cloud Services in the Territory for use within the Territory, unless otherwise specifically and mutually agreed between the parties in writing.
5.2. Account Information and Access.
(a) To purchase Cloud Services or apply for credit in connection with such purchase, Client must establish an account with Insight and obtain a login or user name, account number, password, and/or other access-related information (collectively, “Account-Access Information”). Client agrees to promptly: (i) provide certain accurate, current and complete information as reasonably required by Insight to process Client’s order or credit application, or by Vendor to provision the Cloud Services or provide technical support; and (ii) maintain and update such information to keep it accurate, current and complete, including but not limited to, changes to Client’s billing address or e-mail address, or the names of its authorized personnel. Client authorizes Insight to process any and all account transactions initiated through the use of Client’s Account-Access Information.
(b) Client agrees to be responsible for all activities, changes, and obligations incurred through use of Client’s Account-Access Information, and for maintaining the confidentiality of Client’s Account-Access Information. Insight may assume, without inquiry, that any person in possession of Client’s Account-Access Information has authority to access Client’s account or the Cloud Services, or modify Client’s account, including purchasing additional or different Cloud Services or increasing the Registered Usage pertaining to Client’s purchase under this Agreement. Client must immediately notify Insight in writing of any unauthorized use of Client’s Account-Access Information, and Client agrees to be responsible for any unauthorized use, charges made and/or liabilities incurred through Client’s Account-Access Information. Insight shall not be liable for any loss, damage, cost, or expenses incurred by Client resulting from Insight’s reliance on any document, instruction, notice, or communication reasonably believed by Insight to be genuine and originating from an authorized representative of Client.
(c) Client agrees that use of the cloud management portal and transmission of any information (hereinafter “Content”) in violation of any and all applicable laws is prohibited, regardless of jurisdiction. Content includes, but is not limited to: (a) material protected by intellectual property rights used without proper authorization; (b) material judged to be defamatory, threatening or obscene, or violating export control laws; (c) information that Client does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); and (d) information that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality or any computer software or hardware or telecommunications equipment.
5.3. Compliance with Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, all applicable laws in connection with Client’s use of the Cloud Services, including without limitation, Export Laws and any territorial restrictions under this Agreement, or any such restrictions imposed by Vendor. In addition, Client expressly acknowledges and agrees that one or more of the Vendor Facilities may be located outside the EEA and that the use of the Cloud Services, including, without limitation, the transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to the Export Laws, import, privacy, or data security laws. Client represents and warrants that it is not on any blocked, debarred, or denied entity or party list, any debarred or denied persons list, or any other prohibited or restricted person or entity list under the Export Laws, and Client is not a national or resident of, located in, or under the control of, any restricted country or any country with which the U.S. or the EU has embargoed trade under the Export Laws or other applicable law. Client shall not transfer, transmit, distribute, upload, store, or post via, or download or retrieve from, the Cloud Services any information, software, technology, or other technical data in violation of applicable law.
5.4. High-Risk Use; Security; Access. Client acknowledges and agrees that Cloud Services offered by Insight are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Use in any such applications is at Client’s sole risk, and Client shall be solely responsible and liable for any and all claims and damages (including, but not limited to reasonable attorney fees and costs of defense) incurred by Insight as a result of or in connection with such unauthorized use by Client, its employees or agents. Client further acknowledges and agrees that (a) no data transmission over the Internet can be guaranteed to be 100% secure or private; (b) Insight is not responsible for any interception or interruption of any communications through the Internet; (c) Client is responsible for maintaining the security of its networks, servers, applications and access codes, including, without limitation, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (d) Insight has no control over the Cloud Services, any Vendor Facilities or their location, or any technical support provided by Vendor in connection with the Cloud Services, and Insight is not responsible for: (i) the reliability, content, functionality, availability, security, or scalability of the Cloud Services or any Vendor Facilities; or (ii) the quality, timeliness, or responsiveness of the Vendor in providing technical support in connection with the Cloud Services, any corrective action provided by the Vendor (or the lack thereof) in the course of performing such technical support, or any other matter in connection with such technical support; and (iii) any processes, procedures, policies, or practices engaged by Vendor or its licensors; (f) Insight is not responsible for the suitability, integration, operability, or performance of the Cloud Services in connection with any hardware or other device, software program, information-technology infrastructure, or any other technology that may be used by Client even if such hardware or other device, software program, information-technology infrastructure, or other technology is sold by Insight to Client under a separate agreement; (g) Insight has no control over Client’s data residing within any Vendor Facilities in connection with Client’s use of the Cloud Services, and Insight shall have no responsibility or liability for retrieving or otherwise recovering such data or for any deletion of such data or any restriction or denial of access to such data imposed by Vendor upon Client in the event of any suspension of the Cloud Services or termination of this Agreement for any reason.
5.5. Data Protection
5.5.1. Both parties shall comply with the Data Protection Legislation.
5.5.2. Except to the extent otherwise dictated by the Data Protection Legislation, in respect of personal data relating to Client’s employees and other data subjects related to Client which is processed by Insight pursuant to the Agreement, Client is the data controller and Insight is the data processor. Client is responsible for obtaining the consent of all Client related data subjects whose personal data is provided to or otherwise made available to Insight pursuant to the Agreement. Client authorizes Insight to engage sub-processors to the extent required for the performance of the Agreement. Insight shall ensure that its sub-contractors enter in to adequate contractual obligations for the protection of Client’s personal data.
5.5.3. Insight does not process personal data on behalf of Client other than limited Client user data in order to maintain and support the provision of the Services and as may otherwise be required for account management, reporting, and any other lawful and legitimate purpose. Insight shall, in relation to any personal data processed in connection with the performance by Insight of its obligations under the Agreement:
(a) process personal data specifically for the performance of the Agreement;
(b) ensure that it has in place appropriate technical and organizational measures to protect the personal data as required under Data Protection Legislation;
(c) ensure that all personnel of Insight who access personal data do so under obligations of confidentiality; and
(d) provide reasonable assistance following written request to assist Client to comply with its obligations under Data Protection Legislation, to respond to subject access requests and data breach notifications.
5.5.4. Client agrees that Insight shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and the Client holds Insight harmless) in respect of the processing of personal data pursuant to a product or Cloud Service provided by the Vendor, transacted by Insight and where Insight is not the prime supplier of such service. Such processing of personal data shall be subject to the arrangements, license and contract terms entered in to directly between Client and the Vendor.
5.5.5. Client authorizes Insight to transfer and process any personal data outside of the European Economic Area (EEA) in order to perform the Agreement, and for Insight’s other legitimate interests, provided that such transfer is made under a legal framework compliant with the Data Protection Legislation, for example Privacy Shield or the European Commission approved Model Contract Clauses.
5.5.6. Client agrees to comply with the forgoing obligations to the extent that it processes any personal data of Insight personnel.
5.6. Processing of Personal Data originating in the United States. Client authorizes Insight to transfer and process any personal data originating from the United States outside of the United States in order to perform the Agreement, and for Insight’s other legitimate interests, provided that such transfer is made under a legal framework compliant with applicable data privacy laws.
(a) Required. Except as otherwise provided herein, any notice required to be given under this Agreement must be in writing and sent to the address provided on the website of the entity from which the Cloud Services are purchased (or to other persons or addresses as either party may designate in writing to the other subsequent to the execution of this Agreement). Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail. Legal notices to Insight must be sent with a separate copy addressed to the address stated on Insight’s website from which Cloud Services are purchased for the attention of the “Legal Department”.
5.8. Assignments. Client shall have no right to assign this Agreement, nor any of its rights, obligations, or privileges (by operation of law or otherwise) without the prior written consent of Insight. Insight may, without having to obtain Client’s consent, assign this Agreement, and its rights, obligations, and privileges hereunder to any Affiliate or corporate successor. Any attempted assignment, delegation or assumption not in accordance with this subsection shall be void and of no force or effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
5.9. Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the laws of the Country where the Insight entity from which Cloud Services are purchased is based.
5.10. Warranty Disclaimer. INSIGHT PROVIDES NO WARRANTY IN CONNECTION WITH THE SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY VENDOR IN CONNECTION WITH THE SERVICES, OR ANY VENDOR FACILITIES. SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY VENDOR ARE SOLD OR OTHERWISE PROVIDED TO CLIENT "AS IS," WITHOUT WARRANTY OF ANY KIND FROM INSIGHT.
INSIGHT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN RELATION TO SERVICES AND TECHNICAL SUPPORT PROVIDED BY VENDOR, OR ANY VENDOR FACILITIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRATICE. WITHOUT LIMITING THE FOREGOING, INSIGHT DISCLAIMS ANY WARRANTY THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE; (II) ANY DEFECTS WILL BE CORRECTED; (III) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE SERVICES OR ANY TECHNICAL SUPPORT PROVIDED BY VENDOR IN CONNECTION WITH THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (V) ANY RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (VI) ANY VENDOR FACILITIES WILL BE DEDICATED TO PROVIDING THE SERVICES SOLELY FOR CLIENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM INSIGHT (INCLUDING, WITHOUT LIMITATION, ITS SALES OR TECHNICAL SUPPORT REPRESENTATIVES), OR THROUGH OR FROM THE VENDOR’S WEBSITE, WILL CREATE ANY WARRANTY BY INSIGHT NOT EXPRESSLY STATED IN THIS AGREEMENT.
5.11. Confidentiality “Confidential Information” means any non-public information, including but not limited to, intellectual property, pricing, customer lists, personally identifiable health information, financial information, access codes provided in connection with the Cloud Services, sales and marketing plans of the other party, its affiliates, or its customers, Vendors, contractors, or licensors (collectively, “Vendors”). Each party (“Receiving Party”) will maintain in confidence and safeguard any Confidential Information disclosed to it by the other party (“Disclosing Party”). Each party must use the same degree of care in protecting and preserving Confidential Information as it uses to protect its own similar confidential and proprietary information, but shall never use less than what would be a reasonable standard of care. If Client is a federal or state governmental entity, then Client agrees on behalf of the other agencies of the federal or state government who may benefit from the Cloud Services that such agencies shall be subject to the same obligations of confidentiality as set forth in these Terms of Sale. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other in the manner contemplated by the order and restrict disclosure to only those personnel who have a need to know. Each party will bind such personnel to obligations of confidentiality to the same extent it is bound by this Agreement. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed by the party; (v) is otherwise permitted to be disclosed under the order; or (vi) is disclosed with the prior written consent of the disclosing party. Client agrees Insight may disclose Client’s Confidential Information to Vendor as reasonably necessary for, or requested by, Vendor to provide the Cloud Services or any technical support related to the Cloud Services. If a Receiving Party is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, the recipient must first promptly notify the disclosing party so that the Disclosing Party may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority. Each party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach. Any such relief is in addition to, and not in lieu of any other remedies available, including, without limitation, monetary damages.
5.12. Client Indemnification. Client shall defend and indemnify Insight for, from, and against any losses, damages, penalties, costs, and expenses (including reasonable attorney fees) incurred by Insight in connection with any claims or actions by Vendor or other third parties arising out of or resulting from: (i) Client’s use of the Cloud Services other than as permitted hereunder (excluding claims that the Cloud Services, as provided by Vendor, infringe third party intellectual property rights), and/or (ii) Client’s failure to comply with applicable law.
Limitation of Liability
(a) Direct Damages Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SUBSECTION PARAGRAPH (b) BELOW TITLED “INDIRECT/SPECIAL DAMAGES,” INSIGHT’S MAXIMUM LIABILITY TO CLIENT FOR DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED IN THE AGGREGATE, IN ANY 12 MONTH PERIOD, AN AMOUNT EQUAL TO CLIENT’S NET PAYMENTS FOR THE SERVICES PURCHASED IN THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT INSIGHT HAS ANY OBLIGATION UNDER THE SLAs, INSIGHT’S MAXIMUM LIABILITY IN ANY CALENDAR MONTH SHALL BE NO MORE THAN ONE HUNDRED PERCENT (100%) OF THE MONTHLY CHARGE PAYABLE BY THE CLIENT TO INSIGHT FOR THE AFFECTED SERVICE(S) FOR SUCH MONTH.
(b) Indirect/Special Damages. EXCEPT FOR FRAUD AND CLIENT’S OBLIGATIONS UNDER THE SUBSECTION TITLED “CLIENT INDEMNIFICATION,” NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), ARISING IN ANY WAY OUT OF THIS AGREEMENT, ANY OF THE DOCUMENTS REFERENCED IN THIS AGREEMENT, OR ANY ADDENDA OR AMENDMENT HERETO, OR ARISING OUT OF THE USE OF OR INABILITY TO USE ANY SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
5.14. Miscellaneous. Except as specifically provided herein, this Agreement is not intended to and does not create any claims, rights, remedies, or benefits exercisable by any third party. Any subsequent additions, deletions or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement is, for any reason, found to be invalid, illegal or unenforceable, all other parts of this Agreement will remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. The headings in this Agreement are for reference purposes only and may not be construed as being part of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but which altogether constitute the same instrument. Agreement to, and acceptance of, this Agreement may be made by facsimile signature or in an electronic form showing the signatures of both parties.
5.15. Updates. Insight reserves the right to modify this Agreement from time to time. This Agreement, as amended, will be effective upon placement of new orders for Cloud Services or upon renewal of existing subscriptions for Cloud Services. Insight shall use reasonable business endeavors to inform you of material changes to the terms and conditions of this Agreement affecting the delivery of the Cloud Services.
5.16. Conflicting Terms. Except as otherwise provided under this Agreement, in the event of a conflict between the terms and conditions of this Agreement and Vendor Terms, as they apply to the relationship between Client and Insight, the terms and conditions of this Agreement shall govern.
5.17. Entire Agreement. This Agreement, including any Special Terms Addenda applicable to Cloud Services is the entire agreement between the parties relating to the provision of Cloud Services and any Insight Additional Services to Client under this Agreement and unless otherwise indicated in this Agreement, supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.