DoiT Cloud Advantage - Procurement Terms
1. Agreement Structure.
Customer's relationship with DoiT is defined by and should be viewed in the following order of priority:
a) "Order Form" means the Customer's request to add Cloud Procurement, products or Services (whether directly via a DoiT representative or through https://www.doit.com/ website (hereinafter the "Website"), including, notably: quotes, specifications, service descriptions, data sheets, software and software-as-a-service terms, additional license authorizations (ALAs), Solution specific terms, data protection and security agreements (DPAs), warranties, statements of work or any relevant documents.
b) "Terms" means the presently applicable Terms of Services, and the specific details of the Order Form, where applicable.
2. Definitions.
The following capitalized terms have the meanings set forth below:
"Affiliate" means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
"Cloud Service(s)" means the third party service provider resold Cloud Services.
"Customer" means the entity (and any employee, agent or contractor hereof) executing the Order Form and benefiting from the Cloud Procurement Services. Customer shall remain primarily responsible and liable for its users' compliance with these Terms of Services and the applicable Documentation.
"Documentation" refers to the applicable documentation and Cloud Reseller terms as referenced in the Order Form, for the Cloud Procurement Services.
"DoiT Website" or the "Website" means the website doit.com or any associated DoiT owned website or web page.
"Marketplace" means an online directory, catalog or marketplace of applications that interoperate with the Cloud Procurement, including, for example, Google Marketplace or AWS Marketplace.
"Service Provider" means the entity responsible for providing the Cloud Services, including notably Google, AWS or Azure.
"Term" means the duration of these Cloud Services as further defined in the relevant Order Form.
3. Participation in the DoiT Reference Program.
Customer hereby grants to DoiT a non exclusive, non transferable, and revocable license and authorization, solely for the purpose of marketing the Services:
(a) to display Customer's approved current and future names, trademarks, servicemarks, copyrights and logos (hereinafter the "Trademarks") on DoiT's website, notably including in materials, presentation materials
(b) development of case studies highlighting Customer's adoption of DoiT's products and Services. Customer shall have the right to priorly approve any written case studies, and
(c) the Customer may be considered for peer or analyst references, speaking engagements, webinars or press releases, as priorly and explicitly approved. For the avoidance of doubt, DoiT shall not acquire any rights in the Customer's Trademarks hereof, and any of the Trademarks used by DoiT might be canceled immediately by the Customer at its sole discretion by sending an email to [email protected]
4. DoiT Data Processing and Security Terms.
DoiT's standard Customer Data Processing Agreement (the "DPA") may be found at https://l.doit-intl.com/dpa. To the extent that with respect to these Terms, DoiT is either (i) a "processor" under applicable law, or (ii) is subject to data privacy rules, then the DPA is hereby incorporated into, and supplements these Terms, by this reference.
5. Non-Agency Notice.
DoiT and Service Provider are independent contractors and DoiT is not Service Provider's agent or in a joint venture with the Service Provider.
6. Termination.
These Terms of Services commences when the Customer executes the Order Form or otherwise uses Cloud Procurement Services (the "Effective Date") and will continue until terminated.
a. Termination for convenience (where applicable). Either party may terminate these Terms for convenience by providing the other party thirty (30) days prior written notice. Both parties hereby expressly agree that any reference of a specified Term or duration commitment (notably in the Order Form) will not enable the parties to terminate for convenience. Termination of these Terms will not affect any priorly existing Cloud Services, which shall continue until their natural expiration or early termination in accordance with these Terms.
b. Termination for cause. Either party may terminate the Cloud Services on written notice if either party (i) materially breached any provision of these Terms or the Order Form, and did not remedy such breach within thirty (30) days of the date on which a party first notified the other party regarding such breach; (ii) Customer failed to pay any undisputed invoice, and did not remedy such breach within thirty (30) days of the date on which DoiT first notified Customer regarding such breach; or (iii) either party becomes insolvent or makes any assignment for the benefit of creditors, or has any petition under bankruptcy or administrative law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. Any termination of an Order Form will not impact any other current and valid Order Forms.
c. Additional Termination. DoiT reserves the right to terminate the Cloud Services (and/or Your account) or Your access to any APIs and/or software provided under these Terms due to a suspension or termination for cause. Upon any termination or notice of any discontinuance, all of Your rights under these Terms shall immediately terminate, You remain responsible for all fees incurred through date of termination, and You agree to return (or destroy per DoiT's instruction) all DoiT's Confidential Information in Your possession.
d. Effects of Termination. For the avoidance of doubt, and notwithstanding anything else stated herein, Customer's obligation to pay the full amount of the remaining Minimum Commitment obligation and the applicable Service Provider Support Charges shall remain irrespective of a termination of these Terms for any reason. In the event of a termination by DoiT under b. above, any and all remaining credits (not yet paid to Customer) shall be voided. Suspension or termination of the DoiT's account may lead to unrecoverable data loss of the Customer.
7. Suspension of services.
In the event that DoiT becomes aware that the Customer can no longer pay some or all of the invoices issued under these Terms, then DoiT shall have the right to immediately suspend all Services provided to the Customer under these Terms, until such time as (i) Customer provides adequate assurances of its continued ability to pay any outstanding or future invoices; and, (ii) DoiT is reasonably convinced that Customer has the ability to pay any outstanding or future invoices. Such suspension shall be preceded by an email notice ("Suspension Notice") provided by DoiT to Customer's last known email address.
8. Limitation of Liability.
(a) Each party's cumulative liability to the other party shall be limited to the greater of $100,000 or total amount invoiced by DoiT to Customer during the 12-month period immediately preceding the event that triggered the liability (hereinafter, the "12 Month Spend") (the "Liability Ceiling"); provided that in any event, the Liability Ceiling shall not exceed 1 Million dollars ( $1,000,000). The Liability Ceiling shall not apply to any amounts owed by Customer to DoiT pursuant to the greater of (i) any invoices issued by DoiT to Customer with respect to Customer's consumption of the Services, (ii) any remaining Minimum Commitment obligations or EDP obligation as the case may be, or (iii) any Minimum Commitment True Up Payments as required according to the Order Form specifications.
(b) Neither Customer nor DoiT will be liable for lost revenues or profits, downtime costs, loss or damage to data, or indirect, special or consequential costs or damages (hereinafter, "Indirect Damages"). The preceding exclusion for Indirect Damages does not limit either party's liability for: infringement of intellectual property, fraud, liability which may not be excluded or limited by applicable law, and a violation of any Service Provider's AUPs or other use policies.
9. Fees, Billing, Payments and Taxes.
Applicable fees. For the purpose of these terms, fees shall be defined as any Service Provider Cloud Monthly Spend after application of Discount, but excluding any Credits, any Marketplace purchases and any applied prepayment from the Customer.
Payment terms. Customer will pay DoiT the applicable fees and charges as more specifically described in the Order Form. Customer agrees to pay all invoiced amounts within thirty (30) days of DoiT's invoice date or as agreed upon in the Order Form. DoiT may suspend or cancel performance of open Service requests if Customer fails to make payments when due. DoiT may increase or add new fees for any existing Services by giving You at least fifteen (15) days' advance notice. If You do not stop using the Services within fifteen (15) days, the new fees will be deemed accepted by You. Without limiting the foregoing, You are solely responsible for any third party charges that may be associated with and external to the Services, including but not limited to Your compute, storage and networking resources for the applications accessing the Services and data egress usage from other cloud providers.
Payments. Customer may use either (i) wire transfer, (ii) ACH, (iii) debit card, or (iv) credit card, to execute all payments to DoiT. Customer may make payments of fees with a debit/credit card, provided, however, that Customer shall be obligated to pay any such processing fee incurred by DoiT as a result of Customer paying by debit/credit card. There is a 2.9% credit card processing fee on debit/credit card payments. Any such processing fee shall be added to the invoice and become part of the amount to be paid by the Customer. In the case of wire transfer payments, Customer shall be responsible for any additional fees.
Late payments. Any payment under these Terms, made greater than fifteen (15) days after the date such payment is due and payable shall bear interest as of the day after the date such payment was due and payable and shall continue to accrue such interest until such payment is made at a rate equal to the lesser of either (a) 1.5% per month, or (b) the maximum rate permitted by Applicable Law.
In case of continued non-payment, terminated accounts are at risk of being transferred to a third party collections agency, solely at DoiT's discretion. Please note that a third party collections agency may impose additional charges. Failure to pay may also result in DoiT pursuing Customer legally to recover the value owed, thus incurring further legal costs for Customer.
Any discounts provided to Customer under these Terms will be applied to Customer's fees only after the application of any applicable credits provided to Customer with respect to such fees.
Taxes. Applicable taxes will be added to the monthly invoice according to the local commerce laws in the country where Customer does business with DoiT. DoiT's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If DoiT has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, DoiT will invoice Customer and Customer will pay that amount unless Customer provides DoiT with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, DoiT is solely responsible for taxes assessable against it based on its income, property and employees.
Tax Gross Up. All payments to be made by the Customer hereunder shall be made free and clear of, and made without any tax deductions and/or withholding payments. In the event that Customer is required to make a tax deduction and/or withholding payment, then the amount payable by Customer (in respect of which such tax deduction and/or withholding payment is required to be made) shall be increased to the extent necessary to ensure that DoiT receives a sum net of any deduction and/or withholding equal to the amount which it would have received had no such tax deduction and/or withholding been made or required to be made. The Customer shall promptly, upon becoming aware that it must make a tax deduction and/or withholding payment notify DoiT accordingly. If Customer is required to make a tax deduction and/or withholding payment, it shall make any such payment required within the time allowed and in the minimum amount required by law. Within 30 days of making any payment required in connection with such a tax deduction and/or withholding payment, the Customer shall deliver to DoiT evidence that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
Local currency. When charging in local currency, DoiT will convert the prices of the Order Form - and notably the invoice sent to the Customer on a monthly basis - into applicable local currency according to the exchange rates as published by leading financial institutions and necessary adjustments as required to cover the forex risk between invoice date and payment date.
10. Governing Law/Disputes.
The DoiT entity entering into this agreement, the address to which Customer should direct notices under these Terms, the law that will apply in any dispute or lawsuit arising out of or in connection with this agreement, and the courts that have jurisdiction over any such dispute or lawsuit, shall be according to the DoiT entity executing the Order Form and/or providing the services as reflected at Governing Law, Jurisdiction, and Venue.
11. Miscellaneous Provisions.
a) Notices. Written notice for purposes of these Terms shall include email notification provided by the terminating party to the other party.
b) Entire agreement. These Terms and the applicable Order Form represent the entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.
c) Electronic Transactions. The parties agree to do business electronically. Electronic transactions includes consenting to contracts, placing or accepting orders, exchanging and accepting Supporting Materials, content posted on DoiT websites, or any electronic document related to the DoiT Solutions (Electronic Transactions). If such Electronic Transactions are contested as unenforceable by Customer, Customer agrees that DoiT may terminate Customer's access to DoiT services.
e) Global Trade. If Customer exports, imports or otherwise transfers all or a portion of a product or Service, Customer is responsible for complying with applicable laws and for obtaining any required export or import authorizations. Either party may suspend its performance to the extent necessary to comply with applicable trade laws.
f) Anti-Bribery and Anti-Corruption Laws. DoiT is committed to doing business worldwide ethically, free from corruption without exceptions, and in compliance with all applicable anti-corruption laws and expects its service providers to comply with the same high standards. Neither Customer nor any of its representatives has or will improperly provide (or offer to provide), directly or indirectly, anything of value to anyone, including government officials to obtain or retain business, to obtain a commercial advantage, or to receive favored treatment, anywhere in the world and shall comply with all applicable anti-bribery and anti-corruption laws. Customer shall immediately notify DoiT in writing of any suspected or known breach of the obligations under this Section.
g) Export Compliance. The Services, Supporting Materials and other DoiT technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. DoiT and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or content in a U.S. embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea or Syria) or as may be updated from time to time, or in violation of any U.S export law or regulation.
h) Assignment. Neither party hereto may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in its entirety, without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or shares, but subject to a written notice of such assignment. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
i) Confidential Information. Information exchanged under these Terms will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under the agreement, and shared with employees, Affiliates, agents, or contractors with a valid obligation to reasonably maintain confidentiality of such information and a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or for such period as the information remains confidential. These obligations do not cover: i) information that was known or becomes known to the receiving party without obligation of confidentiality; ii) information that is independently developed by the receiving party; or iii) information that is required to be disclosed by law or a governmental agency.