This Server Permission Agreement (“Agreement”) is made by and between Virtuozzo International GmbH, including any wholly-owned Virtuozzo subsidiaries and affiliated companies (“Virtuozzo”), and the Customer which intends to grant Virtuozzo access to its server infrastructure (“Customer”) (each a “Party” hereto):

Recitals

WHEREAS, Customer desires to grant Virtuozzo access to its’ Servers (the “System”) in order to receive certain Services by Virtuozzo.

WHEREAS Virtuozzo is willing to accept such permission to access the System.

NOW, THEREFORE, the Parties hereto, intending to be legally bound, hereby agree as follows:

1. Services. Per Customer’s order, Virtuozzo shall provide to Customer certain services (the “Services”), which require Virtuozzo accessing Customer’s System. A further description of the ordered Services shall be included in the corresponding order.
2. Granted access. Customer hereby grants permission to Virtuozzo to enter its system via remote access. Furthermore, Customer acknowledges, that Virtuozzo may possibly have to reboot Customer’s System after repairs or to shut down services while fixing them. Virtuozzo will follow all commercially reasonable security policies for accessing the System, setup and communicated by Partner prior to Virtuozzo accessing the System.
3. Customer Obligations. Customer shall deliver to Virtuozzo all necessary information to allow Virtuozzo to perform the Services, and to respond to any communications from Virtuozzo regarding the Services. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE INTEGRITY, ACCURACY, COMPLETENESS, AND RETENTION OF ANY INFORMATION PROVIDED BY CUSTOMER TO VIRTUOZZO. WITHOUT LIMITATION OF THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT IT HAS CREATED A BACK UP COPY OF ALL DATA THAT MAY BE AFFECTED BY VIRTUOZZO’S PERFORMANCE OF THE SERVICES. VIRTUOZZO SHALL NOT BE RESPONSIBLE FOR CREATING BACK UP COPIES OF DATA AND INFORMATION PROVIDED BY CUSTOMER TO VIRTUOZZO.
4. Data privacy regulation. Customer hereby represents and confirms to Virtuozzo that any data transferred or in any manner provided by Customer to Virtuozzo in accordance with this Agreement does not contain any personal data or any personal information, which might be subject to General Data Protection Regulation or other applicable data protection laws (“Personal data”). The Parties confirm that this Agreement does not govern in any manner any transfers of Personal data. If Customer considers that data, which shall be transferred or provided by any means to Virtuozzo, may include Personal data, prior to such transfer Customer shall negotiate and conclude with Virtuozzo specific agreement or amendment to this Agreement, which regulates transfer, storage, purposes of use and all other issues related to Personal data.
5. Term and Termination. Virtuozzo shall perform the Services as requested by Customer’s representative. The term of such Services and the related access to Customer’s System shall continue until Virtuozzo completes the Services or until either Party terminates the request for the performance of the Services. Before the Services’ start, Customer shall pay the fees and reimburse to Virtuozzo all expenses pre-approved by Customer as set forth in the corresponding order or Agreement. All unpaid fees and expenses that have accrued through the date of termination are subject to additional late fees and penalties.
6. Indemnification of Virtuozzo. Customer agrees to indemnify, defend and hold Virtuozzo and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any action brought against Virtuozzo with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that: (I) such action is based upon or arises out of a claim that any data or information provided by Customer to Virtuozzo to enable Virtuozzo to perform the Services hereunder violates or infringes upon the rights of any party, including any intellectual property rights of any third party or (II) such action is based upon or arises out of a claim that is related to use by Virtuozzo of data or information provided by Customer to Virtuozzo to enable Virtuozzo to perform the Services hereunder or (III) such action or claim is based upon or arises out of the performance of the Services by Virtuozzo.
7. Warranty and Limitation of Liability.
   1. Warranty by Virtuozzo. Under this Agreement, Customer only permits Virtuozzo to access Customer’s System to provide services to Customer. Virtuozzo does not sell or license goods, except as expressly provided herein. Virtuozzo warrants that it will perform the access in a workmanlike manner. If certain security policies have been agreed upon in writing before the Services start, Virtuozzo warrants, that such policies will be followed to the maximum extent possible. THE WARRANTY EXPRESSED IN THIS SECTION IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY VIRTUOZZO. EXCEPT FOR THIS LIMITED WARRANTY, VIRTUOZZO MAKES NO OTHER WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, RELATING TO THE SERVICES TO BE RENDERED BY VIRTUOZZO UNDER THIS AGREEMENT, AND VIRTUOZZO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE THAT MAY ARISE IN CONNECTION WITH SUCH SERVICES.
   2. Warranty by Customer. Customer warrants that the rendering of the Services by Virtuozzo will not violate the rights of any third party, including, without limitation, intellectual property rights.
   3. The limitation of liability as set forth in this Section shall not apply to any damages caused by Virtuozzo’s and/or its agents’, employees’ or officers’ gross negligence or willful misconduct.
   4. Limitation of Liability. For purposes of this Section, “Virtuozzo” includes any and all subsidiaries and affiliates of Virtuozzo International GmbH, and the officers, directors, employees, and agents thereof. Notwithstanding the warranty provisions set forth in Section 7(a) above, all of Virtuozzo’s obligations with respect to such warranties shall be limited to the access of the System with respect to the reasonable security policies, agreed upon between the Parties. Virtuozzo shall have no warranty obligations with respect to any failures of the System which are the result of accident, abuse, misapplication, extreme power surge, extreme electromagnetic field or to any delays in the performance of the access directly or indirectly caused by Customer. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH VIRTUOZZO IS CHARGING PURSUANT TO THIS AGREEMENT DOES NOT INCLUDE ANY CONSIDERATION FOR THE ASSUMPTION BY VIRTUOZZO OF THE RISK OF THE CUSTOMER’S OR ANY THIRD PARTY’S INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH THE CUSTOMER’S USE, SUBLICENSING OR RESALE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, CUSTOMER HEREBY AGREES, THAT VIRTUOZZO SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFIT, LOST SAVINGS, LOSS OF REVENUES OR LOSS OF DATA, ARISING FROM THE ACCESS TO THE SYSTEM IN ACCORDANCE TO THE AGREED UPON POLICIES, EVEN IF VIRTUOZZO OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE. IT IS AGREED THAT VIRTUOZZO’S CUMULATIVE LIABILITY TO CUSTOMER OR ANY PARTY RELATED TO CUSTOMER FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO THE PAYMENTS RECEIVED OR DUE FROM CUSTOMER FOR THE ORDERED SERVICES. IT IS THE AGREEMENT OF THE PARTIES THAT THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THE SERVICES AGREEMENT.
   5. Each party:
      • — has the full right and authority to enter into this Agreement and grant the rights granted herein
      • — has obtained all necessary approvals, if any, for entering into this Agreement.
8. Confidentiality
   1. Ownership of Confidential Information. The Parties acknowledge that during the performance of the Services, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
   2. Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
9. General Terms.
   1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the applicable laws of Switzerland. Agreed place of jurisdiction shall be Zurich / Switzerland. Virtuozzo may, at its sole discretion, be authorized by this Agreement to choose the place of Customer’s business as the relevant place of jurisdiction.
   2. Independent Contractor. Virtuozzo is an independent contractor for all purposes. Neither Virtuozzo nor its subcontractors, nor the employees or agents thereof, shall be deemed to be employees or agents of Customer. Virtuozzo may use contractors or other third parties of Virtuozzo’s choice to assist Virtuozzo in rendering the Services hereunder. Nothing herein or in the performance hereof shall imply either a joint venture or principal and agent relationship between the parties, nor shall such a relationship be deemed to have arisen under this Agreement.
   3. Survival. Articles 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding in perpetuity.
   4. Force Majeure. Neither party shall have liability for damages or delays in performance due to natural disasters, power surges or failures, strikes or labor disputes, acts of god, war, civil disturbances, acts of civil or military authorities or the public enemy, or other causes beyond either party’s control.
   5. Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and may be sent by: (I) personal delivery; (II) registered mail; (III) expedited delivery service; (IV) facsimile; or (V) electronic mail. Notices to either party shall be addressed to its address indicated on the first page of this Agreement, or such other address as the party may designate through notice hereunder. Notices will be deemed communicated upon receipt, provided that receipt of any such notice is verified through commercially reasonable means.
   6. Non-Solicitation. During the term of this Agreement and for a period of one (1) year after the termination of this Agreement, Partner shall neither actively solicit, discuss employment with, offer employment to, nor otherwise use, hire, or utilize the services of any employee of Virtuozzo or any person who has been employed by Virtuozzo within one (1) year prior to the date of solicitation, hiring, or other such activity.
   7. Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning Virtuozzo’s rendering of the Services to Customer. No change, modification or waiver of any of the terms of this Agreement shall be binding unless set forth in writing and signed by both parties.
   8. Severability. If any provision of the Agreement is held invalid by a court with jurisdiction over the parties to the Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of the Agreement will remain in full force and effect. The remainder of the Agreement will continue in effect as if the Agreement had been entered into without the invalid portion.