CLOUD COMPUTING TERMS AND CONDITIONS (CCTC)


By accessing the HCE Cloud Services, powered by VMware Cloud computing platform, ("Cloud Services", "Cloud Infrastructure" or "Cloud IaaS"), you agree to be bound by these Cloud Computing Terms And Conditions (CCTC) of service between you and HCE (also called "Cloud Terms", "Cloud Computing Agreement" or "Agreement"). This Cloud Computing Agreement also includes all the applicable Service Order, Privacy Policy, Service Level Agreement and "General Terms of Service". If any Client does not accept this Cloud Computing Terms And Conditions (CCTC) and to do not agree to them, one shall not access the Cloud Service. "Client" means an individual or the entity, represented by the person who is in contact with HCE and requested a Cloud Service. If the Client is entering into this Cloud Computing Agreement for an entity, the Client represents to us that one has legal authority to bind that entity. "HCE", "we," or "us" means RAX.BG LLC, an European Union, Bulgaria registered limited liability company.

1. Cloud Service

1.1 General Description: This Cloud Computing Agreement governs the Client's access to and use of the Cloud Service. We may deliver the Cloud Service to you with the assistance of our Partners or Resellers. The Client shall comply with all laws, rules and regulations applicable to the use of the Cloud Service. The Client also shall comply with the applicable 3rd party Terms, Service Description, Privacy policy and Support terms. If you access the Cloud Service, or any of its features or functionality, on an any evaluation or test period, please see Section 1.5 for other terms that apply to it.

1.2 Access to the Service Offering: The Client may access and use the Cloud Service only in accordance with this Cloud Computing Agreement. To access the Cloud Service, you must register for the Cloud Service in HCE Account Management and Customer Support system and set up an Account with your own username and password. You can have correspondence and manage your Account at www.HostColorEurope.com/Accounts/. The Client must keep confidential one's username and password. If the Client sets up an Account for an organization, one must require that all Authorized Users of that Account keep confidential their login credentials. The Client must keep their Account information accurate, complete and current for as long as one is use the Cloud Service. The Client is responsible for any use that occurs under one's login credentials, including any activities by the Client or the Client's employees or agents. If the Client believes that an unauthorized person has gained access to the Client's login credentials, the Client must immediately notify HCE by sending email from the main Account email.

1.3 Compliance with this Cloud Computing Agreement: HCE has the right to verify that the Client's compliance with this Cloud Computing Agreement. If HCE requests the Client to verify that the Client uses the Cloud Service in accordance with this Cloud Computing Agreement, The Client shall provide information requested by HCE to assist the verification process. HCE monitors the overall performance and stability of its infrastructure and the Client's Cloud Service as a part of it. The Client may not block or try to prevent the monitoring. If HCE reasonably believes a problem with the Cloud Service may be caused by the Client's content or the Client's use of the Cloud Service, the Client will cooperate with HCE to identify the source of and resolve that problem.

1.4 3rd Party Content. As part of the Client's use of the Cloud Service, the Client may receive access to 3rd Party Content, which is subject to separate terms. If so, those separate terms will prevail over this Cloud Computing Agreement as to the Client use of the 3rd Party Content. The 3rd Party Content is available “AS IS” without indemnification, support, or warranty of any kind. The Client is responsible for reviewing, accepting, and complying with any 3rd party terms of use or other restrictions applicable to the 3rd Party Content. Those terms will be available to the Client in the 3rd Party Terms or through a notification within the Cloud Service. HCE reserves the right to suspend or terminate the 3rd Party Content at any time, while making a reasonable effort to provide a notice of that suspension or termination.

1.5 Evaluation or Test Period : If you access the Cloud Service, or a feature or functionality of the Cloud Service, on an evaluation or a test period (referred to as the "Evaluation Cloud Service"), then the Client may use the Evaluation Cloud Service only for evaluation purposes and within the specified period of time. Unless we specify otherwise, any use of the Cloud Service on an evaluation basis will be for a period of up to 30 days, beginning on the date we provide the Client with Cloud Service access login credentials. The Client is not permitted to use the Evaluation Cloud Service for production computing activity. Notwithstanding any other provision of this Cloud Computing Agreement, we provide the Evaluation Cloud Service (a) at no service cost and without support; and (b) "AS IS" without indemnification or warranty of any kind. The HCE Service Level Agreement does not apply to the Evaluation Cloud Service. Certain features or services described in the Cloud Service Description, either on a separate Service Order or in HCE website may not be available for the Evaluation Cloud Service. The Client will not have access to the Evaluation Cloud Service or to the Client's content when it terminates. Any Evaluation Cloud Service features and functionality do not constitute a commitment from HCE to offer a Cloud Service to the Client on any basis.

1.6 Cloud Service Request: The Client may request Cloud Service and related services from HCE by placing a Service Order (also an Online Service Order or a Phone Service Order). Unless there is anything else specified in a separate contract or in a the Cloud Service Order, signed both by the Client and HCE (RAX.BG LLC) shall provide the Cloud Service and all applicable services to the Client as stated in these Cloud Computing Terms and Conditions.

1.7 Cloud Service Order: The Client can choose a pre-configured or custom-configured Cloud Service. Each Cloud service configuration can be customized if the Client clicks on a selected Cloud Service product. An Online Service Order is considered as "Placed" or "Submitted", when the Client has created account in the HCE Account Management and Customer Support Portal at https://www.hostcoloreurope.com and has created a record for the Online Cloud Service Order. An offline Service Order is considered as "Placed" or "Submitted", when the Client returns to HCE a signed copy of the Cloud Service Order document prepared by HCE and send to the Client for signature.

1.8 Cloud Service Term: One year contract term (annual contract) applies to any Online Cloud Service Order submitted by the Client in HCE Account Management And Customer Service Portal at https://www.hostcoloreurope.com/, unless the Client has specifically opted for any other term in the customization field "Contract", located at the top of the Online Cloud Service Order.

1.9 Cloud Service Term Amendment: An annual contract for a Cloud Service and applicable services can be amended by the Client, through a "Cloud Service Order Amendment" request, submitted in the HCE Account Management and Customer Support Portal in form of Support Ticket to the Sales department. The request shall be submitted to HCE before the requested Cloud Service are provisioned to the Client.

Each "Cloud Service Order Amendment" requested after the Cloud Service and services have already been provisioned to the Client, is a subject to an administrative "Order Amendment Fee" fee of €25. Upon payment of the "Order Amendment Fee", HCE will review the request and will offer the Client a procedure to amend of the Online Service Order. However, the Client acknowledges that HCE may refuse to amend any Online Service Order, if the Client's request is in violation of these Cloud Computing Terms And Conditions.

2. Security and Data Protection

2.1 Data Protection: HCE will process personal data contained in the CLient's Content, and maintain appropriate technical and organizational measures (administrative, physical and technical safeguards), as set forth in the Privacy Policy.

2.2 Security of the Client's Content: The Client is solely responsible for the Client's Content. Except as provided by the Privacy Policy, the Client is responsible for protecting one's own Content, including any access to The Client's Content that the Client might provide to one's employees, customers or other 3rd parties, and when it is in transit to and from the Cloud Service. The Cloud Service provides the Client with certain software and functionality to help the Client protect the Client's Content from unauthorized access. The Client must take and maintain appropriate steps regarding the security, protection and backup of the Client's Content, which might include the use of encryption technology to protect the Client's Content from unauthorized access. The Client is responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the Cloud Service. The Client is responsible for complying with any laws or regulations that might apply to Client's Content. The Client is responsible for any losses or other consequences arising from your failure to encrypt or back up the Client's Content.

3. Acceptable Use

3.1 General Restrictions: The Client and any Users accessing the Cloud Service through the Client may not resell or sublicense the Cloud Service or use or access the Cloud Service in a way prohibited by law, regulation, governmental order or decree; to violate any rights of others; to try to gain unauthorized access to, test the vulnerability of, or disrupt the Cloud Service or any other service, device, data, account or network; to spam or distribute malware; in a way that could harm the Cloud Service or impair anyone else's use of it; in a way intended to work around the Cloud Service's technical limitations, recurring fees or usage limits; or in any application or situation where failure of the Cloud Service could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage. The Client must ensure that one's Users comply with the terms of this Cloud Computing Agreement, and the Client agrees that if the Client becomes aware of any violation by one of the Client's Users, the Client will immediately terminate that User's access to the Client's Content. If HCE has reason to believe that the Client or the Client's Users have breached this Cloud Computing Agreement, we may review your use of the Cloud Service, including your account, the Client's Content, and your records, to verify your compliance with this Cloud Computing Agreement.

3.2 Content Restrictions: The Client will take steps to ensure that any User does not post content that: may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; may create a risk of any other loss or damage to any person or property; may constitute or contribute to a crime or an infringement of a right ; contains any information or content that is illegal, unlawful, harmful, abusive, pornographic, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating or threatening to other people; or contains any information or content that the Client does not have a right to make available under any law or under contractual or fiduciary relationships. The Client is responsible for any software, product or service that a third party licenses, sells or makes available to the Client that one installs or uses with the Cloud Service. The Client's use of that software, product or service is governed by separate terms between you and that third party. HCE is not a party to and are not bound by any of those separate terms. The Client represents and warrant that The Client's Content does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy. The Client will ensure that the Client's use of the Cloud Service complies at all times with your privacy policies and all applicable laws and regulations, including any encryption requirements.

3.3 Acceptable Use Violations: If the Client becomes aware that any of the Client's Content or any User's access to or use of the Client's Content violates Sections 3.1 or 3.2, the Client will take immediate action to remove the applicable part of the Client's Content or suspend the User's access. HCE may also ask the Client to take action within a certain time period, and if the Client fail to comply with the request, HCE may suspend the Client's account pursuant to Section 6.

3.4 Notification of Infringement Concerns: If the ones believes that their copyrighted work has been copied and is accessible on the Cloud Service in a way that constitutes copyright infringement, they are encouraged to send a notice to our copyright agent providing the following information: (1) a description of the copyrighted work that you claim has been infringed and a description of the infringing activity, (2) a description of the location of the material that you claim is infringing is located, such as the URL where it is posted, (3) your name, address, telephone number and email address, (4) a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent or the law (5) a statement made by you, under penalty of perjury, that the above information in your notice of infringement concerns is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf, and (6) your electronic or physical signature, as the copyright owner or as the person authorized to act on the owner's behalf. HCE (RAX.BG LLC) copyright agent for notice of claims of copyright infringement can be reached as set in the DMCA Notice web page of this Legal section. Solely for purposes of reporting copyright infringement, please contact HCE's copyright agent as specified on the DMCA Notice page.

4. Intellectual Property

4.1 Ownership of Service Offering: HCE and our licensors own and retain all right, title and interest in and to the Cloud Service, including all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein. This includes any information that HCE collects and analyzes in connection with the Cloud Service, such as usage patterns, user feedback and other information to improve and evolve HCE software products and services offerings. The Client's rights to use the Cloud Service are limited to those expressly granted in this Cloud Computing Agreement. No other rights with respect to the Cloud Service, or any related Intellectual Property Rights are implied.

4.2 Ownership of the Client's Content: The Client and the Client's authorized Users retain all right, title and interest in and to the Client's Content and all Intellectual Property Rights therein. HCE rights to access and use the Client's Content are limited to those expressly granted in this Cloud Computing Agreement. No other rights with respect to the Client's Content or any related Intellectual Property Rights are implied.

5. Service Orders, Delivery, Payment and Taxes

5.1 Service Orders: All Service Orders drafted, delivered or sent to the Client are subject to the terms of this Cloud Computing Agreement and are not binding until accepted by HCE. HCE is not required to provide any Cloud Service to the Client until the Client provides all information required by HCE for processing the Client's Service Order. The Client's Order will be deemed accepted when we authorize the purchased Cloud Service for the Client's login credentials.

5.2 Delivery: When HCE accepts the Client's Service Order for the Cloud Service, HCE will deliver the corresponding login credentials to the Client by email to the address associated with the Client's Account.

5.3 Direct Orders: This section applies only to Service Orders and purchases the Client makes directly with HCE. HCE authorized Partners or Resellers might specify similar terms when the Client makes a Service Order or purchase through them.

5.3.1 Subscription-based Cloud Service Orders: For Subscription-based Cloud Service Orders placed on HCE website, the Client must submit only an initial Cloud Service Order. HCE is not required to obtain a subsequent purchase order from the Client to invoice the Client for the monthly service fee that occurs after the initial Service Order is billing.

5.3.2 Invoicing and Payment. We will bill you as specified in the Service Description. You will pay all fees for use of the Service Offering in the amount and currency specified in your invoice by one of the payment methods that we support as specified in the Service Description, and in any event no later than 30 days after the date of the invoice.

5.3.2.1 Payment of on-demand Cloud Services: The Client shall pay in advance, prior the start of the next billing cycle, all the applicable fees for the upcoming service period, based on the Client's actual metered usage of the Cloud Service.

5.3.2.1 Payment of subscription-based Cloud Services: The Client shall pay in advance the applicable fees due for the monthly or prepaid Cloud Services. The Client shall be issued an invoice and expected to pay all the applicable monthly fees for any metered usage services and products after the end of the billing cycle. The applicable fees for the Cloud Service will be governed by the then-current applicable price list, at the time of invoicing. HCE may increase or add new fees for the Cloud Service by notifying the Client 30 days in advance.

5.3.3 Taxes: Cloud Service fees are exclusive of Taxes. "Taxes" means any sales, VAT and other taxes, fees and charges imposed by any government or other authority. The Client shall pay or reimburse HCE for all taxes arising out of the transactions contemplated by this Cloud Computing Agreement. If The Client is required to pay or withhold any tax for payments due under this Cloud Computing Agreement, the Client shall gross up one's payments to HCE so that we receive sums due in full and free of any deductions. If the Client is required to pay any tax to a taxing authority, the Client will also provide documentation to HCE (RAX.BG LLC) showing that he paid those taxes to the relevant taxing authority. The Client hereby confirm that RAX.BG LLC can rely on the name and address the Client provides to us when one agrees to the Cloud Service or in connection with the Client's payment method, as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where you have established your business.

6. Cloud Service Suspension and Temporary Suspension

6.1 Generally. HCE may suspend the Client's use of the Cloud Service if HCE reasonably determines that: payment for the Cloud Service is not received within 5 business days from the date on which payment is due; the Client, or the Client's use of the Cloud Service is, in breach of this Cloud Computing Agreement; the Client fail to address HCE request to take action as specified in Section 3.3; The Client use of the Cloud Service poses a security risk to the Cloud Service or other users of the Cloud Service; or when suspension is required pursuant to our receipt of a subpoena, court order, or other request by a law enforcement agency. HCE will give the Client notice before we suspend, subject to applicable law, and unless we reasonably determine that providing the notice presents risk of harm to the Cloud Service or any person or property.

6.2 Effect of Suspension: The Client will remain responsible for all fees incurred before or during any suspension. The Client shall not be entitled to any service credits under any applicable Service Level Agreement that you might have otherwise accrued during the period of suspension.

7. Cloud Computing Agreement Term and Termination

7.1 Term of Cloud Computing Agreement. This Cloud Computing Agreement will be in effect until it is terminated as permitted herein or under the Cloud Service Description. For Subscription-based Cloud Services, the subscription will automatically renew as specified in the Cloud Service Description, unless terminated as permitted therein.

7.2 Termination for Cause: HC may terminate this Cloud Computing Agreement effective immediately upon sending you an email notice if you: breach any provision of Sections 3.1 or 3.2; do not resolve the underlying cause resulting in a suspension of your Account pursuant to Section 6.1 (other than suspension due to a subpoena, court order, or other request by a law enforcement agency) within 5 days after your account is suspended; (c) commit a material breach of this Cloud Computing Agreement that cannot be cured; or (d) terminate or suspend your business.

7.3 Termination for Insolvency: HCE may terminate this Cloud Computing Agreement effective immediately upon sending you an email notice if the Client: become insolvent, admit in writing your inability to pay the Client's debts as they mature, or make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding.

7.4 Effect of Termination: Upon the effective date of termination of this Cloud Computing Agreement for any reason: all rights granted to the Client under this Cloud Computing Agreement, including the Client's ability to access the Cloud Service, will immediately terminate; and the Client must promptly discontinue all use of the Cloud Service and delete or destroy any of our confidential information. Deletion and retrieval of the Client's Content will be handled as set forth in the Privacy Policy. Section 3 (Acceptable Use), 4 (Intellectual Property Ownership), 5 (Orders, Delivery, Payment and Taxes), 7 (Term and Termination), 9 (Disclaimer), 11 (Limitation of Liability), 12 (Confidential Information), 13 (General), 14 (Definitions), 15 (Provisions for Specific Data Centers), and the Privacy Policy will survive the termination of this Cloud Computing Agreement. Termination of the Client's use of the Cloud Service (except to the extent that the termination is permitted under Sections 10.3 and 13.3 of this Cloud Computing Agreement will not entitle the Client to any refunds, credits, or exchanges, and the Client will be liable for all usage and other fees incurred up to the termination effective date, including any monthly billing fees for the remaining term of a Subscription-based Cloud Service after the termination effective date.

8. Cloud Service Support and Subscription Services

8.1 Support Services: When applicable and subject to the terms of this Cloud Computing Agreement, HCE will provide technical and administrative support for the Cloud Service in accordance with the terms specified in the Cloud Computing Agreement. HCE will not not provide support to any end users of the Client's Content.

8.2 Support Requests and HCE Response: All the support request sent to HCE must be submitted in the HCE Account Management and Customer Support system at https://www.hostcoloreurope.cpm/accounts/. Once submitted the Support Requests are answered into the system and the Client receives a copy of the response on one's email. HCE is not responsible for non-delivery of any email copy and the Client is advised to use one's Account to monitor the correspondence.

9. Disclaimer: To the maximum extent permitted by applicable law, we and our licensors and service providers disclaim all warranties, whether express, implied, or statutory, including any warranties of merchantability, satisfactory quality, fitness for a particular purpose, title and non -infringement, and any warranties arising from course of dealing of course of performance, relating to the Cloud Service or any materials or services provided to you under this Cloud Computing Agreement. we and our Licensors and service providers do not warrant that the Cloud Service will be uninterrupted or free from defects, or that the Cloud Service will meet (or is designed to meet) your business requirements.

10. Indemnification

10.1 Indemnification by the Client: The Client will defend and indemnify HCE against any third party claim arising from or relating to: the CLient's Content; any infringement or misappropriation of any Intellectual Property Rights by the Client, Users or Client's suppliers in connection with the Client use of the Cloud Service; any violation of law by the Client or Users in connection with use of the Cloud Service; the Client's or Users' use of the Cloud Service in violation of this Cloud Computing Agreement, the Clients or Users' use of any 3rd Party Content or any action taken by HCE or VMware, as a provider of software licenses, with respect to the Cloud Service that is permitted by this Cloud Computing Agreement. We will provide the Client with notice of the claim within a reasonable period of time after learning of the claim; and reasonably cooperate in response to the Clients requests for assistance. The Client may not settle or compromise any indemnified claim without HCE prior written consent.

10.2 Defense and Indemnification: Subject to the remainder of this Section 10, we will defend the Client against an Infringement Claim and indemnify the Client from the resulting costs and damages finally awarded against the Client to that third party by a court of competent jurisdiction or agreed to in settlement; provided that the Client: promptly provide HCE with notice of any Infringement Claim; allow HCE sole control over the claim's defense and settlement, and any related action challenging the validity of the allegedly infringed patent, trademark or copyright; and reasonably cooperate in response to HCE requests for assistance. The Client may not settle or compromise any Infringement Claim without HCE prior written consent.

10.3 Remedies: If the Cloud Service becomes, or in HCE opinion is likely to become, the subject of an Infringement Claim, HCE will at its option and expense: procure the rights necessary for the Client to keep using the Cloud Service; modify or replace the Cloud Service to make it non-infringing; or terminate this Cloud Computing Agreement and refund any pre-paid fees for a Subscription-based Cloud Service pro-rated for its remaining term.

10.4 Exclusions: Notwithstanding Section 10.2, HCE shall have no obligation under the Section 10 or otherwise with respect to any claim or award based on: a combination of the Cloud Service with non-HCE data, products, business processes or content, including the Client's Content; use of the Cloud Service for a purpose or in a manner not specified in this Cloud Computing Agreement or the Cloud Service Description, or otherwise in a manner for which the Cloud Service was not designed; any modification of the Cloud Service made without our express written approval; or any Cloud Service provided on a no-charge basis, including an Evaluation Service as described in Section 1.5. This Section 10 states the Client's exclusive remedy for any infringement claims.

11. Limitation of Liability

To the maximum extend permitted by law, in no event will HCE be liable for any lost profits of business opportunities, loos of use of the Cloud Service or the CLient's Content, loss of revenue, loss of goodwill, business interruption, loss of data, or any indirect, special, incidental or consequential damages under any theory of liability, whether based in contract, tort negligence, product liability or otherwise. In any event, our liability under this agreement will not, regardless of whether the claim is based on contract, tort, strict liability or otherwise, exceed the greater of: (a) the aggregate fees paid to HCE for the Client's access to and use of the Cloud Service in the twelve (12) months prior to the event giving rise to the claim, or (b) five thousand euros (€5,000), regardless of whether we or our licensors or service providers have been advised of the possibility of those damages and regardless of whether any remedy fails of its essential purpose. The limitations of liability in this Section 11.1 will not apply to (a) HCE indemnification obligations under this agreement or (b) any liability which may not be excluded by applicable law.

HCE licensors and service providers shall have no liability of any kind under this Cloud Computing Agreement. The Client may not bring a claim under this Cloud Computing Agreement more than twelve (12) months after the cause of action arises.

12. Confidential Information

12.1 Protection: A party may use Confidential Information of the other party solely to exercise its rights and perform its obligations under this Cloud Computing Agreement or as otherwise permitted under this Agreement. Each party will disclose the Confidential Information of the other party only to the employees, service providers or contractors of the recipient party who have a need to know the confidential information for purposes of this Cloud Computing Agreement and who are under a duty of confidentiality no less restrictive than each party's duty under this Agreement. Each party will use reasonable care to protect the confidentiality of the other party's confidential information.

12.2 Exceptions: The recipient's obligations under Section 12.1 with respect to any confidential information will terminate if the recipient can show by written records that the information: was already rightfully known to the recipient at the time of disclosure by the other party; was disclosed to the recipient by a 3rd party who had the right to make the disclosure without any confidentiality restrictions; is, or through no fault of the recipient has become, generally available to the public; or was independently developed by the recipient without access to, or use of, discloser's confidential information. The recipient may disclose confidential information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange. The recipient will provide the other party notice, when practicable, and will take reasonable steps to contest and limit the scope of any required disclosure.

13. General

13.1 Assignment: The Client may not assign or transfer this Cloud Computing Agreement, in whole or in part, by operation of law or otherwise, without HCE prior written consent. Any attempted assignment or transfer without that consent will be void. Subject to these limits, this Cloud Computing Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.

13.2 Notices: Any notice delivered by HCE to the Client under this Cloud Computing Agreement will be delivered by email to the email address associated with the Client's account or by posting on the Account Management & Customer Support Portal, except as otherwise set forth in this Cloud Computing Agreement. The Client will direct legal notices or other correspondence under this Cloud Computing Agreement (including under any Additional Terms) to HCE / RAX.BG LLC, ul. Atanas Uzunov 18, Sofia, 1505, Bulgaria, European Union.

13.3 Modifications: HCE may change periodically the Cloud Service, the terms of the Client's access to the Cloud Service, this Cloud Computing Agreement, the Cloud Service Description, the Privacy Policy, the Service Level Agreement or any other Agreement. It is the Client's responsibility to regularly check the Cloud Service in HCE website and Account Management and Customer Support Portal. HCE will notify the Client of any material, detrimental change to this Cloud Computing Agreement, the Cloud Service Description, the Privacy Policy, the Service Level Agreement or any other Agreement. In the case of a material, detrimental change to the Service Level Agreement, HCE will notify the Client at least 60 days prior to the effective date of the change. The modified Agreement, Cloud Service Description, Privacy Policy, Service Level Agreement or any other Agreement, as applicable, will become effective as of the date stated in that notification. If HCE makes a material, detrimental change to the Cloud Service (other than the termination or modification of any beta feature or functionality), this Cloud Computing Agreement, the Cloud Service Description, the Privacy Policy, the Service Level Agreement or any other Agreement, then the Client may terminate this Cloud Computing Agreement no later than 30 days after the effective date of the change. If the Client terminates this Cloud Computing Agreement pursuant to this Section 13.3, the termination will be effective as of the date HCE receives the Client's notification, unless the Client states in their notification an effective date that is later but within 45 days after we receive the Client's notification. If the Client terminates a Subscription-based Cloud Service, HCE will refund any prepaid fees, pro-rated for the remainder of the term, and less any discounts that would not be earned as of the effective date of the termination. The Client's continued use of the Cloud Service after the effective date of any modification to the Cloud Computing Agreement, the Cloud Service Description, the Privacy Policy, the 3rd Party Terms, the Service Level Agreement or any other Agreement will be deemed acceptance of the modified terms, as applicable.

13.4 Waiver: The waiver of a breach of any provision of this Agreement will not constitute a waiver of any other provision or any later breach.

13.5 Severability If any provision of this Cloud Computing Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in force.

13.6 Compliance with Laws: Each party will comply with all laws applicable to the actions contemplated by this Cloud Computing Agreement. The Client acknowledges that if the Cloud Service is of United States origin, is provided subject to the U.S. Export Administration Regulations (including "deemed export" and "deemed re-export" regulations), and may be subject to the export control laws of the applicable country. The Client represent and warrant that (a) The Client is not, and is not acting on behalf of, (1) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar designated persons list published for the jurisdiction in which the data center the Client choose for the Cloud Service is located; (b) the Client will not permit the Cloud Service to be used for any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons; (c) The Client's Content will not be classified or listed on the United States Munitions list or similar list published for the jurisdiction in which the data center you choose for the Cloud Service is located, or contain defense articles, defense services or ITAR-related data; (d) The Client's Content will not require an export license and is not restricted under applicable export control laws from export to any country where HCE or HCE's service providers maintain facilities or personnel; and (e) the Client is not subject, either directly or indirectly, to any order issued by any agency of the United States government, revoking or denying, in whole or in part, the Client's United States export privileges. The Client will notify HCE immediately if you become subject to any such order.

13.7 Government Regulations: For purposes of sales to government entities in the U.S.: The Cloud Service Offering and its documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFARS Section 227.7202 and FAR Paragraph 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Cloud Service and documentation by or on behalf of the U.S. Government will be governed solely by the terms and conditions of this Agreement.

13.8 Force Majeure: HCE will not be liable for any delay or failure to perform any obligations under this Cloud Computing Agreement due to any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

13.9 Construction: The headings of sections of this Cloud Computing Agreement are for convenience and are not for use in interpreting this Agreement. As used in this Cloud Computing Agreement, the word 'including' means "including but not limited to."

13.10 Governing Law: This Cloud Computing Agreement is governed by the laws of the State of Delaware, United States of America (excluding its conflict of law rules), except as follows: for Cloud Service purchases where you choose a data center that is outside the United States of America, the governing laws are those of the country in which the data center is located (excluding its conflict of law rules). The United Nations Convention for the International Sale of Goods does not apply. This Cloud Computing Agreement does not affect your statutory rights that cannot be waived or changed by contract.

13.11 3rd Party Rights: Other than as expressly provided in this Cloud Computing Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

13.12 Order of Precedence: The terms herein will supersede and control over any conflicting or additional terms and conditions in the Additional Terms or in any other purchasing related document issued by you.

13.13 Entire Agreement: This Cloud Computing Agreement, as it may be revised by us, is the entire agreement of the parties regarding its subject matter. This Agreement supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, between the parties regarding its subject matter.

14. Definitions

14.1 "Confidential Information": Term "Confidential Information" means non-public technical, business or other information or materials disclosed or otherwise made available by one party in connection with the Cloud Service that are in tangible form and labeled "confidential" or the like, or are provided under circumstances reasonably indicating their confidentiality. HCE confidential information includes: Login credentials; and any information or materials relating to the Cloud Service. The Client's confidential information does not include the CLient's Content.

14.2 "Infringement Claim": Term "Infringement Claim" means any third party claim that the use by the Client solely of the Cloud Service, as used as contemplated in this Cloud Computing Agreement, infringes any patent, trademark or copyright of the third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of the Client's actions) under the laws of: the United States; the European Union and Economic Area member states; Canada; Australia; New Zealand; Japan to the extent that those countries are part of the Client's places of use of the Cloud Service.

14.3 "Intellectual Property Rights": Term "Intellectual Property Rights" means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.

14.4 "Login Credentials": Term "Login Credentials" mean any passwords, authentication keys or security credentials that enable the Client's access to and management of the Cloud Service.

14.5 "On-demand Cloud Service": Term "On-demand Cloud Service" means a Cloud Service for which the Client pays for actual usage in arrears on a periodic basis, as specified in the Client's Service Order.

14.6 "Service Order", "Order" or "Online Service Order": Terms "Service Order", "Order" or "Online Service Order" mean the Internet order page, or other ordering document, that specifies the Client's purchase of the Cloud Service.

14.7 "Privacy Policy": Term "Privacy Policy" means the then-current version of the HCE Privacy Policy document available at https://www.hostcoloreurope.com/legal/.

14.8 "Cloud Service Description": Term "Cloud Service Description" means the then-current version of the Cloud Service and services description document available at https://www.hostcoloreurope.com/, which contains technical and other information.

14.9 "Service Level Agreement": Term "Service Level Agreement" (or SLA) means the then-current version of the HCE Service Level Agreement document available at https://www.hostcoloreurope.com/legal/.

14.10 "Subscription-based Cloud Service": Term "Subscription-based Cloud Service" means a Service Offering for which the Client pays in advance for use of the Cloud Service for a fixed period as specified in ¿the Client's Service Order. A Subscription-based Cloud Service may also include optional services (add-ons) and metered usage components.

14.11 "3rd Party Content": Term "3rd Party Content" means 3rd party data, service, content, software or applications, including open source software.

14.12 "3rd Party Terms": Term "3rd Party Terms" means the then-current version of the 3rd party terms applicable to 3rd Party Content that the Client obtains in connection with the Cloud Service.

14.13 "User": Term "User" means any person that accesses the Client's Content or uses the Cloud Service under the CLient's login credentials.

14.14 "The Client's Content": "The Client's Content" means any and all applications, services, files, information, data or other content uploaded to or published or displayed through the Cloud Service by the Client, Users, or HCE (acting upon the Client's instructions as part of a service).