This DoiT International Flexsave Agreement (the “Agreement“) is entered into between Customer whose administrative user is agreeing on behalf of Customer to be bound by the terms hereof (“Customer”) and the DoiT (“DoiT”) entity listed immediately hereafter, registered in a country that corresponds with Customer’s country of incorporation. If Customer’s address does not correspond to a country of incorporation of a DoiT entity, DoiT shall choose the DoiT entity that is most closely aligned with Customer’s registered address. The DoiT entities are as follows: DoiT International USA, Inc. / DoiT International UK&I, Ltd / DoiT International, DACH GmbH / DoiT International France SAS / DoiT International AUS Pty, Ltd / DoiT Holdings International CA Ltd. / DoiT International NL B.V. / DoiT International CH Sarl / DoiT Multi-Cloud Sverige International AB / DoiT International Multi-Cloud Espana S.L / DoiT International Multi-Cloud Ireland Ltd (“DoiT”) with each such entity being registered at the applicable address set forth at l.doit-intl.com/vendor. This Agreement is effective as of the date that Customer’s administrative user agreed to the terms hereof (the “Effective Date”). DoiT and Customer may be collectively referred to herein as the “Parties” and each individually as a “Party”.
Background
WHEREAS, DoiT has developed an internal proprietary Cloud software technology known as “Flexsave”, which may allows customers with eligible workloads to reduce costs associated with their GCP cloud computing spend;
WHEREAS, Flexsave is hosted on DoiT’s proprietary “CMP Platform” (defined below);
WHEREAS, Flexsave works by dynamically maximizing customers’ discounts with respect to eligible GCP cloud computing workloads, wherein customers can save the equivalent of a 1-year Google Cloud Committed Use Discount, by applying discounts (the “Flexsave Plan”) to customers’ billing accounts, without the risks or limitations of long-term use commitments;
WHEREAS, Customer wishes to receive, and DoiT wishes to grant, a license from DoiT to enter the CMP Platform for the purpose of accessing and using Flexsave to reduce Customer’s GCP cloud compute costs (the “Purpose”); and
WHEREAS, for the Purpose, Customer wishes to provide DoiT with the required permissions, rights and licenses necessary to track, monitor and analyze Customer’s Google Compute Engine usage, billing export data, patterns in usage, and detection of trends and seasonality, including any information that is required or useful for DoiT to provide the benefits of Flexsave (individually and collectively, “Customer Billing Data,”).
NOW, THEREFORE, in consideration thereof and agreeing to be bound hereby, the parties hereto agree as follows:
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.
“CMP Platform” means the DoiT Cloud Management Platform used by customers to manage and track their cloud computing consumption with respect to Flexsave.
“Data Processing Addendum” or “DPA” means Customer Data Processing Addendum located at: https://l.doit-intl.com/dpa, as may be updated by DoiT from time to time, and which is hereby incorporated into this Agreement by this reference.
“Description” means the description of Flexsave appearing here: https://help.doit-intl.com/flexsave/gcp and other supporting documentation (the “Documentation”) that may be provided to Customer. The Description and the Documentation may be changed by DoiT, at DoiT’s sole discretion at any time, with no notice provided to Customer.
“User” means Customer’s employees who are authorized by Customer to logon to the CMP Platform. Customer shall remain primarily responsible and liable for its Users’ compliance with the terms and conditions of this Agreement.
1. FLEXSAVE SOLUTION. Pursuant to the license granted by DoiT to Customer under Section 3 below, Flexsave will (a) track Customer’s cloud computing usage, by accessing Customer’s billing export data; (b) monitor and Analyze patterns in Customer’s cloud computing consumption including trends and seasonality; (c) dynamically attribute Flexsave Plans to Customer’s billing account through DoiT’s Flexsave and based on https://help.doit-intl.com/flexsave/overview; (d) react to changes in Customer’s resource utilization and adjust the number of attributed Flexsave Plans in real-time; and (e) attribute applicable Flexsave Plans to Customer’s cloud computing costs. Customer’s use of Flexsave and DoiT’s provision of Flexsave hereunder shall be subject to the Description and the Documentation and any other provisions set forth in this Agreement.
2. LIMITATIONS ON USE AND EFFECTIVENESS OF FLEXSAVE.
2.1. Availability. Flexsave is available in certain regions, which regions are subject to change from time to time without prior notice.
2.2. Compatibility. Flexsave currently supports only machine types, which are supported by resource-based discounts provided by Google Cloud. The foregoing is subject to change by DoiT with no prior notice to Customer. At this time, Flexsave does not support any other products including without limitation GPUs or SSDs.
2.3. Miscellaneous Limitations. While Flexsave works exclusively with Customer’s on-demand compute usage, it specifically excludes anything already covered by an existing Google Committed Usage or Google Sustained Usage discounts.
While Flexsave can provide Flexsave Plans for Customer’s GKE nodes that use the Google Compute Engine (“GCE”) pricing model, Flexsave Plans are not applicable to GKE Autopilot Mode.
While the application of Flexsave Plans may result in a lower cost for Customer during such billing cycles where they are applied, Customer acknowledges that any previous application of Flexsave Plans does not guarantee any future application of Flexsave Plans during the Term of this Agreement or otherwise.
DoiT may discontinue Flexsave and cancel any rights and licenses of Customer in Flexsave, at any time, and without prior notice to Customer.
3. ACCESS AND USE LICENSE BY DOIT.
3.1. Access and Use License. Subject to the terms and conditions of this Agreement, DoiT hereby grants to Customer a limited, non-perpetual, nonexclusive, non-transferable, license to access the CMP Platform and to use Flexsave, specifically for the purpose of reducing Customer’s applicable GCP cloud-compute costs. All rights not expressly granted to Customer are reserved solely and exclusively by DoiT and, where (and if) applicable, DoiT’s licensors.
3.2. Limitations. Except as otherwise specifically agreed in writing between DoiT and Customer, Customer may use Flexsave solely for Customer’s internal business purposes and specifically for the purpose of reducing Customer’s cloud-compute costs. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or allow access or use by any third party so that it may commercially exploit or received the benefits of the CMP Platform and/or Flexsave in any way; (ii) modify or make derivative works based upon Flexsave; (iii) create Internet “links” to the CMP Platform or Flexsave or “frame” or “mirror” the CMP Platform or Flexsave on any other server or wireless or internet-based device; (iv) reverse engineer or access the CMP Platform or Flexsave in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the CMP Platform or Flexsave, or (c) copy ideas, features, functions or graphics of the CMP Platform or Flexsave; (v) interfere with or disrupt the integrity or performance of the CMP Platform, of Flexsave, or the data contained in these; or, or (vi) attempt to gain unauthorized access to the CMP Platform, Flexsave, or related systems or networks.
3.3. Other Remedies. In addition to any other remedies DoiT has hereunder or otherwise, if in DoiT’s good faith judgment it believes Customer has engaged or is engaging in any of such prohibited activities, (i) DoiT may suspend Customer’s access to the CMP Platform and to Flexsave, until the matter is resolved to the reasonable satisfaction of DoiT; and (ii) if Customer has knowingly engaged in any of such prohibited activities, DoiT may terminate this Agreement immediately upon written notice (including via email) to Customer.
4. RIGHT TO ACCESS AND USE CUSTOMER’S BILLING DATA. Customer hereby grants to DoiT during the Term (defined below) of this Agreement (including without limitation any Renewal Term (defined below) thereof), on a world-wide basis: (a) a limited, non-exclusive, perpetual, fully-paid up, royalty-free right and license to (i) access, process, analyze, use, modify, and reproduce Customer’s Billing Data; and, (ii) process and use Customer’s Billing Data to administer this Agreement, including without limitation assuring that the right number of subscriptions and/or user accounts have been issued all permissions; and (b) any other rights, licenses, and consents that may be necessary or useful for DoiT to provide Flexsave to Customer under this Agreement.
5. CUSTOMER RESPONSIBILITIES. At all times under this Agreement, Customer is responsible for its activities (including without limitations the activities of those of its authorized employees and contractors with valid credentials) occurring on the CMP Platform, including but not limited to user identifications and passwords, and shall abide by all applicable local, state, federal, and foreign laws, statutes, treaties and regulations in connection with its use of the CMP Platform to obtain Flexsave, including without limitation those related to data privacy, cross-border data transfers, international communications, and the transmission of technical or personal data. Customer shall implement and be responsible for maintaining generally accepted industry standards for securing its applications and infrastructure. Customer shall: (i) notify DoiT immediately of any unauthorized use of any password or account or any other known or suspected breach of security, and (ii) report to DoiT immediately and use reasonable efforts to stop immediately any copying or distribution of the CMP Platform that is known or suspected by Customer. Customer agrees that if any security violations are reasonably believed to have occurred with respect to its usage of the CMP Platform, or Flexsave, DoiT has the right to suspend access to the CMP Platform pending investigation and resolution.
6. INTELLECTUAL PROPERTY OWNERSHIP.
6.1 DoiT (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights (defined below), in and to the CMP Platform, Flexsave and any suggestions, enhancement requests, feedback, recommendations, or other information provided by Customer relating to the CMP Platform and Flexsave. Customer acknowledges it will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be foreseeable to impair or as tending to impair any part of DoiT’s (and, where applicable, its licensors’) right, title and interest in connection with or to any DoiT’s Intellectual Property Rights in the CMP Platform or Flexsave. Customer shall not represent that it has any ownership in DoiT’s Intellectual Property Rights in the CMP Platform or Flexsave. Customer agrees that it shall not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of (i) DoiT’s ownership of Intellectual Property Rights in the CMP Platform or Flexsave; or (ii) the license granted herein. “Intellectual Property Rights” herein shall mean any rights in and to unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and any and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature.
6.2. Each party acknowledges that the other party is the sole owner of its respective trade names, service marks, slogans, logos and other trademarks (the “Marks”), and nothing herein is intended to imply or grant a license or other rights to the other party with respect to such Marks, except as specifically agreed to herein or in writing by the owning party. Customer hereby agrees that DoiT may display Customer’s Marks on DoiT’s website, promotional and presentation materials for the term of this Agreement and for a period of one (1) year thereafter. In addition and without limiting the foregoing, Customer agrees that, upon DoiT’s request and Customer’s prior written approval, it may be included in case studies highlighting Customer’s enjoyment of Flexsave.
7. CUSTOMER ACCOUNT. Upon the Effective Date, Customer will create login credentials for the CMP Platform-Flexsave, and follow the instructions contained in the CMP Platform-Flexsave to create a Customer account (“Account”) and a user account for each Customer user (each, a “User Account“). Customer shall ensure that all information entered into the CMP is, and will thereafter remain, complete and accurate. As between DoiT and Customer, Customer shall be solely responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify DoiT in writing of any unauthorized access to, or use of, an Account, or any other breach of security. Personal information received during the Account registration process will be processed by DoiT in accordance with DoiT’s privacy policy.
8. DPA. 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 this Contract, 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 this Contract, by this reference.
9. INVOICING, FEES AND PAYMENT.
9.1. DoiT will invoice Customer on a monthly basis in arrears. The fees shall be calculated based on a pro rata portion of the savings generated to Customer during the applicable billing cycle specified in the invoice (the “Fees”). All Fees shall be due within thirty (30) days from the invoice date. Customer shall use wire transfer to execute all payments to DoiT. Customer may make payments of fees with a credit card, provided, however, Customer shall be obligated to pay any processing fee incurred by DoiT as a result of Customer paying by credit card. Any such processing fee shall be added to the invoice and become part of the amount to be paid by Customer.
9.2. Any Fees paid more than fifteen (15) days after the due date shall bear interest as of the day after the due date and shall continue to accrue interest at a rate equal to the lesser of either (a) 1.5% per month, or (b) the maximum rate permitted by applicable law, until such payment is made. In case of continued non-payment, DoiT may terminate Customer’s account without notice and may transfer Customer’s account to a third party collections agency, solely at DoiT’s discretion. Customer shall be responsible for any and all collection costs and expenses, including reasonable attorneys’ fees.
9.3. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon DoiT’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that DoiT is required by any applicable law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to DoiT shall be increased by the amount necessary so that DoiT receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
10. OVERPROVISIONING OF APPLICABLE WORKLOADS BY CUSTOMER. If at any point in time during the Term of this Agreement (defined below), Customer independently purchases resources that are provided for under Flexsave, which results in an overprovision of a particular resource(s) available within Flexsave, then Customer will immediately (but in any event no later than five (5) days after such independent purchase) provide written email notice to DoiT of such independent purchase, together with any relevant details required by DoiT. Customer shall be responsible and pay for any costs, liability, expenses and fees incurred by DoiT, that may arise as a result of Customer’s failure to provide such notice in a timely manner, which amounts shall be added to the subsequent monthly invoice.
11. LIMITED WARRANTIES; DISCLAIMERS.
11.1. Notwithstanding anything else contained herein, DoiT does not guarantee any cost savings to Customer under this Agreement or pursuant to Flexsave, nor does DoiT guarantee that the application of Flexsave Plans will result in a particular level of savings even during such billing cycles where Flexsave Plans are applied to Customer’s cloud-compute costs. Customer acknowledges that any previous application of Flexsave Plans in one billing cycle does not guarantee any future application of Flexsave Plans in other billing cycles.
11.2. DISCLAIMER. FLEXSAVE IS MADE AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. DOIT DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: THAT CUSTOMER’S USE OF THE CMP PLATFORM AND FLEXSAVE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. DOIT DOES NOT OFFER ANY GUARANTEE THAT FLEXSAVE Plans WILL EITHER (A) BE AVAILABLE TO CUSTOMER, (B) GENERATE ANY COST SAVINGS OR REDUCTION OF FEES ASSOCIATED WITH CLOUD COMPUTE COSTS OR RELATED SERVICES FOR CUSTOMER, OR (C) OTHERWISE OPTIMIZE CUSTOMER’S COSTS OR EXPENSES WITH RESPECT TO CUSTOMER’S CLOUD USAGE OR RELATED SERVICES.DOIT MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO FLEXSAVE OR THE CMP PLATFORM. DOIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO FLEXSAVE AND THE CMP PLATFORM.
11.3. No employee, agent, representative, or affiliate of DoiT has authority to bind DoiT to any oral representations or warranty concerning the CMP Platform or Flexsave. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
11.4. DoiT exercises no control whatsoever over any information passed through the CMP Platform or Flexsave by Customer, or over any user who accesses the CMP Platform with or without Customer’s authorization.
12. INDEMNIFICATION.
12.1. Customer shall indemnify, defend and hold DoiT, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all third party claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (each, a “Claim”) arising out of or in connection with: (i) a claim alleging that Customer or its data infringes the Intellectual Property Rights of, or has caused harm to, a third party; (ii) the breach of this Agreement, or the DPA by Customer; (iii) Customer’s misuse of the CMP Platform or Flexsave; (iv) Customer’s use of the CMP Platform or Flexsave in violation of any law, regulation or government order including, but not limited to, those that relate to data privacy, cross-border data transfers, or web content accessibility; or (v) gross negligence or wilful misconduct.
12.2. DoiT shall indemnify, defend and hold Customer, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all third party Claims arising out of or in connection with a claim alleging that Flexsave provided by DoiT infringe the Intellectual Property Rights of any third party.
12.3. The indemnity obligations of each party set forth in this Section 12 are contingent upon (i) the indemnitee giving prompt written notice to the indemnitor of any such Claim; (ii) the indemnitee giving the indemnitor sole control of the defense of any such Claim; (iii) the indemnitee not entering into any settlement or compromise of any such Claim without the indemnitor’s written approval; and (iv) at the indemnitor’s request and expense, the indemnitee cooperating in the investigation and defense of such Claim.
12.4. DoiT will have no obligation to indemnify Customer to the extent any such Claim is based on (a) the use of Flexsave in a manner other than as specified in this Agreement; (b) any use by Customer in combination with other products, equipment, software or systems not supplied by Customer to the extent such Claim is directed against such combination.
13. LIMITATION OF LIABILITY.
13.1. IN NO EVENT SHALL DOIT’S AND ITS AFFILIATES AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO DOIT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR CUSTOMER’S OBLIGATION TO PAY FEES HEREUNDER, IN NO EVENT SHALL CUSTOMER’S AGGREGATE LIABILITY EXCEED, IN ADDITION TO ANY FEES PAID OR OWED HEREUNDER, AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO DOIT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13.2. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING COST OF COVER, BUSINESS INTERRUPTION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH FLEXSAVE OR SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE FLEXSAVE OR SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH FLEXSAVE OR SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF FLEXSAVE OR SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3. Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s liability for: (i) its fraud or fraudulent misrepresentation; (ii) its indemnification obligations under Section 12 above; (iii) its infringement of the other party’s Intellectual Property Rights; (iv) its payment obligations under this Agreement; or (v) matters for which liability cannot be excluded or limited under applicable law.
13.4. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND THE DPA. The provisions of this Section 13 allocate the risks under this Agreement between Customer and DoiT. DoiT’s pricing reflects this allocation of risk and limitation of liabilities.
13.5. No action arising out of breach or claimed breach of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, or a longer period of time as may be required under the local statute of limitations. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
14. TERM AND TERMINATION.
14.1. The terms of the Agreement (the “Term”) shall start on the Effective Date and continue for a period of 12 months (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall renew for successive additional 12 month terms (each a “Renewal Term”). Either party may terminate this Agreement upon the expiration of any Initial Term or any Renewal Term by providing the other party with written notice via email greater than 30 days prior to the expiration of the current Initial Term or Renewal Term that the notifying party wishes to terminate the Agreement.
14.2. Termination for Cause. Either party may terminate this Agreement immediately if the other party (i) materially breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice of such breach from the non-breaching party, or (ii) becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation or insolvency, or for the appointment of a receiver, conservator, or similar officer, is unable to pay its debts as they become due, makes an assignment to or for the benefit of its creditors, or ceases to conduct business for any reason on an ongoing basis leaving no successor in interest.
14.3. Termination for Convenience. Either party may terminate this Agreement for any reason or no reason at all upon thirty (30) days’ written notice to the other party.
14.4. Effect of Termination. Upon termination by either party under this Section 14, Customer shall pay to DoiT all unpaid and accrued Fees through the termination effective date, which shall be immediately due and payable.
15. MISCELLANEOUS.
15.1. This Agreement may be executed in one or more counterparts including facsimile, email, or other electronic copies, which when taken together upon proper delivery shall constitute a single instrument. The Agreement shall remain in full force and effect unchanged except as modified in writing by the parties.
15.2. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of an independent contractor.
15.3. The applicable governing law is set forth in Appendix A.
15.4. 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 this Agreement 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, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.5. 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.
15.6. Non-Discrimination. Each Party to this Agreement shall abide, as applicable under governing law, to the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, national origin, or for inquiring about, discussing, or disclosing information about compensation. Moreover, these regulations require that each Party, takes affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Each Party agrees to comply, as applicable under governing law, with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496).
15.7. Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
Governing Law, Jurisdiction, and Venue
The applicable governing law provision is based on the country of incorporation of the DoiT entity that executed this Agreement.
{United States of America} – Specifically for DoiT International USA, Inc.
Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of New York. Each of the parties to this Agreement consents and agrees that any action to enforce this Agreement or any dispute, whether such dispute arises in law or equity, arising out of or relating to this Agreement shall be brought exclusively in the United States District Court for the Southern District of New York or any New York State Court sitting in New York City. The parties hereto consent and agree to submit to the exclusive jurisdiction of such courts. Each of the parties to this Agreement waives and agrees not to assert in any such dispute, to the fullest extent permitted by applicable law, any claim that (i) such party and such party’s property is immune from any legal process issued by such courts or (ii) any litigation or other proceeding commenced in such courts is brought in an inconvenient forum.
{Germany} – Specifically for DoiT International DACH GmbH
This Agreement shall be governed by the laws of the Federal Republic of Germany excluding the Vienna Convention on the International Sale of Goods (CISG). For any disputes arising out of or in connection with this Agreement, the competent courts of DoIT’s place of registration shall have exclusive jurisdiction.
{Israel} – Specifically for DoiT International Ltd.
This Agreement shall be governed by, and construed, and enforced in accordance with the laws of the State of Israel, without giving effect to the choice of law rules. Each party consents that any such action or proceeding will be brought exclusively in front of the courts of Tel Aviv in the State of Israel, which shall have sole jurisdiction over any matter arising hereof.
{United Kingdom} – Specifically for DoiT International UK&I Ltd.
This Agreement is governed by the Laws of England and Wales without regard to conflict of laws principles. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. Each party consents that any such action or proceeding will be brought exclusively in front of the competent courts in the City of London.
{France} – Specifically for DoiT International France SAS
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of France. Each party irrevocably agrees that any dispute, regardless of its purpose or ground, relating to, entailed by or resulting from this Agreement shall be submitted to the exclusive jurisdiction of the Commercial Court of Paris.
{Australia} – Specifically for DoiT International AUS Pty Ltd.
Insofar as any Services are provided to Customers in or into Australia, the Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia. Customer submits to the jurisdiction of the courts of Victoria with respect to any legal proceedings which may be initiated in connection with this Agreement. Customer shall not commence or continue any legal proceedings against DoiT in any jurisdiction other than in Australia with respect to any matter, claim or dispute so long as DoiT is prepared to submit to the jurisdiction of the courts of Australia with respect to that matter, claim or dispute. Service of any process or document by which any proceedings in any court in Australia are commenced may be effected in any manner permitted for communications hereunder or otherwise in accordance with the Applicable Laws in the relevant Australian jurisdiction, including the Commonwealth of Australia and any State or Territory of Australia (and including, without limitation, the Uniform Civil Procedure Rules in each State and Territory), as amended from time to time.
{Canada} – Specifically for DoiT Holdings International CA Ltd
This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of British Columbia (regardless of that jurisdiction or any other jurisdiction’s choice of law principles). To the extent permitted by law, the parties hereto agree that all actions or proceedings arising in connection herewith, shall be litigated in the state and federal courts located in Vancouver, British Columbia, Canada, and each party hereby waives any right that such party may have to assert the doctrine of Forum Non Conveniens or to object to venue. The parties each hereby stipulate that the courts located in Vancouver, British Columbia, Canada, shall have personal jurisdiction and venue over each party for the purpose of litigating any such dispute, controversy or proceeding arising out of or related to this Agreement.
{Switzerland} – Specifically for DoiT International CH Sarl
This Agreement shall be governed by the substantive laws of Switzerland, without regard to conflict of laws rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the competent courts of Geneva, Switzerland.
{Netherlands} – Specifically for DoiT International NL B.V.
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the Netherlands, without regard to its conflicts of law rules. Each party irrevocably agrees that the competent courts of Amsterdam (rechtbank Amsterdam) shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
{Sweden} – Specifically for DoiT Multi-Cloud Sverige International A
This Agreement shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction, and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of, or in connection with, this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm, Sweden. The language used in the arbitration proceedings shall be English.
The Parties agree, without limitation in time, not to disclose the existence or contents or any decisions or awards with regards to this Agreement or information about proceedings, arbitration or mediation due to the same. The provisions set forth in this present Clause, shall not apply unless in compliance with law, other legislation, authority’s order, securities exchange regulations or practice on the securities exchange or is otherwise required for the enforcement of a decision.
{Spain} – Specifically for DoiT International Multi-Cloud Espana S.L
This Agreement shall be governed by and construed in accordance with the substantive laws of Spain, excluding conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention). Any dispute, controversy or claim arising out of, or in connection with, this Agreement, or the breach, termination or invalidity of the Agreement, shall be settled by the Spanish courts of the city of Barcelona, under Spanish Law.
