1.1 The definitions and rules of interpretation set out in Schedule 1 shall apply in these Terms.
2.1 These Terms govern the cooperation between the Parties in relation to providing Infrastructure as a Service (IaaS) Platform services regarding the data centers, cloud service providers and on-premise users. These Terms are accompanied by Individual Commercial Terms which are individually agreed upon between each Partner and Warren.
2.2 In matters not specified herein, such fees and payment, territory, term and termination, specific conditions which shall be agreed upon in the Individual Commercial Terms shall apply.
3.1 Unless expressly provided otherwise in the Agreement, both Warren and Partner:
3.1.1 warrant that they will perform their obligations under the Agreement using all reasonable care, skill and expertise;
3.1.2 warrant that they have and will maintain all necessary licences, consents and permissions necessary for performance of their obligations under the Agreement, including by its contractors, agents and employees;
3.1.3 shall cooperate with each other in good faith;
3.1.4 shall provide each other with necessary information to perform the obligations under the Agreement, and ensure necessary consents and permits to that respect;
3.1.5 shall perform its obligations in a timely and effective manner;
3.1.6 shall comply with all applicable laws and regulations, including any data protection legislation.
3.2 The authorized representatives shall be stipulated in the Individual Commercial Terms.
4.1 Warren shall develop, run and maintain the Platform such as that the Partner and its customers are able to connect to the Platform and obtain access thereto and the Platform complies with all other requirements set out in the Individual Commercial Terms at all times.
4.2 Warren shall always use commercially reasonable endeavors to make the Platform available, expect for scheduled maintenance and unscheduled maintenance as specified in the Support Policy.
4.3 Warren may modify the Platform by issuing updates, and/or make new features, functionality, applications or tools available in respect of the Platform, provided that such new features, functionality, applications or tools will not adversely affect the then existing facilities or functions of the Platform.
4.4 The Partner may request Warren to develop additional functionalities to the Platform. The performance of such developments is subject to a separate agreement to be concluded between the Parties.
4.5 Warren shall ensure that there is appropriate, correct and accurate Documentation (https://conflu.warren.oye.io/display/WARP) relating to and/or supporting the Platform, to enable the integration and use of the Platform by the Partner, and the End Customers.
4.6 Warren shall provide to the Partner the necessary assistance and support regarding the proper use and functioning of the Platform, including second level support regarding Platform related services rendered to End Customers as specified in the Support Policy.
4.7 Warren is entitled to review and access the transaction data related to End Customers to perform its obligations arising from this Agreement, including calculation of fees.
5.1 The Partner shall use its best efforts and diligence in promoting, offering and selling its services by using the Platform to End-Customers throughout the whole Territory (to be agreed upon in Individual Commercial Terms) and shall ensure that it has all necessary resources and capacity to effectively perform such functions.
5.2 The Partner shall commit to marketing its services as it sees fit. For the avoidance of doubt, any and all costs associated with the marketing of the Partner’s services shall be borne by the Partner and Warren shall not reimburse any marketing costs to the Partner.
5.3 The Partner shall assist the End Customer in implementation and integration of the Partner’s services to its day to day business operations, and shall be responsible for communications with End Customers (incl. all complaints, inquiries and customer support) that relate to the services rendered by or via the Partner.
6.1 Warren shall own all Intellectual Property Rights in and to the Platform and all other products or services provided by Warren under this Agreement (together, the “Warren IP”) and confirms that it has all the rights in relation to the Warren IP that are necessary to grant all the rights it purports to grant under, and in accordance with these Terms.
6.2 The Partner:
6.2.1 shall own all Intellectual Property Rights in and to the Partner IP;
6.2.2 acknowledges that Warren owns all Intellectual Property Rights in and to the Warren IP;
6.2.3 confirms that it has all the rights in relation to the Partner IP that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement;
6.2.4 hereby grants to Warren a non-transferable right during the Term to use the Partner’s Marks only to the extent necessary to perform its obligations under the Agreement, and subject to Warren’s compliance thereto at all times.
7.1 The Parties shall not disclose any Confidential Information to any person, except:
7.1.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms and Individual Commercial Terms. Each party shall ensure that its Representatives to whom it discloses the other party’s Confidential Information are bound by a confidentiality obligation similar in scope to the confidentiality obligation set forth herein;
7.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.2 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms and Individual Commercial Terms.
7.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
7.4 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
8.1 Subject to all exclusions and limitations of liability in the Agreement, each Party shall defend, indemnify and hold harmless the other Party against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the indemnifying party’s non-performance of this agreement due to fault or gross negligence.
8.2 The indemnity in clause is conditional on:
8.2.1 the indemnifying Party being given prompt notice of any relevant claim;
8.2.2 the indemnified Party providing reasonable co-operation to the indemnifying Party in the defense and settlement of such claim, at the indemnifying Party’s expense; and
8.2.3 the indemnifying Party being given sole authority to defend or settle such claim.
8.3 In no event shall the indemnifying Party, its employees, agents and subcontractors be liable to the other party:
8.3.1 for any indirect or consequential damages, including loss of use, loss of revenue and profit, loss of production or customers, goodwill, anticipated savings or any business interruption of any kind arising out of or in connection with the performance of the Agreement in each case even if advised of the possibility of such loss or damage;
8.3.2 to the extent that the claim giving rise to the indemnity is attributable to the indemnified Party’s fault, negligence or breach of the terms of the Agreement.
8.4 Nothing in these Terms or Individual Commercial Terms excludes the liability of either party for death or personal injury caused by negligence or fraud or any other liability that cannot be excluded by law.
8.5 Warren shall not be liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. The Partner and Warren acknowledge that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications features.
8.6 The maximum liability of a Party shall be agreed upon in the Individual Commercial Terms.
9.1 Warren reserves the right to amend these Terms and/or the Support Policy at any time. Warren shall update these Terms and/or the Support Policy in the event of any such amendments.
9.2 Warren shall notify the Partner of material changes to the Terms and/or the Support Policy at least 30 days prior to the change taking effect via email. For non-material modifications, the Partner’s continued cooperation with Warren constitutes agreement to Warren’s revisions of the Terms and/or Support Policy.
9.3 Upon material changes to the Terms or Support Policy, the Partner shall have the right to terminate the Agreement by giving notice thereof to Warren within 30 (thirty) days of receipt of the notification of amendment of the Terms and/or Support Policy.
10.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The party whose activity in the performance of the obligations under this Agreement is prevented by a force majeure circumstances shall immediately notify the other party thereof. If the period of delay or non-performance continues for four (4) weeks, either party may terminate the Agreement by giving five (5) Business Days’ written notice to the affected party. The force majeure circumstances shall not release the parties from the obligation to take all possible measures to prevent and/or minimise damage caused by failure to perform or correctly perform the agreement. A strike of the employees of a party or failures of subcontractors or business partners (this shall not include disruptions in telecommunications or other communications networks which shall be considered a force majeure circumstance) of a party shall not constitute a force majeure circumstance for the purpose of this agreement.
10.2 Warren may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement at its sole discretion.
10.3 Nothing in this Agreement is intended to or shall operate to authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10.4 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.5 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, or prevent or restrict the further exercise of that or any other right or remedy.
10.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
10.7 All provisions of the Agreement which by their nature should survive termination will survive termination, including, without limitation confidentiality, indemnity, and limitations of liability.
10.8 Any notice given to a Party under or in connection with this Agreement shall be in a format which can be reproduced in writing, addressed to the relevant person as set out in Individual Commercial Terms and either:
i) delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier to the Party’s registered office or such other address as that party may have specified to the other party in writing; or
ii) sent by email to the relevant email address set out in Individual Commercial Terms.
A notice shall be deemed to have been received:
i) if delivered personally, when left at the address;
ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
iv) if sent by email, one Business Day after transmission.
10.9 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Estonia.
10.10 Each party irrevocably agrees that the courts of Estonia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Definitions and Interpretations
The following definitions and rules of interpretation apply in this agreement.
In these Terms, unless the context otherwise requires, the following words shall have the following meanings:
Agreement shall mean these Terms, the Individual Commercial Terms and the Support Policy and any and all annexes thereto.
Business Day shall mean a day other than a Saturday, Sunday or public holiday in in Estonia when banks are open for business;
Confidential Information shall mean all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and/or that party’s Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:
i) any information that would be regarded as confidential by a reasonable business person relating inter alia to the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party, as well as any information developed by the parties in the course of carrying out this agreement, and any other commercial or personal data that is shared between the parties as a result of this agreement, including information regarding End-Customers and their business information;
ii) the terms of this agreement;
But excluding any information that:
i) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of the Agreement clause);
ii) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
iii) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
iv) the parties agree in writing is not confidential or may be disclosed.
End Customer shall mean a customer of the Partner acquiring data center and cloud service services.
Individual Commercial Terms shall mean the specific commercial conditions agreed between Warren and the Partner
Intellectual Property Rights shall mean patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.
Platform shall mean the Infrastructure as a Service (IaaS) that enables to manage infrastructure intelligently across IaaS providers, private clouds and individual server nodes, all behind a single API & functional self-service UI cloud services. The General System Overview, Features, System Characteristics, Administrative Features, Billing and Payment, Adopting Warren System and other service functionality is available on https://warren.io/;
Representatives shall mean in relation to a party, its employees, officers, representatives and advisers;
Support Policy shall mean the document which sets out the parties’ respective support services, priorities, responsibilities and guarantees, as updated from time to time by Warren;
a) In these Terms, unless the context otherwise requires, a reference to:
i) a section, a clause, or a schedule is a reference to a section, a clause of or a schedule to these Terms;
ii) a person is a reference to its successors and permitted assigns;
iii) a document or a statue or a statutory provision is a reference to that document, statute or statutory provision, as may be amended or supplemented from time to time;
iv) a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision, as may be amended or supplemented from time to time;
v) writing or written shall include email;
b) Words denoting the singular shall include the plural and vice versa, words denoting persons shall include any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
c) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
d) The headings in these Terms are inserted for convenience of reference only and are to be ignored in construing the Agreement. Section and schedule headings shall not affect the interpretation of these Terms and/or the Agreement.