Cloud Solutions Services Agreement
THIS AGREEMENT ( Agreement ) is hereby entered into by and between Oman Data Park LLC, a limited liability company incorporated and existing under the laws of the Sultanate of Oman, having Commercial Registration No. 1130280 and its offices at KOM 4, 7th floor Zone 2, Knowledge Oasis Muscat, Sultanate of Oman ( ODP ) and [â—] who has registered itself online as a customer on Oman Data Park Cloud Service Portal on www.omandatapark.com ( Customer ) (together the “Parties” and each a “Party”).
The terms and conditions herein are hereby accepted and agreed by the Customer and ODP which shall come into effect from the date of online registration by the Customer (Effective Date).
1.1) Agreement has the meaning given to it in the description of the Parties above.
1.2) Business Day is any day other than Friday, Saturday, or a public holiday on which commercial banks are generally open for business in Oman.
1.3) Content means information made available, displayed, transmitted or stored.
1.4) Customer has the meaning given to it in the description of the Parties above.
1.5) Emergency Maintenance means the repair or replacement by ODP of facility components or equipment requiring immediate attention because the functioning of a critical system is impaired or because health, safety or security of human life is endangered and Unavailability of services during such emergency maintenance shall be excluded from the downtime calculations.
1.6) Fault means a fault, failure or malfunction in the Operational Condition.
1.7) Hardware means server, switches and appliances deployed by ODP in providing the Services.
1.8) MRC has the meaning given to it in Clause 4.2 of this Agreement.
1.9) ODP has the meaning given to it in the description of the Parties above.
1.10) Operational Condition means that the Services, including all the Hardware and Software, is functioning properly in accordance with the specifications and parameters set forth in this Agreement.
1.11) Order has the meaning given to it in Clause 2.2 of this Agreement.
1.12) Schedules means the schedules attached hereto, containing the specific terms and conditions that apply to each Service element.
1.13) Services has the meaning given to it in Clause 2.1 and Service shall be construed accordingly.
1.14) Service Outage means the failure of the Services in accordance with Customer ™s configuration selection and the parameters defined in the respective Schedules, but shall not include service suspension (i) for reasons outside of ODP ™s reasonable control or (ii) during times of Scheduled Maintenance. If a dispute arises about whether or not a Service Outage occurred, ODP shall make a determination in good faith based on its system logs, monitoring reports and configuration records.
1.15) Scheduled Maintenance means a temporary interruption or outage in the availability of the Services for undertaking up gradation or maintenance or to prevent or remedy a defect which may affect Customer ™s use or access to the Services or for any other mutually agreed upon reason or purpose. Unavailability of Services during Scheduled Maintenance will be excluded from the downtime calculations. Scheduled Maintenance will be normally be carried out between [24:00 hrs – 02:00 hrs] Muscat, Oman time. ODP shall give Customer at least two (2) days’ notice of a Scheduled Maintenance.
1.16) Services Charges has the meaning given to it in Clause 4.1.
1.17) “Severity Level 1” means the severity level of a Fault (System Unusable) which critically affects the use of the Services to the extent that the servers are inaccessible. Services shall be deemed to be unavailable if a Fault of Severity Level 1 is reported or identified, whichever is earlier.
1.18) Severity Level 2 means a Service is degraded where Users can access the Services but experience significant difficulties or delays. Services shall be deemed unavailable if a Fault of Severity Level 2 is reported or identified, whichever is earlier.
1.19) Severity Level 3 means the severity level of a Fault which does not cause any major impact on the use of the Services, but only minor delays. A Fault of Severity Level 3 shall not be deemed to have rendered the Services unavailable.
1.20) Software means the software used by ODP for performing the Services and shall also include any updates, upgrades, bug-fixes or new versions of the Software delivered by ODP.
1.21) Users means the person(s) authorized by the Customer to use the Services.
2.22) This Agreement sets out the terms and conditions and agreed Service levels in accordance with which ODP will deliver cloud solutions services, as listed in the cloud solutions service catalogue in Annex 1 hereto ( Services ), to the Customer and the Customer will receive the Services.
2.23) ODP will provide the Services pursuant to an online order, including any specifications thereto ( Order ), submitted by the Customer at the online portal at (http://www.omandatapark.com) and accepted online by ODP, which shall be deemed to have been executed by the Parties.
2.24) In the event any terms set forth herein apply specifically to a Service not requested by the Customer, such terms(s) shall not apply to the Customer.
2.25) In addition to the terms set out in this Agreement, the provision of each Service shall be subject to the additional terms set out in the relevant Schedule relating to a particular service as indicated in the service catalogue in Annex 1. The Schedules shall form an integral part of this Agreement.
2.26) Subject to the Customer paying the fees and charges for the Services, ODP shall grant a non-exclusive, non-transferrable sub-license to the Customer to allow it and the Users to use the Software for the duration of this Agreement in accordance with the terms and conditions of this Agreement. The Customer shall, at its sole expense, provide Users with client workstations and make the Software available for use by the Users.
3.27) Customers Undertakings:
The Customer represents warrants and agrees that it will not use, nor authorize, assist or permit any User or third party to use, the Service:
in violation of any applicable laws or any policies and instructions communicated by ODP to the Customer;
for any unlawful, fraudulent or immoral purpose, including, without limitation, the transmission of any Content in violation of applicable laws; or
to tamper with, alter or change the Services or ODP ™s facilities, or otherwise abuse the Service in any manner that interferes with ODP ™s facilities or the use of Services by any other person.
3.28) Rights to Suspend:
If ODP reasonably believes that there is, or is likely to be, a breach of any of the Customers obligations hereunder, ODP may, in its sole discretion, immediately restrict or suspend all or a portion of the Services or prevent the display or transmission of the Content, without any liability to ODP, and then notify the Customer of such action and the reason for it. ODP will attempt to provide such notification to the Customer prior to taking such action if, in ODP ™s judgment, it can do so without interfering with its ability to prevent the breach from occurring or continuing.
4.29) The Customer shall pay the service charges and fees as per the terms and prices displayed in the Order and confirmed through ODP ™s emailed invoice to the Customer ( Services Charges ). Billing for the Services shall commence from the date of notice of service commencement.
4.30) The Customer shall pay the one-time charges (wherever applicable) and recurring charges as set out in the portal in advance through online payment. ODP shall bill the Customer monthly in advance for monthly recurring charges ( MRC ).
4.31) The Customer shall ensure that the account provided by the Customer for payment has sufficient credit so as to cover any variable charges in an elastic plan. Customer might need to pay additional charges based on the consumption (bandwidths or any other additional resource consumption)
4.32) Any additional usage by the Customer shall be billed immediately or monthly in arrears on the basis of the Customers subscription plan.
4.33) Payment for invoices shall be due from the date of receipt of online invoice by the Customer. Hence, the Customer shall make payment against the invoices immediately from the date of receipt of the emailed invoice, failing which, shall result in insufficient funds at the month beginning leading to cancellation of the Services by ODP.
4.34) All amounts payable by the Customer in terms hereof shall be made without any deduction, set-off or counter claim and free and clear of any deduction or other charges of whatever nature imposed by any taxing or government authority.
4.35) The Services Charges shall be exclusive of all taxes, duties, levies, imposts, fees or other charges whatsoever, all of which shall be paid by the Customer.
4.36) In the event that the Services Charges remains unpaid 30 days after becoming due, ODP will issue a 10 days’ notice and the payments due shall be payable with 12% interest per annum, for any delay beyond the due date for payments. In case the payment and the interest due is unpaid before the expiry of the period of notice, ODP shall either have the right to suspend or discontinue the Services as stated hereinabove.
4.37) Complete and full ownership responsibility of the client including but not limited to the following
Business applications, systems, development API’s, SDKs and UAT Setup.
All backup systems, tape backup, restoration, safety from fire and theft loss.
Data security and confidentiality
Security patching of the servers & applications
Application level security
4.38) Except with respect to issues concerning the physical security of ODPs data center facilities, Customer agrees that the security of the Server and all Services is solely Customer’s responsibility. It is the sole responsibility of the Customer to maintain and update security software on the Server. Under no circumstance will ODP be held liable for security or data breaches and damage caused by the Customer’s failure to maintain or update the security software or to maintain adequate security protocols in the administration of the Server.
4.39) Customer agrees that if the security of Customer’s Server has been compromised in any way, Customer will notify ODP immediately in writing. Customer shall be held fully responsible for any misuse or compromise of Customer’s Server. Customer agrees that if any security violations are believed to have occurred in association with Customer’s Server, ODP has the right to suspend access to the Server pending an investigation and resolution. Customer also agrees that ODP has the right to cooperate in any government or legal investigation regarding any aspect of its services, including any servers or services used by Customer. Any use of ODP’s system to engage in software piracy or other violations of law will result in service suspension and be immediately reported to the appropriate authorities.
4.40) Access to the Server and services is limited to the client and his authorized agents. ODP has limited access to the contents of your services. ODP reserves the right to require, at its discretion, software upgrades for the purposes of maintaining the overall security and stability of the environment
5.41) The term of this Agreement shall commence on the Effective Date and shall renew automatically for successive periods unless:
Either party terminates immediately, in the case where the Customer subscribes to the Services for a period of one month or less; or
either party gives the other written notice of intent to terminate and not to renew the Agreement at least thirty (30) days prior to the end of the initial term or any renewal term, in the case where the Customer subscribe to the services for a period of more than one month.
Terminated in accordance with the terms of this Agreement.
5.42) ODP may terminate this Agreement with immediate effect if the Customer is in breach of any of its obligations under this Agreement.
5.43) Upon termination of this Agreement, the Customer shall relinquish use of the Internet protocol addresses or address blocks and other data/information/material assigned to it by ODP in connection with the Services.
5.44 ) Termination Transition Assistance: Upon any notice of termination of this Agreement, to the extent technically feasible, ODP shall assist the Customer in the migration of the data of Customers that are located on ODP ™s servers/storage, in a comma separated values file or other format reasonably requested by Customer. If termination of this Agreement is due to ODP ™s breach, ODP shall migrate the Customer ™s data to a setup as reasonably requested by Customer, at no cost to Customer. However, ODP shall be under no obligation to provide any transition assistance to the Customer where this agreement is terminated on account of a breach or violation of this Agreement by the Customer.
“Confidential Information” shall mean and encompass information, know-how and data, of a technical, commercial, financial or any other nature, disclosed to either Party by or on behalf of the other Party prior to or during the term of this Agreement.
It shall cover all messages, documents and files or other communication in writing and marked “confidential” by the disclosing Party; (or)
Drawings, models, prototypes, photographs, software programs or in any machine readable form, which information is stated by the disclosing Party to be confidential; (or)