General Terms for Server Hosting Services, Management and Selling/Leasing of Equipment

Transcription

1 1. The Services General Terms for Server Hosting Services, Management and Selling/Leasing of Equipment 1.1. Bezeq International Ltd (hereinafter: "BI") holds and operates within its facilities, a data centre which serves as a centre for the storage and operation of physical and virtual computer servers, telecom and computerization equipment and software, which are connected to the internet network or to a private network and, which include the required systems and infrastructure, for the operation of the equipment and/or software (hereinafter: the "Data Centre'') BI shall provide the customer (hereafter: the "Customer") (by itself or by anyone acting on BI's behalf), with regard to the computer's servers (physical or virtual), the telecom's equipment, the computerization's equipment and/or the software, all of which are being owned or rightly used by the Customer, and all of which technical details had been specified in the applicable order form, (hereinafter: the "Equipment''), the services as set forth hereinafter, in whole or in part, as had been ordered by the Customer in the aforesaid mentioned order form (hereinafter: the ''Services'' and the ''Order Form'', respectively), subject to the payment of the consideration and the general terms set forth in the Order Form and these general terms hereinafter: Collocation services at the Data Centre; management services; back up services; Equipment sale; Equipment leasing It is clarified that further terms are set in the Order Form and in the service level agreement (the "SLA"). In case of a conflict between these terms and conditions, those set in the Order Form and those set in the SLA, those set in the Order Form shall prevail, than those set herein and then those set in the SLA. 2. Customer Warranties Customer declares and undertakes that: 2.1. The Equipment is rightly possessed and/or used by it (whether it is owned or otherwise, as set forth in the Order Form); 2.2. Customer has examined the Data Centre and the Services provided by BI and finds these compatible with its needs and requirements, and Customer wishes to keep the Equipment at the Data Centre and to receive the Services; 2.3. Customer is aware that the full responsibility for the Equipment's compatibility with the technical requirements set forth in the Order Form and in these general terms and also as for the purchase and installation of all software programs necessary for its operation lies upon the Customer alone, including the responsibility for installation and definition of the network card and the Equipment's definitions regarding TCP/IP Protocol. Customer is also aware, that BI will be entitled to stop providing the Services and to disconnect the Equipment in any event of its incompatibility with the technical requirements specified in this agreement, or in any event that its operation will cause an interruption to the provision of BI's services to the Customer and/or to its other customers, and such stoppage and/or disconnection will remain in effect until such aforesaid incompatibility is rectified, or interruption is removed, by the Customer; 2.4. Whilst using the Services, Customer shall not breach any intellectual property rights of BI and/or of any other third party (including patents, copyrights, commercial secrets and trademarks); 2.5. Customer will ensure, that anyone entering the Data Centre on its behalf, will comply with all of BI's instructions and procedures, as set from time to time; amongst other things and without derogating from the above, it is clarified that: Entering food and/or beverages to the Data Centre is strictly forbidden; Smoking in the Data Centre is forbidden; Customer is responsible for the clearance of all litter and packaging it has entered into the Data Centre; Any delegate on Customer's behalf, asking to enter the Data Centre, will be asked to show an identity card, and its entrance shall be permitted solely if its details had been given to BI in advance by Customer's certified and authorized representative.

2 3. Committing to a Minimal Service Term 3.1. Each of the ordered Services (excluding Equipment Sale, which is being referred to separately in accordance with section 11 hereunder) shall be supplied for a minimal commitment term of 12 (twelve) months, or the number of months set forth in the Order Form - the longer term of the two (hereinafter: the "Commitment Term'') At the end of the Commitment Term, the provision of Services will renew automatically on a monthly basis. Either party shall be entitled to terminate this agreement at the end of the Commitment Term or at any time thereafter, on a 30 (thirty) day's prior written notice to the other party At the end of the Commitment Term, BI shall be entitled at any time, to update the charges for Services provided to Customer, subject to a 30 (thirty) day's prior written notice to Customer In the event of terminating this agreement at any time during the Commitment Term, due to Customer's request or by BI in the event Customer has breached these terms as set in clause 19 below, Customer will be charged with a single payment, for the amount of the remaining consideration that would have been paid for the term commencing on the termination of the Services date, until the end of the Commitment Term. 4. Equipment Installation 4.1. The Equipment will be installed by Customer's certified technical delegate, with the close supervision and accompanying of a Data Centre technician on behalf of BI, or, on Customer's request (subject to a consideration), by BI's technician. The date for installing the Equipment at the Data Centre will be scheduled in advance by the parties During the installation of Equipment at the Data Center, BI will connect the Equipment to the Internet network or to a different network, as agreed upon with Customer. Upon completion of the installation, Customer s qualified technical representative will carry out a check, ensuring the proper operation of the Equipment BI will not install any software in the Equipment, unless Customer has specifically asked for it in the Order Form. The responsibility for the Customer s Equipment's configuration, for its compatibility with the uses designated by the Customer, shall rest solely upon the Customer BI will provide Customer with two electricity feeds; BI recommends that Customer installs equipment which is compatible with both feeds and to connect the Equipment to both feeds and will not be liable towards Customer and/or anyone acting on its behalf, including Customer's customers, for any damage, loss or expense, arising out of or connected with the installation of equipment which is not connected and/or compatible with both feeds. 5. Maintenance 5.1. When Customer has not ordered management services: BI will not carry out any repair or upgrade or any other work on Customer s Equipment; except for work that is necessary to ensure constant interconnection between the Equipment and the network Customer is connected to; BI will not repair any fault, if any is found in the Equipment, but will merely notify Customer of it Customer's certified representative will be permitted to enter the Data Centre, following an advanced scheduling with BI by phone, as set forth hereinafter: When entrance is for carrying out continuous work on Equipment- a pre schedule of at least 24 hours in advance, for entrance on Sundays-Thursdays, between 09:00-18: When entrance is for repairing Equipment's faults-a pre schedule of at least 15 minutes in advance, for entrance 24 hours a day Customer's certified representative shall be permitted to remain at the Data Centre for such reasonable period of time as is necessary, to carry out the aforesaid work. In the event that within such reasonable period of time the aforesaid work has not been completed, Customer will remove the Equipment, as applicable, and complete the work outside the Data Center.

3 5.4. BI will notify Customer, insofar as possible, of maintenance works to be carried out by it on its own initiative at the Data Center, which may cause a temporary disruption or stoppage of the Services. BI will reasonably endeavor to keep such stoppage or disruption to a minimum. 6. Removal and/or replacement of Equipment 6.1. Customer will be obligated to pay the consideration for the Services also with respect to any period during which it has removed the Equipment from the Data Center, for repair and/or update and/or any other purpose Customer shall be responsible for returning to the Data Center Equipment that is identical both in its physical size and in its electricity consumption, to the Equipment removed from the Data Center Should Customer request the replacement of the Equipment stored in the Data Center, with new or other equipment which is not identical in its physical size or in its electricity consumption to the hosted Equipment, Customer shall be deemed to have announced its entrance into a new agreement replacing this agreement. In such event, BI may decline such change or change the terms and conditions of the Services. 7. Relocation of Equipment 7.1. Customer is aware, that BI is entitled to relocate and transfer at any time, the Equipment to a different location set by BI in the Data Centre and/or to a different data centre. Insofar possible, BI shall notify Customer in advance regarding the aforesaid transfer, and shall reasonably endeavor to minimize the effect the transfer may have on the Equipment and Services, but Customer is aware that, when an immediate transfer of Equipment is necessary- according to BI's sole discretion- Customer will not be notified in advance as aforesaid Insofar possible, BI shall schedule in advance the transfer of Equipment with Customer, and then Customer's certified technical delegate, with the close supervision and accompanying of a Data Centre technician on behalf of BI (unless Customer requested that installation will be made by BI's technician, for a consideration) will install the Equipment, and BI will connect the Equipment to the network, as agreed upon with Customer. If as mentioned above, circumstances will not enable an advanced scheduling, BI shall install the Equipment. 8. Electricity Consumption 8.1. Customer acquiring Services which include a rack (a whole a partial one) or a Blade Alignment shall bear the payment for electricity consumption of the Equipment, in accordance with the rates set from time to time by BI Notwithstanding the aforesaid, it is hereby clarified that a Customer acquiring Services which include a rack as mentioned above, shall bear the payments solely for electricity consumption exceeding the maximum consumption level set forth in the Order Form. A Customer hosting a Blade Alignment in the Data Centre shall bear all payments for the electricity consumption of the Blade Alignment It is clarified that in any event, Customer will bear the charges for any electricity consumption exceeding the maximum consumption level set forth in the Order Form, in accordance with BI's rates Notwithstanding anything to the contrary herein, in the event the Services are provided at BI's data center which is located at 40 Hashacham Street, then Customer shall bear all charges for its monthly electricity consumption, as measured by BI and in accordance with the Israeli electricity company. 9. Management Services 9.1. If Customer has opted for management services, the following provisions of this section 9 shall apply (hereafter: "Management Services for the Equipment") Management Services for the Equipment include: installation in servers of supported operating systems, by BI or anyone on its behalf; managing supported applications in admin level; support and troubleshooting services, provided 24/7; management of access authorizations; supervision

4 and monitoring services; log's reading; hardware management, and the installation of necessary manufacturer's updates (upon distribution) Notwithstanding the aforesaid, it is clarified that Management Services do not include support and maintenance of faults, when the fault is caused by an act or omission of Customer and/or anyone acting on Customer's behalf (such as, but without derogating from the generality of the above, files' updates); such mentioned support and maintenance shall be provided, upon Customer's request, for an additional consideration. 10. Backup Services BI shall execute, in accordance with the definitions set by Customer (regarding the choice of files for back-up and for back-up dates), back-ups to files stored from time to time in the Equipment. In no event shall BI be responsible for the intactness, correctness and/or creditability of the files backed-up and/or to their content. Should Customer request, BI shall reconstruct files which had been backed-up. The times for back up shall be set in accordance with BI's discretion In a non-automatic back-up service, which is being executed by means belonging to the Customer (designated back-up), BI is solely responsible for changing tapes at the back-up device, at the times agreed upon with Customer. Back-up tapes are being kept in the rack where the back-up equipment is being hosted (if this rack is full, it will not be possible to keep in it the back-up tapes) The terms for automatic back-up services: The service includes only one back-up agent per customer; every additional agent shall be supplied for an additional consideration; Back up service requires the installation of an additional network card in Customer's server (for a consideration); The service is not provided with respect to open files; The back up volume will be limited to the volume agreed upon with the technical department of BI in advance- BI will not be liable for backing up volume which exceed the agreed volume; It is not possible to back up a library (a prime or a secondary one), which the number of files in it exceed 50,000; The daily back up is being done with respect to the previous back up (incremental), whilst a full back up is being executed once a week; Upon the successful completion of a back up, the back up tapes will be kept in a safe which is located at a different building then the one where the service is being provided at; The backed up files are being stored in the back up tapes for a period of two (2) weeks only; Requests for reconstructions have to be computed to after identifying by the means of a user name and a password which were given for this matter to the Customer, whilst setting up the back up services Data reconstruction: Each request will be sent on Customer's formal letter (which includes Customer's logo) and will be signed by Customer's representative who's details have been provided to BI in advance; Reconstruction will be carried within the next business day; Customer will be notified as soon as reconstruction is complete; Reconstruction will be made only in accordance with Customer's list, specifying the files for reconstruction;

5 11. Equipment sale BI will not be liable for any loss and/or expense and/or damage, including the disruption, deletion or damage caused to the data base, applications or any other data, which Customer incurred as a result of the data reconstruction; The reconstruction of data which was deleted and/or damaged will be provided for a consideration, in accordance with BI's applicable price list It is clarified, that the reconstruction of data and/or files is dependent, inter alia, on factors which are not under BI's control and BI is not liable and does not warrant that the reconstruction will fully or partially succeed. Should Customer purchase the Equipment from BI, the following terms shall apply: Sale of Equipment is subject to a minimal commitment term, which will last for a period of months which equals to the number of payments set in the Order Form, during which the Customer will pay the consideration for the Equipment in arrears (hereinafter: the ''Commitment Term for Equipment''). At the end of the Commitment Term for Equipment, the ownership rights over the Equipment will be transferred to the Customer provided that by said date, Customer has affected BI the full consideration Customer owes to BI at said date, for all services Customer has ordered and/or has subscribed to Notwithstanding section 11.1, it is clarified that Customer shall be entitled to early terminate the Commitment Term for Equipment and to receive the ownership rights over the Equipment, by providing a 60 day's prior written notice to BI; the aforesaid is conditioned upon Customer affecting BI in one single payment, the full remainder of the consideration for the Equipment (as set forth in the Order Form) which Customer has yet to pay, and the full consideration owed to BI for all the services Customer has ordered and/or is subscribed to The provisions of this section 11 shall not derogate from the provisions set forth herein with respect to the Commitment Term. 12. Equipment Leasing Leasing Equipment to Customer shall only grant Customer with rights of use in the Equipment during the term agreed upon in advance with BI, and Customer shall not be granted with any ownership rights over the Equipment or any other right with respect to Equipment. Customer shall be exclusively liable for any damage caused to the leased Equipment due to Equipment's usage, and Customer shall indemnify BI fully for any damage caused to the Equipment and for its repair. 13. Files stored in the Equipment and their content Customer shall have the sole responsibility for the operating system, applications, data and the files, of whatever type or sort, that are stored and/or will be stored, from time to time, in the Equipment that is hosted at the Data Center, and for the content thereof (hereinafter: the Files ). BI will not bear any liability in relation to and/or regarding the Files. Transfer of the Files to and from the Customer s Equipment shall be carried out by the Customer and at its sole responsibility. BI will not effect any action upon the Files (except for automatic actions that are carried out within the Services). 14. Data Security If Customer ordered private ranged IP addresses, the Equipment will be connected to the joint Firewall network at the Data Centre (hereinafter: the "Joint Network''), unless Equipment includes more than 6 servers, or if Customer has ordered services for at least one third of a rack, or if the Customer is operating VoIP or streaming services Customer who is connected to the Joint Network, will be responsible for the following: Restricting the traffic which transfers through any component of the Equipment connected to the Internet, at any time, to 10 Mbps; Limiting the total number of users, who concurrently access the Files (as defined above) to 5,000; Blocking the access to the operating system and/or the applications installed in the Equipment, including implementing password alterations, blocking library sharing,

6 removal of unused services and any additional action necessary for ensuring the inaccessibility to the operating system and/or applications - unless the Customer subscribed to Server Management Services; Customer will provide BI with the following rules: when action, service, destination and source Purchasing a firewall which is not in a part of the Joint Network is subject to BI's general terms and conditions Customer declares and confirms that it is aware, that the firewall provided within the scope of the Joint Network does not grant absolute immunity from and against unauthorized access to the Files. BI will not be liable, for unauthorized access to the Files and/or for the results which are the outcome of any act or omission carried with respect to and/or on the Equipment, Files and/or Customer s network, as a result of such unauthorized use BI shall be entitled to disconnect the Equipment from the Joint Network and to connect it to a private network, which is not protected by the joint Firewall of the Data Centre, immediately, upon the occurrence of any one of the following events: When Customer did not purchase an Anti DDoS service (a service which prevents DDoS attacks), and the Equipment and/or Files are being under attack Customer holds more than 5 IP addresses; The volume of traffic transferred to and/or from the Equipment which is connected to the internet, is exceeding 10 Mbps (in such event, BI shall be entitled to block any traffic exceeding that volume); The total number of users, who concurrently access the Files, exceeds 3,000; When BI reasonably suspects that there is harm and/or danger to the Joint Network and/or other users and/or the Joint Network's operation. BI shall be entitled to immediately disconnect the Equipment, but shall notify Customer as much as possible in advance, according to its sole discretion. Equipment will be reconnected only if the cause for disconnection has been remedied and/or removed, and subject to BI's approval Customers who did not subscribe to the Management Services for Equipment will be liable for setting and updating the rules, user names, passwords and any other reasonable mean required for the protection of the Files Customer declares and undertakes, that all data bases that are under its ownership and/or management and/or possession, which are required to be registered under the Protection of Privacy Law, 1981 and which are stored in Customer s servers, have been duly registered, and that Customer will act with regard to them in accordance with the provisions of the law BI will not be liable for any damage, loss or expense suffered or incurred by Customer as a result of a third party's intrusion and/or penetration to and/or stoppage of the Joint Network. 15. Consideration Customer shall pay the amounts specified in the Order Form with the addition of VAT as required by law, and in accordance with the terms and conditions set forth therein Monthly payment due date at the end of every calendar month, for Services provided in the previous month (hereinafter: Payment Date ), unless a different date has been specified in the Order Form In the event of late payment, the consideration will bear linkage and interest at the maximum rate permitted by law, commencing upon the Payment Date, up to the date of actual payment, and in addition Customer will bear payment of all collection expenses, insofar as any accrue due to such late payment For the sake of relieving any doubt it is hereby clarified, that any use which exceeds the level set forth in the Order Form, will be charged in accordance with BI's applicable service's price list and all the provisions of these general terms shall apply accordingly.

7 16. Insurance, liability and indemnification Services are provided on an AS IS and Customer declares and confirms, that it was afforded the opportunity to examine the Services (including the installation procedure and the maintenance conditions at the Data Center) prior to its decision to enter into this agreement with BI. Customer acknowledges that except as specifically provided for herein including in the SLA, BI makes no warranty, express or implied, with respect to the Services and disclaims any warranty with relation thereto, including, but not limited to, warranty of merchantability and warranty of fitness for a particular purpose Customer acknowledges that in the event BI has failed to meet the levels set in the SLA, Customer's sole and exclusive remedy shall be the credits set in the SLA BI shall not bear any liability for any loss, expense or damage, including but not limited to indirect, consequential, punitive or special damages, loss of revenue or loss of data, Customer and/or any party acting on its behalf, including its customers, has incurred or suffered as a result of the Services, including due to an interruption or stoppage of the Services and/or malfunction and/or fault in the hardware, software or infrastructure used by Customer, unless the same are caused by BI's willful misconduct. BI s total liability for direct damages under this agreement shall not, under any circumstances, exceed the amount of the consideration actually paid by the Customer to BI for the Services during the six months preceding the event giving rise to BI's liability, or the sum of $5,000-the lower of the two. Customer declares and confirms that this limitation of liability is the result of the division of risks between the parties and that it is reasonable and acceptable, considering the terms of the engagement and the sum due hereunder Customer will indemnify BI, its employees, directors or any person acting on its behalf, for any damage, loss, loss of profit, payment or expense caused to or incurred by them -including attorneys' fees and legal expenses - as a result of its breach of any of its obligations as detailed in this agreement and/or regarding the Files or their publication and/or any claim submitted against BI in relation with Customer's usage of the Services, which does not arise from a negligent or deliberate act or omission on the part of BI. 17. Force Majuere BI will not be liable for the delay of or the non-execution of any of its obligations according to these general terms, when the delay or non-execution had been caused due to circumstances not controlled by BI, including but not limited to any decision or act of any governmental authority, war, fire, flooding, damage, strike or any other disturbance to work, third party's services, a software failure caused on behalf of a third party or BI's incompetence to get from its suppliers the necessary equipment for the provision of Services. 18. Suspension of Services BI shall be entitled to suspend the provision of Services to Customer, without any prior notice, in any of the following events: Should BI find that the usage and/or provision of Services to Customer causes or may cause a disturbance to its equipment and/or to BI's services provided to its other customers; in such events, BI shall be entitled to immediately suspend those services which cause or may cause the disturbance. The provision of these services shall renew upon the removal of the factor causing the disturbance; The suspension is necessary, according to BI's sole discretion, for vital or immediate maintenance or setting up activities in systems and/or equipment which serve BI, or during national security or due to national emergency events; Subject to the provisions of section 7, when Equipment is being transferred/relocated Notwithstanding the aforesaid, BI shall take reasonable effort to give Customer, as soon as applicable, a notice regarding the suspension of the Services. 19. Breach and Termination Should BI find, that Customer has committed a material breach of this agreement and/or other breach thereof which it has not cured within 7 (seven) days from receipt of BI's written

8 notification, demanding its cure thereof, BI shall be entitled to act upon the following, in whole or in part-in addition to its other rights according to these general terms and the applicable law: Terminate this agreement and the relevant Order Form; Disconnect some or all of Customer's Equipment from the internet (or from any other network Equipment is being connected to), or prevent access to the Equipment through the network Without derogating from these general terms, the following actions and/or any part thereof, if performed by the Equipment, shall also constitute a material breach of the agreement according to these general terms and the relevant Order Form and shall entitle BI to take action, as set forth in section 19.1 above, immediately: Any act or omission which is not in accordance with the provisions of the applicable law; Delivery of ''Junk '' and/or commercial electronic mail, in large distribution to people who did not expressly ask to receive such (''Spam'') and/or chain letters; Any act or omission, which may harm or damage any other third party in general and in particular, BI's customers, including their property; Maintaining an website, which is advertised by means of Spam, regardless of the source of publication (spamvertised); Any act or omission which is not in accordance with the Acceptable use Policy published at: as may be amended from time to time by BI. 20. Parties Relationship The relationship of the parties pursuant to this agreement is that of a contractor providing a service (BI) and a customer (the Customer). Nothing in this Agreement shall be deemed as creating any other kind of relationship between the parties, including a partnership, employer-employee or agency relations. 21. Confidentiality The parties, their employees and representatives shall all maintain in absolute secrecy, and shall refrain from disclosing and/or revealing and/or transferring in any way, either directly or indirectly, whether by themselves or by others, including any person acting on their behalf, any professional, commercial or other information which is not within the public domain, relating to the other party's activities regarding the execution of the agreement according to these general terms, and/or any information disclosed under this agreement Without derogating from the generality of the aforesaid, the Customer will keep in absolute confidentiality any information in relation to the physical security and data security in Customer s servers and/or in the Data Center. Customer will ensure that its employees and/or anyone acting on its behalf, who access Customer s servers and/or who are in contact with BI, sign an undertaking for maintaining the confidentiality of the procedures relating to the applicable physical and data security Each party shall refrain from making any use of knowledge and/or information, professional and/or commercial, of the other, except for the performance of its obligations under this agreement or if disclosure thereof is required under applicable law or upon the request of a competent authority BI may make public the fact, that it has possession of Customer s Equipment, unless Customer has rejected or objected in writing and in advance. 22. Non Assignment Customer will not be entitled to transfer, assign, mortgage, charge, rent or loan any of its obligations or rights under this agreement and Order Form, in whole or in part, to any third party,

9 and will not be entitled to grant any rights to a third party under this agreement - all unless BI grants Customer with its written consent thereto in advance Without derogating from the aforesaid above, BI shall be entitled to transfer and/or assign any of its obligations and/or rights according to these general terms and Order Form to a third party, subject to Customer's rights remaining unharmed in anyway. 23. Termination of Services Upon termination of the Services due to any reason, BI shall be entitled to disconnect by itself the Equipment from the network to which it is connected, after having given notice to Customer in advance, and after granting Customer the opportunity to schedule such disconnection whilst Customer is present. Disconnection of the Equipment shall be executed for no extra costs. Upon termination of this agreement, BI shall be entitled to keep holding on to any equipment belonging to the Customer which is in BI's possession, until Customer fully pays the applicable consideration for the Services, as set forth herein. 24. Governing Law The courts in Tel Aviv-Yafo shall have the exclusive jurisdiction with regard to the rights and obligations of the parties according to these general terms and the Order Form, and these terms and conditions and the Order Form shall both be interpreted solely according to the Israeli Law. 25. Customer acknowledges and accepts that BI may use Customer's address for the purpose of sending Customer with some commercial and/or promotional and/or marketing material. 26. This agreement is subject to the approval of BI's financial department, a technical and operation approval of BI and to Customer signing the applicable payments form. Name of empowered representative: Signature: Date: