Service Term Agreement

This Terms of Use (“Agreement”) covers the terms, conditions and regulations on the use of the Services provided by GREENNODE PTE. LTD. (“GREENNODE”) and Client or the Legal Entity, organization or business they represent.

To use any services provided by GREENNODE, the Client need to agree to all terms and conditions of this Agreement. In case the Client does not agree to any terms of this Agreement, the Client will need to immediately stop using GREENNODE’s Services, delete all programs and data on relevant system.

In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the Service Agreement or any documents signed and sealed between the authorized representative of GREENNODE and the Client, or the entity represented by Client, the terms of that Service Agreement apply.

GREENNODE reserves the right to amend and supplement any and all content of this Agreement at any time without prior notice or prior approval.

Clause 1: Account And Log In

• To use GREENNODE’s services, the Client needs a valid login account, which is initialized in accordance with GREENNODE’s regulations.
• The Client will bear full responsibilities, including legal responsibility and before the law, for all activities and behaviors performed through the account during the use of the service. In the event of any loss or damage arising from the Client account information and/or password disclosed, GREENNODE will not be liable to indemnify The Client.
• The Client understands and agrees that, in order to avoid the loss or tampering with the account unintended (such as hacking), the Client will not disclose (whether accidentally or intentionally) information about the account. The Client password is used to log into the system of GREENNODE for any party/person, including the Client relatives; At the same time, take reasonable measures to secure the Client account. In any event, if The Client notices or suspects that the Client account or password is exposed, The Client may (i) immediately change the Client password and/or (ii) inform notify GREENNODE and carry out necessary procedures to temporarily lock the Client account to minimize damage to The Client according to GREENNODE's customer complaint process.

Clause 2: Collection, Use And Information

• In accordance with the Governing Laws and to best support the Client with the Client account and services, when creating the Client account, the Client need to provide the following information to GREENNODE:
  • In case the Client is an individual: (i) Full name; (ii) Nationality; (iii) Day of birth; (iv) Identification Of People / Citizen Identity Cards / Passport / Passport Date; (v) Permanent residence address; (vi) Contact address; (vii) Email (email); (viii) Mobile number.
  • In case the Client is the representative of the juridical person, organization, business: (i) The name of the juridical person, organization, enterprise; (ii) Business license, tax code number; (iii) Registry address; (iv) Business address; (v) Legal representative and information of the legal representative such as individual Customer in item (a), Title; (vi) Position; (vii) Email account using the service; (viii) Admin account name; (ix) Admin account mobile number.
• In order to ensure The Client legal rights and interests, The Client need to provide accurate identification information to GREENNODE; in the event that the information provided by the Client is incomplete and/or inaccurate, GREENNODE reserves the right to refuse to accept, resolve any claims of The Client and/or refuse to provide services to The Client, including all cases The Client have paid in advance for GREENNODE; In this case, the prepaid service fee will not be refunded.
• GREENNODE is committed not to sell, rent or share the Client information with any party; except when required to provide the information required by law, at the request of a Court and/or Competent Authority.
• GREENNODE will apply the necessary technical, security and confidentiality measures in accordance with the law and according to the quality statements and commitments of GREENNODE to keep the Clientr personal information secure. However, the risks associated with the provision and security of personal data, whether provided directly, over the phone or via the internet or through technical means, are always potential and NO ANY TECHNICAL SYSTEM OR SECURITY MEASURES, SECURITY IS ABSOLUTELY SAFETY or can be against all "hackers", "tamper" (unauthorized intruders to search for information); Therefore, in the event that the Client personal information is disclosed due to hacking or other causes beyond the control of GREENNODE, The Client hereby agree to waive GREENNODE of all related responsibilities.
• GREENNODE will use The Client information that GREENNODE collects to send to The Client (i) information about promotions, special offers, important events of GREENNODE (email marketing, promotional email); (ii) notices on maintenance, upgrade of servers and systems of GREENNODE to improve service quality, change of service operation and customer support; (iii) notice of service charges, remaining service capacity (or nearing end); (iv) information exchanging and answering questions and complaints of customers during the use of GREENNODE's services. The Client hereby irrevocably agree that GREENNODE has the right to use the corporate’s trade name, brand name, corporate image to introduce as GREENNODE's Clients and promote GREENNODE's services.
• AlltheClientinformationwillbestoredinthedatabase of GREENNODE, stored at GREENNODE from the time The Client provide until at least two (2) years after The Client stop using all GREENNODE's services and fulfill all The Clientr obligations to GREENNODE.
   

Clause 3: Term

• This Agreement becomes effective on the Effective Date and shall remain effective unless terminated in accordance with the terms of this Agreement.
• The term (including the initial term and any agreed extension term, any option term which has been exercised, and any Renewal Term) for a Service (“Client Service Term”) shall commence on the Client Service Effective Date. The Client Service Agreement and all Services thereunder shall terminate immediately upon the termination of this Agreement in accordance with the terms of this Agreement.
• Unless (i) either Party gives at least thirty (30) days prior written notice of non-extension to the other Party prior to expiration of the applicable Client Service Term or (ii) the Client Service Agreement is terminated in accordance with this Agreement, the Client Service Term shall be extended automatically for successive 12 months terms (each, a “Renewal Term”) on the same terms, covenants and conditions, except that the.
• This Agreement shall remain in full force and effect regardless of the termination of the Client Service Agreement or any specific Service set out in the Client Service Agreement.

Clause 4: Services

• Client Service Agreement
  • In consideration for the Client agreeing to pay the Charges to GREENNODE in accordance with the terms of the Agreement, GREENNODE shall, from the Client Service Effective Date, provide the relevant Service to the Client in accordance with the Client Service Agreement, and the relevant SLA.
  • The Parties agree that the terms of this Agreement, Client Service Agreement, the SLA and relevant documents shall be read together and shall govern and apply to the Services to be provided by GREENNODE under such Client Service Agreement.
  • The Parties shall be contractually bound in respect of the Client Service Agreement on (but not before) the signing of that Client Service Agreement by the Parties.
• Provisions of Services
  • GREENNODE shall have the right to:
    • assign such of its personnel as it deems appropriate for the purposes of performing any of its duties and/or obligations under the Agreement;
    • engage any third party as it deems appropriate for the purposes of performing any of its duties and/or obligations under the Agreement;
    • delegate to, or sub-contract with, its Related Entities, service providers and/or subcontractors to perform, or to assist it perform, any of its duties and/or obligations under the Agreement;
    • determinethetype,brand,number,locationandall other matters relating to the Service Equipment; and/or
    • use in any manner the services, resources and/or equipment of its Related Entities, service providers and/or subcontractors to perform any of its duties and/or obligations under the Agreement.
  • Notwithstanding the engagement of third party or the delegation to, or sub-contracting with, its Related Entities, service providers and/or sub-contractors, to perform any of its duties and/or obligations under the Agreement, GREENNODE shall remain responsible for all its duties and/or obligations under the Agreement unless otherwise set out in the Agreement.
  • The Services are provided at the Client’s request and the Client shall be responsible for verifying that the Services are suitable for its own needs and/or requirements.
• Suspension of the Services

  • GREENNODE may suspend all or any of the Services (or part thereof) and/or refuse the Client’s access to the Services in the following cases:

    • where GREENNODE is required to suspend or withdraw provision of all or any of the Services (or part thereof) pursuant to any regulatory, governmental or legal prohibition or to comply with applicable laws or any applicable requirement, regulation, policies, order or directive of any relevant Competent Authority;
    • where any act or omission by the Client or the Client Permitted Persons, or due to the Client Equipment, affects GREENNODE’s ability to provide all or any of the Services (or part thereof), or the ability of the Client to receive all or any of the Services (or part thereof); and
    • where the Client commits a material breach of the Agreement.

    The Client shall not be entitled to claim against GREENNODE in relation to the suspension of Services or refusal of access pursuant to this clause 4.3.

  • If any of the provisions under clause 4.3(a)(i) to 4.3(a)(iii) of this Agreement still applies after a period of suspension for more than 15 Business Days, GREENNODE may continue to suspend the provision of all or any of the Services (or part thereof) for such period as it determines absolutely or terminate any Client Service Agreement or any Service (or part thereof) at any time.
  • In the event that the suspension implemented pursuant to clause 4.3(a) of this Agreement is due to the breach, fault, act or omission of the Client or the Client Permitted Persons, the Client shall continue to pay GREENNODE the Charges during the period of suspension, and shall be liable for all costs and expenses incurred by GREENNODE in respect of implementation of such suspension and re-activation charges for recommencement of the provision of the Services (or part thereof).
  • Any exercise by GREENNODE of its rights under this clause 4.3, is without prejudice to any other rights and remedies available to GREENNODE under the Agreement or otherwise.
  • Customer has not paid any Fees or other amounts owed by it to GREENNODE within 30 days after the applicable due date.
  • Customer enters into liquidation, administrative receivership, bankruptcy or makes any voluntary agreement with its creditors or is unable to pay its debts as they fall due;
     

Clause 5: Insurance

• The Client will, at its own costs and expenses, take out and keep current during the term of this Agreement all such insurance policy or policies with a reputable insurance company with coverage which are no less than that required by applicable law, as are prudent in light of the nature and form of the services being provided to the Client by GREENNODE under the Agreement, and against such risks and liabilities customary for businesses similar to its business, including without limitation.
  • insurance in respect of the Client Equipment against all risks, including physical damage, pilferage, theft, non- delivery and fire;
  • insurance in respect of damage to, or distortion to, corruption of, alteration to or destruction of, the Client’s data, software, programs and/or media for any reason;
  • insurance against any and all liability, including;
    • public liability;
    • liability in connection with electronic and information technology errors and omissions;
    • liability in respect of intellectual property and communications; and
    • loss or damage of any kind whatsoeve rarising from the installation or use of the Client Equipment or the Services; and
  • other insurance policy or policies required by law;
  • insurance in respect of the Client’s liability to GREENNODE under the Agreement; and
  • reasonably required by GREENNODE.
• The Client shall produce evidence that it has complied with, and continues to comply with, its obligations under this Article upon the request of GREENNODE. The Client shall ensure that GREENNODE receives at least twenty (20) Business Days’ prior written notice before any policy is cancelled or materially modified.
• The taking up and maintenance of insurance policies by the Client shall not affect or limit the extent of the Client's liability under the Agreement.
   

Clause 6: Client Warranties

• The Client represents and warrants that:
  • it is an entity duly organised and validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or organised, and has all requisite power and authority to own and/or operate its property and to carry on its business;
  • it has full power and authority to enter into the Agreement and has taken all action necessary to authorise the transactions effected hereby;
  • the Agreement has been fully executed and delivered by, and is the valid legal and binding obligation of the Client, enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or other similar laws affecting the enforcement of creditors' rights generally and general principles of equity; and
  • it has the expertise in the marketing, promotion, distribution and sale of products and services in relation to information technology.
  • For the purpose of end use restriction, the Client hereby represents and warrants as follows with respect to the Services to be provided by GREENNODE:
    • The Services may be subject to U.S. export control laws and will not be violated as per U.S. EAR or OFAC regulations.
    • The Services will not be resold, re-exported, rented, leased, transferred, or disposed of to any person on U.S. Government restricted party lists.
    • The Services will not be disposed of in any country or territory sanctioned under U.S. laws without prior authorization.
    • The Services will not be used in the design, development, or operation of specific prohibited items.
    • The Services will not be used in certain specified oil and gas activities.
    • The Services will not be disposed of to military end-users or for military end-use in certain countries without prior authorization.
    • The Services will not be disposed of to military intelligence end-users or for military intelligence end-use in certain countries without prior authorization.
• All warranties, conditions, terms and representations not set out in this Agreement, whether implied by statute or otherwise, are excluded to the extent permitted by law.

Clause 7: Compliance with Laws

• The Client acknowledges and agrees that the use of the Services, the Service Equipment and the Client Equipment may be subject to applicable laws, bylaws, regulations, requirements, directions and orders of Competent Authority, and the Client agrees and undertakes to comply, and procure compliance by Client Permitted Persons, with the terms of the Agreement, the SLA and all applicable laws, bylaws, regulations, requirements, directions and orders of the relevant Competent Authority that are applicable (i) to the Client and the Client Permitted Persons, or (ii) to the use of the Services, the Service Equipment and the Client Equipment.
• The Client shall, if required for its use of the Services, the Service Equipment, the Client Equipment, the GREENNODE Colocation Space and/or the Building, obtain the requisite licence, approval and/or permit from the relevant Competent Authority at its own costs and expenses. GREENNODE shall have no liability whatsoever in any case where such licence, approval and/or permit has not been obtained or has been revoked.
• The Client shall not, and shall procure the Client Permitted Person not to, (i) cause the revocation of any licence, approval and/or permit of GREENNODE in relation to the provision of the Services and use of the Building and (ii) carry out any act or omission that results in GREENNODE breaching any law, rule or regulation.

Clause 8: Sanctions

• The Client represents and warrants that:
  • none of the Client nor (to the actual knowledge of the Client having made enquiries, if any, that are reasonably expected of it) any of the Client’s directors nor any persons acting on their behalf nor its Clients:
    • is a Restricted Party; or
    • has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority, and
  • it has not in the past five (5) years engaged in, and is not now engaged in, any dealings or transactions with any Restricted Party.
• The Client undertakes that it shall not, either by itself or through any other person authorized by it and its Client shall not:
  • fund any trade, business or other activities of any Restricted Party;
  • cause GREENNODE to be in breach of any Sanctions (if and to the extent applicable) or becoming a Restricted Party; and/or
  • engage in any dealings or transactions with any Restricted Party.

Clause 9: Change to Services

• From time to time the Client may request, or GREENNODE may request or propose, the provision of Additional Services or changes to the Services or other aspects of the Client Service Agreement. Save where such changes or additions are required to comply with, or enable the Client or GREENNODE to comply with, all applicable requirements, regulations, directions, orders and directives of any relevant Competent Authority and all applicable laws, no Party is under any obligation to agree to any such changes or additions but, to the extent such changes or additions are agreed between the Parties or required then, all such changes must be implemented in accordance with clause 9.2 of this Agreement.
• Where (i) the Parties have agreed on the terms under which the provision of Additional Services or changes to the Services or other aspects of the Client Service Agreement will take place or (ii) the provision of Services or changes to the Client Service Agreement are required to comply with, or enable the Client or GREENNODE to comply with, all applicable requirements, regulations, directions, orders and directives of any relevant Competent Authority and all applicable laws, the Parties shall jointly prepare and execute a new Client Service Agreement or an amendment to the Client Service Agreement to give effect to such agreement or change.

Clause 10: Service Payment

• Payment of Charges
  • In consideration of the provision of the Services by GREENNODE, the Client shall pay the fees and other amounts set out in the Client Service Agreement and any additional fees for additional services agreed to by both Parties in writing (collectively, the “Charges”).Charges for any Additional Service shall be payable from the date on which provision of Additional Service commences.
  • The Client shall make payment of the applicable Charges in accordance with the terms of the Agreement and as set out in the invoice.
  • The Client shall, whether or not it has completed the Preparation Works or commenced use of the Services, be obliged to pay the Charges in accordance with the Client Service Agreement.
  • The Charges shall be paid without any set-off or deduction (save for the setting off pursuant to clause 10.7 of this Agreement).
  • Subject to clause 10.5 of this Agreement, the full amount specified in an invoice issued in accordance with clause 10.2 of this Agreement and all Taxes (including without limitation goods and services tax) due on such amounts shall be paid within 15 days after receipt of such invoice, unless otherwise agreed in writing.

  • Payment by credit/debit cards and/or via intermediary payment portal

    In case the payment of Charges is conducted via any payment portal (such as Stripe services) and/or the payment information/method of the Client (e.g., information of Credit/Debit cards) is provided for such purpose, subject to the agreed Charges and payment plan as provided in Service Agreement, the Client agrees that GREENNODE and/or any third party payment services providers shall be allowed and authorized to automatically charge the payment to Client’s chose payment information/method at confirmation of purchase of Services and at the start of every new billing period, unless cancelled/terminated in accordance with this Agreement, and in accordance with the following terms and conditions:

    • Automatic payment: By providing Credit/Debit cards payment information, the Client agrees to allow GreenNode and/or authorized intermediary payment service provider to automatically charge Client for services used and each new billing period according to the applicable fees specified on GreenNode's website, unless canceled or terminated as agreed by the Parties.
    • The Client also commits that the provided Credit/Debit card and payment account information provided to GreenNode is accurate, valid and lawful. Client is responsible for promptly updating Credit/Debit card and payment account information if there are changes to ensure continuous and uninterrupted payments.
    • The Client has the right to cancel or decline automatic payments at any time through their account on GreenNode or by contacting GreenNode’s customer service.
    • The Client understands and accepts that by providing Credit/Debit card and payment account information and using automatic payments may bring convenience but may also pose risks such as disclosing personal information and the risk of inaccurate or duplicate payments. Where this a potential risk related to payment value, the Client needs to contact GreenNode's customer service for support.
    • The Client agrees to be responsible for full payment of associated fees and late payment interest (if any) in case the automatic payment (via Client’s Credit/Debit cards) is refused or cannot be performed due to the Client’s faults.
    • The Client commits to ensure the confidentiality of its Credit/Debit cards payment and account information and not share this information with anyone.

    Notwithstanding the above, in case of choosing Credit/Debit cards for payment, the Client agrees that GREENNODE shall automatically charge US$1 (one dollar) and promptly refund such amount to the Client’s bank account, for the purpose of verification of Client’s card information only.

• Invoice
  • All invoices shall be sent to the Billing Address and marked for the attention of the Billing Authorised Contact Person of the Client as set out in the Client Service Agreement. The Client shall be entitled to amend the address and contact person upon written notice to GREENNODE from time to time. GREENNODE shall invoice the Charges based on the Billing Frequency as set out in the Client Service Agreement.
  • Upon receipt of an advance payment or deposit from the customer, GREENNODE shall issue a pro-forma invoice for the advanced amount or deposit, except for charges that are dependent on usage, which shall be invoiced in arrears.
  • At the 15th of each month, GREENNODE will issue an invoice to Customer for all charges based on Customer's use of the Services during the Monthly Fee Accrual Period. Customer will pay all Fees in the currency stated in the invoice. All Fees are due as stated in the invoice. Unless required by law, Customer's obligation to pay all Fees is non-cancellable. GREENNODE’s measurement of Customer's use of the Services is final. GREENNODE has no obligation to provide multiple bills.
  • All refunds processed against an invoice will be provided in the currency in which the invoice was generated and reflected as a credit memo or a payment in your Payment Currency at stated in clause 10.5 G.
  • Each invoice shall be issued in USD.
  • GREENNODE will provide the Client, at the Client’s request and costs, with paper and electronic copies of documents and information reasonably necessary to support the GREENNODE’s invoices under the Agreement.
• Pass-Through Expenses
  • The Client shall pay (or procure payment) of all Pass- Through Expenses.
  • GREENNODE may charge an administrative fee on the Pass-Through Expenses which represents GREENNODE’s reasonable administrative costs related to the procurement of the materials and/or services in respect of which such Pass-Through Expenses are payable. GREENNODE shall invoice the Client for all Pass-Through Expenses and/or any administrative fee, upon which the Client shall pay (or procure payment of) the Pass-Through Expenses and/or any administrative fee so invoiced within seven (7) days of the date of such invoice. The Client shall pay (or procure payment of) the Pass-Through Expenses irectly to the third party if the third party invoices the Client directly or upon request by GREENNODE.
  • In relation to materials or services paid for on a Pass- Through Expenses basis, the Client may at any time, by giving notice to GREENNODE:
    • obtain such materials or services directly from a third party;
    • designate a third-party source for such materials or services; or
    • designate particular materials or services GREENNODE will obtain.
• Charges adjustments
  • GREENNODE reserves the right to increase the Charges under the Client Service Agreement should the electricity tariff or charges paid by GREENNODE Colocation Supplier increase during the Client Service Agreement.
  • The Charges may only be adjusted in accordance with the mechanisms contained in the Agreement, being:
    • the provisions of clause 9 of this Agreement;
    • the provisions of this clause 10.4; and
    • the provisions in the Client Service Agreement.

• Resolution of disputes in relation to Charges

  If the Client, in good faith, disputes all or any portion of an invoice, the following provisions shall apply:

  • the Client shall pay to GREENNODE, within 15 days after the date of the relevant invoice, all amounts not disputed in good faith by the Client and all Taxes (including without limitation goods and services tax) due on any such undisputed amounts.
  • the Client shall notify GREENNODE of any disputed amounts within seven (7) days after the ends of end date of the month and shall describe in reasonable detail the Client’s reasons for disputing each amount. The Client acknowledges that it is reasonable for GREENNODE to require the Client to dispute charges within the aforesaid period, and the Client therefore waives the right to dispute any charges after the aforesaid period;
  • within seven (7) days after GREENNODE has received the notice under clause 10.5(b) of this Agreement from the Client, the Parties shall seek to reach agreement on the amounts that are the subject of the dispute;
  • where the Parties are unable to reach an agreement within the period stipulated in clause Error! Reference source not found.(c) of this Agreement, either Party may refer the dispute for determination under this Agreement at clause 19.3;
  • Upon the Parties reaching agreement under clause 10.5(c) of this Agreement or determination having been made under clause 10.5(d) of this Agreement, the Client shall pay to GREENNODE the amount so agreed under clause 10.5(c) of this Agreement or determined under clause 10.5(d) of this Agreement, If GREENNODE, having reviewed the dispute in good faith, determines that certain billing inaccuracies are attributable to GREENNODE, GREENNODE will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. The customer will be required to apply the credit memo amount to the next invoice payment. Refunds given by GREENNODE for billing inaccuracies under this Section will only be in the form of credit for the Services. Nothing in this Agreement obligates GREENNODE to extend credit to any party.
  • if the dispute of all or any portion of the invoice is not a bona fide dispute by the Client, the Client shall pay GREENNODE the disputed amount and the Interest accrued based on Clause 10.6 on the disputed amount for the period from the date of the original invoice to the date of payment of the disputed amount and Interest, within 7 days of demand by GREENNODE.

• Late Payment

  If the Client defaults in the payment when due of (i) any undisputed amount payable under the Agreement, (ii) any amount agreed between the Parties pursuant to clause 10.5(c) of this Agreement or (iii) any amount determined pursuant to clause 10.5(d) of this Agreement, Greennode may elect to charge client interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. The interest is calculated from the original date that payment of such amount is due until the date such amount is paid in full to GREENNODE, within 15 days on demand by GREENNODE. Any exercise by GREENNODE of its rights under this clause is without prejudice to any other rights and remedies available to GREENNODE under the Agreement or otherwise.

  Cusomter will reimburse GREENNODE for their reasonable expenses (including Attorneys’ fees) incurred in collecting late payments except where a delinquent amount is due to CPS’s billing inaccuracies. If any payment is greater than 30 days past due, then GREENNODE may suspend the provision of services until Cusomter’s account is current.

• Setting-off
  • The Client may request in writing for all the then- available Service Credits (if any) to be set-off against the Charges.
  • GREENNODE shall have the right to set off any amounts due under the Agreement which are not paid by the Client against any amounts owed to the Client pursuant to the Agreement or any other agreement between the Parties.

• Regulatory and Legal Changes

  Other than in the case of clause 10.4(a) and/or such term in the Client Service Agreement relating to power charges above, in the event of any change in applicable law, regulation, decision, rule or order that materially increases GREENNODE’s costs or adversely affects GREENNODE’s delivery of a Service, GREENNODE and Client agree to negotiate regarding the rates to be charged to Client to reflect such increase in cost or the revisions to the Agreement necessary to equitably adjust for such adverse effect. In the event that the Parties are unable to reach agreement within thirty (30) days after GREENNODE’s delivery of written notice requesting negotiation, then (i) GREENNODE may pass such increased costs through to the Client upon thirty (30) days’ notice and/or revise the Agreement as appropriate to equitably adjust for such adverse effect, and (ii) the Client shall enter into documentation necessary to reflect such adjustments in (i), upon request by GREENNODE.

• Tax

  Any tax amount arisen under this Agreement shall be stipulated under Clause 17 of this Agreement. 
   

Clause 11: Intellectual Property Rights

• The Client represents, warrants and undertakes to ensure that the software, data, information and/or content stored on or held in the Client Equipment or used in conjunction with its use of the Services, (i) does not infringe any third-party Intellectual Property Rights, (ii) is not defamatory, libellous, threatening, obscene, pornographic, indecent or otherwise illegal under any applicable law and (iii) does not contain any undesirable content, and shall promptly take steps to remove any such content from the Client Equipment upon becoming aware of the same or being notified of the same by GREENNODE.
• The Client acknowledges and agrees that it will be solely responsible for the software, data, information and content stored on or held in the Client Equipment or used in conjunction with its use of the Services and will be solely responsible for instituting and maintain security procedures and back-up procedures to ensure integrity and security of the software, data, information and/or content stored on or held in the Client Equipment, or used in conjunction with its use of the Services. GREENNODE shall not be liable for unauthorised access to Client’s network or other breaches of Client’s network security.
• The Client acknowledges and agrees that the GREENNODE is the owner of its Intellectual Property Rights (including the Marketing Materials) and the goodwill associated therewith and agrees to comply with all instructions of GREENNODE regarding usage of such Intellectual Property Rights (including the Marketing Materials). Nothing in the Agreement shall give the Client any rights in GREENNODE’s Intellectual Property Rights (including the Marketing Materials) and the Client acknowledges that it will not, and does not, acquire any rights in respect thereof.
• The Client shall promptly and fully notify GREENNODE of any actual, threatened or suspected infringement of any of the GREENNODE’s Intellectual Property Rights (including the Marketing Materials) which comes to the Client’s attention.
• The Client shall not directly or indirectly do, or authorise any third party to do, any act which might infringe, invalidate or be inconsistent with the Client’s Intellectual Property Rights (including the Marketing Materials).
• The Client may not use, display and/or publish any of the GREENNODE’s trademark, trade name and/or logo. The Client may only display the GREENNODE’s trade mark, trade name and/or logo, at or in relation to the Client’s web sites or any marketing literature or for any other approved purpose, if it has obtained the Client’s prior written approval, which approval may be granted subject to such other conditions or restrictions as determined in the sole discretion of GREENNODE, including the stipulation that any use is to be in accordance with the GREENNODE’s guidelines or directions as GREENNODE may provide to the Client. All goodwill associated with the GREENNODE’s trade name, trademarks and logos will inure solely to GREENNODE.

Clause 12: Confidentiality

• Confidentiality obligations

  Except as permitted by this clause Error! Reference source not found., each Party (a “Recipient”) must keep confidential and, to the extent applicable, must procure that its Representatives and Related Entities (collectively the “Connected Persons”) keeps confidential:

  • all information made available to the Recipient or its Connected Persons by the other Party (the “Discloser”) or any of its Representatives or Related Entities (whether before, on or after the date of this Agreement and whether in writing, orally, electronically or in any other form or medium) which relates to, without limitation, the transactions contemplated by the Agreement, the business, assets, operations, corporate strategies, technical information, pricing, supplier and Client information and third party confidential information of the Discloser or any of its Related Entities; and

  • the existence, terms and subject matter of, and the negotiations relating to, the Agreement,

    (“Confidential Information”)
    provided always that a Recipient may only disclose such Confidential Information to such of its Connected Persons strictly on a need-to-know basis.

• Excluded information

  Clause 12 of this Agreement does not apply to any information which:

  • is in or comes into the public domain not through a breach of clause 12.1 of this Agreement or through a breach by any person of any other obligation of confidentiality binding on such person;
  • is, prior to the disclosure by the Discloser to the Recipient, already in the lawful possession of the Recipient and not held by the Recipient subject to an obligation of confidentiality;
  • comes into the possession of the Recipient from any person unconnected with the Discloser who is not prohibited from disclosing that information by any obligation of confidentiality; or
  • is developed by the Recipient independent of the Confidential Information.

• Required disclosure

  Nothing in clause 12 of this Agreement prevents a Recipient or any of its Connected Persons from disclosing Confidential Information if the disclosure of such Confidential Information is (i) required by law, regulation, any court of competent jurisdiction, any Competent Authority, or (ii) in connection with any financing by bank(s) and/or financial institution(s) to the Recipient or its Related Entities.

• Limitation of disclosure

  Before a Recipient discloses Confidential Information under clause 12.3Error! Reference source not found. of this Agreement, the Recipient must, to the extent permitted by law and the relevant disclosure requirement:

  • notify the Discloser in writing as soon as reasonably practicable after it becomes aware that disclosure is required;
  • take all steps reasonably required by the Discloser to prevent or restrict the disclosure of that Confidential Information; and
  • co-operate with the Discloser regarding the timing and content of such disclosure.

• Enforcement action

  Nothing in clause 12 of this Agreement prevents a Party from disclosing information to the extent required to enable that Party to enforce the provisions of the Agreement or for the purpose of defending any judicial proceedings brought against that Party. The Parties recognise that monetary damages may not be adequate remedy for unauthorised disclosure or use of Confidential Information and that each Party may seek, without waiving any other rights or remedies, injunctive or equitable relief.

• Termination of Agreement

  If this Agreement or a Client Service Agreement is terminated for any reason whatsoever, or the Discloser so requests in writing at any time, the Recipient shall, at the Discloser’s option, either immediately return all Confidential Information and copies of such Confidential Information, or destroy such Confidential Information and copies of such Confidential Information and certify in writing the destruction of the same, provided that the Recipient may retain one (1) copy for record purposes. Notwithstanding the termination of this Agreement or a Client Service Agreement, the Recipient shall comply with the confidentiality obligations under clause 12 of this Agreement for 5 years from the effective date of termination.
   

Clause 13: Liability

• Standard of Services
  • GREENNODE does not warrant that:
    • the Services and/or the Service Equipment shall meet any requirements which are not expressly set out in the Agreement; and
    • the Services and/or the Service Equipment shall provide any function not set out or described in the Agreement.
  • Notwithstanding any clause to the contrary in the Agreement, GREENNODE disclaims all warranties of any kind, whether express or implied by statute, common law or otherwise, including without limitation, warranties of title, non-infringement, or implied warranties of merchantability, satisfactory quality or fitness for a particular purpose or of any implied warranty arising from course of performance, course of dealing, usage of trade, or otherwise, with respect to the Services, the Service Equipment and/or all other equipment, software, materials, documentation or property provided under the Agreement or any use thereof by the Client.

• Security and Access

  The Client acknowledges and agrees that while GREENNODE shall take reasonable precautions that are practicable to ensure that unauthorised persons do not gain access to the GREENNODE Colocation Space, GREENNODE shall not be responsible or liable for, other than for damages arising directly from the gross negligence or the wilful misconduct of the GREENNODE’s employees and/or agents, any Loss which may occur as a result of unauthorised access to the GREENNODE Colocation Space and/or as a result of theft, destruction or misplacement of the Client Equipment arising from unauthorised access to the GREENNODE Colocation Space. GREENNODE reserves the right to refuse access to the GREENNODE Colocation Space or remove from the GREENNODE Colocation Space any Client Permitted Persons (i) whose admission or presence, in the reasonable opinion of GREENNODE, is or would be detrimental to the security of the Colocation Space, or (ii) in respect of whom the Client has failed to request a right of access from GREENNODE and GREENNODE will not be responsible for the consequences of any such refusal or failure or delay by the Client in notifying it of its access requirements.

• Limitation of liability

  Notwithstanding anything to the contrary in the Agreement, to the extent not prohibited by law and subject to clause 13.4 of this Agreement, in the event that GREENNODE is held or found to be liable to the Client or any person for any matter relating to or arising in connection with the Agreement (including without limitation to the Services, the Service Equipment, the GREENNODE Colocation Space), whether based on an action or claim in contract, negligence, tort (including breach of statutory duty) or otherwise (“Claim”), the aggregate amount of liability for any and all claims, demands, losses, damages, costs, expenses and other liabilities of any kind which the Client shall be entitled to recover from GREENNODE under a Client Service Agreement in any 1-month period (the “Relevant Period”) shall in no event exceed the aggregate amounts actually received by GREENNODE from the Client under the relevant Client Service Agreement over the 1-month period immediately prior to the date of the first failure, breach, default or other event giving rise to such Claim (“Maximum Claim Amount”) and such Maximum Claim Amount shall include and take into account the Service Credits given to the Client and all amounts arising from other Claims that are paid to Client during the Relevant Period. Without limiting the generality of the foregoing sentence, in no event shall GREENNODE be liable directly or indirectly (whether based on action or claim in contract, negligence, tort (including breach of statutory duty) or otherwise):

  • for any Loss caused by or attributable to (i) the Client’s own default or failure to perform any of its obligations hereunder; (ii) the act, omission, default or negligence of the Client or any of the Client Permitted Persons; or (iii) the Client Equipment;
  • for any Loss arising from or in connection with:
    • any error, omission, interruption, delay, failure or mistake in the transmission of any information through the Service Equipment and/or the Client Equipment;
    • any failure of the Client Equipment and/or the Service Equipment to connect with any telecommunications equipment and/or Internet service providers;
    • any act or omission of telecommunications carriers, telecommunications network operators or Internet service providers;
    • break down or failure of any telecommunication or other communications network or systems;
    • any malfunction or defect of the Client Equipment or Service Equipment;
      (vi) any intrusion or attack by any person, computer system, computer virus or other malicious, destructive or corrupting code, agent program or macros into any computer system; and
  • for any special, aggravated, indirect or consequential Losses (including without limitation loss of profits, goodwill, business opportunity, revenue, anticipated savings or injury to reputation), even if GREENNODE has been advised of the possibility of such damages, loss or claim;
  • for any claim made against the Client by any third party, even if GREENNODE has been advised of the possibility of such damages, loss or claim; and/or
    (g) for any Loss arising from or in connection with any:
    • loss of data or software;
    • interruption in use, or availability, of data or software; or
    • stoppage of work or impairment of, or damage to, assets and equipment.

• Uncapped liabilities

  Clause 13.3 does not apply in relation to, and no limitation on liability will apply to, liability for:

  • any personal injury or death to any person caused by gross negligence of GREENNODE; or
  • any fraud of GREENNODE.

• Indemnity

  The Client agrees to and shall indemnify, defend and hold harmless GREENNODE and its Related Entities, officers, employees, agents, sub-contractors, service providers, suppliers and Clients from and against any and all actions, proceedings, judgments, claims (including third party claims), liabilities (including statutory liability), fines, penalties, demands, costs and expenses (including without limitation, legal costs), awards, damages (including for damage to property), losses and/or liability of any kind (including personal injury and death) which is caused by, arises out of or in consequence of, directly or indirectly, a breach of any warranty, representation, undertaking or obligation under the Agreement by the Client or the Client Permitted Persons, or any act or omission of the Client or the Client Permitted Persons in relation to the use of any of the Services, the Client Equipment or the Service Equipment (including without limitation pursuant to the resale of any of the Services by the Client), or the use and/or occupation of the GREENNODE Colocation Space.
   

Clause 14: Events of Default

The occurrence of any one or more of the following events shall constitute a default under the Agreement (each a “Default”):

• if a Party is in material breach of any of its representations, warranties, undertakings or obligations under the Agreement (excluding the GREENNODE’s failure to meet the Service Levels of the SLA and breach of those events set out in clauses 14.2 to 14.5 of this Agreement) and either that breach is incapable of remedy or, if the breach is capable of remedy, the Party in breach has failed to remedy that breach within 30 days after receiving written notice from the non- breaching Party requiring it to remedy that breach;
• if the Client is in breach of clause 7 of this Agreement;
• if the Client is in breach of its payment obligations under the Agreement;
• an assignment of the Agreement in violation of this Agreement; and
• an Insolvency Event occurs in relation to a Party.

Clause 15: Force Majeure

A Party shall not be liable, or be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any of its obligations under the Agreement (other than the obligation to make payment) to the extent, and for so long as, such failure or delay is caused by or results from any cause or event beyond its reasonable control, including without limitation:

• act of God, fire, flood, lightning, adverse weather, pandemic, epidemic and other natural disasters;
• war, civil commotion, hostilities, riots, act of terrorism, explosion, rebellion or revolution;
• blockade, embargo, strike, lock-out, sit-in, industrial or trade dispute;
• prohibition, law, judgment, order, directive, policy, regulation or requirement of any kind of a Competent Authority;
• breakdown or failure of any telecommunication or other communications services, network or systems;
• termination of GREENNODE Colocation Space (not due to any default of GREENNODE under relevant agreement); or
• damage to plant or machinery, shortage of or disruption to the supply of any material, labour, transport, utilities or other supply,

(each, a “Force Majeure Event”).
Obligations not performed due to a Force Majeure Event will be performed as soon as reasonably practicable when the Force Majeure Event is removed or ceases to exist.
Note:

Clause 16: Termination

• Termination for convenience
  • This Agreement may only be terminated by mutual agreement in writing between the Parties.
  • A Party may terminate an Client Service Agreement or a Service by giving at least eight (8) months’ prior written notice to the other Party provided that the effective date of termination of a Service shall be within the Order Term or in the case of termination of Client Service Agreement, all applicable Client Service Agreement thereunder. If the Client gives notice to GREENNODE to terminate an Client Service Agreement or a Service, it shall be liable to pay to GREENNODE all the Charges up to and including the date of such termination and for the remainder of the applicable Client Service Agreement(s) (including without limitation the Monthly Service Fees for such remaining Client Service Agreement(s)), as well as any documented third party charges or expenses incurred by GREENNODE in respect of the termination of such Client Service Agreement or Service and all amounts necessary to restore the GREENNODE Colocation Space and Service Equipment to its original condition, fair wear and tear excepted. The Client acknowledges that the foregoing is a genuine, fair and reasonable estimate of GREENNODE’s loss arising from such termination and constitutes liquidated damages and not. Notwithstanding the foresaid, the payment of the Charges and all other amounts as aforesaid shall not prejudice the rights of GREENNODE that have accrued prior to the termination of the Client Service Agreement or the Service(s) (as the case may be).

• GREENNODE’s termination of Client Service Agreement or Service

  GREENNODE may terminate a Client Service Agreement or a Service immediately by written notice to the Client:

  • where a Default by the Client has occurred.
  • where GREENNODE Colocation Space has been terminated not due to any default of GREENNODE under relevant agreement.
  • in accordance with clause 4.3(b) of this Agreement.

• Client’s termination of Client Service Agreement or Service

  The Client may terminate Client Service Agreement or a Service (i) in accordance with clause 10.8 of this Agreement, or (ii) immediately by written notice to GREENNODE where a Default by GREENNODE under clause 14.1 or clause 14.5 of this Agreement has occurred.

• Effect of termination or expiry

  This Agreement, each Client Service Agreement and each Service are separately terminable. Therefore, the termination of a Service for any reason will not terminate an Client Service Agreement, unless such Service is the only service to be provided under the Client Service Agreement. The termination of all Services under Client Service Agreement will terminate that Client Service Agreement. The termination of Client Service Agreement for any reason will not terminate this Agreement. For the avoidance of doubt, Client Service Agreement shall terminate immediately upon the termination of this Agreement. If this Agreement or Client Service Agreement or a Service is terminated or expired:

  • all the provisions of this Agreement, the Client Service Agreement and/or (in the case of termination or expiry of a Service only) such provisions therein that apply to that Service (other than those provisions which expressly or by implication are intended to come into force or continue in force on or after such termination or expiry), as the case shall be, cease to have effect.
  • each Party retains all rights that it has against the other Party that has accrued before such termination or expiry.
  • any debt, obligation or liability of the defaulting Party to the non-defaulting Party that has accrued under this Agreement and/or the Client Service Agreement shall not be abrogated, impaired, released or extinguished, including without limitation such debt, obligation or liability which was the cause of termination.
  • the provisions of, and the rights and obligations of each Party under, this clause 16.4, clause 16.5 of this Agreement and each of the Surviving Clauses shall survive termination or expiry of this Agreement and/or the Client Service Agreement, in addition to any clause that survives by operation of law.

• Obligations following termination or expiry

  Following termination of this Agreement or the termination or expiry of a Client Service Agreement or a Service:

  • the Client shall pay the amount under clause 16.1(b) of this Agreement (if applicable) and all outstanding invoices and all other amounts due up to and including the date of expiry or termination within 10 Business Days of (i) termination of this Agreement, or (ii) termination or expiry of the Client Service Agreement or the Service. Where, Client Service Agreement and/or a Service is terminated due to a Default by the Client or by the Client for convenience, the Client shall also pay, within thirty (30) days (i) of termination of the Client Service Agreement or the Service, or (ii) of the date of the invoice, whichever is earlier, (1) an early termination fee equivalent to the Charges (A) for the remaining Client Service Agreement for the terminated Service(s) or (B) for the remaining Client Service Agreement Term of all the Services in that Client Service Agreement (in the case of termination of Client Service Agreement), including without limitation the Monthly Service Fees for such remaining Client Service Agreement Term(s), and (2) any documented third party charges or expenses incurred by GREENNODE in respect of the terminated Client Service Agreement or Service. Client acknowledges that the foregoing is a genuine, fair and reasonable estimate of GREENNODE’s loss arising from such termination and constitutes liquidated damages and not a penalty. GREENNODE shall have a general and particular lien over Client Equipment for all sums owing by Client to GREENNODE under the Agreement and the Client shall not remove any Client Equipment from the GREENNODE Colocation Space unless and until all amounts under this clause 16.5(a) have been fully paid by the Client to GREENNODE.
  • subject to the Client having fully paid all amounts payable by the Client under clause 16.5(a), the Client shall, at its own costs and expenses, promptly remove the Client Equipment and return the Client Equipment (including without limitation the racks) in respect of the terminated Service(s) from the GREENNODE Colocation Space and surrender and vacate the relevant part of the GREENNODE Colocation Space (after restoring the relevant part of GREENNODE Colocation Space to its original condition at its own expense and returning all security devices (in good working condition)), but in any event no later than ten (10) days from the date of full payment of all amounts by Client under clause 16.5(a) (“Removal Period”), and GREENNODE may (but is not obligated to) thereafter, without further notice to the Client, remove and store any such Client Equipment for the Client’s benefit and at the Client’s expense and risk. GREENNODE shall not be liable to the Client for any Loss or damage to such Client Equipment. The Client shall reimburse GREENNODE all costs and expenses of removal, and storage of the Client Equipment incurred by GREENNODE in connection with the exercise of its rights under this clause 16.5(b).
  • GREENNODE shall be entitled, if the Client fails to remove the Client Equipment after ten (10) Business Days from the termination of this Agreement and/or the termination or expiry of the Client Service Agreement or a Service, to issue to the Client a notice of intention to sell or otherwise dispose all or part of the Client Equipment and upon the expiry of ten (10) Business Days from the date of such notice (“Disposal Notice Period”), as the agent of the Client sell such Client Equipment at such times and price as GREENNODE deems fit without any liability to the Client, and the Client will indemnify and defend GREENNODE against any costs, expenses, claims and liability incurred by GREENNODE to any third party whose equipment and/or property shall have been sold by GREENNODE in the mistaken belief held in good faith (which shall be presumed unless the contrary be proved) that such equipment and/or property belonged to the Client. GREENNODE may set off any proceeds of sale above against any amounts owing to GREENNODE by the Client including the costs and expenses of removal, storage and sale and the amounts incurred by GREENNODE to restore the GREENNODE Colocation Space to its original condition. If Client fails to claim the balance of such proceeds, if any, within three (3) months of notification by GREENNODE, GREENNODE shall be entitled to retain the balance of such proceeds of sale absolutely.
  • If GREENNODE does not exercise its rights under (i) clause 16.5(b) of this Agreement to remove and store the Client Equipment after the Removal Period, and (ii) clause 16.5(c) of this Agreement to issue a notice of intention to sell or otherwise dispose all or part of the Client Equipment after the Disposal Notice Period, the Client shall be deemed to be occupying the GREENNODE Colocation Space and receiving the Service(s) month-to-month from the date of expiry of the relevant Client Service Agreement Term (“Deemed Extension Period”), under all the terms, covenants and conditions of the Agreement (which shall continue to apply) except that the Parties agree that the Monthly Service Fee for a month (“Deemed Extension Month”) shall be increased to 110% of the Monthly Service Fee charged by GREENNODE for the corresponding month in the previous year (or in the absence of such corresponding month, the month prior to such Deemed Extension Month) and the Deemed Extension Period may be terminated at any time upon at least 30 days’ prior written notice from one Party to the other Party. The rights of GREENNODE under clause 16.5 of this Agreement shall apply, mutatis mutandis, to the termination of the Deemed Extension Period.
  • Any exercise by GREENNODE of its rights under clause 16.5 of this Agreement is without prejudice to any other rights and remedies available to GREENNODE under this Agreement and/or the Client Service Agreement or otherwise.

• Termination due to Force Majeure

  If any Force Majeure Event described in clause 15 continues for more than 2 months, then any Party may immediately terminate the affected Services without payment of compensation or other damages by giving notice in writing to the other Party.

Clause 17: Taxes

Each party will be responsible, as required under applicable law, for identifying and paying all applicable taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by Client are exclusive of Indirect Taxes, except where applicable law requires otherwise. Greennode may charge and Client will pay applicable Indirect Taxes that Greennode are legally obligated or authorized to collect from Client. Client will provide such information to Greennode as reasonably required to determine whether Greennode are obligated to collect Indirect Taxes from Client. Greennode will not collect, and client will not pay, any Indirect Tax for which client furnish us a properly completed exemption certificate or a direct payment permit certificate for which Greennode can claim an available exemption from such Indirect Tax. All payments made by Client to Greennode under this Agreement will be made free and clear of any deduction or withholding, as required by law. If any such deduction or withholding (including cross-border withholding taxes) is required on any payment, Client will pay such additional amounts as are necessary so that the net amount received by Greennode is equal to the amount then due and payable under this Agreement.

Clause 18: Notice

• Manner of giving notice

  Any notice or other communication to be given under the Agreement shall be in English in writing (which includes email) and may be delivered or sent by post, or email to the party to be served as follows:

  • For GREENNODE:
    • Name:
    • Title:
    • Email:
    • Phone:
  • For Client:
    • Name:
    • Title:
    • Email:
    • Phone:

  or at any such other address of email address notified or this purpose to the other Party. Any notice or other communication sent by post must be sent by prepaid ordinary post (if the country of destination is the same as the country of origin) or by airmail (if the country of destination is not the same as the country of origin).

• When notice given

  Any notice or other communication is deemed to have been given:

  • if by hand or delivered, on the date of delivery;
  • if sent by post, on the third day after it was put into the post (for post within the same country) or on the tenth day after it was put into the post (for post sent from one country to another), and in proving it, it will be adequate to show that the envelope containing the notice was properly addressed, stamped and posted; or
  • if sent by e-mail, upon the generation of a receipt notice by the recipient's server or, if such notice is not so generated, upon delivery to the recipient's server,

but if the notice or other communication would otherwise be taken to be received on a Business Day after 5.00 pm, or on a Saturday, Sunday or public holiday in the place of receipt then the notice or communication is taken to be received at 9.00 am on the next day that is not a Saturday, Sunday or public holiday in the place of receipt.

Clause 19: General

• The Client shall not assign, charge or transfer its rights and/or obligations under the Agreement without the prior written consent of GREENNODE. A transfer or assignment of the Agreement shall include a sale of all or substantially all of the assets of the Partner or a change in control of Client. Any assignment in breach of this clause 20.1 shall be null and void and of no legal force or effect. GREENNODE may assign or transfer its rights, title, interests, benefits and/or obligations in, under or in connection with the Agreement without the consent of the Partner. The Agreement, and the rights and obligations of the Parties hereunder, will be binding upon and inure to the benefit of their respective successors and assigns.
• This Agreement is subject to adjustment by the Governing Laws.
• Where there is any controversy, dispute or difference arising between the Parties during the performance of this Agreement, either Party shall settle such Dispute through negotiation and conciliation. If the parties cannot reach any consensus, either Party shall have the right to request for settlement by a competent court.
• By signing this Agreement and its attached Schedule (or in case a digital version of this Agreement is provided, by clicking on the “I agree” button or other similar buttons that shows how to register, access or use the services provided by GREENNODE), the Client has agreed to join a legally-bound Agreement with GREENNODE, to accept and certify that all the contents stated in the Article Providing and Using Services stipulated in this Agreement and any other documents provided to support the Client are complete, true and accurate.
• The Client confirms that it has read, understood and complied with the entirety of this Agreement.
• This Agreement is made in English language into 02 (two) copies of equal validity; each party shall keep 01 (one) copy.