PROFESSIONAL SERVICES TERMS AND CONDITIONS
Effective Date: July 12, 2023
A. Acronis International GmbH is a limited liability company (Gesellschaft mit beschränkter Haftung) organized and existing under the laws of Switzerland with its registered office in Neuhausen am Rheinfall, with its domicile at Rheinweg 9, 8200 Schaffhausen, Switzerland, registered under company number CHE-113.666.835 (“AIG”); and
B. AIG directly or indirectly through its affiliates makes certain licensed software commercially available to its customers (“Acronis Software”); and
C. Subject to these professional services terms and conditions (“Terms”) AIG directly or indirectly through its affiliates may make various professional services (“Services”) available for purchase; and
D. One of the requirements for purchasing Services under these Terms is entering into a statement of work (“SOW”) with AIG or one of its affiliates (as applicable, “Acronis”) that explicitly incorporates these Terms by reference; and
E. These Terms refer to each of Acronis and the entity that a SOW identifies as the customer (“Customer”) as a “Party” and jointly refers to them as the “Parties.”
For good and valuable consideration, the receipt and sufficiency of which both Parties hereby acknowledge Acronis and the Customer agree as follows:
1. Services Scope
1.1. SOW. Subject to these Terms and the SOW, Acronis will deliver the Services that meet all of the following criteria: (A) the SOW explicitly describes, (B) these Terms explicitly identify in Section 8, and (C) do not fall under the exclusions in Section 1.3. Any reference to Services in each individual SOW will be a reference only to the Services under that particular SOW.
1.2. Serviced Products. Notwithstanding anything to the contrary, Acronis will only provide the Services in connection with specific Acronis Software that the SOW explicitly identifies (“Serviced Products”).
1.3. Exclusions. The Services do not include any Acronis Software or any third-party products, services or licenses. Without limiting the foregoing, the Services do not include:
A. Any customizations of default functionality including custom development, branding, or custom scripting;
B. Any development of additional functionality;
C. Consultancy for 3rd party solutions;
D. Custom deployment guides;
E. Providing and/or installing and/or configuring any software other than Serviced Products;
G. Any services that are not consistent, as determined by Acronis, with the applicable documentation for each Serviced Product set forth at https://www.acronis.com/support/documentation;
H. Travel or related expenses beyond what is expressly included in the SOW; and
I. Any other services not explicitly outlined in the SOW.
2. Term And Termination
2.1. SOW. Notwithstanding anything to the contrary, these Terms do not establish any agreement on their own and only a fully executed and delivered SOW that explicitly incorporates these Terms by reference establishes a binding agreement between the Parties.
2.2.Effective Date. Each SOW will commence either on the date that the SOW identifies as the effective date, or if the SOW does not indicate such date - the date on which the last Party required to sign the SOW affixes their signature (“Effective Date”).
2.3. Term. Unless terminated earlier, each SOW will remain in effect from the Effective Date until the date that SOW identifies as the expiration date, or if the SOW does not indicate such date – the earlier of the date that is six (6) months from the Effective Date or the date on which Acronis delivers all the Services (“Term”).
2.4. Delivery Timeline. Acronis will only provide the Services during the Term. The Parties will work together to effect the delivery of the Services within the first six (6) months of the Term.
2.5. Suspension. Acronis may suspend the Services without liability if the Customer is in default of any of its obligations to Acronis or any of its affiliates.
2.6. Offensive Behavior. Acronis may terminate any or all SOWs if (A) the Customer, or a Customer representative, continuously engages in offensive behavior, as reasonably determined by Acronis, toward any Acronis employee or consultant; and (B) the Customer fails to stop such offensive behavior within five (5) days after the Customer’s receipt of written notice (email sufficient) outlining the nature and occurrence of such behavior.
2.7. Accrued Liability. Termination of any SOW will not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue with respect to any act or omission before termination.
2.8. Expiration. Acronis reserves the right to terminate any SOW upon ten (10) days’ written notice to the Customer if the Customer has not utilized any Services purchased thereunder within the past six (6) months prior to the date of such notice. The Customer agrees that upon such termination, Acronis is entitled to retain and recognize all amounts paid for Services hereunder.
3. Pricing And Payment
3.1. Direct Purchase. If the Customer is purchasing the Services directly from Acronis, the SOW will specify the fees and expenses that the Customer will pay to Acronis for the Services. The Customer will pay Acronis the amounts specified in the SOW, which Acronis will invoice in accordance with the payment schedule set forth in the SOW. The fees that the SOW specifies are due and payable within thirty (30) days from the date of the invoice. In its sole discretion, Acronis may assess a late payment interest charge against unpaid invoices at the lesser of (A) three percent (3%) per month, or (B) the maximum rate permitted by applicable law. All payments are non-refundable and all purchase orders the Customer issues to Acronis, if any, are non-cancelable. Acronis may suspend all work under all active SOWs in the event any invoice is not paid in full within sixty (60) days from the date of the invoice.
3.2. Indirect Purchase. If the Customer is purchasing the Services through an authorized Acronis distributor of professional services, the Customer will remit payment to such authorized Acronis distributor for the Services specified in the SOW pursuant to a separate purchase order between said distributor and the Customer.
3.3. Travel Expenses. In the event that the Customer requests onsite visits, trainings, or any other Services that require travel, Acronis will provide to the Customer an estimate of the expenses associated with such onsite Services (“Expenses”) and will obtain the Customer’s express written consent to the Expenses in advance of incurring them. The Customer agrees to reimburse Acronis for the Expenses within thirty (30) days of Acronis incurring them, regardless of when an invoice is issued.
3.4. Taxes. Acronis’s prices do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees that Acronis may be required to pay or collect upon the sale or delivery of the Services or upon collection of the sales price, including without limitation, PIS/COFINS, ISS, CIDE, and import duty. If there is any tax or levy, the Customer agrees to pay such tax or levy and indemnify Acronis for any claim for such tax or levy demanded including penalties and interest. For any sales tax for which the Customer has an exemption, the Customer agrees to provide Acronis with appropriate resale or tax exemption certificate numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any such taxes or fees. If the Customer is required to withhold taxes from the amounts payable by the Customer, the Customer will gross up the amounts payable by the Customer so that Acronis receives the amount due, after reduction for such legally required withholding taxes.
4. Project Management
4.1. Project Manager. Each SOW will specify Acronis’s project manager for that SOW (“Project Manager”). The Project Manager is the Customer’s primary contact at Acronis under each SOW. At any point during the Term, Acronis may temporarily or permanently replace the Project Manager with a person of skill and experience required to fulfill this role. In such an event Acronis will communicate the name, email, and phone contact information of the replacement Project Manager to the Customer. The Project Manager will provide the following services at no additional charge:
A. Consultations planning;
B. Management of activities related to the Services;
C. Acronis internal resource planning; and
D. Resource usage tracking and reporting.
4.2. Primary Contact. Each SOW will also specify the primary contact person to represent the Customer for all activities and decisions related to the SOW (“Primary Contact”). The Primary Contact will at least be responsible for acting as primary management interface with Project Manager, project planning, project team and role definition, and the integration of Acronis deliverables into the master project plan. The Customer must notify Acronis in writing if it changes the Primary Contact.
5. Services Delivery
5.1. Remote or Onsite Delivery. Except where explicitly stated otherwise, Acronis will provide the Services remotely. If the Customer requests onsite delivery of the Services, Acronis will only perform such onsite delivery subject to (A) the Customer agreeing to the additional fees covering the travel expenses of Acronis personnel performing onsite delivery, and (B) Acronis and the Customer mutually agreeing on a schedule for such onsite delivery. Otherwise Acronis will provide such Services remotely via internet, web conference, telephone or instant messenger.
5.2. Language. Acronis will deliver the Services in English.
5.3. Business Hours. Acronis will provide the Services during its normal business hours, unless specified otherwise in the SOW.
5.4. The Customer’s Obligations. Acronis will have no obligation to perform any Services unless the Customer meets the following obligations:
A. The Customer must assign a Primary Contact;
B. The Customer must copy the Project Manager on all written communication between the Customer and Acronis;
C. The Customer must deliver or forward any scope-related questions or requests to the Project Manager
D. The Customer must provide timely access to all information requested by Acronis for matters related to the Services;
E. The Customer must use commercially reasonable efforts to ensure that all key Customer contacts attend project meetings and deliverable presentations;
F. The Customer must provide to Acronis information on desired characteristics of the resulting solution and review configuration documentation developed by Acronis; and
G. The Customer must provide to Acronis any additional information together with any assistance required for the performance of Services, as Acronis may reasonably request from time to time.
5.5. Delivery and Acceptance. The Services are deemed accepted by the Customer unless the Customer objects by providing written notice to Acronis within five (5) calendar days of delivery. Such notice must substantiate and specifically note any deficiency in the provision of Services in reasonably sufficient detail to allow Acronis to determine the existence and extent of any deficiency in Acronis’s delivery of the Services. Delivery for the purposes of this Section 5.5 is deemed to occur when Acronis provides notice to the Customer (email sufficient) that the Services have been completed.
6. Intellectual Property
6.1. Proprietary Rights. Acronis will be the sole owner of all intellectual property rights in the Services and all proceeds of the Services, including, but not limited to, all materials, ideas, concepts, formats, suggestions, developments, arrangements, inventions, technologies, packages, programs and other intellectual properties that Acronis may develop or create, directly or indirectly, in connection with the Services. Acronis expressly reserves all rights not expressly granted to the Customer in these Terms.
6.2. Confidentiality. All materials and/or information that Acronis provides to the Customer in connection with the Services are "Confidential Information". The Customer will maintain the Confidential Information in confidence and prevent disclosure of the Confidential Information by using at least the same degree of care it uses for its own most critical proprietary information, but in no event less than a reasonable degree of care. The Customer will not disclose or provide access to the "Confidential Information" or any part thereof to anyone for any purpose, other than to employees or other parties authorized under an SOW for the purpose of exercising the rights expressly granted under that SOW
7. Disclaimers And Limitations
7.1. Disclaimer of Warranties. Acronis will provide the Services "as is". Acronis expressly disclaims all warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of operability, condition, title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose, or the absence of any defects therein. No warranty is made by Acronis on the basis of trade usage, course of dealing or course of trade. Acronis does not warrant that the Services will meet the Customer’s requirements or that the operation thereof will be uninterrupted or error-free, or that all errors will be corrected.
7.2. Limitations of Liability. The cumulative liability of Acronis to the Customer for all claims arising from or relating to any SOW will be a maximum of the fees paid to Acronis by the Customer under that SOW during the six (6) months immediately preceding the event which gave rise to the claim. In no event will Acronis or its licensors or suppliers be liable to the Customer for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Acronis has been advised of the possibility of such damages.
7.3. Essential Basis of the Bargain. The disclaimers, exclusions and limitations of liability set forth in these Terms form an essential basis of the bargain between the Parties and absent any of such disclaimers, exclusions or limitations of liability, the provisions of the SOW and these Terms, including without limitation, the economic terms, would be substantially different.
8. Specific Services
8.1. Setup and Configuration. The Services may include setup and configuration services to deploy some or all Serviced Products ("Setup and Configuration"). Setup and Configuration requires a license to use the Serviced Products that the Customer must acquire separately. At the completion of the Setup and Configuration, Acronis share an overview of the configured Serviced Products with the Customer and hand the configured Serviced Products over to the Customer. Setup and Configuration does not include any further support of the Serviced Products.
8.2. Consulting. The Services may include consulting services in connection with the use and implementation of the Serviced Products ("Consulting").
A. Depending on the description of Services in the SOW, Consulting may include the following:
1. Guidance on installation, configuration, and customization of the Serviced Products;
2. Recommendations in line with industry best practices and assistance in development of data and business application backup strategy (RPO, RTO, retention schedules);
3. Consultations during verification of configured data protection and file sync and share routines; and
4. Review of resulting data protection and file sync and share solution, including assistance in troubleshooting.
B. Acronis will provide the Consulting up to the number of days indicated in the SOW ("Consultation Days"), subject to the following:
1. For each day during which Acronis provides four (4) or more hours of Consulting, Acronis will subtract one (1) full day from the Consultation Days available to the Customer;
2. For each day during which Acronis provides less than four (4) hours of Consulting, Acronis will subtract a half day from the Consultation Days available to the Customer;
3. The Customer may only schedule Consulting as provided for in Sections 8.2.B.1 and 8.2.B.2 above, unless otherwise set forth in the SOW. Without limiting the generality of the foregoing, Acronis does not provide Consulting on an hourly basis;
4. The Customer is not entitled to a refund for any fees paid to Acronis for any unused Consultation Days at the expiration of the Term; and
5. Acronis will track resource usage and provide resource usage reports to the Customer.
C. Consulting is subject to the following:
1. The Customer provides Acronis with sufficient information explaining what kind of Consulting the Customer needs; and
2.The Customer provides any additional information required for the performance of Consulting, as reasonably requested by Acronis.
8.3.Deployment. The Services may include installation and configuration services for deploying Serviced Products at a location the Customer specifies ("Deployment").
A. Depending on the description of Services in the SOW, Deployment may include the following:
1. Designing a Serviced Products solution in-line with the Customer’s requirements, utilizing commercially reasonable practices normally found within the electronic data back-up industry;
2. Gathering and documenting information required to install and configure the Serviced Products;
3. Installing and configuring the Serviced Products;
4. Performing quality control of deployed Serviced Products against solution design and quality standards established by Acronis; and
5. Demonstrating the deployed solution and handing it over to the Customer and Acronis support.
B. Deployment is subject to the following:
1. The Customer provides Acronis with sufficient information on the desired characteristics of the solution; and
2. The Customer provides any additional information required for the performance of Deployment, as reasonably requested by Acronis.
8.4. Training. The Services may include training services on the use of the Serviced Products ("Training"). Depending on the description of Services in the SOW, Training may cover the following topics:
A. Overview of the Serviced Products;
B. Administration routines associated with the use of the Serviced Products;
C. Management and configuration of the Serviced Products;
D. Troubleshooting of issues associated with the Serviced Products; and
E. Methods of interacting with Acronis support.
8.5. Initial Seeding. The Services may include initial seeding services that entail help with backing up large amounts of data to cloud storage by physically sending storage media containing the local backup of the data to Acronis for uploading ("Initial Seeding").
A. In connection with Initial Seeding, the Customer must:
1. Use only NTFS, one-volume USB 3.0 external drives/memory cards ("Media") to transfer the data;
2. Send the Media containing the data to the Acronis data center specified in the SOW;
3. Send all Media in secure and appropriate packaging suitable for return shipping;
4. Encrypt all data stored on the Media and deliver to Acronis, in a secure manner, the means to decrypt the data as reasonably necessary for Initial Seeding; and
5. Follow Acronis’s reasonable instructions.
B. Unless the SOW specifies otherwise, the price of Initial Seeding does not include the cost of the Media, delivery services, shipping insurance, or the destruction of the Media. All such costs remain the responsibility of the Customer and the Customer will promptly reimburse Acronis for the costs that Acronis incurs as part of Initial Seeding.
C. Acronis may insure the Media for transit in accordance with the Customer’s reasonable instructions. Acronis will only ship during its normal, local business hours.
D. Initial Seeding will be limited to the data allotment specified in the SOW. Any overages may be subject to an overage charge set forth in the SOW.
E. Acronis does not guarantee that the attempted Initial Seeding will be successful. Due to possible technical issues, Acronis may require the Customer to re-start the Initial Seeding process in whole or in part.
F. The Customer must provide all reasonable assistance and information to Acronis in connection with the Initial Seeding.
G. Acronis is not liable or responsible for any combination of the following:
1. Any delays related to the Customer’s failure to comply with any of the requirements of Section 8.5.A above;
2. The Media while it is not in possession of Acronis, or when it is in transit to or from Acronis. All risk of loss or damage pass to the Customer when Acronis delivers the Media to a carrier;
3. Any shipping or data transfer delays. Should any shipping or data transfer delay occur, Acronis will (I) inform the Customer by updating the corresponding service ticket; and (II) use commercially reasonable efforts to address the delay; and
4. Any delays caused by requests for additional information or assistance reasonably required by Acronis to perform the Initial Seeding.
8.6. Maintenance. The Services may include maintenance services for the Serviced Products (“Maintenance”).
A. Depending on the description of Services in the SOW, Maintenance may include the following:
1. Deployment of major and minor software updates together with work on the resolution of any issues that may occur after such update;
2. Monitoring of software installation with the goal of proactively reporting and resolving any issues;
3. Troubleshooting and resolution of platform backend issues in collaboration with Acronis support; and
4. Deployment of required components after switching to a new version of a Serviced Product.
B. All configuration, patches and changes to the Serviced Product software system in connection with Maintenance must pass testing by Acronis’s quality assurance team and meet Acronis’s quality standards. Additionally, Acronis will not implement any changes or modifications to Serviced Products software system, including, but not limited to, upgrade paths, workflows, and version sequences, unless Acronis approves them.
9.1.Non-Solicit. During the Term and for a period of twelve (12) months thereafter, the Customer will not, directly or indirectly: (A) hire or establish an independent contractor relationship with any person who, during the twelve (12) months prior to such hiring, was employed by or provided services to Acronis or any of its affiliates; or (B) influence any person who is then employed by or is providing services to Acronis or any of its affiliates to terminate his or her employment or association with Acronis or any of its affiliates. In the event the Customer breaches the provisions of this Section 9.1, the Customer agrees to pay Acronis liquidated damages, and not as a penalty, in the amount of one million five hundred thousand US and no/100 dollars (1,500,000.00 USD) to serve as compensation for lost value and replacement costs of such person.
9.2. Law and Venue. Unless the SOW states otherwise: (A) the SOW will be governed by and construed either in accordance with the laws of Switzerland without giving effect to conflict of law rules, and (B) the Parties agree that any and all causes of action between the Parties arising in relation to the SOW will be brought exclusively in the courts of Zurich 1, Switzerland.
9.3. Survival. The provisions of Sections 2, 3.4, 5.4, 5.5, 6, 7, 9, and those provisions that by their nature are intended to survive termination or expiration of the SOW will so survive.
9.4. Force Majeure. Acronis will be excused from any delays in performance of its obligations under an SOW if such a delay results from compliance with any requirement of applicable law, acts of God, fire, flood, earthquake, accident, strike, embargo, terrorist attack, war, insurrection, riot, act of civil or military authorities, public health crisis, quarantine, fuel crisis, or other causes beyond the reasonable control of Acronis. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
9.5. Independent Contractors. The Customer and Acronis acknowledge and agree that the relationship arising from any SOW does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing any SOW.
9.6. Amendments. No amendment to any SOW will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
9.7. Severability. If any provision, or portion thereof, of any SOW or these Terms is held unenforceable or invalid by a court of competent jurisdiction, the enforceability of the remaining provisions will not be affected.
9.8. Headings. The headings in these Terms and the SOW are inserted merely for the purpose of convenience and will not affect their meaning or interpretation.
9.9. Entire Agreement. Each SOW (including these Terms incorporated by reference and forming a part of it) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter thereof.
9.10. Order of Precedence. In the event of an inconsistency between these Terms and the terms of the SOW, these Terms will control.
9.11. Waivers. No waiver under any SOW or these Terms will be binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay by either Party in exercising any right hereunder will not be deemed a waiver of that right.