Exoscale Terms and Conditions

These Terms and Conditions govern the Order(s) entered into between Client and Supplier for the provision of Exoscale Services. Client and Supplier are hereinafter referred to individually as a “Party” and collectively, as the “Parties”.

Applicable starting July 2nd, 2026 Previous version Compare

1. Definitions

“Agreement” means any Order and these Terms and Conditions collectively.

“Affiliate” means an entity that, now or in the future, directly or indirectly Controls, is Controlled by, or is under common Control with a Party. For purposes of the foregoing, “Control” shall mean the ownership of more than fifty percent (50%) of the (i) voting rights of said entity or (ii) ownership interest in said entity.

“Application Programming Interface (API)” means the Exoscale Service programmable interfaces listed at https://community.exoscale.com/reference/api.

“Client” means the entity (company, partnership, organization or sole trader acting in the course of business) so named on the Order.

“Client Data” means any data (including but not limited to any software application) stored by Client on the cloud infrastructure provided by Supplier, including all text, pictures, sound, video, and log files and all documentation (printed or electronic).

“Client Technology” means Client’s proprietary technology, including without limitation, algorithms, software (in source and object codes), user interface designs, architecture, know-how, and any related Intellectual Property Rights throughout the world (whether owned by Client or licensed to Client from a third party).

“Data Act” means Regulation (EU) 2023/2854 (‘DA’).

“Data Egress Charges” as defined in Article 2(35) Data Act. For easy reference: data transfer fees charged to Clients for extracting their data through the network from the ICT infrastructure of the Supplier of Data Processing Services to the system of a different Supplier or to on-premises ICT infrastructure;

“Data Processing Service” as defined in Article 2(8) Data Act. For easy reference: a digital service that is provided to a Client and that enables ubiquitous and on-demand network access to a shared pool of configurable, scalable and elastic computing resources of a centralized, distributed or highly distributed nature that can be rapidly provisioned and released with minimal management effort or service Supplier interaction. For purposes of this Agreement, the said data processing services refer to those provided or to be provided by Supplier to Client as agreed under the Agreement, not being Other Services;

“Destination Supplier” as mentioned in Article 2(34) Data Act, means the destination Supplier of data processing services, whereby the Client changes from using the Data Processing Services from Supplier to using another data processing service of the same service type, or other service, offered by such different Supplier of data processing services, or to an on-premises ICT infrastructure, including through extracting, transforming and uploading the data;

“Digital Assets” defined in Article 2(32) Data Act. For easy reference: elements in digital form, including applications, for which the Client has the right of use, independently from the contractual relationship with the Data Processing Service it intends to switch from;

“Exportable Data” as defined in Article 2(38) Data Act. For easy reference: the input and output data, including metadata, directly or indirectly generated, or cogenerated, by the Client’s use of the Data Processing Service, excluding any assets or data protected by intellectual property rights, or constituting a trade secret, of the Supplier or third parties;

“Metadata” as defined in Article 2(2) Data Act. For easy reference: a structured description of the contents or the use of data facilitating the discovery or use of that data;

“On-premises ICT infrastructure” as defined in Article 2(33) Data Act. For easy reference: ICT infrastructure and computing resources owned, rented or leased by the Client, located in the data centre of the Client itself and operated by the Client or by a third-party;

“Other Services” means all professional services of whatever nature to be provided by Supplier to Client under the Agreement as defined therein, that are not Data Processing Services;

“Exoscale Service(s)” or “Service(s)” means the Infrastructure-as-a-Service (IaaS), Software-as-a-Service (SaaS), or Platform-as-a-Service (PaaS) cloud computing services provided by Supplier to Client, namely an on-demand network access to a shared pool of configurable computing resources (such as virtualization, servers, storage, networking, and datacenter facilities), as further described in the Order.

“Force Majeure Event” is any event beyond a Party’s reasonable control, including, without limitation, acts of war, earthquake, hurricanes, flood, fire, or other similar casualty, embargo, riot, terrorism, sabotage, strikes, governmental act, insurrections, epidemics, inability to procure materials or transportation facilities, failure of power, restrictive laws or regulations, court orders, condemnation, failure of the Internet, or other event of a similar nature.

“Governmental Authority” means any federal, national, cantonal, or city, court, governmental, or administrative authority or regulatory body, whether foreign or domestic.

“Intellectual Property Rights” means and includes any intellectual property of whatever nature and kind including, without limitation, patents, designs, trademarks and service marks, copyrights, domain names, trade names (whether such rights are applied for, registered or not), database rights, design rights, inventions, drawings, computer programs, data, formulae, algorithms, software, know-how, confidential information, goodwill, and applications and the right to apply for protection of any of the above rights.

“Interest Rate” means an interest rate of 5% per year.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Non-Exoscale Applications” means online applications and offline software products that are provided by entities or individuals other than Supplier and are clearly identified as such, and that interoperate with the Services.

“Notice Period” shall mean the period of time, during which the Client must give prior written notice of its intention not to continue the Services or to switch to another provider, before termination takes effect.

“Order” means the order submitted by Client to Supplier by mail, email, via the Web Portal, or through the Application Programing Interface (API), setting out matters relating to Supplier’s delivery of Services to Client and governed by these Terms and Conditions.

“Personal Information” means any information relating to a natural person as defined by the applicable law that may be used to identify an individual.

“Services Fees” means charges for the Services (including but not limited to monthly recurring charges and non-recurring charges) as identified in the relevant Order.

“Service Level Agreement” or “SLA” means the service level provisions describing the service level targets as set out in Section 4.

“Software” means any software application provided by Supplier which Client may be entitled to use in accordance with any Order.

“Supplier” means Akenes SA, Boulevard de Grancy 19A, 1006 Lausanne, Switzerland.

“Supplier Network” means the telecommunication network, including but not limited to fiber-optical and wired/wireless transmission equipment, which is owned and/or leased and operated and maintained by Supplier or its Affiliates.

“Supplier Data” means any data, including but not limited to any software applications, class libraries, texts, pictures, sounds, videos, and log files, and documentation (printed or electronic).

“Supplier Technology” means Supplier’s proprietary technology, including without limitation, the Services, software tools, hardware designs, algorithms, software (in source and object codes), user interface designs, architecture, network designs, know-how, business methods, and any related Intellectual Property Rights throughout the world (whether owned by Supplier or licensed to Supplier from a third party).

“Switching” as defined in Article 2(34) Data Act. For easy reference: the process involving the (source) Supplier, a Client of a data processing services and, where relevant, a destination Supplier of data processing services, whereby the Client of a data processing service changes from using one data processing service to using another data processing service of the same service type, or other service, offered by a different Supplier of data processing services, or to an on-premises ICT infrastructure, including through extracting, transforming and uploading the data;

“Switching Charges” means charges, other than standard service fees or early termination penalties, imposed by a Supplier of data processing services on a Client for the actions mandated by the Data Act for switching to the system of a different Supplier or to on-premises ICT infrastructure, including Data Egress Charges.

“Terms and Conditions” mean these Exoscale Services Terms and Conditions.

“Unavailable” or “Unavailability” means that Client is unable to access its subscribed Exoscale Service due to failure of a critical component of the Service (including virtual server, server instance, firewall, load balancer, switch, storage platform, and connectivity to Supplier Network Services (i.e. Internet and MPLS – Multiprotocol Label Switching) from the Exoscale Service platform) and due to failures of hard- and software-components controlled by Supplier.

“Users” means any person or entity deriving use of the Services through Client including but not limited to the Client (its employees, consultants, contractors, and agents), an Affiliate of Client or a Client of Client.

“Web Portal” means the Web Portal available at https://portal.exoscale.com.

2. The Services

Client may submit the Order(s) via the Web Portal or API (after having accepted on the Web Portal to be bound by these Terms and Conditions) or by executing the Order and these Terms and Conditions and returning them to the Supplier by mail or email.

The submission of that certain Order(s) shall constitute an offer to buy the Services. Supplier may accept that offer at its sole discretion (at which time both Client and Supplier are legally bound) by way of (i) a message sent via the Web Portal, or API or by mail or email, thereby acknowledging receipt and acceptance of the Order; or (ii) delivery of the Services.

Before placing the order for the Data Processing Services, the Supplier has provided the Client with clear information about:

• (a) the standard service fees available at https://www.exoscale.com/pricing;

• (b) where applicable, early termination penalties and Switching Charges in additional Client-specific contracts;

• (c) an exhaustive specification of Categories of Data and Digital Assets that can be transferred, including at a minimum all Exportable Data available at https://www.exoscale.com/data-portability;

• (d) an exhaustive specification of categories of Data specific to the internal functioning of the Supplier’s Data Processing Service that will be exempted from the obligation to export data where there is a risk of breach of the Supplier’s trade secrets available at https://www.exoscale.com/data-portability.

• (e) the Supplier’s on-line register with data structures and formats, relevant standards and open interoperability specifications for Data available at https://www.exoscale.com/data-portability.

3. Fees and Payment Modalities

3.1 Service Fees

Supplier shall charge the Services Fees to Client as detailed in the Order(s). Supplier shall be entitled to increase its Service Fees upon a forty-five (45) day prior written notice to Client.

3.2 Invoicing and Payment

Unless otherwise agreed between the Parties in writing, billing for the Services shall commence on (i) the time Supplier commences providing the Services as notified by Supplier to Client; or (ii) the time Client begins using the Services, whichever time is earlier.Supplier shall invoice all Service Fees in accordance with the frequency, method, payment terms and currency set out in the Order and in any case in advance except for charges that are dependent on usage which shall be billed in arrears. In the case of period billing, any partial period shall be pro-rated except otherwise noted on order.

3.3 Overdue Charges

Any amount due but not received by Supplier will accrue interest from thirty (30) days after the date of the invoice to the date of payment at the Interest Rate (prorated on a daily basis). Furthermore, Supplier shall have the right to set off any amounts due hereunder which are not paid when due against any amounts owed to Client by Supplier pursuant to these Terms and Conditions or any other agreement between the Parties. In case any amount due is not received by Supplier within thirty (30) days after the due date of invoice, the Supplier shall be entitled to stop providing the Services to the Client.

3.4 Deposits

The Client may make a deposit as an advance payment of Service Fees. Such deposit will be credited to the Client’s account for the payment of future Services. Upon Supplier’s request, Client will make a deposit, or other security for the payment of Service Fees as specified by Supplier, (i) as a condition to Supplier’s acceptance of any Order, or (ii) in the event Client fails to comply with the payment terms set forth in Section 3.2 twice in any twelve (12) month period, as a condition to Supplier’s continuation of delivery of any Service. The deposit will be held by Supplier as security for payment of the Service Fees. When Service to Client is terminated, the amount of the deposit will be credited to Client’s account, and any remaining credit balance will be refunded within thirty (30) days of such termination. All Client’s access will be revoked, and Client Data will be permanently deleted.

In any other circumstances not related to termination the unused Deposits will be refunded after 24 months of Service inactivity, provided that the Client has all required Client information on his account up to date, which includes the current payment and contact information necessary to issue the refund.

For avoidance of doubt, in all circumstances where the Supplier’s reasonable efforts to contact the Client for the purpose of refunding any remaining deposit are unsuccessful, or if the Client fails to provide valid payment details within ninety (90) days following the Supplier’s first written notice, The deposit amount shall then be held for an additional period of ninety (90) days, during which the Client may claim the refund by providing updated payment and contact information.

Following the expiry of the last additional period of ninety (90) days, without response or valid contact from the Client, the unclaimed deposit shall be irrevocably forfeited. The Supplier shall be deemed to have been discharged from its refund obligation hereunder and shall have no further refund or payment obligation in respect thereof. For data protection and regulatory compliance reasons, the Supplier shall not retain or process expired payment information beyond the applicable retention period.

Client shall be subject to the credit limit (“Credit Limit”) as may be specified in the Order(s). The Credit Limit may be varied only with the written approval of Supplier. Supplier shall have the right at any time to increase or decrease the Credit Limit by giving at least three (3) days prior written notice to Client. If at any time Supplier determines that the sum (“Accrued Liability ”) of (i) total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage of Client, has exceeded the then current Credit Limit, Supplier shall have the right to demand by written notice that Client makes an immediate payment to Supplier by electronic transfer (or such other method as agreed by the Parties) of such amount required: (i) to reduce its aggregate Accrued Liability to less than the Credit Limit, and (ii) to ensure that the Credit Limit shall not be exceeded prior to the next invoice due date. Upon such demand, the demanded amount shall become immediately due and payable and Client shall pay such amount within twenty-four (24) hours of its receipt of such notice. If Client fails to remit such payment when due, Supplier shall have the right without further notice to suspend and/or terminate the Services.

3.5 Taxes

All Service Fees are net of taxes. Client will be responsible for payment of all applicable VAT, duties, sales, use or withholding taxes, or other similar taxes, fees, or charges whether now or hereafter enacted, however imposed on or based on the provision, sale or use of the Services (“Taxes”). If Supplier has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.6 Disputed Bills

In the event Client disputes in good faith any portion of Supplier’s invoice, Client must pay the undisputed portion of the bill and submit a written claim for the disputed amount documenting the basis of its claim. All claims must be submitted to Supplier within thirty (30) days of receipt of billing for those Services. Client waives the right to dispute the charges not disputed within the time frame set forth above.

3.7 Trial Credit

The Client may receive trial credit from the Supplier to explore and test the service. All trial credits, even if not fully utilized, expire after 12 months from the date of award. Trial credit is not redeemable for cash or credit, not transferable and is valid for new accounts only, and limited to one occurrence per Client. It may not be used in conjunction with other offers or promotions and is issued on a case-by-case evaluation. Trial credit may be billed differently, may vary and be revoked without previous or further notice. During trial period, additional limitations may apply, including, but not limited to:

• Maximum number of virtual machines, snapshots and other quantitative limitations of services.
• Network performance

4. Service Level Agreement (SLA)

4.1 Service Availability Targets

Supplier has defined a set of Product-Specific Service Level Agreements that apply to each Service. These Product Specific Service Level Agreements are available at https://www.exoscale.com/sla/ and are part of these Terms and Conditions.

Supplier shall use commercially reasonable efforts to meet the Product-Specific Service Level Agreements, except for:

• Planned downtime and maintenance events;
• Force Majeure Events;
• Unavailability of the Web Portal;
• Failures or malfunctions in any Client software, equipment or technology; and/or
• If Client is in breach of these Terms and Conditions, including but not limited to its payment obligations and the use of Services.

4.2 Service Unavailability Credit

Except under the conditions mentioned in the section 4.1 above, if the Services performance is less than indicated in the respective service Availability Target, the Supplier will issue a credit to Client according to the level specified in the Specific Product Service Level agreement under Service Credit.

The credit will be calculated based on the monthly service charge for the affected Services. The Client shall address a Service Unavailability Credit request within thirty (30) business days via email to support@exoscale.com mentioning the Client name and address as well as the times and dates of the unavailability. If the unavailability is confirmed by the Supplier, credits will be applied within two billing cycles after Supplier’s receipt of Client’s credit request. Credits are not refundable and can be used only towards future billing charges.

5. Use of the Services

5.1 Protection of Client Data

5.1.1 Safeguards

Supplier shall maintain appropriate safeguards for protection of the security, confidentiality and integrity of Client Data. Supplier shall not (i) modify Client Data, (ii) disclose Client Data except as compelled by law in accordance with Section 8.3 or as expressly permitted by Client in accordance with Section 8.3 or (iii) access Client Data except to provide the Services and prevent or address service or technical problems, or at Client’s request in connection with Client support matters.

5.1.2 Sub-contractors

Supplier may engage sub-contractors to fulfill its contractual obligations. Supplier will obtain the sub-contractor’s written confirmation that the sub-contractor complies with the provisions of this agreement including the provisions of data protection law.

5.2 Data Storage

Client selects the country and location in which its Client Data will be stored for each Service it uses. Supplier shall store Client Data exclusively within the country selected by Client for the relevant Service and shall not migrate or replicate Client Data outside that country, including for backups, snapshots, and disaster recovery copies, except where (i) expressly instructed by Client through the Services or (ii) required by applicable law or court order. Client acknowledges and agrees that Client is solely responsible for the content, accuracy, quality, and legality of Client Data stored using the Services and for any transfers or exports that Client initiates to other locations or to third parties, including Non-Exoscale Applications. Client may copy or export such Data using the Services to a separate location at any time and assumes responsibility for such copies or exports. Supplier is responsible for providing and operating the cloud infrastructure, storage, and replication controls necessary to enforce data residency in the selected country and will use commercially reasonable efforts to maintain the availability and integrity of Client Data within that country. Supplier is not responsible for Client’s configuration choices, Client’s transfers of data, or Client’s integrations with Non-Exoscale Applications. For clarity, the data residency commitment applies to the storage of Client Data. It does not restrict:

• (a) routing of network traffic over public networks that may transit other countries;

• (b) Client-enabled integrations, exports, or use of Non-Exoscale Applications;

• (c) Client’s own downloads, transfers, or use of content delivery networks; or

• (d) operational telemetry or log data necessary to provide, secure, and support the Services to the extent such telemetry or logs do not contain Client Data payloads.

Because the Internet is an inherently open and insecure means of communication, any Data a User transmits over the Internet may be susceptible to interception and alteration. Supplier makes no guarantee regarding, and assumes no liability for, the security and integrity of any Data a User transmits via the Service or over the Internet, including any Data or information transmitted via any server designated as “secure”. Client remains responsible for implementing appropriate security measures, including encryption, access controls, and backups.

5.3 Client’s Responsibilities

Client shall (i) be responsible for providing accurate information about their legal details such as but not limited to address, tax and incorporation Information. The Supplier reserves the right to verify the provided information on a sporadic basis. (ii) be responsible for Users’ compliance with these Terms and Conditions, (iii) be responsible for the accuracy, quality and legality of Client Data and of the means by which Client acquired the Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Supplier promptly of any such unauthorized access or use, and (v) use the Services only in accordance with the Terms and Conditions and applicable laws. Client is responsible for maintaining the security of its internal network from unauthorized access through the Internet. Supplier shall not be liable for unauthorized access to Client’s network or other breaches of Client’s network security.

5.4 Misuse of the Services

Client shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent or lease the Services, (iii) use the Services to store or transmit unlawful material or messages, or to store or transmit material or messages in violation of third-party privacy rights, (iv) use the Services to store or transmit Malicious Codes, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (vi) attempt to gain unauthorized access to the Services or their related systems or networks, (vii) transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive or misleading statements or representations, or (viii) transmit or distribute unsolicited email messages where such email messages could reasonably be expected to provoke complaints (spam), all of which as reasonably determined by Supplier in accordance with generally accepted standards of the Internet community.

5.5 Unauthorized or Fraudulent Use of the Services

Client shall be responsible for (save as to the extent caused by any acts or omissions of Supplier) taking all reasonable measures to avoid, and immediately notify Supplier in the event of, any unauthorized or fraudulent use of the Services. Client will be solely responsible for all Service Fees and other charges incurred in respect of the Services even if such Service Fees and other charges were incurred through or as a result of such fraudulent or unauthorized use of the Services.

5.6 Interruption of the Services

In case the Supplier’s infrastructure is damaged (or threatened to be damaged) through the IP Address of a Client (e.g. virus or hacking) or otherwise, Supplier is expressly authorized to immediately interrupt the Exoscale Services and shall immediately inform the Client thereof.

5.7 Intellectual Property Rights

Material accessible through the Exoscale Services may be subject to protection under privacy, publicity, or other personal rights and Intellectual Property Rights. Users shall not use the Exoscale Services in any manner that would infringe, dilute, misappropriate, or otherwise violate any such rights.

5.8 Export Control

The Parties acknowledge that products, software, and technical information ( including, but not limited to Services, technical assistance and training) provided under these Terms and Conditions or used by Client in connection to the Services, may be subject to export, re-export, and any sanctions laws and regulations of Switzerland, the European Union, and any other jurisdictions where the services are provided or/and used, and any use or transfer of the products, software, and technical information must be in compliance with all applicable regulations (including, without limitation, EU restrictive measures, the U.S. Export Administration Regulations and OFAC sanctions). The Parties will not use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with all applicable export control and sanctions regulations. If requested by either Party, the other Party also agrees to sign written assurances and other export-related documents as may be required to comply with all applicable laws and regulations.

Each Party represents and warrants that it is not a Sanctioned Person and will not permit access to or use of the Services from, or for the benefit of, any embargoed or comprehensively sanctioned jurisdiction, or any Sanctioned Person, in a manner inconsistent with applicable law. Supplier may suspend or terminate access to the Services, without liability, where Supplier reasonably determines such action is required to comply with applicable export-control or sanctions laws. For purposes of this Section, “Sanctioned Person” means any person or entity listed on applicable sanctions lists maintained by Switzerland, the European Union, or otherwise subject to asset-freeze or similar prohibitions under applicable sanctions laws.

6. Software Licenses

6.1 Acquisition of Software

Client may be provided with the right to use certain Software which shall be governed by the terms of the relevant Software license terms available at the Website or the Web Portal. Client agrees that the Supplier may enter into relevant Software license in Client’s name as a client to satisfy any Software license terms and third party Software license terms so as to accomplish any Services pursuant to these Terms and Conditions. Client agrees and acknowledges that Supplier is not renting any software to Client. Supplier does not warrant or support Non-Exoscale Applications, whether or not they are designated by Supplier as “certified” or otherwise, except as specified in any Order.

6.2 Non-Exoscale Applications and Client’s Data

If Client installs or enables Non-Exoscale Applications for use with the Services, Client acknowledges that it may allow providers of those Non-Exoscale Applications to access its Data as required for the interoperation of such Non-Exoscale Applications with the Services. Supplier shall not be responsible for any disclosure, modification or deletion of Client’s Data resulting from any such access by Non-Exoscale Application providers.

6.3 Demarcation of Responsibilities

Supplier is only responsible for providing management of server host hardware including storage and a web-based portal for overall management of the Services and, if requested by Client and agreed by Supplier, the provision of the Software. Client is responsible for managing and operating the Software including but not limited to patch management, upgrades, antivirus, system security, application programs and data. Client is responsible to adhere to the terms and conditions of any products purchased on the Exoscale marketplace. The Supplier absolves itself from any liability for the client’s misconduct in the utilization of said products.

Client is also responsible for managing and configuring its use of the Service (via the Web Portal and any application interface provided) including but not limited to User access administration, security controls and payment information.

7. Proprietary Rights

7.1 Technology and Data

Client is and shall remain exclusively entitled to all right and interest in and to all Client Technology, Client Data and its Confidential Information, and Supplier is and shall remain exclusively entitled to all right and interest in and to all Supplier Technology, Supplier Data and its Confidential Information. Neither Party shall, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from the property of the other Party.

Client shall not (i) create derivative works based on the Services, (ii) copy, frame or mirror any part or content of the Services, other than copying or framing Client’s own intranet, or (iii) access the Services in order to build a competitive Service or copy any features, functions or graphics of the Services.

7.2 IP Addresses

The Parties acknowledge and agree that Supplier may provide Client the right to use certain IP (Internet Protocol) addresses owned and/or licensed by Supplier in connection with the provision of the Services. Client acknowledges and agrees on termination of the Agreement for any cause in which case Client’s right to use such IP addresses shall automatically terminate.

7.3 Client’s Applications and Code

If Client, a third party acting on Client’s behalf, or a User creates applications or program code using the Services, Client authorizes Supplier to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Supplier to provide the Services in accordance with this Agreement. Subject to the above, Supplier acquires no right, title or interest from Client or Client’s licensors under this Agreement in or to such applications or program code, including any Intellectual Property Rights therein.

7.4 Suggestions

Supplier shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the operation of the Services.

8. Confidentiality

8.1 Confidential Information

“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information shall include Client Data and Client Technology; Supplier Confidential Information shall include the Services, Supplier Data and Supplier Technology; and Confidential Information of each Party shall include this Agreement. Confidential Information shall not include information that: (i) is independently developed by the Receiving Party; or (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential; or (iii) becomes generally available to the public other than by breach of this Section.

8.2 Principle

The Confidential Information shall remain the property of the relevant Party. Each Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and ( ii) to limit access to Confidential Information of the Disclosing Party to its employees (which for Supplier includes its Affiliates’ and its subcontractors’ employees) and its legal and financial advisors on a ‘need-to-know’ basis provided those persons first agree to observe the confidentiality of the Confidential Information, without the other Party’s prior written consent. This confidentiality undertaking shall be valid for the duration of this Agreement and for an indefinite time following termination thereof, independently of the reasons of termination.

8.3 Exceptions

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled to do so by law, any stock exchange, or any Governmental Authority, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

If Client believes that, in the course of providing Services under these Terms and Conditions, Supplier will have access to data Client does not want Supplier to comprehend, Client should encrypt such data so that it will be unintelligible.

Notwithstanding anything to the contrary herein, the provisions of Section 11 “Publicity” remain applicable.

9. Warranties

9.1 Representations and Warranties of Client

Client represents and warrants that (i) it has validly entered into this Agreement and has the legal power and authority to do so, and (ii) the performance of Client’s obligations under these Terms and Conditions, the Order( s), and the use of the Services will not violate any applicable law, rule or regulation or any contract or otherwise unreasonably interfere with Supplier’s Clients’ use of the Services.

9.2 Representations and Warranties of Supplier

Supplier represents and warrants that (i) it has validly entered into this Agreement and has the legal power and authority to do so; (ii) the performance of Supplier’s obligations under these Terms and Conditions and the Order(s) will not violate any applicable law, rule or regulation; and (iii) Supplier is authorized and has completed all required corporate actions necessary to execute the applicable Order(s).

9.3 Exclusion of other Warranties

Except for the representations and warranties expressly made in these Terms and Conditions, Supplier makes no representations or warranties, express or implied, statutory or otherwise, including warranties of merchantability, satisfactory quality, and fitness for a particular use or non-infringement of third parties rights.

10. Indemnification

10.1 Indemnification

Each Party shall indemnify the other Party from any claim, demand, suit or proceeding (“Claim”) made or brought by third parties and shall indemnify such Party for any damages, fees and costs (including attorney fees and court costs) in respect of (i) damage to tangible property, personal injury or death, confidentiality breaches, data protection violations, or IP infringement caused by such Party’s gross negligence or willful misconduct (including such Party’s corporate bodies, employees, auxiliaries, Affiliates, and, in respect of Supplier, its Users); (ii) a breach by Client of Section 9.1, respectively by Supplier of Section 9.2.

10.2 Exclusion of Indirect and Consequential Damages

Notwithstanding any other provision of these Terms and Conditions, neither Party shall be liable for any indirect, incidental, or consequential damages, including, but not limited to, damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of Client Data, interference with business, or the cost of purchasing replacement services, arising out of the performance or non-performance of any Order or these Terms and Conditions. This exclusion applies regardless of whether such damages are caused by acts or omissions of the Party, its employees, or agents, and regardless of whether such Party was informed or aware of the possibility of such damages. However, this limitation does not apply to either Party’s indemnity obligations set out herein.

10.3 Limitation of Liability

Supplier’s aggregate liability for damages arising out of or in connection with this Agreement shall not exceed the amount paid by Client for the specific Service that gave rise to the liability during the twelve (12) months preceding the event giving rise to the claim. The foregoing shall not limit Client’s payment obligations under Section 3.

11. Publicity

Both Parties agree not to use the other Party’s trademarks, service marks, trade names, or any other proprietary marks without the express written consent of the owning Party. This restriction includes any reference to the other Party in marketing, promotional, or advertising materials or activities. However, either Party may use the other Party’s name or logo, subject to prior written approval from the Party owning the mark, in a manner consistent with the agreed-upon terms. No Party shall issue any publications or press releases relating to the contractual relationship between the Parties, except as required by law or with the mutual written agreement of both Parties.

12. Force Majeure

Except for Client’s payment obligations under these Terms and Conditions and/or any Order, neither Party shall be liable, nor shall any other remedy be extended, for any performance that is prevented or hindered due to a Force Majeure Event. The defaulting Party shall promptly notify the other Party of an inability to perform any obligation stipulated in this Agreement as a result of a Force Majeure Event and take such action as the other Party shall reasonably request to alleviate the situation. If Supplier is unable to provide the Services for a period in excess of thirty (30) consecutive days due to a Force Majeure Event, then either Party may cancel the affected Order upon written notice to the other Party, and both Parties shall be released from any further future liability under that particular Order.

13. Term and Termination

13.1 Term

The Exoscale Services will be provided on an indefinite-time basis and may be terminated at any time (i) by Client upon a thirty (30) days prior written notice to Supplier or (ii) by Supplier upon a hundred and eighty (180) days prior written notice to Client.

The Agreement shall be considered terminated upon the first occurrence of one of the following events, after which Supplier shall delete Client’s Account and all Client Data thereunder and notify the Client accordingly:

• (a) upon the expiry of the Notice Period if the Client does not want to switch; or

• (b) upon written confirmation that Client considers the Switching Process complete; or

• (c) upon the expiry of the Transitional Period (including any extensions thereof), unless a Retrieval Period was requested, in which case termination shall occur upon the expiry of the Retrieval Period.

13.2 Switching

13.2.1 Initiation of the switching process

The Client may initiate the switching process by submitting a written switching notice to the Supplier, in accordance with the applicable Notice Period.

Where the Client intends to switch only in respect of specific Services, Data or Digital Assets, the switching notice shall clearly identify the relevant scope.

In the switching notice, the Client shall indicate whether it intends to:

• (a) switch to a different Supplier of Data Processing Services, in which case the Client shall provide the necessary identification details of the Destination Supplier;

• (b) switch to an on-premises ICT infrastructure operated by the Client; or

• (c) not to switch Suppliers but only erase their Exportable Data and Digital Assets.

The Supplier shall confirm the receipt of the switching notice within three (3) working days, using the same communication channel used by the Client.

13.3 Transitional Period

13.3.1 Standard Transitional Period

The standard transitional period for switching shall be one (1) month from receipt of the switching notice, unless otherwise agreed.

13.3.2 Technical Infeasibility

Where completion within the standard transitional period of one (1) month is technically infeasible, the Supplier shall, within fourteen (14) working days of receipt of the switching notice:

• (a) notify the Client in writing, including by electronic means;

• (b) provide an alternative Transitional Period, which shall not exceed seven (7) months from the date of the switching notice; and

• (c) provide a reasoned technical justification for such infeasibility.

The Client shall confirm the receipt of such extension notice within three (3) working days.

13.3.3 Client Requested Extension

The Client may request one (1) extension of Transitional Period, for a duration not exceeding, seven (7) months, by notifying the Supplier in writing, including by adequate electronic means of their intention, before the expiry of the original transitional period.

Supplier shall confirm the receipt of such extension notice within three (3) working days.

13.4 Obligations of the Supplier during the switching process

During the switching process, the Supplier shall provide reasonable and proportionate assistance, limited to what is technically necessary to enable switching within the applicable transitional period.

Supplier shall:

• (a) make available existing technical capabilities and documentation necessary to complete switching, without creating new tools or custom developments;

• (b) maintain continuity of the Services in accordance with the Agreement during switching process;

• (c) apply appropriate security measures to protect data during transfer.

Any issues identified during switching shall be assessed by the Parties in good faith, with solutions limited to what is technically and contractually feasible.

13.5 Client’s obligations

The Client shall take all reasonable and timely measures required to enable effective switching.

In particular, the Client shall:

• (a) be solely responsible for the import, configuration and implementation of Data and Digital Assets in its own systems or those of the Destination Supplier.

• (b) ensure that any third party involved in the switching process, including the destination supplier, complies with Supplier’s intellectual property, confidentiality rights, and trade secrets;

• (c) use any Supplier-provided materials solely for the purpose of switching and only for the duration of the applicable transitional period.

13.6 Data retrieval and erasure of data

The Client may retrieve or request erasure of its Exportable Data and Digital Assets during the Data Retrieval period of 30 (thirty) days following the end of the transitional period. Upon expiry of the data retrieval period, and provided the switching process has been completed, the Supplier shall erase all Exportable Data and Digital Assets generated by the Client or related to the Client directly, except where retention is required under Swiss, European Union or Member State law. Supplier shall confirm the completion of such erasure upon request.

13.7 Termination of the switching process

13.7.1 Successful Switching

Upon notification by the Client that switching has been successfully completed, the Supplier shall confirm termination of the Agreement without undue delay.

13.7.2 No Confirmation by Client

Where the Client fails to confirm whether switching has been successfully completed, and the Supplier has reasonable grounds to believe that switching has occurred, the Supplier may request written confirmation.

If the Client does not respond within thirty (30) working days, the switching shall be deemed not completed, and the Agreement shall continue in force.

13.7.3 Erasure Without Switching

Where the Client elects not to switch Suppliers and only requests erasure of Exportable Data and Digital Assets, the Agreement shall terminate at the end of the applicable Notice Period. The Supplier shall notify the Client of such termination.

13.8 Termination or Suspension by either Party

Either Party (“Non-Defaulting Party”) may terminate and/or suspend the provision or the procurement of the Services upon written notice of termination and/or suspension to the other Party (“Defaulting Party”) if (i) the Defaulting Party breaches a material provision of this Agreement and the Defaulting Party fails to cure such breach within thirty (30) days after receipt of written notice of breach from the Non-Defaulting Party; or (ii) any bankruptcy, insolvency, liquidation, receivership or winding up proceeding is commenced in respect of the other Party.

13.9 Termination or Suspension by Supplier

Supplier shall have the right, upon written notice, to immediately terminate and/or suspend any Order(s) and/or the delivery of the Services (without liability) in the event that:

• (a) Client has violated (i) any law rule, regulation or directive of any Governmental Authority related to the Services or Client’s or a User’s use thereof or (ii) Section 5 (Use of the Services); or

• (b) Supplier receives any direction, notification or instruction from any Governmental Authority (or any independent Internet content monitoring entity) to suspend or terminate the provision of the Services to Client (through no fault or negligence of Supplier).

13.10 Supplier’s Remedies

In the event Supplier terminates or suspends an Order because of any reasons set forth in Sections 13.8 or 13.9, then Client agrees to pay to Supplier the Service Fees and/or any other fixed minimum charges for the term of this Agreement.

13.11 Return of Data

Upon request of the Client notified at least thirty (30) days prior to termination of the Services, Exoscale shall make Client Data available to Client in its original format through the Exoscale recovery service, upon charge of a recovery service fee. Unless a request for the Exoscale recovery service is made, Exoscale shall have no obligation to maintain or provide any of Client Data after termination of the Services and shall thereafter, unless legally prohibited, delete all of Client Data in Exoscale’s systems or otherwise in Exoscale’s possession or under its control.

13.12 Surviving Provisions

Sections 3 (Fees and Payment Modalities), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Exclusion of other Warranties), 10 (Indemnification), 13 (Term and Termination), 14 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.

14. Miscellaneous Provisions

14.1 Severability; No Waiver

The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision thereof. The Parties undertake to negotiate in good faith with a view to replace such invalid, illegal or unenforceable provision with another provision that best reflects the intentions of the Parties.

The failure by either Party to exercise or enforce any provision of this Agreement shall not be deemed to be a waiver of the application of such provision or of a right nor to operate so as to bar the exercise or enforcement of any such provision or right on any later occasion.

14.2 Assignment and Successors

Neither Party may assign an Order without first obtaining the other Party’s written consent; except that, however, Supplier may assign any Order(s) to an Affiliate or as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets. Any purported assignment in contravention of this Section shall be invalid and the assigning Party shall remain bound. This Agreement will bind and inure to the benefit of each Party and each Party’s successors and permitted assigns.

If any of the Parties is a participant in a merger, consolidation, reorganization, or sale or transfer of assets or stock, such Party agrees that as a condition precedent to the closing of any such transaction, it shall ensure that the surviving entity of any such transaction shall expressly assume the rights and be subject to the obligations set forth in this Agreement.

14.3 Notice

Any notice shall be sent by a Party to the other Party by email, registered mail or courier, to the following address:

To Supplier:

Akenes SA Att. Exoscale Manager Boulevard de Grancy 19A, 1006 Lausanne, Switzerland

Email: manager@exoscale.com

To Client:

at the address set forth in the Order(s) or at such other address as may hereafter be provided by Client.

14.4 Relationship of Parties

Supplier and Client are independent contractors and these Terms and Conditions will not establish any relationship of partnership, joint venture, employment, franchise or agency between Supplier and Client.

14.5 Amendments

Supplier may modify these Terms and Conditions upon a thirty (30) day notice to Client.

In addition, Supplier may provide a new version or an alternative for Exoscale Services upon a hundred und eighty (180) days prior written notice to Client.

Upon receipt of such notice, Client may terminate the affected Service by delivering a written notice of termination, at the latest by the time the change is effective.

14.6 Third Party Beneficiaries

Supplier and Client agree that there shall be no third party beneficiaries to this Agreement, including, but not limited to, any sublicensee or User of Client or the insurance providers for either Party. To the extent it is allowed by law any legislation in any relevant jurisdiction giving rights to third parties is hereby excluded.

14.7 Entire Understanding

This Agreement (comprising these Terms and Conditions and any applicable Order( s)) constitutes the entire understanding of the Parties related to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between the Parties are hereby superseded and withdrawn and shall have no legal effect insofar as they relate to the Services hereunder. In the event of any conflict between the Order and these Terms and Conditions, the Order shall prevail.

14.8 Code of Conduct

As a subsidiary of the A1 Telekom Austria Group, Supplier adheres to the A1 Group Code of Conduct.

The A1 Group Code of Conduct encompasses rules in following key areas:

• Fair dealings with employees, management, and business partners.
• Proper handling of confidential and personal data.
• Strategies for avoiding and managing potential conflicts of interest.
• Guidelines on gifts, invitations, and personal advantages.
• Commitment to environmental, social, and corporate governance (ESG) topics.
• Promoting diversity and inclusion.
• Upholding human rights.
• Adherence to the A1 way of working.
• Protection of corporate assets.
• Established reporting channels for reporting potential violations or misconduct, and for sanctioning identified violations.
• Effective communication of the Code of Conduct.

All Supplier employees and management are required to adhere to the principles and regulations of the A1 Group Code of Conduct, and are committed to incorporating these guidelines into the daily operations as a fundamental aspect of their professional responsibilities.

14.9 Governing Law; Jurisdiction

These Terms and Conditions and any Order shall be governed by the laws of Switzerland. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the canton of Vaud, district of Lausanne. Notwithstanding the above, Supplier may submit any dispute to any court of competent jurisdiction in accordance with the applicable conflicts of law rules.