All data and information provided by Customer to Company through the use of the Solution and/or the Services (the “Customer Data”) are and shall remain the property of Customer and Customer represents that it has the required rights and permissions in order to permit Company to process and access the Customer Data as permitted hereunder. Customer hereby authorizes Company and grants Company a non-exclusive right and license for the Term only, to access process and use Customer Data on Customer’s behalf, for the sole purpose of providing the Solution and Services as contemplated hereunder.
During the Term, Company shall use commercially reasonable efforts to ensure the availability of the Services 99% of the time on a monthly basis, excluding any (a) scheduled downtime for the update and/or upgrade and/or maintenance of the Services that has been announced in advance to Customer (and Company will use commercially reasonable efforts that such scheduled downtime will not exceed two (2) hours for any single instance), and (b) downtime resulting from (i) circumstances beyond Company’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, and failure of third party software used by the Company; (ii) unexpected emergency maintenance; and/or (iii) any Customer's acts or omissions (or acts or omissions of others engaged or authorized by it, including any provider of cloud computing instance). For the avoidance of doubt, it is hereby clarified that the calculation of availability will be in connection with the Services and not the availability of any Customer’s hardware, network or other components which are not under Company's control.
Each party (“Recipient”) shall keep in absolute confidence and shall take all reasonable and necessary safeguards (and at least the same level of protection that it affords its own confidential information) to protect the confidentiality of all information it obtains concerning the other party’s (“Discloser”) business, technology and operations (the “Confidential Information”).
The Recipient shall only disclose such information to its personnel on a “need to know” basis solely for the Purpose and for performance under this Agreement. Confidential Information shall not include information that: i) is demonstrably already known to the Recipient free of any restriction at the time it is obtained from the Discloser; (ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of either Party; or (iv) is independently developed by Recipient without reference to or use of any Confidential Information of Discloser. At the end of the Term, unless otherwise agreed between the parties in writing, each Recipient shall return to the Discloser (or destroy at the choice of the Discloser and certify of the same in writing) all Discloser’s Confidential Information. The provisions of this paragraph shall survive termination or expiration of the Agreement. Nothing in this Agreement shall prevent the Recipient from disclosing to a governmental authority, such Confidential Information legally required thereby to be disclosed. In the event that the Recipient becomes legally compelled to disclose any of the Confidential Information, it will provide the Discloser with prompt notice thereof so that the Discloser may seek a protective order or other appropriate remedy against the disclosure, and in any event, will limit the disclosure to the greatest extent reasonably possible under the circumstances.
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