BUSINESS IN MIND LTD, a company registered in England & Wales with company number having its business address at “22 Rowan Drive, Cheadle Hulme, Manchester Sk87DX” , hereinafter referred to as “DataEco”;
the “Client”, having contracted online the Service provided by DataEco, by filling in the Order Form and having submitted its contracting bid to DataEco.
OBJECT OF THE AGREEMENT
2.1. DataEco undertakes to provide the Contracted Services included in the Package contracted by the Client, the latter undertaking to pay the Package Price, under this Agreement. The delivery of the Contracted Service is conditional upon the full and timely payment of the Package Price, except for the provision of the service in Demo Mode.
2.2. As part of the Contracted Service, the Client may use certain applications provided by DataEco or by a third party. The Client represents that it understands and agrees to the specific licensing terms, that the application may only be used as part of the Contracted Service and that it cannot in any way transmit it to third parties.
2.3. Also, the provision of the services related to the additional features is subject to the specific licensing terms that the Client accepts when ordering the option in question. The Client is solely responsible for any damage or loss resulting from the breach of the licensing terms or from the improper use, by the Client, of any option.
III. TERM OF THE AGREEMENT
3.1. This Agreement shall commence on the date DataEco issues written acceptance of the Client’s Order Form and shall continue for an indefinite period unless terminated by either party within the Account part of the System.
3.2. This Agreement constitutes the entire agreement between the parties. The client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of DataEco which is not set out in this Agreement.
3.3. This Agreement applies to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
ACCESS TO THE CONTRACTED SERVICE. CLIENT ACCOUNT
4.1 In order to have access to the Contracted Service, the Client must create an account associated to a valid login email address, . A login email address can be associated to only one account. Client’s account is provided by DataEco for viewing invoices, the agreement, resource consumption, access data, and settings for all Services, as well as for making online payments. The account is assigned to the Client for its exclusive use, and the Client is not entitled to transmit it, in any way, to third parties. The Client is solely responsible for all the transactions, actions, operations that affect the Contracted Services , whether they were made personally or by a representative. The client is also solely responsible for properly configuring, for using the Contracted Services, for all fees that Client accrues for the Contracted Services and for all actions which are not perfomed by DataEco’s employees, agents or subcontractors. Should any unauthorised person access the Client’s account, the latter must contact DataEco to remedy the problem.
4.2 The Client shall access the Contracted Services using the access data available in the Client’s account. DataEco shall take reasonable steps to ensure an optimal level of security and data privacy. The specificity of the Contracted Services may require the direct access of the Client to the Data, which can lead to the alteration, change or deletion thereof by the actions of the Client itself. DataEco shall under no circumstances whatever be liable to the Client for any loss relating to the Data.
4.3 As a result of entering into this Agreement, the Client shall receive an invoice, which he is required to pay in accordance with clause 5. After paying the invoice, DataEco undertakes to deliver the Contracted Service under the Agreement and provide the Client with the access data that shall enable the Client to benefit from the Contracted Services.
VALUE OF THE AGREEMENT. BILLING AND PAYMENT TERMS
5.1 Contracted Services are offered at the prices in force on the date the Order Form was filled in. Prices can set in pounds sterling (GBP) and are VAT-exclusive. The Payment of the Contracted Services shall be made observing the ECB exchange rate, valid on the previous day date of the invoice.
5.2 The Package Price shall include the total value of the rates related to the Contracted Services, to the additional features, to the technical details and to other parameters used or reserved by the Client.
5.3 DataEco shall issue an invoice for the Package Price and any other charges due under this Agreement for a Billing Period depending on the Billing Cycle of the Contracted Services at the beginning of the Billing Period, except for On Demand rate services. Whenever an invoice is issued, the Client shall be notified by email. Invoices can be downloaded from the Client’s account. The Client is solely responsible for coming into possession of the invoice and cannot be relieved of its contractual obligations, and of the payment of any outstanding amounts owed to DataEco. The payment term of each invoice issued by DataEco shall be detailed in the Technical Details and Services Schedule; if it is not specified, the invoice shall be deemed due and payable within 10 days from the date of issue and time for payment shall be of the essence of the Agreement.
5.4 The parties have agreed that the invoices issued by DataEco under this Agreement are automatically deemed accepted for payment, when the invoices are loaded into the Client’s account and the Client is sent a notification via email. The invoice will not be deemed accepted if the Client disputes payment or the amount of the invoice by written notice sent to DataEco within five (5) days of the invoice being issued to the Client.
5.5 The Client assumes all responsibility for any changes made to the Contracted Services through the API, CLI and any other management interface including the Client’s account. The Client also assumes all responsibility for the rates accrued through the use thereof, whether they were made personally or by a representative.
5.6 The payment made by the Client shall be deemed valid when the funds are actually credited to the bank account specified by DataEco. Any duties, fees, and bank charges of any kind shall be borne by the Client.
5.7 If the Client fails to make any payment due to DataEco under this Agreement by the due date for payment then DataEco shall be entitled to:
a) proceed to the Suspension of the Contracted Services or to restrict the Client’s access to all or part of the Contracted Services and/or public access to the Contracted Services. Any restrictions imposed shall not be deemed service downtime; and
b) charge interest to the Client on the overdue amount at a rate of 2 per cent per month (or the maximum legal rate, if it is less than 2 per cent). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
5.8 Other special conditions or elements specific to the billing process and payment method may be included in the Specific Terms of this Agreement.
5.9 DataEco may reactivate the Contracted Service only after the payment of overdue invoice amounts and any interest due under this Agreement.
5.10 DataEco may change the rates based on the evolution of the costs incurred to provide the Contracted Services. DataEco shall give the Client written notice by email or in the Client’s account of such increase 30 days before the proposed date of the increase. If such increase is not acceptable to the Client, the Client may terminate this Agreement in writing within 30 days of DataEco’s notice. If DataEco does not receive notice of termination from the Client within 30 days of DataEco’s notice, the new rates shall be deemed accepted by the Client.
5.11 DataEco may grant the Client, in its sole discretion, discounts on the value of the Contracted Services and on the amount of interest payable pursuant to clause 5.8.b. The date on which any discount may apply, the period during which the Client benefits from the discount, as well as any feature related to the discount shall be determined by DataEco in its sole discretion.
5.12 The Client shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or witholding (except for any deduction or witholding required by law). DataEco may at any time, without limiting its other rights or remedies, set-off any amount owing to it by the Client against any amount payable by DataEco to the Client.
PERSONAL DATA PRIVACY
6.2 A party (“Receiving Party”) shall keep in strict confidence all Confidential Information disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other Confidential Information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to this Agreement. The Receiving Party may also disclose such of the Disclosing Party’s Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
6.3 A party may also disclose name, adress and phone number of the other party if such information is required by any organization or third party who made any claim regarding damage related to how the Client or the users understand to use the Contracted Services covered by this Agreement.
6.4 Clause 6.2 shall survive termination of the Agreement.
VII. RIGHTS AND OBLIGATIONS OF THE PARTIES
7.1 The Client shall have the following obligations:
a) to pay the Package Price, in accordance with the terms of this Agreement, the Specific Terms and the Technical Details and Rates Schedule;
b) to refrain from disclosing the access data to unauthorised persons;
c) to work with DataEco to ensure safe access to the Contracted Services and to the Network and to notify DataEco of any circumstances of which the Client is aware and which represents or might represent an attack to the Network or Internet network security;
d) not to engage in Excessive Use of the Contracted Services, except for the services whose technical parameters are limited to specific values and the services whose specificity involves On Demand billing;
e) to notify DataEco of any change of the Client’s contact details;
f) to provide complete and accurate information in the Order Form and in connection with the Agreement during the Agreement;
g) to ensure that all data and information related to the Hosted Content observes the limits and the conditions necessary to comply with any applicable law or regulations and the Acceptable Use Policy;
h) to refrain from transmitting, using the Contracted Services, any electronic material that might cause any harm to a computer system owned by DataEco or other users of the Internet;
i) to use the Contracted Services or the Network only in the manner permitted by any applicable law or regulations, this Agreement, the Specific Terms, the Technical Details and Rates Schedule, best practice in the industry and the Acceptable Use Policy;
k) to take any action necessary to ensure the safety of any data, information, applications and passwords relating to the Contracted Services;
l) to not make unfounded statements implying that he is a partner, or in any way supported or recommended by DataEco;
m) to co-operate with DataEco in all matters relating to the Contracted Services;
n) to provide DataEco with such information and materials as DataEco may require in order to provide the Contracted Services, and ensure that such information is accurate in all material respects; and
o) to obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Contracted Services are to commence.
7.2 The Client shall have the following rights:
a) to request in writing the invoices for the payments made from the Billing Department;
b) to request the Delivery, provided that the Client complies with clause 4;
c) to select a Billing Day of month; if the Client fails to do so, the Billing Day of month shall be the date of the first invoice. Billing Day of month can only be set within the range of 1-28.
d) to report any service downtime to the Support Department via email or registered letter with acknowledgement of receipt;
e) to disable and/or enable On Demand rate services, any time, with the obligation to pay the Package Price;.
f) to contact the Support Department in order to solve technical issues related to the Contracted Services;
g) to contact the Billing Department in order to solve billing issues related to the Contracted Services; and
h) to use the resource increase/decrease functionality provided for On Demand rate services.
7.3 DataEco shall have the following obligations:
To use reasonable endeavours to:
a) provide the proper operation of the platform and of the equipment managed and to take reasonable measures to provide the service availability;
b) to resolve complaints regarding service downtime. DataEco shall not be held responsible for service downtime due to Planned Interruptions, Emergency Repairs or On-demand Repairs/Interventions;
c) to preserve the integrity of the information related to the Hosted Content, by maintaining the security solutions agreed in writing by the parties; and
d) to provide technical assistance to the Client, through the Support Department; e) to provide billing assistance to the Client, in order to solve issues related to billing, payment terms, payment methods, and payments by email or using the phone numbers available on the website in the “Contact” section.
7.4 DataEco shall have the following rights:
a) to bill and request the payment of the Package Price, of the interest and of any other charges and duties under this agreement, during the Service Suspension periods. In the event of consumption-based rate services, the resources reserved at the time of the Suspension shall be deemed reserved throughout the Service Suspension period. The Service Suspension shall not affect the payment obligations between the parties. The Service Suspension shall not result in the Client’s right to request the return of the money paid in advance, regardless of the reason for the Service Suspension;
b) to take any action deemed necessary by DataEco in order to minimise the effects arising from the breach of this Agreement, of the Specific Terms and of the Acceptable Use Policy;
c) to implement measures for Service Suspension, on written notice, in the following circumstances:
(i) for the failure to pay the Package Price, in accordance with clause 5;
(ii) at the request of any institutions, courts, prosecutor’s offices, national and international authorised bodies, except in cases in which notifying the Client is prohibited;
(iii) the Client’s failure to perform any obligations, as detailed in this Agreement, in the Specific Terms and in the Acceptable Use Policy;
(iv) attacks on the Hosted Content, such as, but not limited to hacking, cracking, denial of service, originating from third parties;
(v) use by the Client of the Contracted Services, if such action is a security risk, either for the Contracted Services or for a third party;
(vi) use, by the Client, of the Contracted Services, if such action is detrimental to the Contracted Services, to the Network or the Hosted Content/Data of DataEco’s clients;
(vii) use, by the Client, of the Contracted Services, if such action may result in the liability of DataEco, of its affiliated parties or of third parties;
(viii) use, by the Client, of the Contracted Services, if they are fraudulent/illegal;
d) to change, discontinue, or terminate the provision of any Contracted Service/additional feature or to change or modify features, functionalities of the Contracted Service, provided that the Client has been sent a notice thereof. If such change is not acceptable to the Client, the Client may terminate this Agreement in writing within 30 days of such change. If DataEco does not receive, within 30 days of the change, a written notice of termination, the new terms shall be deemed accepted by the Client, as well as the new conditions of provision of the Contracted Services and of the additional features, and any changes made;
e) to change, discontinue, or terminate any API in connection with the Contracted Services. DataEco shall take reasonable measures to support the previous version of the API for a period of six months after the change, discontinuation or termination, unless it (a) raises security issues or otherwise violates any intellectual property rights, (b) is economically or technically difficult/cumbersome or (c) a legal requirement or a request of the competent bodies must be observed;
f) to receive compensation equivalent to the total amount of the applicable Package Price for each Billing Period until the end of the Agreement, if the Service Suspension was in force due to the Client’s default. The failure to pay for a service that is included in a Contracted Package shall be deemed a failure of the Client to make the full payment of the Package Price;
g) make changes to the equipment assigned to the Client or to its components to the extent that, after such interventions, the equipment shall provide services that are similar or better, in terms of quality, to the Contracted Services. In order to make these changes, DataEco shall agree with the Client in writing the duration of the Planned Interruption;
h) to amend the Billing Cycle or Billing Period, if there are indications that an account has been created fraudulently or if DataEco considers that there is a risk that an invoice might not be paid when due; and
i) to make any changes to the Contracted Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature and the quality of the Contracted Services, and DataEco shall notify the Client in any such event.
VIII. SERVICE AVAILABILITY LEVEL
8.1 The formula used to calculate the service availability is as follows:
Availability = (total hours of the Contracting Period – total hours of service downtime)/(total number of hours in 12 months) x 100;
8.2 DataEco shall take reasonable steps for the Servers to have a normal and steady performance throughout the Agreement, except for the periods of time related to Planned Interruptions, On-demand Repairs/Interventions and Emergency Intervention Works.
8.3 DataEco shall take reasonable steps to provide an operational system, available via the Internet network. The obligation assumed under this clause shall depend considerably on the Client’s applications, on the type of Hosted Content and on the related data, as well as on the Client’s settings.
8.4 The service availability concerns exclusively the access to the Internet network, the cooling and power supply of the Client’s infrastructure.
8.5 Any service provided and in relation to which DataEco does not have a contractual obligation to provide, but which is nonetheless provided by DataEco at the Client’s request, with or without extra costs, is provided “as is”.
8.6 If the client has contracted several services, some On Demand and others Reserved, with similar features, in case of downtime for only one of the services, DataEco will pay compensation for the On Demand service.
REMEDIES AND DISCOUNT PROCEDURE
9.1 If the client detects service downtime, the Client is required to notify the Support Department via email or phone, providing the service personnel with all the details required for a comprehensive analysis of the situation. Upon receipt of the Client’s reports, a support ticket is recorded, and a downtime confirmation notice is sent to the Client (“Downtime Confirmation Date”).
9.2 DataEco does not warrant that (i) it shall always be able to solve any complaint, (ii) the Client shall stop having problems, (iii) it shall provide a bug fix, patches or other solutions related to the problem identified, or that (iv) any recommendation shall lead to improved performance. The Client is solely responsible for the implementation and the results of any recommendations received from the Support Department.
9.3 Non-standard service. If the Client requests DataEco to implement a certain configuration (hardware or software) or services that are not included in the DataEco offer, it may mark the configuration or service as “unacceptable”, “non-standard”, “best effort”, “reasonable efforts”, “one- off”, “end of life”, “no support” or any other similar term (referred to in this section as a “non-standard service”). DataEco may not provide any guarantee in respect of a non-standard service. The Client agrees that DataEco shall not be liable for any loss or damage arising from the provision of a non-standard service. Clause 8 shall not apply to a non-standard service, or to services that are adversely affected by the non-standard service. The Client agrees that non-standard services might not be compatible with other DataEco services, such as the backup or monitoring services.
9.4 When calculating the service downtime period, it shall be deemed to commence on the Downtime Confirmation Date. The discounts granted for cases where the service availability is below the levels specified in clause 8.5 may be granted by DataEco (where applicable) on receipt of a written request from the Client within 5 days of the Downtime Confirmation Date,.
9.5 Malfunctions are deemed repaired, in the event of an integral or partial remedial action, in order to ensure the continuity of the Contracted Service. This clause applies to all types of malfunctions, except for those related to third party software, in relation to which DataEco cannot assume any obligation to remedy.
9.6 If DataEco fails to observe the service availability levels specified in clause 8.4, the Client may be entitled to a discount equal to 10 times the total Downtime Period related to a particular Billing Period. 9.9 The discounts applicable to all cases of downtime are the only compensation that the Client may receive under this Agreement. Discounts do not apply to more than one violation of clause 8.5. The total amount of discounts payable shall be limited to the total value of the Package Price, for a Billing Period.
LIMITS OF THE AGREEMENT
10.1 In order to limit the misuse of the Platform and to ensure an appropriate level of service to all Clients, DataEco may temporarily limit certain parameters of the Contracted Services, such as disk space, data transfer speed, access to certain services, use of the Internet bandwidth etc. for the Client.
10.2 On Demand rate services may be subject to consumption limits. The Client agrees that it is solely responsible for tracking the use of the resources and for ensuring that it does not exceed the consumption limit. The consumption limit may be changed by DataEco depending on the guarantees provided or on the Client’s creditworthiness and reliability. If the consumption limit is reached, DataEco may suspend the Client’s access to the Contracted Services.
10.3 The Client acknowledges and agrees that DataEco is not responsible for and cannot and is not able to control how the Contracted Services are used, and/or the End-User actions in what concerns the Contracted Service. The Client is solely responsible for the actions of the End-Users.
10.4. During the Term and for a period of 3 (three) calendar years after the expiration or termination of the Agreement for any reason, Client shall not contact any DataEco employee/contractor or make a job offer to any DataEco employee/contractor that, competes with DataEco offers.
11.1 The Client is solely responsible for the content uploaded, i.e. texts, databases, sounds, music, graphics and video files, and the like that are held/located/uploaded or delivered through the Contracted Service by the Client or by third parties.
11.2 The Client is solely responsible for the Hosted Content and its functionality, including in terms of compatibility of the Contracted Services with the APIs provided by DataEco.
11.3 The Client warrants that it has all rights, including proprietary rights in relation to the Hosted Content, such as copyright, trademark and patent rights, trade secrets etc.
11.4 The Client is solely responsible for: (i) obtaining all permits and approvals for the Hosted Content (such as approvals for the connections or interaction of the Hosted Content with various types of third-party applications, authorisations or formalities required by the laws in force to provide certain on-line services or imposed on personal data operators), (ii) providing and maintaining the accuracy and legality of the information relating to the Hosted Content, (iii) ensuring that any information relating to the Content does not infringe any third party rights or applicable laws or regulations, (iv) compliance of the Hosted Content with the Acceptable Use Policy.
11.5 If the Content includes applications that allow for UGC (“user generated content”) such as forums, blogs, chat rooms, and other interactive features, the Client shall assume sole responsibility for all the actions of the End Users on the Hosted Content as if they were its own actions, whether they were taken with or without the Client’s consent. The Client undertakes to act quickly in order to delete or block public access to illegal information or to information that might violate the rights of a third party, according to applicable laws or regulations.
11.6 The Client acknowledges and agrees to DataEco’s right to remove the data or information that could damage or adversely affect the system, the network and any hardware or software elements belonging to DataEco or to its Clients.
11.7 Apart from the technical monitoring conducted at the level of the Contracted Service, according to which DataEco may intervene to remedy or prevent certain failures, DataEco has no access and shall not interfere with the Hosted Content and shall not make any amendment thereto, except in Service Suspension situations, Emergency Intervention Works, and if the Client orders certain procedures in writing. The Client is aware and accepts that the operation of certain procedures, at the level of the Contracted Services, may involve certain technical interventions on the Hosted Content, for which the Client shall take full responsibility. DataEco acknowledges and respects the ownership of the Client in relation to the Hosted Content, undertaking to refrain from any action that might jeopardise the security and integrity thereof. In order to ensure a high level of security, DataEco shall take reasonable steps to use security solutions in accordance with internationally recognised standards in the industry. In addition to the security measures provided by DataEco, the Client shall maintain optimal security solutions, including encryption of the Hosted Content. The Client acknowledges and agrees that the privacy obligation related to the Hosted Content is borne exclusively by the Client.
12.1 DataEco may not exercise control and assumes no responsibility in relation to the content of personal applications or of information that is sent or received through the Network or through the Contracted Services. Also, DataEco does not guarantee the accuracy of the information received via the Contracted Services.
12.2 DataEco does not warrant the uninterrupted operation or the compatibility with all types of equipment or configurations of the software supplied with a non-exclusive license for the Agreement. “Software supplied with a non-exclusive license” shall mean any computer program or software made available to the Client during the Agreement and which is related to an additional feature or to management applications, but not limited thereto.
12.3 DataEco makes no warranty for the uninterrupted operation of the Contracted Services. The risk associated to the loss of the Hosted Content due to hardware failures shall be assumed entirely by the Client, the latter being responsible for the protection of the data related to the Hosted Content.
12.4 The Client shall use products and software in accordance with the licensing terms specified by the suppliers of the applications in question. DataEco makes no warranty regarding the availability, operation or quality of the software applications or operating systems provided under a non-exclusive license during the Agreement or otherwise used by the Client. DataEco does not guarantee that the applications in question shall meet all the Client’s requirements. The Client shall keep informed of the warranties provided by the manufacturers/licenses, as well as of the compatibility with other applications.
12.5 DataEco does not guarantee the total security of the data stored on its equipment both in terms of preserving their integrity against damage that may arise from the occurrence of physical faults of the equipment, and in terms of preserving their integrity against attacks using malicious software or exploiting hardware flaws or features which may be flaws from a security standpoint/perspective.
12.6 DataEco does not guarantee that a certain volume of resources shall always be available or that the supply of new resources, servers or services shall be done in a certain amount of time.
12.7 Except for the warranties stipulated herein, all other warranties that may result are to the fullest extent permitted by law, excluded from this Agreement.
XIII. CONTRACTUAL LIABILITY
13.1 Nothing in this Agreement shall limit or exclude DataEco’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
b) fraud or fraudulent misrepresentation.
13.2 Subject to clause 13.1:
a) DataEco shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement; and
b) DataEco’s total liability to the Client in respect of all other losses arising under or in connection with this Agreement, whether in contract tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed the Package Price charged for the month immediately preceding such loss.
13.3 The Client agrees to indemnify DataEco and hold it harmless against any claim made by any third party arising from the Client’s use of the Contracted Services and against any loss (direct or indirect), costs, actions, suits, claims, expenses (including legal costs), loss of profit as a result of a breach by the Client of its obligations under this Agreement or arising from any intentional or negligent act or omission of the Client or of the Client’s End-Users.
13.4 The Client shall provide DataEco with all the information and assistance that are reasonably necessary for the defence against or settlement of such claims.
14.1 Without limiting its other rights and remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party:
a) on the date on which the parties agree to terminate this Agreement, if all the obligations under this Agreement have been paid in full;
b) if the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
c) if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
d) if a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
e) if the other party (being an individual) is the subject of a bankruptcy petition or order;
f) if a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
g) if an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
h) if the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
i) if a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j) if any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(c) to clause 14.1(j) (inclusive);
k) if the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
l) if the other party’s financial position deteriorates to such an extent that in the DataEco’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
m) if the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14.2 The On Demand rates Contracted Services may be terminated unilaterally by paying the entire value of the accrued On Demand rate, without further compensation applicable. The Reserved rate services may be terminated unilaterally by paying the entire value accrued until the end of the reserved period. If the Agreement covers both On Demand rate services and Reserved rate services, the termination without further compensation shall only be possible for the On Demand rate services.
14.3 Either party may terminate this Agreement with immediate effect if one of the parties commits a material breach of any term of this Agreement and fails to remedy that breach within 30 days of that party being notified in writing to do so
14.4 DataEco may terminate the agreement by written notice, if the legal relations with the third party, that provides licenses, software or other technologies, that are necessary to provide the Contracted Services, has been discontinued for any reason or amended in that the use of the license, of the software or of the technology in question as a part of the Contracted Services is not possible any more.
14.5 DataEco may terminate the Agreement by written notice within 15 calendar days of the commencement of the Service Suspension.
14.6 Without limiting its other rights and remedies, DataEco may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment and fails to pay all outstanding amounts within 30 days of being notified in writing to do so.Upon termination for any reason:
a) the Client shall immediately pay to DataEco all of DataEco’s outstanding unpaid invoices and interest and, in respect of the Contracted Services supplied but for which no invoice has yet been submitted DataEco shall submit an invoice, which shall be payable by the Client immediately on receipt;
b) the accrued rights, remedies, obligations and liabilities of the parties as at the expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at of before the date of termination or expiry; and
c) the Client must discontinue its use of the services and the use of the IP addresses and name servers assigned by DataEco in connection with the Contracted Services, including DNS. The Client agrees that DataEco, if deemed necessary, may make changes to the DNS records and IP addresses.
ASSIGNMENT OF RIGHTS. NOVATION OF THE AGREEMENT
15.1 The Client shall not assign or novate all or part of the rights and obligations arising under this agreement, without the prior written consent of DataEco. The absence of a written consent is deemed a refusal to consent to the assignment or novation of all or part of the rights or contractual obligations.
15.2 DataEco is entitled to assign all or part of any of the rights and obligations under this agreement or the entire Agreement to any other domestic or foreign entity; this operation shall be notified to the Client via the Client’s account at least 30 (thirty) days prior to the date on which the such assignment shall operate. On the date mentioned in the notice, all rights and obligations arising from this agreement shall be transferred by operation of law to the company which shall act as a supplier, and the express consent of the Client is no longer required.
15.3 The Client may resell the Contracted Services, but remains solely responsible for the use of the Contracted Services by the third party. DataEco shall only provide support services to the Client, not to its clients, and the latter shall have no rights enforceable against DataEco.
XVI. FORCE MAJEURE
16.1 Either party shall not be liable to the other as a result of any delay or failure to perform its obligations as a result of a Force Majeure Event, provided that the other contracting party is notified of the existence thereof.
16.2 For the purposes of this Agreement “Force Majeure Event” means an unpredictable and insurmountable event, beyond the control of the parties which prevents, directly or indirectly, the parties from performing all or part of their contractual obligations including but not limited to strikes, lock-outs, act of God, war, acts of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule regulation or direction, accident, breakdown of plant or machinery, fires, floods, storms severed cables, power outages or default of suppliers or subcontractors.
16.3 The party relying on the Force Majeure Event must notify it to the other party, in writing, within 5 (five) days, at the most, from the occurrence thereof, and the proof of the Force Majeure Event, together with the warning regarding its effects and possible duration, shall be notified within 15 (fifteen) days of occurrence. The reference date is the date mentioned on the outgoing post mark. Such proof shall be certified by the competent body of the state invoking it. If these circumstances and their consequences last for more than 3 months, either party may terminate the Agreement. In this case, none of the parties is entitled to claim damages from the other party, but must perform all the obligations accrued until such date.
XVII. AMENDMENTS TO THE AGREEMENT
17.1 This contract may be supplemented or amended by:
a) an addendum signed by the legal representatives of both parties;
b) the acceptance, by the Client, of a new version of the Agreement, following the acceptance of the Order Form, following the change of one of the parameters of the Contracted Service or of the additional features of the Specific Terms, of the Package Price, of the Contracted Services, or in any other situation. The change shall be communicated to the Client via the Client account, and the Client shall have at its disposal a period of up to 30 days to terminate the Agreement, in case of non-acceptance, no payment of damages being applicable. If DataEco doesn’t receive, within 30 days, a written notice of termination of this Agreement, the new terms shall be deemed accepted by the Client, as well as the new conditions of provision of the Contracted Services and of the additional features and any changes made.
17.2 The Client may, in some cases, add services to the Contracted Package, and technical specifications, by following the Package change procedure; at the end of this procedure, the Technical Details and Rates Schedule shall be replaced with a new Schedule, and the Client must pay the updated rate of the Package, corresponding to a certain Contracted Service. In the event of Physical Contracting, the Client and DataEco Client shall enter into an addendum concerning the new amendments to the Agreement. This clause may not be interpreted in any way as binding any of the Parties, in any way, in respect of further and possible contracting.
XVIII. CLIENT LIST
18.1 DataEco has the right to use the name of the Client, identifying it as a client of its services, in any advertisement, marketing or similar materials, distributed on-line or off-line, in the country and abroad, with the Client prior written consent. DataEco shall not use the Client’s name in a manner that suggests a direct Client referral relationship, if such a relationship does not exist.
19.1 Any communication to be made in connection with the matters covered by this agreement shall be sent usingthe login email address . Both parties accept that, unless expressly stipulated otherwise, only the communications made by e-mail or registered letter with acknowledgement of receipt are deemed valid. The mailing addresses, used for sending and receiving emails, both for the Client and for DataEco are specified in the Client Account. The Client shall appoint a technical contact person, who shall stay in contact with DataEco via email or phone. Only the communications to and from the address/e-mail of the Contact Person(s) listed in the Client’s Account or the telephone communications during which the Contact Person was identified via PIN shall be deemed valid. The Client undertakes to contact the appropriate department using the contact details listed in the Client’s Account or on the DataEco website, otherwise DataEco has no obligation to respond to the request.
19.2 The Client accepts and agrees to receive via e-mail, from DataEco, communications or other technical or commercial messages (including payment notices or invoices) or informative or commercial in nature. Any written communication or message sent by DataEco to the Client by e-mail shall be signed and shall contain the full name, title, telephone numbers and email address of the sender. Any e-mail sent by DataEco to the address associated with the account shall be deemed sent.
19.3 In order to verify the identity of the Client, DataEco may request the Client, at any time, to provide its PIN via telephone. The authentication using this code is necessary to prevent situations where unauthorised persons request, on behalf of the Client, Confidential Information, the change of files or configurations, or even the deletion of files. For safety purposes, DataEco may require that all requests be confirmed in writing.
19.4 The agreement signing date, the Billing Period, the Reference Date, the Reference Day and the Service Suspension date, as well as any other date of an official communication sent by DataEco, unless otherwise specified, is calculated relative to the Coordinated Universal Time (UTC) and are not affected by time zones or DST of the Client’s country of residence or of the country where the Client is registered.
20.1 This contract and any disputes or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and constructed in accordance with the law of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
20.3 Any disputes arising out of or in connection with this contract, including those relating to the validity, interpretation, execution or termination thereof shall be solved amicably.
20.4 If the parties fail to reach an amicable settlement, the dispute shall be referred to the competent courts of law having jurisdiction over the area in which is located the registered office of DataEco.
XXI. FINAL PROVISIONS
21.1 This Agreement and the Schedules, addenda and amendments thereto are an integral part of the content thereof, represent the will of the Parties and supersede any and all verbal agreements, entered into before or after its execution.
21.2 The Technical Details and Rates Schedule, the Acceptable Use Policy and the Specific Terms applicable to the Contracted Services, under the Technical Details and Rates Schedule, are an integral part of this Agreement.
21.3 Should the parties be in default, the failure of the aggrieved party to exercise the right to request the exact performance or to seek monetary compensation for the obligation in question shall not be deemed as a waiver to such right.
21.4 The rights and obligations assumed under this Agreement shall devolve on the legal successors of the parties.
21.5 The parties represent and warrant to each other that, according to the provisions of the statutes governing each Party, they have full power and authority to enter into and execute this Agreement, and that the signatories have full power and authority to bind the Parties.
21.6 The parties declare that they are independent contractors, and no party is an agent of the other party, for any purpose, and has no authority to bind the other party.
21.7 A person who is not party to this Agreement shall not have any rights to enforce its terms.
21.8 Nothing in this Agreement is intended to or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have the authority to act as agent for, or to bind, the other party in any way.
21.9. DataEco may offer certain Services as beta services (“Beta Service”) for the purpose of testing and evaluation. If the Client decides to participate in any beta test, pilot test, or similar test, then Client’s use is subject to the following terms:
21.9.1. The Client acknowledges that Beta Service are provided “”as is”, exclusive of any warranty whatsoever. DataEco disclaims all liability and indemnification obligations for any harm or damages of any kind caused by the modification, suspension or discontinuance of any of the Beta Service for any reason. Client agrees that the Beta Service is a test and may not work properly or may expose him to failures. DataEco is not liable to the other for any indirect, special, incidental or consequential loss or damages arising from or related to this agreement, whether in an action in contract, tort (including negligence) or otherwise; any loss of profit; any loss of business or any loss of data. DataEco does not warrant that the Beta Services will be error-free or that they will meet any specified service level, or will operate without interruptions or downtime.
21.9.2. DataEco reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Service with or without notice.
21.9.3. The Client shall not be entitled to a discount for the Downtime Period or other problems that may result from testing Beta Service. No service levels or other uptime guarantees apply to the Beta Services.
21.9.4. Client agrees to provide prompt feedback regarding Beta Service for any purpose .
All information regarding Beta Service is Confidential Information, as defined in the Agreement.
21.9.6. DataEco disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
21.9.7. Client will not use any Beta Service in violation of the, Acceptable Use Policy or any Schedule.
SCHEDULE – DEFINITIONS
The terms used in this Agreement and in the Specific Terms for any of the DataEco services shall have the following meanings:
“Agreement” – is this Framework Agreement, as amended and supplemented by subsequent addenda or updated with the Specific Terms of the Contracted Services, and with the Technical Details and Rates Schedule.
“Billing Cycle” – is the period of time with default values of 1, 2, 3, 4, 6, 12 or 24 months, depending on which the Billing Period is calculated, throughout the Agreement Term. The Client chooses one of the standard values of the Billing Cycle, when filling in the Order Form (for On-line Contracting). The Client may select a different Billing Cycle using the Client Account.
“Confidential Information” – information related to the business, affairs, customers, clients, suppliers or plans, trade secrets, processes, know-how, operations, product information, designs or methods used by the Disclosing Party in the course of business, obtained from the Disclosing Party as a result of or in connection with this Agreement. The scope of the Confidential Information includes, without limitation, software, technical processes and formulae, source codes, industrial drawings, financial information, business plans, production plans, traffic ratings, advertising and marketing information.
The following information is not deemed Confidential Information:
(i) information that was known to the Receiving Party upon disclosure (without the obligation to maintain confidentiality in relation to it);
(ii) information that was obtained legally by the Receiving Party, after disclosure, in good faith, from an independent third party who is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party;
(iii) information that, upon disclosure, was made available to the general public without the breach of the restrictions set out in the Agreement;
(vi) information that was disclosed by the Receiving Party after the Disclosing Party consented, in writing, to the disclosure thereof.
“Content / Hosted Content” – represents any of the following: (i) data and information belonging to the Client, beneficiary of the Contracted Service, (ii) data supplied by the users of the applications included in the Content, (iii) data from or used in connection with transactions at the level of the applications included in the Content such as, but without limitation to information related to transactions and sales, information related to end-user accounts, etc., (iv) any information generated by the use of the applications or configurations that are licensed, on a non-exclusive basis, to the Client for the duration of the Agreement.
“Contracted Service” – is the service or services selected by the Client to be provided by DataEco, in the terms and conditions of this Agreement and of the Specific Terms. In addition to the provisions of the Specific Terms, the Contracted Service shall also be customised for the Client in relation to the details contained in the Technical Details and Rates Schedule.
“Contracted Service Rate” – is the price of each Contracted Service included in the Package, as listed in the Technical Details and Rates Schedule.
“Data” – any information included in the Hosted Content, including applications that belong to the Client, information contained within these applications, as well as information generated by the use of these applications.
“Delivery” – is the procedure by which DataEco activates the services included in the Contracted Package.
“Demo Mode” – is a grace period granted to the Client, to benefit from the Contracted Services free of charge for a certain period of time, to be determined exclusively by DataEco. The Client shall not be billed while in Demo Mode. DataEco is entitled to suspend Demo Mode at any time, without prior notice, by starting to issue invoices.
“End-User/User” – any person who uses, in any way, any application made available through the Contracted Services, whether or not he/she has received a written or verbal authorisation to this effect from the Client. The Client shall bear full responsibility regarding authorised End-Users, regardless of the way in which they have been authorised. The tacit acceptance, by the Client, of a specific action of the End-User, regardless of the ways in which such action would materialise, is deemed an “authorisation”.
“Excessive Use” – ways to use the DataEco services that may affect server resources, infrastructure, support services or third-party applications. A detailed description of excessive use, as well as examples of circumstances that may be classified as such are identified in the Acceptable Use Policy.
“Internet Traffic” – transfer of data from the server to and from the Internet.
“Malfunction” – error, deficiency affecting the full functionality of the Contracted Services.
“Network” – communications network under the direct control of DataEco, through which the Client accesses the Contracted Services.
“On-demand Repairs/Interventions” – DataEco interventions on its own network, on the Internet network or on the Contracted Services, requested by the Client or by state institutions and bodies.
“On-line Contracting” – a specific way of entering into the Agreement remotely, by electronic means, which involves the Client filling in the Order Form, the acceptance, in full, of this Agreement, and the transmission of the contracting offer to DataEco.
“Order Form” – a web page or a sequence of web pages, which shall be used for the on-line contracting of the service. The Order Form is available to potential Clients, who must fill it in with their personal information. Filling in the fields of the Order Form using correct and complete information is one of the required steps for the valid On-line Contracting of DataEco services.
“Package/Contracted Package” – All the services contracted by the Client, in accordance with the parameters found in the Technical Details and Rates Schedule, and any additional features. For the avoidance of doubt, each Package shall include one or more Contracted Services, one or more Plans, various additional features, depending on the Client’s options.
“Package Price” – is the price of the Contracted Package, i.e. the amount corresponding to the total amount of the Contracted Services and to any additional features included in the Package, charged to the Client for each Billing Period and found in the Technical Details and Rates Schedule. The Package Price may be subject to change only after the Package Changes made by the Client, in which case another Technical Details and Rates Schedule shall be issued to the Client, which shall specify the updated price of the Package, except for specific consumption-based rate services. The Package Price may include a set-up fee.
“PIN” – a unique number assigned to each Client by DataEco, which shall be used for authentication purposes, during the communication with the Technical Support Department and with the Billing Department. The Client undertakes to maintain the confidentiality of the PIN throughout the Agreement. A new PIN may be generated using the form made available in the Client’s account.
“Plan” – a bundle of services offered by DataEco.
“Planned Interruption” – means any interruption due to maintenance, routine or upgrading works, which may affect the availability of the service. DataEco shall endeavour to send the Client, at least 2 working days in advance, a notice of any Planned Interruption that shall affect the availability of the services and shall attempt to perform the works between 23:00 (UTC) on Saturdays and 06:00 (UTC) on Sundays, except during Emergency Intervention Works and On-Demand Repairs/Interventions.
“Service Suspension” – period of time during which the services included in the Contracted Package shall be unavailable at the initiative of DataEco, in the special cases provided for in this Agreement.
“Specific Terms“- a Schedule that is an integral part of this Agreement, detailing the specific terms and conditions applicable to the supply of the Contracted Services.
“Technical Details and Rates Schedule” – is an integral part of this Agreement that identifies the technical parameters of the Contracted Services and the Package Price. Depending on the Client’s choice, the Technical Details and Rates Schedule shall also identify any additional features included in the Package. Any references to the Technical Details and Rates Schedule are intended exclusively as references to its latest updated version.
“Usage of Internet bandwidth” – bandwidth that the server may use, when necessary, as a “Committed Information Rate” (guaranteed bandwidth) value, measured in megabits per second. Any data transferred between the Server and the Internet shall be deemed usage. The Client understands and agrees that the Usage of Internet Bandwidth shall be measured exclusively by DataEco, using specialised software, and then reported to the Client.
“Usage of Internet traffic” – amount of data transferred from the Client’s Services to the Internet, measured in gigabytes. The Client understands and agrees that the Usage of Internet Traffic shall be measured exclusively by DataEco, using specialised software, and then reported to the Client.
ACCEPTABLE USE POLICY
1.1. The Client is the only entity responsible for violating this Policy, including any violation by persons who use the Contracted Service with or without the consent of the Client. If the Client violates this Policy or should the Client authorise or help a third party violate these Terms, then DataEco reserves the right to suspend or discontinue the Contracted Service.
1.2. The Acceptable Use Policy may be amended or updated by posting the latest version thereof on DataEco’s website and/or in the Client’s account. By using the Contracted Services or by accessing DataEco’s web site, the Client implicitly agrees to the latest version of this Policy.
1.3. The Client is the only one responsible for the Hosted Content and – according to applicable laws or regulations and further to the request of the bodies mandated by DataEco – the latter shall take action so as to suspend access to the Hosted Content if such Content contains unlawful material of any sort. If the Contracted Service is unavailable because it is suspended due to a breach of this Policy, such unavailability shall not be considered as “downtime”.
1.4. Complaints for such cases can be addressed to DataEco’s support departments.
1.5. According to the enforceable regulations, DataEco is not obligated to monitor the Client’s activity and is under no responsibility in case of any sort of improper usage of its services or network.
1.6. The examples described in this Annex are not exhaustive.
2.1. The Client is not allowed to use or to encourage, promote, facilitate or urge other persons to use DataEco’s services or Site for any unlawful, damaging or offensive activity of to send, store, display, distribute or otherwise make available any content that could be unlawful, damaging or offensive.
2.2. Forbidden activities and content:
2.2.1. Unlawful activities – any unlawful activity, including, without being limited to, disseminating, promoting and facilitating child pornography, unlawful publicity, unlawful gambling sites, etc.
2.2.2. Damaging or fraudulent activities – any activity that may cause damage to a third party, to DataEco’s activity or reputation, including, without being limited to, offering and distributing fraudulent goods, services, schemes or promotions, collecting or using confidential information without the consent of the persons who own that information, Internet cheating, password stealing, scanning to find security vulnerabilities, port scanning, collecting and using email addresses, user names or other identification data without the consent of the rightful owners, phishing, spidering and harvesting.
2.2.3. Unlawful content – content elements that violate the right of intellectual property of a third party or any relevant local, national or international regulation.
2.2.4. Offensive content – content elements that are defamatory, obscene, abusive, promote violence or otherwise unacceptable.
2.2.5. Damaging content – content elements or any software technologies that could harm, interfere with, intercept secretly or expropriate any system, programme, data, including, without being limited to, viruses, Trojan horses, time bombs, worms, cancelbots or software that secretly collects and/or transmits information about users.
2.2.6. Content in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
2.2.7. Collection of personal information without consent.
III. SECURITY AND ABUSE OF SERVICE OR PLATFORM
3.1. The Client shall not use the Contracted Service in order to breach the security or the integrity of any other network, machine or communication system, or software applications, network device or other equipment, (hereinafter referred to as the System).
3.2. Other forbidden activities include the following:
3.2.1. Unauthorised access – accessing or using any system without permission, including trying to test, scan, penetrate or test the vulnerability of the network or Contracted Service or to breach the security or the sign-in method used by the System. The Client shall not try in any way to breach the security of the Contracted Service or the sign-in methods by either passive methods or intrusion techniques, unless specifically accepted by DataEco beforehand.
3.2.2. Interception – monitoring somebody’s system data or traffic without permission.
3.2.3. Falsify the origin – falsify the header of the TCP-IP packages, the email headers or any part of a message that describes the origin or route of such message. Such interdiction does not refer to using aliases or anonymous remailers.
3.2.4. Monitoring or crawling – monitoring or crawling a system that affect or interrupt the operation of that system.
3.2.5. Denial of Service (DoS) – flooding a target with communication requests so that the target becomes unable to respond to legitimate traffic requests or responds slowly.
3.2.6. Intentional interference – intervention in the correct operation of any System by means of deliberate attempts to overload a system by means of email bombing, news bombing, broadcast attacks or other flooding techniques.
IV SUSPENSION AND TERMINATION
4.1 DataEco shall determine, in its discretion, whether there has been a breach of this acceptable use policy through the Client’s use of the Contracted Services. When a breach of this policy has occurred, DataEco may take such action as it deems appropriate.
4.2 Failure to comply with this acceptable use policy constitutes a material breach of the Agreement, and may result in DataEco taking all or any of the following actions:
4.2.1 Immediate, temporary or permanent withdrawal of the Client’s use of the Contracted Services.
4.2.2 Immediate, temporary or permanent removal of any posting or material uploaded by the Client using the Contracted Services.
4.2.3 Issue of a warning to the Client.
4.2.4 Legal proceedings against the Client for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
4.2.5 Further legal action against the Client.
4.2.6 Disclosure of such information to law enforcement authorities as DataEco reasonably feel is necessary.
DataEco exclude liability for actions taken in response to breaches of this acceptable use policy. The responses described in this policy are not limited, and DataEco may take any other action DataEco reasonably deem appropriate.