General Terms and Conditions

Transcription

1 General Terms and Conditions for EPiServer Hosting Services IMPORTANT. PLEASE READ THROUGH THE FOLLOWING GENERAL TERMS AND CONDITIONS FOR EPiSERVER HOSTING SERVICES BELOW BEFORE YOU USE THE SERVICE AND/OR USE ANY SOFTWARE VIA THE SERVICE. BY ACCEPTING, SIGNING, OR IN ANY WAY AFFIRMING THE ORDER CONFIRMATION, THE OFFER OR HOSTING AGREEMENT, OR BY INTERACTING OR IN ANY OTHER WAY USING THE SERVICE AND/OR SOFTWARE ON THE SERVICE, YOU ACCEPT THE CONDITIONS BELOW AND THIS AGREEMENT BECOMES A BINDING OBLIGATION ON YOU. BY SIGNING ANY AFOREMENTIONED DOCUMENT, YOU HAVE AGREED THAT THESE GENERAL TERMS AND CONDITIONS, ALONG WITH THE ORDER CONFIRMATION, THE OFFER AND HOSTING AGREEMENT, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL OTHER PROPOSALS AND PRIOR AGREEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREIN. 1. General 1.1 These general terms and conditions regulate the relationship ( the Agreement ) between the customer ( the Customer or You ) and EPiServer AB ( EPiServer ), , and apply to the ordered service ( the Service ). 1.2 EPiServer s Software means EPiServer CMS, EPiServer Commerce, EPiServer Relate, EPiServer CMO, EPiServer Composer, EPiServer Find, EPiServer Connect products, EPiServer Add-Ons, additional modules, any products defined on as well as additional packages delivered by EPiServer. 2. The Service 2.1 Individual terms and conditions for the respective Customer are provided in the Order Confirmation ( Order Confirmation ) or in a Customer-specific Offer or Agreement ( Offer or Hosting Agreement ). The individual terms and conditions refer to the Service, the price of the Service, agreed volume of traffic and the availability level of the Service ( SLA ), 2.2 EPiServer has the right to deny the order of the Service by the Customer if an assessment is made that the Customer is not creditworthy or may abuse the Service. 3. The Term of the Agreement 3.1 If the Customer has ordered the Service EPiServer Shared Hosting, where EPiServer runs the operation for several Customers jointly on servers provided by EPiServer, or EPiServer Dedicated Hosting, where the hardware is owned by the Customer, the commitment period is initially six (6) months. Thereafter the Agreement will run until further notice and can be terminated by respective party with three (3) months notice. 3.2 If the Customer has ordered the Service EPiServer Dedicated Hosting, where the hardware is rented from EPiServer, the commitment period is initially twenty-four (24) months for the Service. Thereafter the Agreement will run until further notice and can be terminated by respective party with six (6) months notice. 3.3 If the Customer has ordered the Service EPiServer Cloud, this Service includes the necessary EPiServer licenses. Sections 10.3, 10.4 and 10.6 of this Agreement do not apply for customers who bought EPiServer Cloud. The commitment period is initially three (3) months. Thereafter the Agreement will run until further notice and can be terminated by respective party with three (3) months notice. 3.4 If the Customer has ordered the Service EPiServer Find, where the software is owned and/or licensed by EPiServer and hardware is owned by EPiServer. Sections 10.3, 10.4 and 10.6 of this Agreement do not apply for customers who bought EPiServer Find. The commitment period is initially three (3) months for the Service. Thereafter the Agreement will run until further notice and can be terminated by respective party with three (3) months notice. 3.5 If the Customer has ordered the Service EPiServer Video Service, Customer acknowledges that this Service is partly based on a 3rd party cloud based service provided by Amazon.com, Inc., called Amazon Web Services ( AWS ). By accepting this Agreement you also accept the specific terms Amazon Web Services Customer Agreement, presented on In the case of conflict between the Agreement and the Amazon Web Services Customer Agreement, the Agreement shall have precedence, except for Sections 6, 7, 8 and 9.4, which will not apply. (For the General Terms and Conditions for EPiServer Hosting Services 1 (6)

2 avoidance of doubt, Section 3.5 only apply for the EPiServer Video Service, not other Hosting Services provided by EPiServer) 3.6 If the Customer has ordered the Service EPiServer Rental License, the Agreement will run until further notice and can be terminated by respective party with three (3) months notice. 4. Fees 4.1 For EPiServer s provision of the Service, the Customer shall pay EPiServer in accordance with the prices set forth in the Offer, Hosting Agreement and/or Order Confirmation. 4.2 The Customer shall compensate EPiServer for all the work and costs that do not fall under the Service or are included in the Service. Compensation shall be paid in accordance with EPiServer s price list for such services. 4.3 If the Customer uses more than the agreed volume of traffic for the ordered Service, according to the offer or order confirmation, EPiServer has the right to immediately charge the Customer in accordance with the applicable price list. Retroactive debiting may also take place. 4.4 When renting hardware, the rental fee in this Agreement is connected to the reference interest rate STIBOR 90. EPiServer reserves the right to adjust the rental price, on a current basis during the term of this Agreement, based on the interest rate level at the respective time for invoicing. 4.5 Price adjustments are referred to in Section Terms of payment 5.1 Net 30 days from the issue date of the invoice unless otherwise stated. Services are invoiced monthly in advance. Value added tax will be added to all prices 5.2 If the Customer does not pay the outstanding amount due, within the time set out, the Customer shall, in addition to the outstanding amount due, pay penal interest on the overdue amount at the rate of 8,5 % per annum above the reference rate under the Swedish Law on Interest (1975:635). The payments shall at first hand be offset by the accrued penal interest and only thereafter by the outstanding amount due. The Customer s obligation to pay penal interest in accordance with this Section does not in any way limit EPiServer s right to terminate the Agreement invoking premature termination due to delay of payment for the Service. 5.3 The Customer has a right to take notice of such log files that show the Customer s consumption of bandwidth and other statistics that the charging is based on. Such log files are saved by EPiServer for sixty (60) days after the issue date of the invoice. 6. Availability - SLA 6.1 EPiServer undertakes to keep the Service available in accordance with the agreed availability level (SLA) that has been set forth in the Offer, Hosting Agreement or Order Confirmation. Different Services have different availability levels (SLA). Increased availability level (SLA) can also be ordered. The availability level for the ordered Service is set forth as on one hand a percentage [e.g. 99,0%], on the other hand what times the Service shall be possible to access [e.g. All days, am pm GMT +1]. The availability shall be calculated per calendar month and shall amount to at least the set percentage during the times when the Service shall be accessible. 6.2 If availability falls below the ordered Service s availability level (SLA), the Customer has the right to obtain a reduction on the monthly fee for the Service. The reduction shall correspond to 10 percent of the monthly fee for each interval of 1 hour that the effective availability falls below the agreed availability (SLA) for the Service. The reduction is limited to the actual month when the agreed availability level has fallen short. 6.3 The Customer s demand for a reduction of the monthly fee in accordance with Section 6.2 shall be made at the latest one (1) month after the end of the period for which the reduction is sought. 6.4 EPiServer is not responsible for the lacking availability that is due to a fault in the Customer s customizations of EPiServer s software, fault in the Customer s equipment, operation stoppage according to Section 7 or a defects in the products of a third party. 6.5 EPiServer has the right to deny launch of the Service or interrupt the provision of the Service if the Customer s components, customizations of EPiServer s software, products or equipment of a third party can be assumed to affect the operational environment or the availability for other customers of EPiServer. Compensation in accordance with Section 6.2 will not be paid under such circumstances. General Terms and Conditions for EPiServer Hosting Services 2 (6)

3 6.6 If the Customer's Service, consciously or subconsciously, exposes EPiServer s IP net, system or other customers to risk, abnormally high load, Denial of Service (DOS) attacks, hacking or similar, EPiServer has the right to directly turn off the Customer s Service and afterwards give notice to the Customer. Compensation in accordance with Section 6.2 will not be paid under such circumstances. 6.7 The Customer s right to bring any claims due to a lack of availability is limited to that aforementioned in this Section Operation stoppage 7.1 If so is required for operational, security or other technical reasons, EPiServer has the right to undertake any measures that may affect the availability of the Service without any right for the Customer to receive a reduction of the monthly fee set out in Section The Customer has the right to receive information about planned operation stoppages within reasonable time prior to such measures being taken. 8. Backup copying and loss of data 8.1 EPiServer takes the responsibility that backup copies of the data files and the databases included in the Service are made on a daily basis. EPiServer takes the responsibility that such backup copies are saved with EPiServer for seven (7) days. Thereafter EPiServer does not take any responsibility for the backup copied information. 8.2 If EPiServer shall take responsibility for the backup copying of other data and/or to any other extent than that stated in the first paragraph, such obligation shall be specifically agreed between EPiServer and the Customer. 8.3 Over and above the responsibilities that EPiServer has taken on in accordance with the first and second paragraphs, EPiServer does not take any responsibility for any loss or distortion of information/data. 9 EPiServer s responsibilities 9.1 EPiServer does not exercise any control of information or material displayed on the Customer s storage space and EPiServer is consequently not responsible for direct or indirect damages that have arisen as a consequence of the Customer s actions or faults in the Customer s applications. EPiServer is not liable to damages when damages arise in connection with an infringement in the Customer s Service. 9.2 EPiServer does not exercise any ownership, claim or responsibility of the Customer s data (including but not limited to any data or information stored via, on, and/or through the Service) and EPiServer is consequently not responsible for direct or indirect damages that have arisen as a consequence of the Customer s data or faults in the Customer s data use. EPiServer is not liable to damages when damages arise in connection with an infringement in the Customer s Service. For avoidance of confusion, if the Customer has ordered the Service EPiServer Find, this clause applies to all data and information within the index of the Service. 9.3 EPiServer handles all information about the Customer as confidential in order to safeguard the integrity of the Customer. However, EPiServer can be ordered to hand out data regarding the Customer, via court order or request from the police or other authority or due to legislation. 9.4 EPiServer undertakes to repair any operational defects, at its own cost, to the extent that such defect can be repaired. Measures to repair defects are started and performed every day 06:00-22:00 CET (GMT +1). EPiServer does not give any guarantees or other commitments for a) within what time the reparation of the defect shall start or b) within what time the defect shall be repaired. 9.5 If the Customer has not been able to use the Service due to a defect, the reduction of the monthly fee will apply in accordance with Section EPiServer s responsibility does not cover defects due to the Customer s customizations of EPiServer s software, defects in the Customer s equipment, operation stoppage according to Section 7 or defects in the products of a third party. 9.7 EPiServer is only responsible for such damages that have been caused by its own negligence. EPiServer s liability for damages shall be limited to direct losses. Except for damages arising from gross negligence or intentional misconduct EPiServer s total liability for damages per contractual year shall, under all circumstances, be limited to an amount corresponding to three (3) monthly fees for the Service. Compensation will not, under any circumstances, be paid for indirect, incidental, special, punitive, exemplary or consequential damages of any kind, such as decreased production or turnover within the Customer s business. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL CUSTOMER, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS OR REVENUES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT. General Terms and Conditions for EPiServer Hosting Services 3 (6)

4 9.8 EPiServer has the right to keep a log of the use of the Service to the extent such is allowed according to applicable legislation. For the EPiServer Find Service, EPiServer shall only store search statics for three (3) months or one hundred thousand (100,000) searches, whichever occurs first. 10 The Customer s responsibilities 10.1 The Customer shall report any defects with the Service to EPiServer immediately after such defect was discovered The Customer is responsible that all the information or material that has been transferred or in any other way handled within the Service does not constitute an infringement of the right of a third party or in any other way is in conflict with applicable legislation or EPiServer s Publishing Rules. The Customer is fully responsible for all the actions he performs through his Services. The Customer shall hold EPiServer free from loss for any demands directed at EPiServer by a third party as a consequence of the information that the Customer is responsible for. This continues to apply even if EPiServer has terminated the Agreement with the Customer due to a breach of this provision Before the Service is provided, the Customer must purchase licenses and approve of the license agreement concerning EPiServer s Software that the Service demands. The Customer shall hold the required license agreements for all EPiServer s Software that are part of the Service Before the Service is provided, the Customer must purchase licenses and approve of the license agreement concerning all non-episerver s software, components, services and code (including but not limited to third party software, components, services, code and/or other licenses) that the Service demands. The Customer shall hold the required license agreements for all other, third-party or otherwise, software, components, services, and code that are part of the Service. The Customer is responsible for that such license agreements allow a third party to carry out operations of the software in question, and that Customer and EPiServer s Service to Customer are not in breach of such license agreements nor infringing on intellectual property rights of a third party. In such case where other, third party or otherwise, products, software, components, services, code and/or other licenses are to be used on behalf of the Customer in the Service, the Customer shall hold EPiServer free from loss for potential infringements in another s right, third party or otherwise, to such software. Excluded from this Section are the license(s) for the current Microsoft Windows Server and SQL Server software version currently used by EPiServer to provide the Service Before the Service is provided, the Customer shall send a filled out handover form to EPiServer. The Customer shall, in addition, provide all other information of significance for the operation of the Service In order for EPiServer to provide the Service, the Customer shall, on a current basis, purchase/hold a valid Software Subscription for EPiServer s Software which is used in the Service. The Customer is obligated to upgrade the Customer s version of EPiServer s Software if such version is older than 18 months calculated as of the day when the new version of EPiServer Software is made available. EPiServer has the right to make such an upgrade on the Customer s behalf. EPiServer also has the right to upgrade if EPiServer considers that there are circumstances at hand which demand this, such as security vulnerabilities, lacking stability or other circumstances that can affect the Service or other customers The Customer owns and is responsible for any data and information they insert, upload, download, generate, capture, relay or in any way transmit or store, on, through use or as a result of the Service and is consequently responsible for direct or indirect damages that have arisen as a consequence of the Customer s data or faults in the Customer s data use. The Customer assumes liability when damages arise in connection with an infringement from the data used or stored via Customer s Service and must abide by Section 11 of this Agreement. For avoidance of confusion, if the Customer has ordered the Service EPiServer Find, this clause applies to all data and information within the index of the Service The Customer is responsible for that the necessary alterations are made in the Customer s system (including the Customer s customizations of EPiServer s Software) in connection with the upgrade of EPiServer s Software. If EPiServer carries out services concerning alterations of the Customer s system, the Customer will be invoiced for these services according to EPiServer s applicable service price list The Customer is responsible for equipment that he owns and that is placed with EPiServer. The equipment that the Customer places with EPiServer shall be insured by the Customer. The Customer is also responsible for damages that the Customer s equipment, the Customer s adaptation of systems or third party s products cause EPiServer or other Customers The Customer is responsible for damages that arise if the Customer is affected by hacking caused by customer negligence If the Customer sends out spam, the Service may be turned off immediately. Compensation in accordance with Section 6 will not be paid in such case The Customer may not re-sell the whole or parts of his Service to a third party without the approval of EPiServer. General Terms and Conditions for EPiServer Hosting Services 4 (6)

5 10.13 The Customer shall ensure that distributed passwords, identities and so on are used and stored in a safe and secure manner The Customer is responsible for keeping data regarding the Customer s address, telephone, fax and as well as contact person up to date in EPiServer s customer register. Any changes shall be notified to EPiServer If the Customer has ordered the Service EPiServer Find, the Customer agrees to be subject to a Fair Use policy, which limits use of EPiServer Find to twenty (20) requests per second. Exceeding this limit, the Customer agrees that EPiServer shall have the right to limit the Service in order to bring usage to within this Fair Use policy, or in extreme cases and/or when multiple infractions occur, terminate Service. 11. EPiServer s Publishing Rules 11.1 Material published on the Service must not be conceived as offensive, abusive, radical or in any other way be in conflict with common values or be of pornographic nature The Customer may not use the Service to carry out unsolicited mass ("spam"). A recipient of ordered mass shall be able to cancel future . An unsubscribe function must be included in every If material in the Service is discovered that is in conflict with Swedish or international law or EPiServer s Publishing Rules, EPiServer has the right to immediately turn off the Service until the prohibited material has been removed. EPiServer also has the right to terminate the Agreement in accordance with Section 14.1 (i). In case of such termination, the Customer s responsibilities in accordance with Section 10.2 remain in force. Compensation according to Section 6 is excluded in such case. 12. Secrecy 12.1 The parties commit themselves to, not during the term of this Agreement or thereafter, reveal to any third party such information that a party has received from the other party and which is to be considered as the other party s business secret. The parties shall also take such required measures to prevent that such business secrets are revealed to third parties by the employees and consultants hired by the party The parties commit themselves, without any limitation in time, to not without obligating reasons reveal a) the content of the Agreement or arbitral award following this Agreement or b) information regarding negotiations, arbitral proceedings or mediation following this Agreement 13. Force majeure 13.1 The Parties are released from liability for sanctions due to omission to fulfil a certain obligation according to this Agreement, if the omission is due to circumstances ( relieving circumstance ), which are outside the control of respective party and which prevent the fulfilment of the obligation. As soon as the obstacle is removed, the obligation shall be fulfilled in the agreed way. As relieving circumstance will be war, action of war, authority s act or omission, newly added or changed legislation, conflict in the labor market, DOS-attacks (Denial Of Service), defect or delay in services provided by sub distributors and therewith equal circumstances If a party desires an exemption according to Section 13.1, the party shall, without delay, give such notice to the other party Irrespective of what is said regarding exemption from sanctions according to Section 13.1, the parties have a right to immediately terminate the Agreement if the fulfilment of a certain obligation is delayed more than two (2) months. 14. Premature termination 14.1 EPiServer has the right to immediately terminate the Agreement prematurely if i) the Customer does not see to that the content in the Service fulfils the requirements that are stated in Section 10 and 11 or otherwise has been agreed and the Customer has not, within thirty (30) days after written request thereof, taken corrective measures; ii) the Customer abuses the resources or without authorization seeks access to EPiServer s system, which is not intended for the Customer; iii) the Customer is delayed with the payment of an overdue fee, and has not within fourteen (14) days after the reminder of request for payment, paid the fee; iv) the Customer, in any other way, significantly breaches his obligations according to this Agreement and the Customer has not, within thirty (30) days after written request thereof, taken corrective measures; v) the Customer has been declared bankrupt or otherwise is insolvent. General Terms and Conditions for EPiServer Hosting Services 5 (6)

6 14.2 EPiServer does not have the right to prematurely terminate the Agreement if the Customer s negligence is of minor significance or if EPiServer has granted a respite of payment The Customer has the right to, in writing, terminate the Agreement prematurely if i) EPiServer significantly breaches its obligations in the Agreement and EPiServer has not taken corrective measures within thirty (30) days after a written request thereof; ii) EPiServer is declared bankrupt or otherwise is insolvent. 15 Changes of terms and conditions 15.1 These general terms and conditions are in force until further notice. The Customer will be notified at least three (3) months before any significant changes of these terms and conditions as well as any price adjustment comes into force. EPiServer has the right to notify such new terms and conditions as well as adjustments to the, by the Customer indicated, contact person s , fax or in any other way that EPiServer finds suitable. 16. Precedence 16.1 In the case of conflict between the Agreement and specifications in the Order Confirmations or the Offer or Hosting Agreement, the documents shall have precedence in the following order: 1. The Order Confirmation. 2. The Offer or Hosting Agreement 3. The Agreement (General Terms and Conditions for EPiServer Hosting Services). 17. Transfer 17.1 The Customer does not have the right to transfer this Agreement to any third party without EPiServer s approval EPiServer has the right to transfer this Agreement to a third party without the Customer s approval. However, at the transfer of the Agreement to a third party, the Customer has the right to terminate the Agreement prematurely with three (3) months notice. 18. Dispute 18.1 This Agreement shall be governed by and construed in accordance with the substantive laws of Sweden. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded Alternative Dispute Resolution. The Parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation ("Disputes"), shall be submitted first to nonbinding mediation. If the Disputes are not resolved through mediation within 60 days, then, upon the election of either party, the Disputes shall be submitted for binding arbitration. Any unresolved dispute, controversy or claim arising out of or relating to this Agreement, except for any such controversies or claims arising out EPiServer s intellectual property rights for which a provisional remedy or equitable relief is sought, shall be settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The place of arbitration shall be Stockholm. Each party will bear its own costs with respect to any disputes arising under this Agreement. 19. Third party beneficiaries 19.1 This Agreement is for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the parties hereto any legal or equitable rights hereunder. 20. Invalidity 20.1 If any provision of this Agreement should be held to be invalid, illegal or unenforceable, then, to the extent permitted by law, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. General Terms and Conditions for EPiServer Hosting Services 6 (6)