Terms for the Treestle LiquiD SaaS Agreement

Transcription

1 Terms for the Treestle LiquiD SaaS Agreement This LiquiD Software As A Service Agreement (the Agreement ) is a legal agreement between you or your company and Treestle B.V. ( Treestle ), a company with limited liability under Dutch Law, registered with the chamber of commerce of Rotterdam (the Netherlands) under registration number You agree that this Agreement is enforceable like any written negotiated agreement signed by you. This Agreement applies to the use of the webservice(s) ( Webservice ) stipulated in the order confirmation. Please read this Agreement very carefully, and ask for legal advice in case you might need any. By ordering our Webservice or using all or any portion of the Webservice you accept all the terms and conditions of this Agreement unconditionally. Logging in on the Webservice, and filling in DNS domains and/or records, downloading dynamic update script or other software ( the Software ) on your computers or servers and pressing the I agree button for a download of any updates, upgrades or supplements is considered use of the Webservice. If you do not agree to the terms of this Agreement, do not use the Webservice and the Software and do not fill in the DNS records, and promptly return the unused Software. If you have already paid for the Webservice you may obtain a refund of the purchase price provided that you (a) do not use the Webservice and the Software and (b) forthwith return the Software, with proof of payment, to the location from which it was obtained. Article 1: Applicable law This Agreement shall be governed by and construed in accordance with the law of the Netherlands. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded from application to this Agreement. Article 2: Grant of License & Duration 1. This Agreement grants a non-exclusive license ( License ) that permits you to use the Webservice and the Software stipulated in

2 the order confirmation, for the domains and IP addresses you have defined through your webaccount with Treestle. Treestle is allowed to limit the maximum number of domains and IP addresses you can define. 2. This License is non-transferable. Unless Treestle has given you specific written permission to do so, you may not assign (or grant a sub-license of) your License, grant a security interest in or over your License, or otherwise transfer any part of your rights to use the License. 3. This License does not grant any rights to obtaining future upgrades, updates or supplements of the Webservice or the Software. 4. If upgrades, updates or supplements of the Webservice or the Software are obtained, however, the use of such upgrades or updates is governed by this Agreement and the amendments that may accompany them and may be subject to additional payments and conditions. Article 3: Different forms of Subscription 1. In case you have the free subscription Treestle does not warrant any service level. 2. In case you have the paid subscription tier one, Treestle warrants the service levels according to level In case you have the paid subscription tier two, Treestle warrants the service levels according to level In case you have the paid subscription tier three, Treestle warrants the service levels according to level Treestle is allowed to change the level of service, support and/or maximum usage for any form or level of subscription at any time and at its sole discretion. In case this means that you will get less service, support or maximum usage, you have the right to terminate this Agreement. 6. In case Treestle changes or upgrades the service level of the free subscription, Treestle will not issue a refund to you in case you have a paid subscription. 7. Upon reclassification of a free service as a paid service, you must pay the associated subscription fee to use the reclassified service in case you want to keep using that service.

3 Article 4: Service levels 1. Service level 1 means: (i)treestle guarantees a 100% uptime (as defined in article 5) of the Name Servers per calendar month. (ii) Treestle provides 1 hour per client per month support (during Dutch business days). 2. Service level 2 means: as service level 1 but the support will be given 24/7 (with a maximum 1 hour per client per month). 3. Service level 3 means: as service level 2 + full emergency support (no maximum of hours, fair user policy) and migration support. 4. You cannot carry forward support hours to a next month. 5. The Services DNS management with dynamic IP, Load balancing and DDos protection are provided as is without a warrant about service level for both the free subscription as well as the paid subscriptions type 1,2 and 3) as is described in article 12. Article 5: Uptime Treestle will make the Webservice available continuously, as measured over the course of each calendar month period, with an Availability Percentage as specified under "Service level", excluding unavailability as a result of Exceptions, as defined below (the "Availability Percentage"). "Available" means the Webservice shall be available for access and use by you. For purposes of calculating the Availability Percentage, the following are "Exceptions" to the service level requirement and the service shall not be considered unavailable if any such unavailability is due to: (i) Your own acts or omissions; (ii) your own Internet connectivity; or (iii) Treestle's regularly scheduled downtime (which shall be notified one week in advance per or any other time as announced by Treestle a week in advance); or (iv) the dysfunctioning of upstream providers due to causes like power outages, network outages, fire and similar circumstances. Article 6: Refund in case of not meeting service levels

4 In the event that Treestle fails to provide the level of service with respect to your account as defined in article 5, you will be eligible for credit of 5% of the fees paid to Treestle for the month in which we fail to provide the stated level of service for every 0.05% of such month during which you are unable to use the Webservice, up to an aggregate of 50% of the monthly service billing. This credit will be offset with the next billing period. Treestle shall have no liability for Service interruptions, or any period during which the Service is otherwise unavailable beyond the billing credit set forth in the immediately preceding sentence. Article 7: Subscription Fee 1. In case you have a free subscription, you do not have to pay Treestle a subscription fee. 2. In case you have a paid subscription Treestle will calculate the subscription fee by (i) adding the maximum number of domains you have used at any one day during the subscription period, divided by the number of days of the subscription period, and multiply this with the applicable rate, and (ii) adding the maximum number of records you have filled in at any one day during the subscription period, divided by the number of days of the subscription period, and multiply this with applicable rate. 3. Treestle has the right to adjust the subscription fee for each renewal of the subscription. This also applies to free subscriptions, which can always be adjust monthly. 4. Treestle has the right to suspend the usage of the Webservice by you or the delivery of the Software to you or to renew a subscription until payment has been received by Treestle for that subscription period. 5. Treestle also has the right to let the Webservice and the Software (automatically) stop functioning after the expiration of the grace period for the payment of the license fee. 6. In case the subscription fee is not paid by you to Treestle before the expiration of the grace period, you are liable to pay Treestle the legal interest (as mentioned in articles 6:119 and 6: 119a Dutch civil code) and all the cost made by Treestle to collect the fees, including legal cost, in addition to the license fee. Treestle can take all legal measures to collect these fees, costs and interest from you.

5 7. All amounts charged to you for the Webservice and the Software are exclusive of any applicable value-added, gross receipts, sales and/or privilege taxes, duties, fees, or other similar liabilities. Any and all such taxes, however denominated shall be passed through to, and shall be payable by, you. Any such Taxes are in addition to all other fees and charges required to be paid by you under this Agreement. Article 8: Authentication and access to your account 1. Treestle will give you access and control to its Webservice by the internet through your webaccount. Access to and control of your webaccount is granted on the basis of a username and password. You agree that the access to and control of the webservice is granted in this way. 2. You are yourself responsible for keeping your username and password confidential and can change your password as often as you like, and you are advised to do so regularly. 3. You are yourself responsible for the misusage of your username and password in case they become known to others and the consequences thereof. 4. Communication with you will happen through the address you have supplied. You agree that, in case a new password will be supplied by us to you, this will happen through your address. You will make sure that only you or your authorized staff has access to this account. You will notify us immediately in case your address changes. 5. You are yourself responsible for the misusage of your address in case unauthorized persons get access to it and the consequences thereof. Article 9: Copyright and Patent 1. Copyright and other intellectual, industrial and/or proprietary rights to the Webservice and the Software, such as a patent are owned by Treestle and/or its suppliers. 2. Any copies that you may make of (part of) the Software are owned by Treestle and/or its suppliers.

6 3. Treestle permits you to use the Webservice and the Software only in accordance with the terms of this Agreement. 4. All rights not specifically granted in this Agreement are reserved by Treestle. 5. You may either (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single medium provided you keep the original solely for backup or archival purposes. 6. You may not copy the product manual(s) or written materials accompanying the Software, except for own use. Article 10: Other Restrictions & Confidentiality 1. Renting, lending, public presentation or broadcasting or any other kind of publication or distribution of the Software is prohibited. 2. Other than as permitted by applicable legislation, you may not, and may not allow any other person to, modify the Webservice or the Software or any part thereof, to analyze it by means of reverse engineering, to decompile or disassemble the Webservice or the Software or otherwise attempt to extract the source code of the Webservice or the Software or any part thereof and/or to make products derived from it, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Treestle, in writing. 3. You acknowledge and agree that the Webservice and the Software was developed by Treestle or its suppliers and is confidential to and a trade secret of Treestle and/or third parties. You agree to maintain the Webservice and the Software in strict confidence and not to disclose or provide access thereto to any person. Article 11: Illegal use You may not, and may not allow others, to use the Webservice or the Software for purposes that are illegal or unlawful or harmful to others, or infringe unlawfully upon the rights of Treestle or others. If you do so, Treestle has the right to suspend the Webservice to you and/or end this Agreement without a notice period and without a refund.

7 Article 12: Limited Warranty 1. Treestle does not and cannot warrant that the Webservice or the Software operate error-free. You should be particularly aware of the fact that errors may occur when using the Webservice or the Software for instance caused by errors or by incompatibility with other software and/or hardware or incomplete data. 2. Treestle and its suppliers provide the Webservice and the Software AS IS AND as AVAILABLE WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of: merchantability, of fitness for a particular purpose, noninfringement of third party intellectual property rights, quiet enjoyment, system integration, satisfactory quality, reliability or availability, accuracy or completeness of responses, results, workmanlike effort, lack of viruses, and reasonable care and skill, all with regard to the Webservice and the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Webservice Software or otherwise arising out of the use of the Webservice or the Software. The entire risk as to the quality and performance of the Webservice or the Software is with you. 3. This exclusion does not apply to (i) any implied condition as to title and (ii) any implied warranty as to conformity with description. Our obligation with respect to any claims Treestle makes regarding the performance and Availability of the Webservice are limited to the terms set forth above under Service Level. 4. If applicable law requires any implied warranties with respect to the Webservice or the Software all such warranties are limited in to the minimal duration allowed by law. 5. YOU ACKNOWLEGE AND ACCEPT THAT THE WEBSERVICE AND THE SOFTWARE ARE NOT DESIGNED, LICENSED OR SOLD FOR USE IN OR WITH EQUIPMENT IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL, OR IN LIFE-CRITICAL SOLUTIONS. 6. Notwithstanding the Warranty Period described in the Limited Warranty, if applicable, should you breach any term(s) of this Agreement the Warranty Period will end on the date of such breach.

8 Article 13: Updates & Information upload to Treestle about usage 1. The Software which you use may automatically, with or without notice, download and install updates from time to time from Treestle. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Treestle to deliver these to you) as part of your use of the Software. 2. The Software may automatically, with or without notice, connect to the internet and give Treestle periodically notice about the current IP address along with information about load and usage. 3. You agree that the information that Treestle gathers about you and the usage Treestle makes thereof is covered by Treestle privacy policy. You agree and accept this privacy policy, and your continuation of using the Webservices constitutes an acceptance of this policy and any changes made to this policy. Article 14: Limitation of Liability 1. In no event, unless required by applicable law, will Treestle or its suppliers be liable to you or to any third party for any damages, including any general, direct, indirect, incidental, consequential, special, or exemplary damages (including in each case, but not limited to, damages for the inability to use equipment or access data, loss of data, loss of business, loss of profits, business interruption or the like) arising out of the use of or inability to use the Webservice or the Software even if Treestle has been advised of the possibility of such damages. 2. In any event, notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Treestle and any of its suppliers arising from or related to this Agreement, shall be in any case limited to the amount actually paid by you for the Webservice and the Software for a 12 month period. 3. No action, regardless of form, arising out of any claimed breach of the agreement may be brought against Treestle after a period

9 of more than one (1) year after the cause of action has occurred and in no case later than three (3) years after the delivery of the Software or any support services. 4. If applicable law does not allow the exclusion or limitation of damages, all such exclusion or limitation of damages shall be limited to the extent allowed by law. Article 15: Force Majeure In the event either party is unable to carry out its material obligations under this Agreement by reason of force majeure (defined below) those obligations will be suspended during the continuance of the force majeure, provided the cause of the force majeure is remedied as quickly as practicable. The term force majeure means any event caused by occurrences beyond a party s reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, governmental regulations, policies or actions enacted or taken subsequent to execution of the Agreement, or any labour, telecommunications or other utility shortage, outage or curtailment. Article 16: Duration & Termination 1. This Agreement has a limited duration, depending on the purchase you made with Treestle or its distributor and is stipulated in the order confirmation, but never more than one year. After the expiration of this period the License has to be renewed and a new license fee has to be paid to Treestle or its distributor. Treestle has the right to ask you to accept a modified license fee and/ or other terms as a condition for the renewal of the License. 2. In case you keep on using the Webservice and the Software after the duration of the Agreement has expired, this counts as an automatic request by you to extend the duration of the Agreement for the same duration, unless Treestle terminates or refuses to renew the License. 3. Treestle has the right to let the Webservice and the Software (automatically or by command) stop functioning, or resort to a static functioning, without issuing a warning, in case (i) the license period has expired and the license is not renewed by you and Treestle, or (ii) this Agreement has been terminated, or (iii) the license fee has not been paid within the grace period.

10 4. You are allowed to terminate this Agreement with Treestle at any time, however Treestle will not refund (any part of) the subscription fee nor will you be excused from paying the subscription fee for the duration of the Agreement. 5. Without prejudice to any other rights, Treestle may immediately terminate this Agreement or refuse to renew this Agreement if you fail to comply with any of its terms and conditions or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of these terms and conditions. 6. Treestle may also at any time, terminate this Agreement with you or refuse to renew this License in case: a. Treestle is required to do so by law (for example, where the provision of the Webservice or the Software to you is, or becomes, unlawful); or b. the partner with whom Treestle offered the Webservice or the Software to you has terminated its relationship with Treestle or ceased to offer the Webservice or the Software to you; or c. Treestle loses the right to licence the Webservice or the Softeware; or d. Treestle is transitioning to no longer providing the Webservice or the Software to users in the country in which you are resident or from which you use the service; or e. the provision of the Webservice or the Software to you by Treestle is, in Treestle s opinion, no longer commercially viable. 7. In such event, you must destroy all copies of the Software. 8. Provisions which, by their very nature, are intended to continue notwithstanding an expiry or termination of this Agreement, shall continue in full force and effect. 9. After the termination of this Agreement Treestle is not obligated to store or keep any information about you or received from you. Article 17: Waiver A failure of Treestle to enforce any of the provisions of this agreement shall in no event be considered a waiver of such provision and a

11 waiver of a provision by Treestle shall not preclude Treestle from later enforcing any other provision of this agreement. Article 18: Severance If any provisions of this Agreement shall become illegal, invalid or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be impaired. Article 19: Alteration agreement 1. Treestle may make changes to the terms of this Agreement from time to time. Treestle will notify you of these changes by submitting the new terms to you to the address you have supplied. Treestle will tell you the date on which the modified terms take effect. By continuing to use the Webservice or Software after the effective date, you agree to be bound by these revised terms. You have the right to terminate the agreement at the effective date in case you do not agree with the new terms, Treestle will then refund any subscription fee you have paid to Treestle for the period after the effective date. 2. Alterations and modifications to this Agreement that are proposed by you are only valid in case Treestle agrees specifically to them in writing. Article 20: Dispute resolution In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity or termination, each party irrevocably agrees to submit to the exclusive jurisdiction of the district court of Rotterdam, the Netherlands, without giving up the right to an appeal. However, in case of a pressing matter that cannot await mediation a party has the right to initiate a summary proceeding (Dutch: kort geding) before the president of the district court of Rotterdam. LiquiDNS is a service by Treestle - KVK: BTW: NL B01