Terms of service.
General Terms and Conditions for Cloud Services & Consulting
The following terms and conditions for cloud services (“General Terms and Conditions”) apply to CPC Consulting, PM, Cloud Services SRL's provision of cloud computing services (the "Deliverables") unless otherwise agreed in writing between CPC Consulting, PM, Cloud Services SRL and the Customer, regardless of the Customer's country of residence and provided that the Customer engages in commercial activities. All transactions are considered to be made between merchants. CPC Consulting, PM, Cloud Services SRL reserves the right to modify these General Terms and Conditions at any time, subject to one month's notice.
1. DELIVERABLES
1.1. The Deliverables to be delivered by CPC Consulting, PM, Cloud Services SRL may consist of Infrastructure as a Service (IaaS), Platform as a Service (PaaS) and Software as a Service (SaaS) and any combinations thereof, as well as any related services provided.
1.2. The Deliverables, e.g. data and server capacity, will be further specified when an order is placed and will appear from the order confirmation, a specific agreement or similar acceptance of the agreement. 2. CONTRACTUAL BASIS 2.1. Regardless of the order method, the Customer accepts these General Terms and Conditions when placing an order.
2.2. An order will become binding on the Customer when placed or when the Deliverables are used. A placed order can only be cancelled if otherwise agreed in writing.
2.3. A placed order will not become binding on CPC Consulting, PM, Cloud Services SRL until the Customer has received a written order confirmation or at the delivery time. An order will be executed at the price applicable when CPC Consulting, PM, Cloud Services SRL's order confirmation is issued. If the order confirmation deviates from the Customer's order, the Customer must inform CPC Consulting, PM, Cloud Services SRL of such deviation within eight days. If not, the order confirmation will apply.
2.4. Quotations made by CPC Consulting, PM, Cloud Services SRL will only be binding on CPC Consulting, PM, Cloud Services SRL if conforming acceptance is received by CPC Consulting, PM, Cloud Services SRL within eight days after such quotation was made to the Customer.
3. PRICES
3.1. All prices are in EUR and are exclusive of VAT, but inclusive of all other indirect taxes. In case of changes to or the introduction or abolition of indirect taxes, prices will be adjusted by the economic net consequence to ensure that CPC Consulting, PM, Cloud Services SRL's position remains unchanged.
3.2. Deliverables are invoiced monthly in arrears based on actual consumption unless otherwise agreed in writing.
3.3. Invoiced fees may consist of (i) a lump sum fee for additional services and the establishment of access to the Deliverables; (ii) a monthly operating fee covering the Customer's use of the Deliverables; and (iii) a fee for CPC Consulting, PM, Cloud Services SRL's provision of related services and other consultancy services.
3.4. CPC Consulting, PM, Cloud Services SRL reserves the right to adjust prices and fees at 1 month's notice.
4. PAYMENT
4.1. The due date shall commerce upon delivery unless otherwise agreed. If the Customer's means of payment is not accepted, the order will not be executed, and the order will be considered as not received by CPC Consulting, PM, Cloud Services SRL.
4.2. In case of the Customer's late payment, interest at a rate of 1.8% per month or a fraction of a month will be added to the amount owing as of the due date. Moreover, CPC Consulting, PM, Cloud Services SRL will be entitled to request payment of a fixed amount of EUR350 to compensate for late payment as well as other collection expenses.
4.3. In case of the Customer's late payment, CPC Consulting, PM, Cloud Services SRL will also be entitled to suspend the Customer's use of the Deliverables temporarily. The Customer will then be excluded from using the Deliverables until the full payment has been received.
4.4. The Customer's obligation to pay on the due date stands regardless of whether the Customer has given notice of defects. The Customer is not entitled to any set-off. If the parties have entered into an agreement on instalment payments, and the Customer has failed to pay an instalment in full or in part, the full amount owing will fall due for immediate payment.
4.5. If CPC Consulting, PM, Cloud Services SRL decides to terminate the agreement with immediate effect due to the Customer's breach of contract, CPC Consulting, PM, Cloud Services SRL will be entitled to demand payment of fees equivalent to 30% of total fees, unless the amount suffered due to such breach exceeds 30%.
5. TERMINATION WITH NOTICE
5.1. The parties are entitled to terminate the agreement in full or in part by giving at least one month's notice to expire on the last day of the month. The agreement must be terminated online or by email, stating the products and/or Deliverables affected.
5.2. As from the last day of the notice period, CPC Consulting, PM, Cloud Services SRL will be entitled to delete all data relating to the Deliverables.
5.3. As regards prepaid Deliverables, the parties are not entitled to terminate the agreement on the delivery of Deliverables for the period and the Deliverables covered by the prepayment (the "Period of Non-interminability"). Suppose the agreement is terminated under clause 5.1. In that case, such prepaid amounts will therefore not be repaid, and the agreement will only be considered terminated on the last day of the Period of Non-term inability.
6. DEFECTS, NOTICE OF DEFECTS AND SUPPORT
6.1. If the Customer discovers or should have discovered defects in the Deliverables, the Customer must give notice of such defects immediately. Notice of defects must be given by contacting CPC Consulting, PM, Cloud Services SRL's Service Desk. Notice of defects given to others than the Service Desk will not be processed.
6.2. By putting the Deliverables into use, the Customer accepts that CPC Consulting, PM, Cloud Services SRL's Service Desk is entitled to provide service and support, including by using the Customer's data for preventive troubleshooting and discovery and remedying of any defects discovered. In that connection, the use of the Customer's data may include, on a non-exhaustive basis, the transfer, storage and other processing thereof.
7. CUSTOMER'S USE AND SUSPENSION OF USE
7.1. CPC Consulting, PM, Cloud Services SRL reserves the right to suspend the Customer's use temporarily if (i) the Customer's use of the Deliverables has an extreme or unusual negative impact on the systems of CPC Consulting, PM, Cloud Services SRL or CPC Consulting, PM, Cloud Services SRL's sub-contractors which directly or indirectly affect CPC Consulting, PM, Cloud Services SRL or CPC Consulting, PM, Cloud Services SRL's other customers; (ii) in any other way, the Customer transfers any form of material which is capable of harming the IT environment of CPC Consulting, PM, Cloud Services SRL or CPC Consulting, PM, Cloud Services SRL's sub-contractors or the Deliverables; (iii) on a reasonable basis, it is considered necessary to prevent unauthorised access to data; or (iv) the Customer fails to meet the requirements for the Customer's use of the Deliverables under these General Terms and Conditions.
7.2. To determine the extent to which the negative impact set out in clause 7.1(i) is attributable to viruses, hackers or defects, the Customer must, at CPC Consulting, PM, Cloud Services SRL's request, provide information on the Customer's consumption pattern. Based on the information provided, CPC Consulting, PM, Cloud Services SRL will be entitled to demand that consumption be reduced. If the Customer fails to comply with such request, CPC Consulting, PM, Cloud Services SRL will be entitled to suspend the Customer's access to the Deliverables. 7.3. CPC Consulting, PM, Cloud Services SRL reserves the right to request payment of an additional traffic consumption fee in case of extreme or unusual abuse of the Deliverables.
8. CUSTOMER'S USE AND BREACH OF CONTRACT 8.1. The Customer must observe all guidelines provided, including written and oral instructions. Unless otherwise agreed in writing, the Customer is also responsible for backing up data to an adequate extent and taking measures against unintended data loss.
8.2. The Customer is not entitled to use the Deliverables, including, but not limited to, servers and storage media (i) for the collection, registration, storage, processing or manipulation of data in violation of European legislation; (ii) for the collection of unlawful data, including the redirection to unlawful links; (iii) to obtain unauthorised access to systems; and (iv) in violation of European legislation in force from time to time and any rules and regulations issued in pursuance thereof. 8.3. Any non-compliance on the part of the Customer of its obligations under these General Terms and Conditions will be considered a material breach of contract, entitling CPC Consulting, PM, Cloud Services SRL to terminate the agreement with immediate effect in full or in part, at CPC Consulting, PM, Cloud Services SRL's discretion. In case of termination with immediate effect, the delivery of the Deliverables will be discontinued, including any connection to the Customer's data. The same applies if the Customer commits a criminal offence, regardless of the country whose laws have been violated. CPC Consulting, PM, Cloud Services SRL is entitled to invoice the Customer for the use preceding such termination and for which the Customer still needs to pay. 8.4. CPC Consulting, PM, Cloud Services SRL will decide whether the Customer is in breach of its obligations.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The Customer undertakes not to use the Deliverables in a manner infringing third-party rights. 9.2. Any material, data and know-how disclosed by the Customer to CPC Consulting, PM, Cloud Services SRL as part of the performance of the agreement may only be used by CPC Consulting, PM, Cloud Services SRL to deliver the Deliverables.
9.3. Any equipment or software made available by CPC Consulting, PM, Cloud Services SRL to deliver the Deliverables will remain CPC Consulting, PM, Cloud Services SRL's property. CPC Consulting, PM, Cloud Services SRL will retain all rights in software, licences, equipment, inventions, improvements or further developments, know-how, etc. developed or used by CPC Consulting, PM, Cloud Services SRL to deliver the Deliverables.
9.4. Any equipment and software licences acquired by the Customer will remain the Customer's property, considering the terms of ownership, right of use and licence applying to each product. The Customer is responsible for the use of such products. This will apply regardless of whether the software is stored using the server capacity made available by CPC Consulting, PM, Cloud Services SRL as part of the Deliverables.
9.5. Any data stored using the server capacity made available by CPC Consulting, PM, Cloud Services SRL as part of the Deliverables will remain the Customer's property. The Customer may request that such data be handed over or deleted against payment of hours spent; see CPC Consulting, PM, Cloud Services SRL's hourly rates in force from time to time for copying and handing over or transferring data on a suitable medium. If data are stored by one of CPC Consulting, PM, Cloud Services SRL's subcontractors, CPC Consulting, PM, Cloud Services SRL will be subject to the restrictions applicable to the sub-contractors access to and copying and deletion of data; but see clause 5.2.
Any licence acquired to deliver the Deliverables will remain CPC Consulting, PM, Cloud Services SRL's or the sub-contractor's property. The Customer will be responsible for uninstalling the software after the termination of the agreement and the expiry of CPC Consulting, PM, Cloud Services SRL's licences.
10.2. To the extent that third-party software is part of the Deliverables (e.g. Microsoft Azure), the Customer will be obligated to CPC Consulting, PM, Cloud Services SRL and any third party to accept and comply with the licence terms applicable to such software from time to time. The Customer's obligation applies regardless of whether a licence to the software being part of the Deliverables delivered by CPC Consulting, PM, Cloud Services SRL (i) has been obtained by CPC Consulting, PM, Cloud Services SRL to the effect that the Customer derives its limited right from CPC Consulting, PM, Cloud Services SRL; or (ii) has been obtained directly by the Customer.
10.3. If the Customer uses third-party software together with the Deliverables, CPC Consulting, PM, Cloud Services SRL will not be liable for the functionality of such software or its use in relation to the Deliverables regardless of whether the third-party software was sold to the Customer by CPC Consulting, PM, Cloud Services SRL under a separate agreement. The licence terms of any third parties may be disclosed by CPC Consulting, PM, Cloud Services SRL at the Customer's request if the software has been licensed to CPC Consulting, PM, Cloud Services SRL. CPC Consulting, PM, Cloud Services SRL is not liable for any changes to the licence terms to be complied with by the Customer at any time.
10.4. If, as part of the Deliverables and at the Customer's request, CPC Consulting, PM, Cloud Services SRL installs third-party software for the Customer's use, the Customer will guarantee that it has the necessary rights in such software. General Terms and Conditions for Cloud Services c
11. LIMITED LIABILITY
11.1. CPC Consulting, PM, Cloud Services SRL is not liable for any indirect losses, including any loss of profit, loss of goodwill, any failure to obtain or reach economic benefits and objectives, any loss of production, loss or distortion of data, any loss suffered because CPC Consulting, PM, Cloud Services SRL's deliveries cannot be used as assumed, any loss relating to unauthorised persons' access to data and systems or any loss suffered due to the lapse or breach of a third party agreement. CPC Consulting, PM, Cloud Services SRL's liability in damages only extends to losses inflicted with gross negligence.
11.2. The amount of CPC Consulting, PM, Cloud Services SRL's liability for any loss cannot exceed an amount equalling three months' payment for the Deliverables on which the claim is based, provided that the agreement has run for at least three months. If the agreement has run for less than three months, CPC Consulting, PM, Cloud Services SRL's liability will be limited to the amount actually paid.
11.3. Any claims due to defective Deliverables delivered in full or in part by a subcontractor cannot be raised against CPC Consulting, PM, Cloud Services SRL.
11.4. As regards Deliverables delivered by a sub-contractor, the obligations and liability of CPC Consulting, PM, Cloud Services SRL as an intermediary, including, but not limited to, warranties, are limited to the responsibilities and liability offered by the sub-contractor and specified in the subcontractor's terms and conditions.
11.5. CPC Consulting, PM, Cloud Services SRL excludes all liability in respect of explicit and implicit warranties, including, but not limited to, implicit warranties for merchantability and fitness for any particular purpose.
11.6. The Customer is responsible for ensuring that the Deliverables do not violate current European or legislation of countries in which these deliverables are used. The Customer must indemnify CPC Consulting, PM, Cloud Services SRL in every respect if claims are raised by third parties as a result of the Customer's unlawful or infringing activities. CPC Consulting, PM, Cloud Services SRL exercises no control whatsoever of the Customer's use of the Deliverables.
12. ASSIGNMENT
12.1. CPC Consulting, PM, Cloud Services SRL is entitled to assign its rights and obligations to a group company.
12.2. CPC Consulting, PM, Cloud Services SRL's assignment of its rights and obligations to third parties is subject to the Customer's prior written consent. Such consent may not be withheld without a valid reason. Notwithstanding the provision of clause
12.2, the first sentence, CPC Consulting, PM, Cloud Services SRL is entitled to assign its rights and obligations in connection with a merger, business transfer, reorganisation or similar changes regardless of the form thereof, e.g. by an asset or share transfer.
13. GEOGRAPHICAL LOCATION OF DATA
13.1. At the time when the Customer places its order, CPC Consulting, PM, Cloud Services SRL may confirm that the Customer's data will be stored only on servers in the EU or in a safe third country at the Customer's request. CPC Consulting, PM, Cloud Services SRL thus guarantees that the servers on which the Customer's data are stored will be physically located in the EU or in a country found to be safe by the European Commission.
13.2. Special terms on geographical location may apply to specific Deliverables, and such terms will always take precedence over the Customer's choice of data location.
13.3. By ordering such special Deliverables, the Customer accepts that data may be transferred to CPC Consulting, PM, Cloud Services SRL's sub-contractors and the partners of such sub-contractors as well as the data centres and storage facilities of such sub-contractors located in countries outside the Customer's country of residence and the EU/EEA. Such transfers include the transfer of data to data centres and storage facilities located in the USA in accordance with current law.
13.4. By ordering such special Deliverables, the Customer confirms to have performed a risk analysis of the data protection and safety measures offered by CPC Consulting, PM, Cloud Services SRL and CPC Consulting, PM, Cloud Services SRL's sub-contractors in respect of the Customer's data and any personal data included therein.
14. OPERATION, SLA AND MAINTENANCE
14.1. If the parties enter into a separate agreement on the provision of additional services such as e.g. operation and monitoring, such an agreement must include a service specification made by CPC Consulting, PM, Cloud Services SRL. The provision of services must comply with best IT practices and the SLA and functionalities stated in the relevant service specification. CPC Consulting, PM, Cloud Services SRL guarantees full resource availability only for dedicated resources and thus not for non-dedicated resources.
14.2. As regards Deliverables delivered from CPC Consulting, PM, Cloud Services SRL's own data centre, CPC Consulting, PM, Cloud Services SRL reserves the right to regular maintenance of its IT environment. If necessary maintenance affects the accessibility of a Deliverable, the Customer must be notified at reasonable notice.
15. INFORMATION
15.1. When placing an order, the Customer must state its address, company registration number telephone number and email address.
15.2. The Customer must ensure that the information and data required for placing orders and amending the agreement are correct and adequate at all times.
15.3. CPC Consulting, PM, Cloud Services SRL will assist the Customer in good faith in migrating the Customer's data. CPC Consulting, PM, Cloud Services SRL's fees for such migration will be calculated on the basis of CPC Consulting, PM, Cloud Services SRL's hourly rates applicable from time to time and the expenses incurred by CPC Consulting, PM, Cloud Services SRL's sub-contractors. Notwithstanding CPC Consulting, PM, Cloud Services SRL's assistance, the Customer will be responsible for migrating data.
15.4. CPC Consulting, PM, Cloud Services SRL is not liable for any defects or irregularities which are attributable to the Customer's provision of inadequate or incorrect information.
16. CONFIDENTIALITY
16.1. CPC Consulting, PM, Cloud Services SRL must keep confidential all confidential information received about the Customer's business ("Customer Data") unless disclosure is required by law. If CPC Consulting, PM, Cloud Services SRL is contacted by a third party requesting disclosure of Customer Data, CPC Consulting, PM, Cloud Services SRL will be entitled to request such third party to contact the Customer directly, providing the Customer's contact information at the same time. In case of any disclosure of Customer Data to a third party, CPC Consulting, PM, Cloud Services SRL will inform the Customer immediately, sending a copy of the third party's request for disclosure, unless CPC Consulting, PM, Cloud Services SRL is prevented by law from doing so. If CPC Consulting, PM, Cloud Services SRL requests a third party to contact the Customer directly, the Customer must disclose such Customer Data to the third party unless, in the Customer's opinion, the third party is unauthorised to receive such data.
16.2. The parties are entitled to mention the conclusion of the agreement to third parties for marketing purposes. All other marketing initiatives are subject to the other party's written consent and may only be performed until such consent is withdrawn.
17. DATA PROTECTION
17.1. If CPC Consulting, PM, Cloud Services SRL is the data processor, and the Customer is the data controller under the European GDPR, the Customer's data will belong to the Customer, and CPC Consulting, PM, Cloud Services SRL will only act in accordance with the Customer's instructions. CPC Consulting, PM, Cloud Services SRL must implement the appropriate technical and organisational security measures required to protect data against accidental or unlawful destruction, loss or deterioration and against unauthorised disclosure, abuse or other processing in violation of the Data Protection Act.
17.2. If the Customer is a public authority, the data processor will also be subject to the rules set out in the National Data Protection Authority of Romania for Protection of Personal Data Processed for Public Administration.
17.3. At the Customer's request, CPC Consulting, PM, Cloud Services SRL must provide the Customer with adequate information to allow it to verify that such technical and organisational security measures have been implemented.
18. USE OF SUB-CONTRACTORS
18.1. CPC Consulting, PM, Cloud Services SRL is entitled to use sub-contractors for the delivery of the Deliverables and, for example, disclose Customer Data to such sub-contractors to the effect that the subcontractor in question becomes the sub-contracting data processor. CPC Consulting, PM, Cloud Services SRL warrants that the sub-contractor is subject to the same contractual obligations as CPC Consulting, PM, Cloud Services SRL and that, in situations where CPC Consulting, PM, Cloud Services SRL or a sub-contractor is the data processor, CPC Consulting, PM, Cloud Services SRL or the sub-contractor will act only in accordance with the instructions of the Customer, which will remain the data controller.
18.2. At the Customer's request, CPC Consulting, PM, Cloud Services SRL must disclose the sub-contractors identity in connection with the delivery of the Deliverables. CPC Consulting, PM, Cloud Services SRL must ensure that the persons being authorised to access the Customer's confidential information are subject to the same duty of confidentiality as CPC Consulting, PM, Cloud Services SRL under these General Terms and Conditions. This applies regardless of whether CPC Consulting, PM, Cloud Services SRL or a sub-contractor employ such persons.
19. FORCE MAJEURE
19.1. Neither party will be liable for events beyond the party's control and which the party should not have considered when signing the agreement and should not have avoided or overcome (a "Force Majeure Event").
19.2. Force Majeure Events include but are not limited to: - Unusual weather conditions and natural disasters; - War and military mobilisation, civil unrest and similar situations as well as terrorist attacks; - General strikes and lockouts; - Fire, non-availability of means of transport and currency restrictions; - Computer viruses, hacker attacks and attacks on IT systems from the outside; - Import and export restrictions.
19.3. The parties may only rely on force majeure for the number of working days affected by the Force Majeure Event.
19.4. In case of a Force Majeure Event, CPC Consulting, PM, Cloud Services SRL may decide to defer delivery until the Force Majeure Event preventing delivery has ceased to exist or to cancel the agreement in whole or in part without compensation.
20. INTERPRETATION
20.1. Certain contract types may be subject to additional terms and conditions, which will take precedence in case of any deviation from these General Terms and Conditions. In case of any discrepancy between these General Terms and Conditions and the Customer's general terms and conditions, these General Terms and Conditions will apply unless otherwise agreed.
20.2. Unless otherwise agreed in writing, these General Terms and Conditions constitute the entire agreement concerning the Deliverables and replace all prior agreements between the parties.
21. DISPUTES, GOVERNING LAW AND JURISDICTION 21.1. Any dispute concerning these General Terms and Conditions must be settled in accordance with Romanian law, except for Romanian international private law. If the Customer decides to commence legal proceedings against CPC Consulting, PM, Cloud Services SRL, such proceedings must be commenced before CPC Consulting, PM, Cloud Services SRL's home court. Suppose CPC Consulting, PM, Cloud Services SRL decides to initiate legal proceedings against the Customer. In that case, such proceedings must be commenced before CPC Consulting, PM, Cloud Services SRL's home court or the Customer's home court at CPC Consulting, PM, Cloud Services SRL's discretion.