'Archive as a Service' Terms of Service
1. INTERPRETATION AND DEFINITIONS
1.1 In this agreement, unless inconsistent with or otherwise indicated by the context:
1.1.1 "Service" means the Piler's Archive as a Service running on the computers allocated exclusively to process and store Data.
1.1.2 "Trial Period" means, the period of 7 calendar days commencing on the date on which the service was deployed;
1.1.3 "End Customer" means either a person or a business entity that subscribes to the Service for normal business end use or personal use and not for resale or distribution;
1.1.4 "Data" means data of an End Customer stored by: (i) Piler; or (ii) the system that runs the Service;
1.1.5 "Month" means a period starting and ending on the first and last day, respectively, of any calendar month;
1.1.6 "Piler" is a business entity represented by Janos SUTO, a resident of Hungary;
1.1.7 "Taxes" means: (i) VAT, GST or any similar tax; and (ii) withholdings tax where corresponding tax credits or rebates are not available to Piler.
1.1.8 "Commencement Date" means the first day of the month in which this agreement was signed by the last Party to sign;
1.2 Words in the singular number include the plural and vice versa.
1.3 Words importing any one gender include each of the other two genders.
1.4 The headings of the clauses are intended for convenience only and do not affect the interpretation of this agreement.
2. ACCESS TO THE SERVICE
Piler hereby grants to End Customer exclusive right to use the Service.
3.1. This agreement commences with effect from the Commencement Date and will remain in force unless terminated by either Party in accordance with the provisions set out in this agreement.
3.2. Either Party may terminate this agreement by giving the other Party at least one calendar month written notice of its intention to terminate.
4. ACCESS TO THE SERVICE
4.1. The Service is accessible at an URL agreed by both Piler and End Customer, eg. https://archive.customerdomain.com. Piler may from time to time, and at its sole discretion, update or upgrade such Service.
4.2. End Customer will not be entitled to have access to or be supplied with any software (including source code) relating to the Service.
4.3. In respect of each aspect of the Data, subject to End Customer not being in breach of this agreement, Piler shall retain such aspect of the Data until the earlier of:
4.3.1. termination or cancellation of this agreement for any reason whatsoever; and
4.3.2. the predefined expiry date agreed by End Customer on which the email containing such aspect of Data was sent.
4.4. Piler may retain the Data post termination or cancellation of this agreement, where Piler reasonably considers that such retention is required to comply with applicable laws and regulations.
5. UNDERTAKINGS BY END CUSTOMER
5.1. Notwithstanding anything to the contrary contained in this agreement, End Customer undertakes not to:
5.1.1. send more Data to the archive than the agreed capacity of the Service. See 8.5.5 for more.
5.1.2. use the Service in any manner not authorized in terms of this agreement;
5.1.3. Create the impression or state that it owns or developed the Service;
184.108.40.206. use the Service in an unlawful manner including, without limitation, use of the Services directly or indirectly:
220.127.116.11. to transmit viruses, macro viruses, Trojan horses, worms or other malware;
18.104.22.168. to transmit or post material that is unlawful, harassing, libellous, invasive of privacy abusive, sexual in nature, threatening, harmful, vulgar, defamatory, offensive, or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety;
22.214.171.124. to send unsolicited communications or spam;
126.96.36.199. to cause the whole or part of the Service to be interrupted, damaged, rendered less efficient or to in any way impair effectiveness or functionality of the Service; or
188.8.131.52. so as to violate or infringe any person’s rights including, without limitation rights to privacy and intellectual property.
184.108.40.206. use the Service for commercial purposes; or
220.127.116.11. generally use the Service to cause any nuisance.
5.2. End Customer acknowledges that all goodwill in the Service and related trademarks inure for the benefit of Piler, and insofar as may be required by law, End Customer hereby assigns to Piler all such goodwill that may in future exist, and in this regard undertakes, if required by Piler, to perform all acts that may be necessary (at Piler’s cost) to effect such assignment.
5.3. End Customer shall use Service branding and trademarks strictly as directed by Piler from time to time, and any change in the branding and use of Piler trademarks will require Piler’s prior written consent.
6. SERVICE FEES
6.1. In consideration for the rights granted to End-Customer hereunder, End-Customer undertakes to pay Piler a monthly fee as per agreed in writing by Piler.
6.2. The monthly fee shall consist of the following:
6.2.1. Archiving and e-Discovery Fee - monthly fee as per agreed in writing.
6.2.2 If the monthly network traffic surpasses 20 TB, then it costs an extra EUR 2.00 a month per TB.
6.2.3. Assuming the End-Customer terminates after the Trial Period, End-Customer may request to download copies of their archived Data over the Internet within 7 calendar days of the termination. A once off fee of EUR 0.17c per gigabyte of Data exported will be applied and payable before the data is made available. The archived Data are deleted permanently after the download or within 7 calendar days whichever comes sooner.
6.2.4. The import fee is EUR 0.17c per gigabyte of Data imported.
6.3. All amounts detailed in clause 6.1 will automatically escalate on 1 February of each year following the Commencement Date by 3%, compounded.
6.4. If the End-Customer terminates after the Trial Period, no corresponding payment to Piler will be payable hereunder in respect of the calendar month following the date of such communication to Piler.
6.5. Amounts payable for a Month will be calculated and paid by End Customer within 14 calendar days following the end of the Month.
6.6. End Customer shall make payment to Piler of all amounts due to Piler in terms of this agreement by electronic transfer into the following bank account:
7. LIABILITY FOR INTEREST ON LATE PAYMENTS
7.1. All amounts which End-Customer is required to pay to Piler in terms of this agreement and which are not paid on due date will bear interest at 10%.
7.2. Interest will be calculated on a daily basis in arrears from the due date of payment and will be compounded.
7.3. Piler's right to charge interest on outstanding amounts will not detract from any other rights that Piler may have in law or in terms of this agreement.
8.1. The Service is supplied “as is” and Piler does not warrant that the software on which the Service runs is free of bugs, inadvertent errors, defects or malfunctions. If Piler is notified of any significant inherent defect or error in the Service or such software during the term of this agreement, Piler will take all reasonable steps to correct any such defect or error within a reasonable time.
8.2. End Customer undertakes to inform Piler of any bugs, inadvertent errors, defects or malfunctions in respect of the Service or the software on which the Service runs as soon as reasonably possible after End Customer discovers or is informed of such fault or problem.
8.3. Notwithstanding anything to the contrary contained in this agreement, any liability of Piler arising out of this agreement will be limited to Piler rectifying, within a reasonable time and free of charge, any bugs, inadvertent errors or malfunctions in the Service and software on which the Service runs. In no instance, will Piler be liable to restore or correct data.
8.4. The warranties contained in this warranties clause are End Customer’ sole warranties and are in place of all warranties, conditions or other terms expressed or implied by statute or otherwise, all of which are hereby excluded to the fullest extent permitted by law. This warranties clause also sets out the End Customer’s sole remedies for any breach of Piler’ warranties. All other warranties, conditions, representations, indemnities and guarantees with respect to the Service, whether express or implied, arising by law, custom, prior oral or prior written statements by Piler or otherwise (including, but not limited to, any warranty for merchantability or fitness for particular purpose) are hereby overridden, excluded and disclaimed by Piler will not be liable in respect of any related claims or damages howsoever arising. In particular, and without derogating from the generality of this warranties sub-clause, under no circumstances (except in the event of personal injury or death resulting from Piler’ negligence) will Piler, its members, directors, officers, employees, servants, contractors or agents be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, whatsoever, including, without limitation, such damages or lost profits based on claims of End Customer and/or End Customer of the Service (including, but not limited to claims for loss of goodwill, use of money or use of such Service) arising out of loss of data; interruption of use or availability, failure or malfunction of the Service, telecommunication facilities or hardware; stoppages or other impairment of other assets; bugs, inadvertent errors, defects or malfunctions in the Service; breach or failure of express or implied warranties; breach of contract; misrepresentation; negligence and strict liability in delict.
8.5. End Customer acknowledges that:
8.5.1. aspects of the Service are under the control of third parties (e.g. telecommunication service providers and hosting providers);
8.5.2. Piler are reliant upon such third parties for proper performance of Piler’s obligations hereunder; and
8.5.3. Piler cannot be held liable for any defective or interrupted service(s) provided by such third parties, provided that in the event of a defect or interruption, Piler shall use best efforts to procure that such defect or interruption is remedied by such third party.
8.5.4. Piler don't provide any antispam, antivirus or anti-malware service. The emails are received and archived as they are, without any modification or filtering. The End Customer is liable to guarantee the necessary email security measures satisfying the End Customer's standards to prevent any hostile email entering the Service. Piler cannot be held liable for any malicious or otherwise unwanted email entering the Service.
8.5.5. Piler won't archive any new incoming emails when reached the agreed capacity of the Service, see 5.1.1.
If End Customer needs more Data archived, then Piler calculates a new quote to match the increased demand. End Customer may not send any more Data to the Service until Piler confirms in writing that it's ready to receive new Data, otherwise Piler cannot be held liable for any loss in new Data.
8.5.6. Piler may terminate the Service at Piler's discretion 7 calendar days after the payment deadline in case of the payment is not done by the deadline.
8.6. Subject to the preceding clause and End Customer not being in breach of this agreement, Piler shall use its best efforts to ensure 95% uninterrupted operation of aspects of the system in the possession or control of Piler and, consequently, uninterrupted provision of Services.
9.1. End Customer shall procure that all users of the Service that are given access to the Service by the End Customer accept the limitation of liabilities detailed in the warranties clause. End Customer indemnifies Piler (including indemnification relating to legal fees) against any claim, action or proceedings instituted by such users, where such claim, action or proceedings arise from such users’ failure to accept the limitation of liabilities detailed in the warranties clause.
9.2. In addition to the preceding clause, End Customer indemnifies Piler and its directors, members, officers, employees, servants, contractors and agents against damage, cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the Service that is based on End Customer’s conduct, action or inaction.
9.3. In the event that any claim is made successfully against Piler and/or Piler, the liability of Piler is limited to an amount equal to the corresponding amounts paid to Piler in terms of this agreement.
10.1. Piler’s technical support staff will endeavour to respond to any queries End Customer may have about the Service. For support, consult Piler’s web site at mailpiler.com, or email Piler at email@example.com.
10.2. Piler agrees to provide reasonable support and assistance to End Customer in developing familiarity with the Service insofar as is necessary for End Customer to exercise its rights in terms of this agreement.
10.3. Piler will provide End Customer with Tier 1 support, as substantially described in Schedule 1 (“Support Terms”) attached hereto, and as updated and upgraded by Piler from time to time;
11. THIRD PARTY INFRINGEMENT CLAIMS
Neither Piler warrants that the Service does not infringe the intellectual property of third parties or that the Service is compliant with all legal requirements (including, without limitation, statutes and regulations) that End Customer may operate under, and neither Piler assumes any obligation to indemnify End Customer against any claims based on either infringement of intellectual property rights of third parties or non-compliance resulting from use of the Service.
12. USE AND STORAGE OF PERSONAL INFORMATION BY PILER
Piler may ask End Customer to permit using End Customer's name, brand or logo to:
12.1.1. publicizing the Service;
12.1.2. advertising the Service;
12.1.3. compiling a customer reference list that is available to the public; and
12.1.4. generally promoting the Service.
13. LANGUAGE OF SERVICE AND DOCUMENTATION
The Service and related documentation shall be provided by Piler in English only, and End Customer will have no claim against Piler for a translated version of such Service or related documentation.
Piler is deemed to have agreed to this agreement on the date when the Service is deployed.
Support: Explanation of Tier 1 Support and Responsiveness
• Tier 1 – Issues regarding operational issues, regarding use of the product;
End Customer may contact Piler in the following ways:
• Skype – Available for all levels of support.
• E-mail support – for less urgent issues, e-mail support will be available.
Issues are acknowledged by Piler within 24 business hours.