'Managed archive' 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 Managed Archive Service running on the Host, see 1.1.6.
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. "End Customer Representative" means a person who is entitled to contact Piler or file issues to Piler.
1.1.5. "Users" means all the legitimate users of End Customer accessing the Service
1.1.6. "Host" means the computer either physical or virtual provided by End Customer running the Service, allocated exclusively to process and store Data.
1.1.7. "Data" means data of an End Customer stored by: (i) Piler; or (ii) the system that runs the Service;
1.1.8. "Month" means a period starting and ending on the first and last day, respectively, of any calendar month;
1.1.9. "Piler" is a business entity represented by Janos SUTO, a resident of Hungary;
1.1.10. "Taxes" means: (i) VAT, GST or any similar tax; and (ii) withholdings tax where corresponding tax credits or rebates are not available to Piler.
1.1.11. "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.
2.1. 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.
2.2. Either Party may terminate this agreement by giving the other Party at least one calendar month written notice of its intention to terminate.
3. PROVISIONING THE SERVICE
3.1. It's a prerequisite that End Customer provides the required settings for the Service, see 3.2.
3.2. End Customer Representative shall provide sufficient input to Piler to deploy and configure the Service, including, but not limited to:
- the access URL for the Service
- any required settings for user authentication (eg. LDAP credentials, etc.)
- expected volume of emails to be archived in GB
- End Customers' users' IP-address range to access the Service via the GUI
- default retention time
- any special settings, eg. archiving rules, retention rules, ...
- smarthost settings to restore emails
- the IP-addresses of all mail servers that should be allowed to send emails to the Service. All other hosts shall be denied access to the Service
3.3. End Customer shall grant permanent access to the Host to Piler via SSH protocol by providing a sudo capable account.
3.4. Piler shall not grant admin rights for the Service.
3.5. End Customer Representative shall identify such users requiring auditor rights.
3.6. Piler deploy the enterprise version of the software. The enterprise version of the software requires a valid license. The Service fee, see 6.2.1, covers the license fee, no additional fee needs to be paid for the license.
4. ACCESS TO THE SERVICE
4.1. Piler hereby grants to End Customer exclusive right to use the Service at the preferred URL agreed by both Piler and End Customer.
4.2. 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.
4.3. In case of HTTPS access it's the End Customer's obligation to provide both the HTTPS key and certificate files.
4.4. End Customer will not be entitled to have access to or be supplied with any software (including source code) relating to the Service.
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 8.5.6 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;
220.127.116.11. use the Service in an unlawful manner including, without limitation, use of the Services directly or indirectly:
18.104.22.168. to transmit spam, scam, viruses, or other malware;
22.214.171.124. 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
126.96.36.199. so as to violate or infringe any person’s rights including, without limitation rights to privacy and intellectual property.
188.8.131.52. use the Service for commercial purposes; or
184.108.40.206. 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 Fee - monthly fee as per agreed in writing.
6.2.2. One time importing fee. If importing emails is required by Piler, then it costs EUR 0.20 per GB. Note that only EML formatted emails are supported. Piler imports the emails as they are, and won't try to correct any possible issue with them. Such import fee must be paid to Piler even if End Customer cancels after the Trial period.
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: (i) deduct from amounts payable to Piler hereunder any withholdings taxes payable; (ii) make timely payment of such taxes to the relevant authorities; and (iii) within 14 calendar days of payment, provide Piler with documented proof of payment to the satisfaction of Piler.
6.7. 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:
IBAN: DE02 7001 1110 6050 5020 99
Bank code (SWIFT / BIC): DEKTDE7GXXX
Elsenheimer Str. 41
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, it 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 not under the control of Piler (e.g. the Host, 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. End Customer may not demand for new features.
8.5.5. 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.
8.5.6. 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.
8.5.7. Only Piler is allowed to make modifications on the Host. End Customer is allowed to make modification on the Host only if Piler agrees in writing to do so.
8.5.8. Piler won't backup any data on the Host, except configuration data required for the Service. Any other backup is End Customer's task to meet End Customer's regulatory requirements, IT policies, etc.
8.5.9. End Customer is responsible to guarantee that the Host is up and running, has proper network access, bandwidth, name resolution, and Piler is able to login via SSH.
8.5.10. Sometimes it's necessary to view the contents of a specific email to resolve an issue. In such cases Piler asks End Customer Representative for permission to do so. Failure to grant such right, End Customer acknowledges that Piler cannot resolve such issue. Piler respects and understands the End Customer's need for secrecy, and Piler will keep such information confidential, sharing its contents only with authorities when required by law.
8.5.11. 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 Representative may have about the Service. Only End Customer Representative is entitled to issue queries to Piler, other Users are not. To request support End Customer Representative shall use the agreed communication channels only.
10.2. Piler agrees to provide the agreed support and assistance to End Customer Representative 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 Representative 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 service;
End Customer Representative may contact Piler in the following ways:
• Skype – Available for all levels of support.
• Issue tracker - All issues must be filed in the issue tracker
Issues are acknowledged by Piler within 24 business hours.