Sales and delivery conditions for any.cloud A/S
PART I – GENERAL CONDITIONS
1. APPLICATION OF THE SALES AND DELIVERY TERMS AND CONDITIONS
1.1 The below sales and delivery terms and conditions (the “Terms and Conditions”) are applicable to all offers, order confirmations, sales and deliveries from any.cloud A/S (the “Company”).
1.2 A customer (“Customer”) is obligated to comply with the agreement with the Company (the “Agreement”) and these Terms and Conditions throughout the period of the Agreement.
1.3 If the Customer also has a contract with any.mac A/S for the provision of support or installation, all services covered by the agreement between the Customer and any.mac A/S shall be provided by any.mac A/S as per the terms set out in the agreement between the Customer and any.mac A/S, as well as any.mac A/S’s technical conditions and general terms and conditions.
2. THE COMPANY
2.1 The Company is a member of Brancheforeningen for IT- hostingvirksomheder i Danmark [the industrial association for IT hosting companies in Denmark] (“BFIH”) and has received BFIH’s quality label (”Hostingmærket” [“The hosting label”]).
2.2 The Company has also received ISAE 3402 Type II certification from an independent auditor regarding security of the description of controls, their design and functionality with regard to hosting services. The Company is committed to maintaining this, or a similar certification, during the Agreement period.
3. THE SOLUTION
3.1 The Company provides the hosting services to the Customer, which are outlined in section 2.1 of the Agreement (“the Solution”). The Company may at any time offer the Customer one or more free basic products over a temporary or permanent period, or make such products available to the Customer. These free products are not covered by the definition of “the Solution” and can always be changed, removed or modified by the Company, and the Company has no responsibility for, or in relation to, such products. The same applies to the Company’s service level agreement commitments, which are not applicable to these products. The Company is entitled to charge the Customer for current use of these free products, as well as if the customer wants the free basic product to be upgraded or changed.
3.2 All services that the Customer orders from the Company in addition to the specific Solution that the Customer has selected are additional optional services, which the Customer must pay for separately. These Terms and Conditions apply to all additional options. For example, the Solution does not include Veeam licenses, SureBackup based on Sandbox, the Company’s Disaster Recovery as a Service (DRaaS), ReSure and Instant Recovery.
3.3 The Company’s services and responsibilities only include the Company’s monitoring to ensure that the virtual servers are available and are operational, and the Company shall be deemed to have delivered its services to the customer if there is a “heartbeat” in the virtual machine. The Company has no liability arising from or in connection with the Customer’s own operating system, and the company has no liability for the Customer’s own use, including use by employees, applications, internet solutions and functionality as well as other factors beyond the Company’s Solution or its control.
3.4 If the Customer’s number of users changes, the Company is entitled to automatically, and without notice, request payment for this.
4. VEEAM-BASED PRODUCTS
4.1 The Company’s DRaaS solutions consists of iCloud resources based on multi-cloud functionalities, including but not limited to, CPU, RAM, storage, networking, and Veeam software.
The Customer is required to have the latest version of Veeam. The Company cannot guarantee, and accepts no responsibility in relation to the functionality of the Solution, if this is the case. All matters related to the Customer’s rights to Veeam and the use thereof are also irrelevant to the Company. In connection with the amendment of products, the Company is entitled to impose additional requirements to the Customer in relation to this.
4.2 The customer is obliged to comply with all commitments in accordance with the terms that the Customer has undertaken through Veeam. The Customer’s relationship with Veeam is in every way of no interest to the Company, and the Company is in every way not liable for the use of or the content of Veeam, including use, conditions, licenses, functionality or uptime, just as the Customer is aware that changes in Veeam may result in changes, limitations or modifications to the Solution. The Company is, in all respects, not liable for such changes, limitations or modifications.
5. PRICE DETERMINATION
5.1 The indicated price is fixed per hosting service which is supplied to the Customer.
5.2 In the event of changes to the number of hosting services, the price will be adjusted accordingly and invoiced in accordance with these Terms and Conditions.
PART II – TECHNICAL CONDITIONS
6. THE COMPANY’S DATA CENTRES
6.1 The data is stored in the Company’s data centre, which is located at data centres situated in Denmark, unless otherwise specifically agreed. The Customer agrees that all data is transferred to the company’s data centres, and accepts that the Company therefore has access to this data.
6.2 The company’s data centre is certified in accordance with SOC2 or equivalent.
7. THE SCOPE OF THE SOLUTION
7.1 The Company provides and is solely responsible for the services included in Section 2.1 of the Agreement. The Company has no responsibility for the Customer’s handling of the Solution, including the information that the customer provides via the installed software’s user interface.
7.2 The company only provides support for the services contained in section 2.1 of the Agreement, and only includes support relating to or caused by the Company’s Solution. Any support in addition to this is supplementary work, which will be invoiced separately, unless the cause is due to the Company’s circumstances. As a starting point, all support is performed as remote support.
7.3 The Solution contains the restrictions set out in the Company’s offer to the Customer.
7.4 It is possible for the Customer to opt for co-location of data, but this is an additional service which the Customer must pay for separately.
7.5 The Company offers storage in five tiers. The minimum speed for each tier is measured in the storage system and forms the basis for the Solution’s speed.
8.1 The Company guarantees an uptime of 99.5% for general operations (measured for the latest invoice period).
8.2 Uptime is defined as
Availability_____________ * 100
(Total time) — (planned downtime)
- The availability is the number of hours in the latest invoice period, when the Solution has been available to the Customer.
- The total time is the combined number of hours in the invoice period and
- Planned downtime is the number of hours in the latest invoice period, when the Solution has not been available to the Customer as a result of planned service and maintenance in accordance with section 9.1.
8.3 In the following cases, the Solution is regarded as having been available to the Customer and is, therefore, regarded as uptime:
- In case of errors, deviations, delays, changes or similar events affecting hardware, software, systems or equipment that is provided by a third party and is outside of the Company’s control,
- In case of errors, deviations, delays, changes or similar events in or on the Customer’s system, equipment or other items that are carried out by a third party or that is outside of the Company’s control,
- In case of errors, deviations, delays, changes or similar events in the communication between the Customer and the Company’s data centres,
- In case of other conditions that are caused by the Customer, the Customer’s equipment or software, the Customer’s employees or a third party employed by the Customer.
8.4 If the uptime guarantee in section 8.1 is not fulfilled, the Customer will receive a reduction in the next invoice period of DKK 1,000 per 0.1% that the total uptime was below the uptime guarantee, to a maximum of DKK 10,000.
9. SERVICE AND MAINTENANCE
9.1 The Company retains the right to perform planned service, reparation and maintenance of the Solution at any time. The Customer must keep up to date on such works on the Company’s website. The Customer also has the option to sign up for getting prompted via a text message regarding this type of work. In this case, it is the Customer’s responsibility to keep the Company informed and update the relevant phone numbers.
Such planned downtime must not affect the Company when calculating uptime.
9.2 The Company reserves the right to carry out emergency work regarding the Solution. Emergency work is notified as quickly as possible and, whenever possible, via email to the Company’s contact person with the Customer. The Company must attempt to minimise emergency work, and, as far as possible, postpone it to late evenings/nights and/or weekends.
Such emergency work comprises downtime when calculating the extent to which the uptime guarantee has been fulfilled.
9.3 If the Customer wants to change, add to, or expand the Solution, the Customer must send a written request for this to the Company. Thereafter, the Company must, within a period of 15 weekdays, carry out the requested changes, unless the Company, within five days after receipt of the request from the Customer, notifies the Customer that the changes wanted are in breach of this Agreement, applicable legislation or are not technically possible. If the Customer wishes to expand the Solution, the Customer must pay for this in accordance with the Company’s price list that is applicable at any given time. The time that the Company must use to update the Solution in accordance with this, is extra work.
9.4 The Custom must assist the Company with all types of troubleshooting at its own expense.
9.5 The Customer is obligated to keep the Company informed about the Company’s technical and administrative contacts with the Customer on an ongoing basis.
9.6 The following applies with regard to response time in the period from Monday – Friday, 9:00 am to 5:00 pm:
9.6.1 The Company must start remedying errors no later than three hours after having received an error message or having been made aware of an error through monitoring in accordance with section 3.3.
9.6.2 In case of events deemed as serious incidents by the Company concerning the Company’s infrastructure (and not related to the Customer’s operating system or VMs) the Company will initiate remediation of the fault within 90 minutes of having received the error message or having become aware of the error through monitoring.
9.7 The following applies with regard to response time outside the period of time mentioned in section 9.6:
9.7.1 The Company must start remedying errors no later than four hours after having received an error message or having been made aware of an error through monitoring in accordance with section 3.3.
9.7.2 In case of serious incidents, the Company must begin remedying errors within two hours after having received an error message or having been made aware of an error through monitoring.
10.1Reliability is defined as the mean time between failures, calculated in accordance with sections 8 and 9.
10.2The Company guarantees 99.5% reliability. In case the reliability guarantee is not fulfilled, the Customer will receive a reduction in the next invoice period of DKK 1,000 per 0.1% that the total reliability was below the level of the reliability guarantee, to a maximum of DKK 10,000.
11. RESTORATION TIME
11.1 Restoration time is defined as the time it takes the Company to restore the Customer’s Solution in case of an interruption to operations. Recovery time depends on the Solution, the product, the Customer and third parties, and may therefore vary based on the specific circumstances. However, the Company warrants that it will be able to restore every device in the data centre which is assigned to the Company in accordance with the Agreement and these Conditions, no later than 3 business days after the Company has been notified of an interruption to operations.
12. PATCH MANAGEMENT
12.1 The company offers a complete patch management system from IBM based on TEM This ensures automatic control of the latest updates and security patches as well as risks sent from DKCERT.
12.2 This service is provided to all of the Company’s internal OS platforms. The purpose of this is to optimise security for all of the Company’s customers through an automated process. Included in the TEM system is an additional AV client which ensures Anti-Virus protection to the supplied OS platforms from Microsoft.
12.3 It is checked twice per month. The Company operations manager receives information about relevant security updates or other security risks from the Company’s support. The company will implement the patches and security updates designated by the system as soon as possible thereafter.
PART III – LEGAL CONDITIONS
13.1 Unless otherwise stated in writing in the Company’s offer or order confirmation or agreement, the specified commissioning date is estimated to the best of the Company’s ability.
13.2 If the specified commissioning date is exceeded, the Customer may give written notification to the Company to request delivery within a reasonable period of time, which may not be less than 3 weeks. If the Company does not deliver within this extended period, and this is not due to conditions to which the Customer is responsible, the Customer may cancel the Agreement by giving the Company written notification. The Customer may not lay any claims against the Company as a consequence of such a delay. This section does not apply if the delay is caused by a third party or conditions that are outside the Company’s control.
14.1 Unless otherwise specifically stated, all prices in the Company’s offer, order confirmations and other references are in Danish kroner (DKK) exclusive of sales tax. Unless otherwise stated in the material mentioned, the Company reserves the right to change prices until the time delivery has taken place.
14.2 The Customer is invoiced in advance for the chosen solution.
14.3 Upon entering into this agreement, the Company’s current hourly rate, which is set on an annual basis on 1st of January, DKK 1,500 excl. VAT per hour during the period 9.00 am – 5.00 pm, and DKK 2,800 excl. VAT per hour during the period 5.00 pm – 9.00 am. All additional optional services as well as support are invoiced in accordance with the prices that are stated on www.anycloud.dk.
14.4 Re. transportation rates, the Customer must pay at the Company’s current applicable rates .
15. TERMS OF PAYMENT
15.1 The Company’s terms of payment are 8 days net from the invoice date unless otherwise agreed in writing between the Company and the Customer.
15.2 In case of payment after the deadline, the Company calculates interest on the overdue payment, which comprises 1.5% per month started, calculated from the deadline. In addition, an administration fee of at least DKK 100.00 is added in connection with reminder letters. The Company sends reminders every eight days after the deadline, and after the third reminder, the case is given to the Company’s lawyer or a collection agency.
15.3 Payment in full satisfaction of the debt may only be made to the Company’s address unless otherwise stated in the invoice or otherwise notified to the Customer by the Company in writing.
15.4 The Customer is not entitled to deduct any counterclaims that have not been recognised by the Company in writing, and has no right to withhold any part of the purchase price due to such counterclaims.
15.5 In case of lack of prompt payment on the part of the Customer, the Company is entitled to suspend the Agreement so that the Customer does not receive the services included in the Solution until the Customer has paid. The services covered by the Solution are reopened when the amount due has been paid. If the Customer has not paid no later than 10 days after having received the first reminder, this comprises a material breach on the part of the Customer.
15.6 All prices are adjusted once annually in accordance with the net price index, but no less than 3%. If Statistics Denmark stops calculating the net price index in the future, the adjustment must be made based on another index that reflects price developments.
16. AGREEMENT PERIOD
16.1 The Agreement is mutually irrevocable by the Parties during the agreed upon Agreement Period, and may be terminated no earlier than with one month’s written notice upon expiry of the Agreement Period. If the Agreement is not terminated in accordance with this, it is automatically extended by three months at a time, until termination with one month’s written notice, until the end of a month.
17.1 Deficiencies which are discovered or should have been discovered in connection with this investigation, or which are discovered later, must immediately and no later than three days after the defect is or should be identified, notified in writing to the Company.
17.2 According to the Company’s choice, the deficiencies shall be remedied by repair or replacement.
17.3 The Customer is responsible for covering all costs in connection with configuration of equipment, hardware and software, as well as remedying errors and deficiencies that are due to the Customer’s own conditions, including the Customer’s use of the Solution and the Customer’s lack of fulfilment of the Agreement or Terms and Conditions.
18. LIMITATION OF LIABILITY
18.1 The Company is regarded as being released from every obligation to the Customer resulting from conditions that prevent the fulfilment of the Agreement or make fulfilment burdensome. This includes industrial disputes and any other situation that the Company is not in control of, such as fire, war, mobilisation or martialling military forces to a similar extent, requisitioning, confiscation, foreign exchange restrictions, rebellion and unrest, lack of transportation, general shortages, restrictions of motive power as well as deficiencies upon delivery, or delivery delays form subcontractors, which are due to any of the situations mentioned in this section.
18.2 The Company may in no case be made liable for operational losses, lost profits or other indirect losses or resulting losses, including costs related to identifying or localising deficient products or damages. The Company is not responsible for the configuration of equipment, hardware and software.
18.3 The Company’s liability is, in all cases, except for cases of gross negligence and deliberate behaviour, limited to the amount that is invoiced by the Customer in accordance with the Agreement.
18.4 The Company has no liability with regard to loss of or damage to data etc. unless this is due to gross negligence or deliberate behaviour on the part of the Company. The Customer is obligated to insure itself against loss of data etc.
18.5 The Company has no liability for whether the content of the Customer’s data complies with applicable legislation. If the Company is made liable with regard to a third party as a result of the material that is in the Customer’s data, the Customer is bound to indemnify the Company in this case.
18.6 The Company may in no circumstances be made liable for the Customer’s use of or changes to the Solution, including use by employees, applications, Internet solutions and functionality, as well as other conditions that lie outside the Company’s Solution or control.
18.7 For damage to persons or property as a result of deficiencies in the delivered products (product liability), the Company is only liable to the extent where the liability results from mandatory legislation. The Company is not liable for damage to the Customer’s possessions or other things that are intended for business use (commercial property damage). This section, section 18 shall apply equally wherever appropriate, in relation to product liability.
19.1 The Company is entitled to use subcontractors for carrying out services that are covered by the Solution in whole or in part. In connection with this, if it is necessary for the subcontractor to be able to carry out its task for the Company, the Customer may give permission to transfer data about the Customer to the subcontractor.
19.2 The Customer is aware that Microsoft is used as a subcontractor, and undertakes to comply with Microsoft’s terms, hereby the commitment to the Customers control of licenseusage.
19.3 Price increases for a subcontractor’s products may, without prior notice, be charged to the Customer.
20.1 Each of the Parties and its employees have duty of confidentiality during and after the Agreement period with regards to every condition to which they may become aware of at the other Party or third party, and if secrecy due to the nature of the case is required or is made obligatory by the other Party. This does not, however, apply to information that is generally available. Neither may either Party exploit such information itself at the expense of the other Party or third party.
20.2 All information, regardless of whether it is written, verbal or electronic, which is provided by the Company to the Customer in connection with the Agreement and the services that are delivered in accordance with the Agreement, must not be copied, divulged, reproduced or given to third parties without the written consent of the Company.
21.1 If one of the Parties is in material breach of its obligations in terms of this Agreement, or in case of bankruptcy, liquidation or suspension of payments, each of the Parties is entitled to terminate the Agreement with immediate effect and demand compensation in accordance with the general rules of Danish law. As a point of clarification, any type of lack of payment on the part of the Customer in accordance with these Terms and Conditions, violations of the rights of third parties, including violations of copyright, patent rights, license rights, trademarks or protection of designs, comprises a material breach.
21.2 If there is material in the Customer’s data that is criminal, material that violates the rights of third parties, material that is in violation of applicable legislation or material that violates the company’s user policy, the Company is entitled to terminate, suspend or terminate the agreement with immediate effect. The company has also the right to disclose criminal material and information to public authorities.
21.3 In case of breaches, the Company is entitled to demand compensation in accordance with the general rules of Danish law.
22. THE COMPANY’S USER POLICY
22.1 The Solution which the Company makes available to the customer may not be used for:
- violating any applicable laws, rules and guidelines, in particular the Criminal Code and the Copyright Act,
- violating the company’s user policy on the networks, machines or servers, which are reached when using the Solution,
- violating the privacy of others,
- violating the guidelines for the sending of marketing material via email,
- unauthorised use of machines and networks,
- attempting to compromise sites and servers (e.g. denial of service attacks),
- falsifying header information or user identification,
- distributing malicious programs to networks or machines (e.g. viruses, worms, Trojan horses, etc.),
- monitoring or scanning networks without authorisation,
- destroying the security or disrupting Internet communications, including gaining (access to) data which the Customer should not have access to, or logging on to a server to which the Customer should not have access,
- performing any form of network monitoring (e.g. packet sniffers) in order to obtain data that is not meant for the Customer,
- attempting to circumvent user authentication or security of any host or network (“cracking”)
- using any program/script/command, or sending messages of any kind, which are designed to destroy or interfere with machines, servers and networks – both locally or via the Internet,
- sending unsolicited bulk email (“SPAM”)
- maintaining and operating an open email relay,
- gathering email addresses from the Internet for the purpose of sending unsolicited bulk email (“SPAM”)
- sending or receiving copyright-infringing or illegal material,
- storing illegal material on servers, machines, equipment, etc., which is located on, or associated with, the Company’s network,
- providing false or incorrect data on sign-up forms
- attempting to disrupt or destroy the way in which the company measures the bandwidth consumption, power and other services, as well as
- other similar acts, which serve the same purpose or have the same impact as in i) – xx) above mentioned actions, or which otherwise is deemed by the Company to be an attempt to circumvent the Agreement, Terms and Conditions or the Company’s usage policy.
22.2 It is Customer’s responsibility to contact the Company if the Customer is aware of a relationship that is or could be in conflict with the Company User Policy.
23. AMENDMENTS TO THE TERMS AND CONDITIONS
23.1 Significant changes to the Terms and Conditions, including prices, payment, and notification of termination as well as significant changes of the content of the services that are delivered in accordance with this Agreement, may only be carried out by the Company with three months’ notice to the first day of a month.
24. DISPUTES AND APPLICABLE LAW
24.1 Every dispute between the Company and the Customer resulting from an agreement between the Parties or the understanding of these sales and delivery terms and conditions must be decided by a Danish court in the Company’s venue. However, the Company is entitled to demand that a dispute be decided in accordance with the rules of the Danish Institute of Arbitration.