Fuga Conditions V1.1 29 sep. 2015
The service Fuga and related services of Fuga (“Services”) are offered by FUGA B.V. (‘Fuga’), located in Alkmaar, Netherlands.
The Services include the provision of a Cloud Infrastructure as a Service (IaaS) based on the OpenStack platform. OpenStack is not a product of Fuga. OpenStack is an open source cloud operating system which is made available by OpenStack.org under the Apache 2.0 license.
The conditions under which Fuga makes the OpenStack platform and its infrastructure available are listed below.
1.1 The definitions of the Fuga Terms and Conditions apply to this agreement.
1.2 Application Software:
The application that provides functionality to users, including OpenStack.
1.3 As Is:
The properties of the Hosting and IaaS are not (entirely) described and Customer indicates the characteristics of the Hosting and IaaS are sufficiently known and accepts the Hosting and IaaS as it is offered. Parties exclude their rights to terminate the agreement due to a misconception resulting from incorrect information (in Dutch: ‘dwaling’).
This agreement between Fuga and Customer for the Hosting of Application Software and provision of IaaS, including all documents referenced and which explain the other rights and obligations of Fuga and Customer.
1.5 Confidential Information:
Data and information concerning each other’s organization, clients, procedures, Products (including specifications and other Product documentation), etc. of which parties become aware while working for each other.
1.6 Fuga IaaS (Infrastructure as a Service):
Providing and maintaining the Infrastructure made available to Customer by Fuga on the basis of a virtual platform.
1.7 Fuga SaaS (Software as a Service):
OpenStack made available by Fuga via Hosting.
A datacenter is a facility where servers can be connected to networks and especially the Internet. Part of the Infrastructure is in one or more Datacenters.
The provision of and access to webspace for the purpose of storing data on the Infrastructure.
1.10 Identification Codes:
Login name, passwords, address and / or other codes.
A report of a deviation from the expected operation of the Services and / or a disruption of the standard operation of the system which has the effect that a User cannot (fully) make use of the system.
The set of information and communications technology services such as software and hardware, including cabling used for data processing.
Maintenance includes providing updates and correcting errors.
Software comprising the Open Source Cloud Operating System under the name OpenStack which can be used by Customer to manage the Infrastructure. OpenStack is made available under the Apache 2.0 license by the OpenStack Foundation via www.openstack.org.
1.15 OpenStack Interface:
The OpenStack API and web interface Horizon which Customer can use to log into online.
The services Fuga offers consisting of Hosting, Fuga IaaS and Fuga SaaS.
1.17 Service Window:
The period in which Incidents and / or errors can be corrected, as agreed by the parties.
1.18 Third Party Infrastructure:
The part of the Infrastructure managed by third parties and / or delivered via Fuga to Customer and where Fuga in principle has no control over. Third Party Infrastructure is a Third Party Product.
1.19 Third Party Products:
All products and services provided by Fuga, the resulting provisions and related activities, which originate from third parties – such as OpenStack – and whose intellectual property rights and other rights are not held by Fuga.
The people who use OpenStack.
1.21 Working days:
Normal Dutch working hours (9:00 to 17:30 CET) and days (Monday / Friday) except public holidays.
1.22 All of the above terms and words used in the singular shall have the same meaning as in the plural and vice versa.
1.23 The headings above the articles of the Agreement are only intended to increase the legibility of the Agreement. The content and meaning of an article placed under a particular heading is, therefore, not limited to the meaning and content of the heading.
2.1 Fuga grants Customer the right for the length of the Agreement to make use of the Infrastructure and OpenStack via Hosting.
2.2 Fuga aims to make available the latest version of OpenStack. OpenStack is a Third Party Product to which Fuga makes no modifications. OpenStack is provided ‘As is’.
2.3 Fuga provides access to OpenStack via the OpenStack Interface.
2.4 To the use of OpenStack the Apache
2.0 license from the Apache Software Foundation applies. The license terms are available on the website: www.apache.org/licenses.
3.1 The Fuga IaaS is ‘self-service’, which means that Fuga only provides Fuga OpenStack and Infrastructure. Fuga IaaS is therefore not a managed hosting solution.
3.2 Customer is responsible for how OpenStack is being used and therefore for the stability of the final configuration of the Infrastructure which is realized by Customer via OpenStack.
3.3 The support of Fuga consists of answering questions from Users via its online portal as well as through the provision of manuals and tutorials via the website. English is the official language. Fuga does not give support by telephone.
4. SERVICES GENERAL
4.1 For providing the Services Fuga only uses approved locations and equipment.
4.2 At the discretion of Fuga, Fuga could make available to Customer the possibility to make its own enhancements, additions and / or changes to the Services. If Customer makes use of this possibility, Customer shall be responsible and liable for all the enhancements, additions and / or changes and the resulting consequences.
4.3 Customer must inform itself about using OpenStack. Fuga is never responsible for loss of data caused by the use of OpenStack by the Customer. The Customer must itself take care of backing up data.
4.4 Customer is required to follow instructions of Fuga about the use of the Services.
4.5 Fuga is entitled to view log files and the like for purposes of analyzing the use of the Services. The results of such an analysis will not be made available to third parties (third parties do not include holding or subsidiary organizations of Fuga). This does not apply to figures and data with regard to the use of the Services, which are not directly traceable to Customer’s use.
4.6 Fuga ensures the delivery of the Services, to the best of ability and effort. Fuga will on a best effort basis strive to deliver the Services according to the agreed availability percentage.
4.7 If Fuga agreed to an availability percentage of its Services, this percentage is measured over a calendar year. The time for Maintenance is not included.
4.8 The availability percentage does not apply in the following situations:
a) During the regular Service Window on Tuesday and Thursday from 0: 01 to 4: 00 AM local Amsterdam time and during unplanned upgrades and Maintenance that cannot be performed during the designated Service Window and of which Customer is informed by Fuga.
b) in case of Incidents due to force majeure;
c) any problem or malfunction as a result of acts by Customer or User; and
d) The unavailability of (coordinator of) Customer in case Fuga requests for assistance from the Customer in determining or isolate a problem or malfunction.
4.9 Fuga reserves the right to change the regular Service Window, provided this is communicated in writing to Customer.
4.10 Fuga does not warrant among others, that the telephone lines, the Internet and / or other networks will offer optimal access to the Services.
4.11 Fuga will endeavor to provide all useful and necessary measures to ensure the proper operation and the continuous quality of the Services. Fuga will strive for, according to the state of the current technology, adequate physical and logical security measures against unauthorized access by third parties to Fuga’s computer and computer programs and / or data stored in the context of the Agreement.
5. CHANGES IN THE SERVICES
5.1 Fuga is entitled, after notification within a reasonable time and without any fee chargeable to Customer, to make adjustments and / or changes in the Services, such as but not limited to access procedures, altering a Third Party Provider / supplier, location, hardware, software and other facilities necessary for delivering the Services.
5.2 If the changes have a demonstrable and such a large negative change to the operation of Customer’s company and / or the functionality of the Services, Customer may, after providing proof of the deterioration in writing, request Fuga to offer an alternative. If Fuga then provides no reasonable alternative, Customer has the right to end the use of the Services without Fuga being obligated to pay any compensation or refund of sums already paid.
6.1 Fuga does not control and / or understand the contents of the data traffic from and / or to User. Fuga acts only as an intermediary. Fuga makes no warranties regarding the contents of data which include reliability and completeness.
6.2 Customer indemnifies and holds Fuga harmless for any claim, lawsuit or action by any third party in connection with (the contents of) the data traffic or the information provided by the User.
7. USE OF IDENTIFICATION CODES
7.1 Fuga will provide Identification Codes solely to Customer for use of the Services. Customer will treat the Identification Codes with care. Customer shall notify Fuga in case of loss, theft and / or other forms of unauthorized use, so that Fuga and Customer can take appropriate measures.
7.2 Customer carries all responsibility, liability and costs caused by the use of Identification Codes used and / or distributed by Customer. In no event is Fuga responsible for the abuse and / or unauthorized use of Identification Codes.
7.3 In case of termination of the Agreement for any reason, Fuga will immediately cancel all the Identification Codes.
8. CUSTOMER OBLIGATIONS
8.1 Customer should take care to purchase valid licenses for the software he installs.
8.2 If, through the Services personal information and / or other information / data are transported or commercial activities and / or other activities are undertaken through the Services, Customer indemnifies Fuga from any liability, costs or damages resulting from claims of third parties, in the event that such personal and / or commercial and / or other activities are undertaken in violation of the relevant (privacy) laws and / or other applicable regulations.
9. PERSONAL DATA
9.1 Customer is the “responsible” party for the purposes of the Data Protection Act and therefore responsible for the protection of (personal) data, transmitted or processed and / or processed by Customer using the Services. Customer will comply with all relevant obligations under the Data Protection Act.
9.2 Customer indemnifies Fuga regarding all claims for invasion of privacy.
9.3 Where Customer is authorized, Customer explicitly agrees with the registration of (privacy) information of Users in the privacy registration of Fuga for administrative and management purposes. The privacy registration will contain, amongst others, Identification Codes and Process-data and will only be accessible for Fuga. This information will not be provided to third parties unless Fuga is obligated to do so on the basis of a court order.
9.4 Fuga will be responsible as ‘processor’ in terms of the Dutch Personal Data Protection Act (Wet Bescherming persoonsgegevens) for the protection of personal data of which the use by Fuga is necessary for the proper fulfilment of its obligations under the agreement and Fuga will indemnify Customer against allegations of private individuals for violation of their privacy as a result of an act or failure to act of Fuga. Fuga as ‘processor’ shall comply with all relevant obligations under the Personal Data Protection Act
10. CODE OF CONDUCT
10.1 Customer will make use of the Services and/or other facilities offered in a responsible manner. It is prohibited to use the Services and/or other facilities offered in a manner that will result in:
a) Damage in the system and/or Infrastructure of Fuga and/or third parties; or
b) Interference with its use.
10.2 Customer will ensure that such damage and/or interference is not the result of misconfiguration on Customer’s part.
10.3 It is not permitted to use the Services for activities that are illegal and/or in violation of the Agreement or the performance or non-performance of any other act that makes hacking possible.
10.4 Fuga reserves the right, at Fuga’s sole discretion, if forced by law or a court order; and/or a third party informs Fuga and/or a suspicion exists that through the Services a violation is made of the rights of a third party; there is a breach of the Agreement and the resulting obligations in question have not been met wholly or partially, to bar access to the Services and/or other facilities offered, to remove the information in question and/or suspend its other obligations until Customer meets its obligations.
10.5 If the actions and/or failure to act of Customer justifies this and/or the actions and/or failure to act of Customer continues regardless of the measures under taken by Fuga, as set out in clause 10.4, Fuga will be entitled to terminate the Agreement, without any damage compensation or restitution of monies paid being required.
11. DATA USAGE
11.1 Customer shall comply with instructions from Fuga about fair use. If Customer fails to follow the instructions given by Fuga, Fuga is entitled through technical means to reduce the load caused by the Customer or in case of a continuous overload to stop the Services to Customer.
11.2 Fuga shall never be liable for damages of any nature whatsoever by the Client or third parties as a result of the measures taken by Fuga.
11.3 Fuga is entitled to adapt the agreed prices for the Services if Customer (Users) regularly exceed the agreed datalimit.
11.4 Fuga is not responsible for damage in the event of an unexpected temporary or sudden increase in data traffic.
12.1 The Services are provided As Is and without warranty or guarantee.
12.2 Fuga does not warrant that the Services function without interruption or error or will be suitable for a particular purpose.
13. INCIDENTS AND MAINTENANCE
13.1 In case of an Incident Customer should immediately report the Incident to Fuga. After reporting the Incident by Customer Fuga will take the actions that lead or could lead to repair.
13.2 The costs for resolving an Incident shall be borne by the Customer if it appears that the cause of the incident is the result of its improper use of the Services, or any other act or omission contrary to the Agreement.
13.3 Fuga will inform Customer in advance about planned maintenance on the Fuga Infrastructure if it leads to problems with regard to accessing the Services or the unavailability of the Services. If possible, notification will be sent five Business Days before the commencement of maintenance. Customer will be notified of the planned work and the expected unavailability.
13.4 If Maintenance is required due to an emergency and this leads to maintenance problems with regard to gaining access to the Services, Fuga will inform Customer as quickly as possible about the problems and to carry out maintenance as soon as possible.
14. PRICE AND PAYMENT
14.1 All prices are exclusive of VAT and any other levies imposed by the government. The amounts payable will include applicable VAT and other levies possibly imposed by the government.
14.2 Payment for the Services is made only by credit card through an external payment provider. Fuga stores no credit card information.
14.3 By signing up for the Services and opening an account, Customer will receive a verification code by SMS or by telephone to the phone number provided by Customer.
14.4 Fuga charges for the use of the Services on the basis of actual use at the agreed (hourly) rates. Payment is made monthly by means of collection of the amount of the credit card.
14.5 If payment for whatever reason fails, the user is automatically notified that payment has failed. In addition, a new term which indicates when a new payment attempt is made will be set. If the last payment fails, Fuga will block access to the Services and issue a warning to Customer in which a final payment term will be set. Access to the Services will only be restored if the Customer pays within the payment period stipulated in the warning. If no payment is made, access to the Services will be permanently. In addition, all data and the created instances will be permanently deleted.
14.6 A price increase shall enter into force 50 days after the Customer has been informed of such an increase.
14.7 Should Customer fail to fulfill any payment obligation, Customer is in breach without any further notification of breach being required. Fuga reserves the right to charge all incurred costs to Customer, including judicial and extra-judicial expenses, with regard to the collection of debts from Customer. Extra-judicial collection costs amount to 15% of the debt, with a minimum of € 500 (five hundred euros). In any case Customer will be charged interest on a monthly basis, at the legal percentage rate increased with 3%, on all outstanding debts starting from the date of failure to pay.
14.8 Until full payment has been made Fuga has the right to suspend all services and obligations to Customer. Customer’s obligation to meet Customer’s commitments remains unchanged.
14.9 Above mentioned stipulations leave all the legal rights of Fuga unhindered.
15. DELIVERY DATES
15.1 All (delivery) dates which may be named by and may be applicable to Fuga are determined to the best of Fuga’s knowledge on the basis of information made known to Fuga and will be taken into consideration as much as possible.
15.2 (Delivery) dates shall therefore not be considered to be absolute (delivery) dates within which must be delivered, but a time period within which Fuga shall strive with best efforts to deliver the agreed upon items. If it is not possible to keep to the (delivery) date, then Fuga and Customer will consult with each other to agree on a substitute (delivery) date.
15.3 Exceeding a given (delivery) date which may be applicable never constitutes an attributable shortcoming by Fuga. Fuga does not accept liability under any circumstances in cases where the (delivery) date may be exceeded.
16.1 Fuga’s total liability shall be limited, in accordance with clauses 16.2 and 16.3, to compensation for direct damage and to a maximum of the amount of the price actually paid by Customer in the year the damage occurred (excluding VAT) to a maximum of € 100.000,- (hundred thousand), whereby a sequence of events is regarded as one event.
16.2 Fuga has insured itself against damage. Fuga is in any case not liable for further damage and will not compensate for any further damage which Customer may suffer on the basis of the agreement entered into with Fuga, however caused, including possible claims of liability against Customer by third parties, than is covered and actually compensated for by the insurance increased with Fuga’ deductible (own risk), except in case of malicious intent (opzet) or reckless disregard (bewuste roekeloosheid).
16.3 Fuga’s total liability for damage resulting from death or physical injury will in no event amount to more than € 1,000,000 (one million euros), whereby a sequence of events is regarded as one event.
16.4 Direct damage is exclusively understood as:
a) The reasonable costs made in determining the cause and extent of the damage;
b) The reasonable costs incurred in prevention or limitation of the damage, to the degree that Customer can demonstrate that these costs have led to the limitation of the damage.
16.5 Fuga’s liability for indirect damage, including consequential damage, loss of profit, loss of savings, mutilated and/or lost data, delays, losses, damage as a result of a failure of Customer to provide the required information or assistance, damage through corporate inactivity and/or claims from third parties against Customer, is expressly rejected.
16.6 With the exception of the cases named in this clause, Fuga has no liability for damage compensation regardless of what an action towards compensation could be based upon.
16.7 Fuga’s liability exists solely when Customer immediately and appropriately notifies Fuga of the deficiency in writing, proposing therein a reasonable time period for correction of the deficiency and Fuga then culpably fails to meet the aforesaid obligations. The notification of deficiency ought to be as detailed a description of the deficiency as possible so that Fuga is able to react adequately.
16.8 The condition for the existence of any right to compensation is always that Customer notifies Fuga in writing by registered mail within 60 (sixty) days after the damage came into existence and takes the necessary measures to limit the damage as much as possible.
16.9 Customer indemnifies Fuga from all liability regarding third parties due to allegations as a consequence of deficiency in a product, system or service provided by Customer to third parties that consisted of a delivery made by Fuga.
16.10 Fuga does not accept any liability for damage regardless of its nature caused by Third Party Products which Fuga has delivered to Customer. If possible Fuga will transfer its rights for damage compensation from the supplier of the Third Party Product in question to Customer.
16.11 Fuga is not liable for any damage regardless of its nature, which is the result of a failure to provide Support, Maintenance and/or Warranty on time.
17. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
17.1 Nothing in this Agreement intends to transfer intellectual property rights of Fuga to Customer.
17.2 Both Parties agree not to use the Confidential Information of the other party or to disclose it to a third party.
18.1 The Agreement comes into effect when Fuga has confirmed the order of Customer.
18.2 The Agreement terminates at the moment Customer stops using the Services.
19.1 After the end of the Agreement for any reason, Customer may derive no rights from the Agreement, leaving unhindered the existence of the rights and obligations of both parties which by their nature continue automatically after the conclusion of the Agreement.
20. TERMS AND CONDITIONS
20.1 Purchase conditions or any other conditions used by Customer will not be applicable.
20.2 The Appendices to the Agreement are an integral part of the Agreement. If there is a discrepancy between the Agreement and the Appendices, the Agreement will prevail.
21. APPLICABLE LAW
21.1 This agreement is governed by Dutch law, unless the parties agree otherwise in writing. The parties explicitly agree that the CISG does not apply.
21.2 In case of a dispute, the district court of Amsterdam will be the only competent court.