1/9 CLOUD SERVICE AGREEMENT
(hereinafter ”Agreement”)
1.
THIS AGREEMENT
This Cloud Service Agreement ("Agreement") is a binding legal document between Deveo and
you, which explains your rights and obligations as a Customer of Deveo. "Customer" shall
mean either (a) you as an individual or (b) your company, if you are using the Cloud Service in
your capacity as an employee, representative or agent of a company. "Deveo" shall mean
Deveo Oy, Business ID 2567229-2, address Kuortaneenkatu 2, 00510 Helsinki, Finland.
By using the Cloud Service, Customer agrees to be bound by this Agreement. If you do not
agree to this Agreement, do not use the Cloud Service.
2.
PURPOSE OF THE AGREEMENT
The purpose of this Agreement is to agree on the terms applicable to the Cloud Service that is
provided by Deveo to the Customer. The service is based on computer infrastructure owned
and/or controlled by Deveo, and it is accessible via Internet.
3.
DEFINITIONS
“Agreement” shall mean this document and all appendices mentioned herein, all of which
form a binding legal contract between the parties.
“Allowed Repository Content”
shall mean any software source code files and associated files.
“Customer Data” shall mean all data, content and code (i) uploaded by Customer, or by
another party on behalf of the Customer to the Cloud Service, (ii) created by the processing
occurring in the Cloud Service and (iii) submitted or otherwise sent by Customer, its
contractors or third parties in any manner to the service provided by Customer with the Cloud
Service. To the extent Deveo has assisted the Customer in setting up Customer’s data, content
or code to the Cloud Service, this data shall be considered Customer Data.
“Cloud Service” shall mean the source code hosting and software collaboration platform
provided as a hosted service by Deveo to Customer under this Agreement.
“Cloud Service Description” shall mean the specifications and descriptions of the Cloud
Service as included on the Deveo web site (deveo.com) at the time of acceptance of this
Agreement by Customer.
“Downtime” shall mean the time after the notification of Customer to either the reporting
system at http://support.deveo.com or an email to [email protected] during which the
Cloud Service is not operating and therefore Unavailable. Downtime shall not include
non-availability due to network congestion or failure in network connections or Scheduled
2/9 Downtime. Logs of supplier system shall be used to establish whether the system is Unavailable
or not.
“Plan” shall mean the combination of a certain Seat Limit and the associated Subscription Fee
opted for by the Customer.
“Scheduled Downtime” shall mean that the Service is Unavailable between the hours 21.00 –
06.00 (GMT+2), and Deveo has notified the Customer about Unavailability at least 7 days in
advance.
“Seat Limit” shall mean the number of personal user accounts for the Software the Customer
is allowed to use under any given Plan. Deactivated user accounts are not counted towards the
Seat Limit. Personal user accounts are to be used by one person per user account only.
“Subscription” shall mean the right to use the Cloud Service and related support in the
manner and during the term stated herein.
“Subscription Fee” shall mean the fee, revised by Deveo from time to time, for the right to
use the Cloud Service and related support in the manner and during the term stated herein.
“Subscription Period” shall mean a period of 30 days starting from the acceptance by
Customer of this Agreement, or any subsequent period of equal length.
“Unavailable” shall mean that the Cloud Service is not available to the Customer, and the lack
of availability is caused by non-functioning of equipment or software that belongs to Deveo’s
infrastructure and/or is in Deveo’s control.
4.
CLOUD SERVICE AND START OF THE CLOUD SERVICE
Deveo provides to Customer the Cloud Service in accordance with the Cloud Service
Description.
It is the duty and responsibility of the Customer to obtain and configure its own systems so that
the Customer is able to access the Cloud Service. The use of the Cloud Service requires a
functioning Internet connection, and it is Customer’s responsibility to obtain such a
connection. Deveo is not responsible for functioning of the communications networks or the
Internet.
5.
CUSTOMER’S GENERAL OBLIGATIONS
Customer shall not:
(a) use the Cloud Service (or any part of it) for any illegal purpose and shall use it in
accordance with all relevant laws;
(b) upload or transmit through the Cloud Service (i) any computer viruses, macro viruses,
trojan horses, worms or anything else designed to interfere with, interrupt or disrupt
3/9 the normal operating procedures of a computer or (ii) any material which is
defamatory, offensive, or of an obscene or menacing character;
(c) use the Cloud Service in a manner which (i) may cause the Cloud Service to be
interrupted, damaged, rendered less efficient or such that the effectiveness or
functionality of the Cloud Service is in any way impaired or (ii) violates or infringes the
rights of any person, firm or company (including, but not limited to, intellectual
property rights, rights of confidentiality or rights of privacy);
(d) attempt any unauthorised access to any part or component of the Cloud Service; and
(e) alter or modify any part of the Cloud Service other than as may be reasonably
necessary to use the Cloud Service for its intended purpose.
Customer agrees that in the event that Customer has any right, claim or action against any end
user of the Cloud Service arising out of that end user's use of the Cloud Service, the Customer
shall pursue such right, claim or action independently of and without recourse to Deveo.
Customer shall provide full and accurate information when creating any accounts in and for the
Cloud Service. Customer is solely responsible for the activity that occurs on such accounts.
Furthermore, Customer shall notify Deveo immediately upon becoming aware of any
unauthorised use of such accounts.
Customer may use the Cloud Service for hosting software source code repositories that contain
only Allowed Repository Content. Deveo does not limit the disk storage space available for
such use. However, upon discovery of hosting of any Customer Data apart from Allowed
Repository Content, Deveo shall be entitled to, at its sole discretion and subject to a reasonable
warning, suspend, terminate or attach conditions to Customer’s access and/or remove any such
content or materials from the Cloud Service.
Customer acknowledges and agrees that Deveo may occasionally send the Customer
communications regarding Customer’s account or the Cloud Service via email.
6.
SUPPORT
During the time this Agreement is in force and subject to the payment of Subscription Fees, the
Customer is entitled to technical support as stated herein. Support shall be available to the
Customer by sending an email to [email protected] or by creating an electronic support
ticket in the online ticketing system at http://support.deveo.com (“Support Request”).
Support provided to Customer by Deveo under this Agreement is strictly limited to providing
(i) advice in questions regarding the operational use of the Cloud Service, (ii) advice and
assistance in identifying causes of errors in the Cloud Service, where reasonably possible for
Deveo, and (iii) workarounds to such identified errors, where reasonably available to Deveo.
The support does not include a promise or guarantee that the issue raised by the Customer can
be solved. For the sake of clarity, it is expressly stated that the support service provided to
Customer under this Agreement shall not include any kind of training, system administration,
4/9 network administration, desktop support, server support or consulting service, or any services
of similar nature.
Support provided to Customer by Deveo under this Agreement shall be limited to two (2)
Support Requests and a total of one hour per Subscription Period. Support services in excess of
this amount shall be agreed on separately.
Deveo shall respond to any Support Requests within the Response Time. For the purposes of
this agreement, Response Time shall mean a time period of a maximum of one business day,
excluding public holidays of Finland. A response is given when Deveo replies to the Customer
making the Support Request or starts working towards resolving the Support Request.
7.
PRICING AND PAYMENT
The pricing of the Cloud Service is based on Plans as defined on the Deveo website
(deveo.com) and revised by Deveo from time to time.
Customer under a paid Plan must enter valid billing information and full contact details.
However, no billing information is required for a free Plan.
The Subscription Fee paid by the Customer shall be determined by the Plan in force at the
beginning of each Subscription Period. The Subscription Fee for each Subscription Period shall
be invoiced and become payable by the Customer at the beginning of such Subscription Period.
The payment term is two (2) weeks.
The Customer is free to change their Plan during the Subscription Period, in which case the
Seat Limit will be immediately adjusted accordingly and the new Plan will be taken into account
in determining the Subscription Fee for the following Subscription Period. However, upon
upgrading from a free Plan to one requiring payment by the Customer, a new Subscription
Period under the upgraded Plan and Subscription Fee shall begin immediately.
Any consecutive upgrading and downgrading of the Plan during a Subscription Period by the
Customer which recurs during several Subscription Periods and which, as deemed by Deveo,
effectively results in the payment of Subscription Fees not corresponding to the amount of
actual use of the Software by Customer, is not allowed under this Agreement. Upon discovering
such behavior, Deveo may, at its sole discretion, decide to charge the Customer a Subscription
Fee corresponding to the highest-paying Plan in force during such Subscription Period during
which such behavior has occurred.
8.
CHANGE OF TERMS
Deveo may, in its sole discretion, revise the pricing and any other terms under this Agreement,
including but not limited to the Plans and Subscription Fees, upon 30 days’ notice. Such notice
may be provided at any time by posting the changes to the Deveo site (deveo.com) and sending
an email notification to the Customer. Unless the Customer cancels their Subscription by
notifying Deveo two (2) business days prior to the end of such 30 days’ period, any fees and
5/9 terms based on such revisions shall be in effect starting from the next beginning Subscription
Period after the 30 days’ notice period.
9.
UPGRADES AND UPDATES
From time to time, Deveo may, in its sole discretion, make updates and upgrades to the Cloud
Service. Such updates and upgrades shall be automatically deployed to the Cloud Service
without a prior notification. Use of such updates and upgrades shall be covered by the same
fees and terms of Deveo as applied to Customer under Section 7 of this Agreement.
10.
THIRD-PARTY EXTENSIONS TO THE CLOUD SERVICE
Customer may choose to enhance the operation and features of the Cloud Service by
subscribing to or procuring, via the Deveo site (deveo.com), certain third-party software
extensions or add-ons intended to be used in connection with the Cloud Service
(“Extensions”). For the sake of clarity, it is expressly stated that this Agreement does not cover
the license or subscription to any Extensions, and all such licenses and/or subscriptions shall
be acquired and signed up for by Customer and all license and other agreements concerning
Extensions are entered into by Customer and not Deveo. Unless otherwise expressly agreed by
Deveo, Deveo shall not be responsible or liable for the operation, or non-operation, or any
other element of the Extensions.
11.
INTELLECTUAL PROPERTY AND CONTENT OWNERSHIP
Deveo claims no intellectual property rights over the Customer Data.
Customer acknowledges and agrees that all copyright, trademarks and all other intellectual
property rights in and to the Cloud Service shall remain at all times owned by Deveo or its
licensors. Customer is permitted to use the Cloud Service only as expressly authorized by
Deveo. Customer shall not copy, reproduce, alter, modify, or create derivative works of the
Cloud Service.
12.
CONFIDENTIALITY
Each party to this Agreement shall keep in confidence all material and information of
confidential nature received from the other party and may not use such material or information
for any other purposes than those of this Agreement.
Upon termination of this Agreement or when the party no longer needs the material or
information in question for the purpose of this Agreement, each party shall upon request of the
other party return or destroy all confidential material and information received from the other
party. Each party shall, however, be entitled to retain the copies required by law or regulations.
6/9 13.
DATA AND DATA PROTECTION
The Customer or its contracting parties shall be the owners and controllers of any and all
Customer Data. Deveo does not form any registers from Customer Data. Should any personal
data be processed, the processing is done by the Customer with the Cloud Service. If Deveo
should be considered processing such data, then it shall be done on the behalf, and by the
order, of the Customer. The Customer is the controller of any personal data contained in
Customer Data and is responsible for the duties of personal data processor.
Deveo may collect anonymous traffic and statistical data on the usage of the Cloud Service.
Deveo may, for the purposes of maintaining network and data security or as required by law,
monitor and record the Internet traffic to and from the Cloud Service.
The Customer shall be responsible for all Customer Data and the usage of Customer Data in
the Cloud Service. Apart from the right to monitor Customer Data for content formats outside
of the scope of Allowed Repository Content, Deveo shall have no right and no obligation to
monitor the content or quality of the Customer Data. Customer represents and warrants that it
shall use the Cloud Service only in conformity with all legal, contractual and eventual other
mandatory obligations. Customer shall indemnify and hold Deveo harmless from any eventual
claims arising against Deveo with respect to the Customer Data and its legality and conformity
to other obligations.
Upon termination of this Agreement, Deveo shall assist the Customer in transferring their
Customer Data from Cloud Service to any other service provider, if necessary. Deveo shall
charge assistance to and costs of this transfer by the hour and the Customer undertakes to pay
such charges.
14.
FORCE MAJEURE
Neither party shall be liable for delays and damages caused by an impediment beyond his or her
control, which he or she could not have reasonably taken into account at the time of the
conclusion of the agreement, and whose consequences he or she could not reasonably have
avoided or overcome. Strike, lockout, boycott and other industrial action shall constitute a force
majeure event also when the party concerned is the target or a party to such an action.
Malfunctioning of the general communication networks or the Internet shall constitute a force
majeure event.
Denial of services attacks (whether distributed or not) and similar malicious acts shall constitute
a force majeure event provided that Deveo has implemented reasonable and appropriate
protection against distributed and non-distributed denial of service attacks. In the event the
intrusion protection system (IPS) of Deveo classifies network traffic as being attacking or
malicious in nature and, as a result, blocks network traffic, such blocking shall not be
considered to cause the Cloud Service being Unavailable, but as an accepted property of the
service done to limit the effect of attacks and other malicious acts.
7/9 A force majeure event suffered by a subcontractor of a party shall also discharge such party
from liability, if subcontracting from other source cannot be made without unreasonable costs
or significant loss of time.
Either party shall without delay inform the other party of a force majeure event in writing. The
party shall correspondingly inform the other party of the termination of the force majeure
event.
15.
TRASNFER OF THE AGREEMENT
Neither party is allowed to transfer this agreement or rights or duties based on it, except in
situations where the whole business to which this Agreement is related to, is transferred and
this Agreement is completely transferred with the business.
16.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The Cloud Service is provided to the Customer in accordance with the Cloud Service
Description and this Agreement.
Deveo strives for good availability of the Cloud Service. In the event that the Downtime lasts
for a consecutive period of at least two (2) business days, the Customer shall be entitled to
terminate the Subscription and receive compensation for the remainder of the Subscription
Period, including such consecutive Downtime for which the Customer has already paid. In
relation to availability of the Cloud Service, there is no other remedy for the Customer than
what is agreed in this paragraph.
Any other lacks or errors in the Cloud Service shall be communicated by the Customer to
Deveo promptly within seven days of the Customer becoming aware of the lack or error, in
order for the client to be entitled to a remedy for such shortcoming or error. Deveo shall take
all reasonable steps to correct any known lacks or errors within the next seven days. In the
event Deveo fails in the correction efforts, the Customer shall be entitled to compensation for
direct expenses and damages caused by such lack or error, however subject to the liability
limitations agreed in this Agreement.
There is no other warranty regarding the Cloud Service, its qualities or its elements except as
expressly provided herein. There is no warranty, whether express or implied, of merchantability,
fitness for a particular purpose or non-infringement.
The liability of a party towards the other party based on this Agreement for direct expenses and
damages caused by a breach of contract shall not exceed the effective Subscription Fees during
a period of six (6) months paid by Customer for the use of the Cloud Service.
Neither party shall be liable for any indirect, incidental or consequential damages or expenses,
including but not limited to loss of profits and lost savings, even if the party has been advised
of the possibility of such damages.
8/9 Customer shall be responsible for taking back-up copies of its data and data files and for
verifying the functionality of such back-up copies. Neither party shall be liable for the loss of,
damage to, or alteration of data or data files of the other party due to any cause and the
resulting damages and expenses incurred, such as expenses based on the re-creation of data
files.
The limitations of liability shall not apply to damages caused by willful conduct or gross
negligence.
Deveo shall have no other liability for errors and no other liability based on this Agreement,
and the Customer shall not be entitled to any other remedy, except as agreed in this section 16
Disclaimer of Warranties and Limitation of Liability.
17.
TERM, TERMINATION AND SUBSCRIPTION
This Agreement and any Subscription under this Agreement shall be in force for the duration
of any Subscription Period, and any Subscription shall be, at the end of each Subscription
Period, automatically renewed with a Subscription Period of equal length, unless the Customer
chooses to not renew the Subscription by issuing a cancellation of Subscription to Deveo two
(2) business days prior to the end of such period. Such cancellation of Subscription must be
issued by sending an email to [email protected]. Upon renewal of the Subscription Period,
the Subscription is renewed subject to the fees and terms of Deveo applicable to the Cloud
Service at the time of renewal.
Deveo may terminate this Agreement, in its sole discretion, at any time with one (1) months
prior written notice, in which case this Agreement shall terminate at the end of the Subscription
Period running at the time such notice period ends.
Deveo may, in its sole discretion, immediately terminate this Agreement or suspend Customer’s
Subscription if any of the following events have occurred and are continuing: (a) if Customer
becomes bankrupt, insolvent, ceases the active conduct of its business or dissolves or liquidates
or assigns its business for the benefit of creditors or if any receiver, trustee, or similar officer is
appointed to take charge of Customer's business or properties, or (b) if Customer fails to
comply with any obligation required under this Agreement, including but not limited to the
payment of Subscription Fees.
Customer acknowledges that in the event of suspension of the Subscription, the Customer may
not access any Customer Data stored in the Cloud Service.
All rights and responsibilities, which by their nature are meant to survive termination or
cancellation of this Agreement, shall survive the termination or cancellation of this Agreement.
18.
MISCELLANEOUS
Deveo shall have the right to use the name of the Customer as a reference on the Deveo site
(deveo.com) and in any Deveo's promotional and marketing materials. On the Deveo site
9/9 (deveo.com), Deveo may display Customer’s name and logo and include: (i) a reference to
Customer as a customer to Deveo; and (ii) link to the Customer’s website.
19.
NOTICES
Customer may send Deveo notices under or in connection with this Agreement by email to
[email protected].
As proof of sending does not guarantee Deveo’s receipt of Customer’s notice, Customer must
ensure that it has received an acknowledgement from Deveo, which Deveo will aim to send to
Customer within 5 working days of Deveo’s receipt and which should be retained by Customer.
20.
APPLICABLE LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed under the laws of Finland, exclusive of its
choice of law rules.
The parties agree that they shall use their best efforts to settle amicably any disputes, differences
or controversies that may arise out of or in relation to or in connection with this Agreement.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination or validity thereof, shall be finally settled by arbitration in accordance with the
Arbitration Rules of the Finland Chamber of Commerce by one arbitrator appointed in
accordance with the said rules. Arbitration shall take place in Helsinki, Finland, and shall be in
the English language. Each party must provide at least thirty (30) days prior written notice
before instituting this arbitration provision. In addition a party may, at its discretion, bring any
dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination or validity thereof at the District Court of Helsinki, provided that the sum of any
monetary claims by such party is less than EUR 50.000.
If, however, Customer commits a breach of the provisions relating to intellectual property
rights, Deveo shall have, in addition to all other rights in law and under this Agreement, the
right to have such provision specifically enforced by any court having jurisdiction and without
need to commence arbitration proceedings, it being acknowledged and agreed that any such
breach will cause irreparable damage to Deveo and that money damages will not provide an
adequate remedy.