Nodefusion Customer Agreement
Version: 3 (Date 2021-07-01)
This Agreement is between the entity you represent or you individually (“Customer”), and Nodefusion d.o.o. (“Provider”). It is effective on the date that the Provider provisions your Services.
1. Definition of Terms
The terms described below have the following meaning:
“Affiliates” are persons connected to the Customer contractually, or for whom the Customer acts as an intermediary between the Affiliate and the Provider;
“Agreement” means this Services Agreement;
“Customer” is defined in the introductory provisions of this Agreement;
“Managed Services” is defined in Article 3.1;
“Provider” is Nodefusion d.o.o., Podbrezje X. 9 A, Zagreb, Croatia, PIN/OIB: 60378406301;
“Service” means the service provided by the Provider of enabling the Customer to use Software, in accordance with the details of the Customer’s individual order;
“Software” or “Product” means the programs, applications and other software included in Customer’s order for services;
“Subscription Offers” is defined in article 3.2.
Rights granted by this Agreement are non-exclusive and non-transferable and apply if neither the Customer nor any of its Affiliates is in breach of this Agreement.
2.1. Applicable Agreement
The Services Agreement in effect when the Customer orders or renews a Service will apply for the applicable Service term. For Services that are billed periodically based on consumption, the Services Agreement current at the start of each billing period will apply to usage during that period.
Upon acceptance of each order, Provider grants Customer a limited right to use the Software in the quantities ordered.
The use rights in effect when the Customer orders Software will apply to the Customer’s use of the version of the Software that is current at the time. For future versions and new Software, the use rights in effect when those versions and Software are first released will apply.
License transfers are not permitted, unless expressly allowed under terms defined in their respective use rights.
Provider may suspend use of a Service during the Customer’s:
- violation of the Agreement, or
- failure to submit payment, or
- failure to respond to a claim of alleged illegal activities.
The Provider will give the Customer notice before suspending a Service when reasonable.
2.3.1. End Users
The Customer controls access by end users and is responsible for their use of the Product in accordance with this Agreement. For example, The Customer will ensure all end users comply with the Agreement.
2.3.2. Customer Data
The Customer is solely responsible for the content of all Customer’s Data. The Customer will secure and maintain all rights within Customer Data necessary for the Provider to provide the Services to the Customer without violating the rights of any third party or otherwise obligating the Provider to the Customer or to any third party. The Provider does not and will not assume any obligations with respect to the Customer Data, its integrity or availability, or to the Customer’s use of the Product other than as expressly set forth in this Agreement or as required by applicable law.
2.3.3. Responsibility for your accounts
The Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with the Customer’s use of the Services. The Customer must promptly notify the Provider customer support about any possible misuse of the Customer’s accounts or authentication credentials, or any security incident related to the Services.
2.3.4. Reservation of rights
Products are protected by copyright and other intellectual property rights laws and international treaties. The Provider reserves all rights not expressly granted in this Agreement. Rights to access or use Services on a device do not give the Customer any right to implement the Provider’s patents or other Provider’s intellectual property in the device itself or in any other software or devices.
The Customer may use the Services, and any Software provided therein, only in accordance with this Agreement. The Customer may not (and is not licensed to): reverse engineer, decompile or disassemble any Product or fix, or attempt to do so; install or use non-Provider software or technology in any way that would subject Provider’s intellectual property or technology to any other license terms; or work around any technical limitations in a Product or fix, or restrictions in Product documentation. The Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters the Customer’s use of the Services. Except as expressly permitted in this Agreement or Product documentation, the Customer may not distribute, sublicense, rent, lease, lend, resell or transfer Products, in whole or in part, or use them to provide services to a third party.
2.3.6. Preview releases
The Provider may make Previews available for choice of use by the Customer. Previews are provided “as-is”, “with all faults”, and “as-available” and are excluded from the service level agreement and all limited warranties provided in this Agreement. Previews may not be covered by customer support. Previews may be subject to reduced or different security, compliance, and privacy commitments, as further explained in the Services Terms and any additional notices provided with the Preview. The Provider may change or discontinue Previews at any time without notice. The Provider may also choose not to release a Preview into “General Availability”.
3. Services, subscriptions, and ordering
3.1. Basic definitions
The Provider offers various Managed Services within its areas of expertise. These services typically consist of the following elements:
3.1.1. Proactive monitoring
Activities consist of automated and semi-automated processes and procedures, designed to make the Provider aware of potential issues before they impact the functionality of provided Services.
Proactive monitoring is included in some of the available service levels that can be ordered from the Provider.
3.1.2. Preventive maintenance
Preventive actions are performed manually at regular intervals. Their function is to ensure that Services that are provided are up to date, stable, and secure. Activities that are typically performed are systems patching/updating, log monitoring and upgrading of various software components to newer versions.
Preventive maintenance is charged in accordance with the actual number of work hours performed.
Other expenses incurred when performing preventive maintenance, such as travel and per-diem costs, delivery service, spare parts, and supplies, may also be charged.
Performed in emergency situations or at the request of the Customer; their purpose is to remedy a fault that has already manifested in a Service, or to perform an activity desired by the Customer; requested activities could be, but are not limited to, customizations of the Service, additional services not necessarily within the scope of the primary Services that are offered, consultations, etc.
Interventions are charged according to the number of fulfilled work hours.
Other expenses incurred when performing interventions, such as travel and per-diem costs, delivery service, spare parts, and supplies, may also be charged.
Maximum guaranteed response time for interventions depends on the service level order from Provider; a choice of multiple service level agreements is available.
3.1.4. Customer’s additional requests
At the request of the Customer, Provider can change or improve the system behaviour with implementing additional services, features or develop custom code or applications, in accordance with the Customers request and specification. For this work, the Provider shall charge a per-hour fee at the Provider’s default rate, or as agreed in writing with the Customer before commencing the work.”
3.2. Available Subscription offers
The Subscription offers available to the Customer will be established by the Provider and generally can be categorized as one or a combination of the following:
3.2.1. Services commitment offering
The Customer commits in advance to purchase a specific quantity of Services for use during a term and to pay upfront or on a periodic basis for continued use of the Service.
3.2.2. Consumption offering (also called Pay-As-You-Go)
The Customer pays based on actual usage with no upfront commitment.
3.2.3. Limited offering
The Customer receives a limited quantity of Services for a limited term without charge (for example, a free trial) or as part of another Provider offering. Provisions in this Agreement with respect to the service level agreement and data retention may not apply.
3.2.4. Software commitment offering
The Customer commits in advance to purchase a specific quantity of Software for use during a term and to pay upfront or on a periodic basis for continued use of the Software.
Orders must be placed through the Provider. The Customer may place orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders under this Agreement. The Customer also may assign the rights to a third party for use by that third party in the Customer’s internal business. If the Customer grants any rights to Affiliates or third parties with respect to Software or Customer’s Services, such Affiliates or third parties will be bound by this Agreement and the Customer agrees to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Services.
The Provider may permit the Customer to modify the quantity of Services ordered during the Term of a Subscription. Additional quantities of Services added to a Subscription will expire at the end of that Subscription.
The Customer is obligated to pay the Provider for ordered Services in accordance with the terms, conditions, and pricing of each individual order.
Customer is obligated to settle issued invoices within 15 days from the date of being issued the invoice. The Provider may approve a longer payment term in writing, based on a request by the Customer. If Customer does not settle an invoice in the provided term (regular or approved), the Provider has the right to charge statutory default interest on the due amount, as well as a late fee as provided by Croatian law.”
Upon renewal of a Subscription, the Customer may be required to sign a new agreement, a supplemental agreement, or an amendment to this Agreement.
The Customer’s Subscription will automatically renew unless the Customer provides the Provider with a notice of its intent not to renew prior to the expiration of the Term.
At the end of every billing period the Provider automatically sends a work report document, which contains a log of all work activities performed during the period in question, along with the number of fulfilled work hours.
In case of a situation demanding special attention, such as a major incident, a significant change in the way the Service is configured, etc., additional documentation will be delivered to the Customer which will include appropriate detailed information.
The parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this Agreement, and all such taxes will be the financial responsibility of the party who is obligated by operation of law to pay such tax.
4. Term, termination
4.1. Agreement term and termination
This Agreement will remain in effect until the expiration or termination of all the Customer’s Services, whichever is earliest. The term for each individual Service is defined by the Customer’s order for that Service. The Customer may terminate this Agreement at any time by contacting the Provider. The expiration or termination of this Agreement will only terminate the Customer’s right to place new orders for additional Products under this Agreement.
4.2. Termination for cause
If either party breaches this Agreement, the other party may terminate the breached Agreement (in whole or in part, including orders) upon notice. If the breach is curable within 30 days, then the terminating party must provide 30 days’ notice to the breaching party and an opportunity to cure the breach.
4.3. Cancellation of a Subscription
The Provider will establish the terms and conditions, if any, upon which the Customer may cancel a Service, individually for each available service.
5. Security, privacy, and data protection
5.1. Provider administrator access and customer data
The Customer acknowledges and agrees that the Provider will be the primary administrator of the Services for the Term and will have administrative privileges and access to Customer Data. The Customer may request additional administrative privileges from the Provider.
5.2. Information confidentiality
The Provider and the Customer undertake not to disclose the contents of this Agreement and any confidential information about the business, affairs, parties, partners or distributors of the other party for the duration of this Agreement and for two years after its termination, except in the cases provided for in this article. The Contracting Parties agree that all the data and confidential information described in the previous sentence shall also be considered a business secret.
Each party may disclose the contents of this Agreement and the confidential information of the other party:
- to its employees, executives, representatives, or consultants, who must be aware of such information for the purpose of exercising the rights or fulfilling the obligations of the customer under or in connection with this Agreement. Each party must ensure that its employees, executives, agents, or consultants to whom it discloses confidential information comply with the provisions of this article; and
- when required by law, court or any governmental or regulatory authority.
No party to the Agreement may use confidential information of the other party for any purpose other than the exercise of rights or the performance of obligations under or in connection with this Agreement.
5.3. Privacy Statements and other conditions
By accepting this Agreement the Customer also accepts any general agreements denoted by the Provider, depending on the Services which are being used: Terms – Nodefusion
5.4. Data protection terms
Both parties will comply with all applicable requirements of applicable data protection legislation. The provisions of this article are in addition to, and does not relieve, remove, or replace, a party’s obligations or rights under the applicable data protection legislation.
The parties acknowledge that for the purposes of the applicable data protection legislation, the Customer is the controller and the Provider is the processor.
The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Provide for the duration and purposes of this agreement. The Provider shall, in relation to any personal data processed in connection with the performance by the Provider of its obligations under this agreement:
- process that personal data only on the documented written instructions of the Customer unless the Provider is required by applicable laws to otherwise process that personal data;
- ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Provider complies with its obligations under the data protection legislation by providing an adequate level of protection to any personal data that is transferred; and
- the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- assist the Customer, at the Customer’s expense, in responding to any request from a data subject and in ensuring compliance with its obligations under the data protection legislation with respect to security, deletion, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement, unless it is required by applicable law to store the personal data; and
- maintain complete and accurate records and information to demonstrate its compliance with this article.
The provisions of this Agreement regarding data protection and processing apply to all Services provided by the Provider to the Customer.
The data processed is personal data of the employees, collaborators and representatives of the Customer, provided by the Customer to the Provider, that are necessary for the provision of the Services and the performance of obligations from this Agreement.
The above personal data will be processed by consultation into the data provided by the Customer.
The processed personal data is of the data transferred that is included in e-mail, documents, and other data in an electronic form in the context of the Services. Depending on Customer’s use of the Service, Customer may elect to include personal data from any of the following categories in the Customer data:
- Basic personal data (for example place of birth, street name and house number (address), postal code, city of residence, country of residence, mobile phone number, first name, last name, initials, email address, gender, date of birth);
- Authentication data (for example username, password or PIN code, security question, audit
- Contact information (for example addresses, email, phone numbers, social media identifiers; emergency contact details);
- Unique identification numbers and signatures (for example IP addresses, employee number, student number, signature, unique identifier in tracking cookies or similar technology);
- Pseudonymous identifiers;
- Location data (for example, Cell ID, geo-location network data, location by start call/end of the call. Location data derived from use of Wi-Fi access points);
- Photos, video and audio;
- Internet activity (for example browsing history, search history, reading, television viewing, radio listening activities);
- Device identification (for example IMEI-number, SIM card number, MAC address);
- HR and recruitment data (for example declaration of employment status, recruitment information (such as curriculum vitae, employment history, education history details), job and position data, including worked hours, assessments and salary, work permit details, availability, terms of employment, tax details, payment details, insurance details and location and organizations).
No sensitive data or special categories of data are intended to be transferred but may be contained in the content of or attachments to emails.
The personal data will be processed for the duration of this Agreement.
6. Limited Warranty
Provider warrants that each version of the Software will perform substantially as described in the applicable Product documentation for one year from the date the Customer is first licensed for that version. If it does not, and the Customer notifies the Provider within the warranty term, then the Provider will, at its option, return the price the Customer paid for the Software license or repair or replace the Software.
The Provider warrants that each Service will perform in accordance with the applicable service level agreement during the Customer’s use. The Customer’s remedies for breach of this warranty are in the service level agreement. The remedies above are the Customer’s sole remedies for breach of the warranties in this section. The Customer waives any breach of warranty claims not made during the warranty period.
The warranties in this Agreement do not apply to problems caused by accident, abuse or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free or trial products, Previews, Limited Offerings, or to components of Products that the Customer is permitted to redistribute.
Except for the limited warranties above, the Provider provides no warranties or conditions for Products and disclaims any other express, implied, or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
7. Final provisions
This Agreement can only be assigned if all parties agree to the assignment in writing.
The annulment, invalidity, or unenforceability of an individual provision of this Agreement shall not affect the validity and enforceability of the other provisions or this Agreement as a whole.
7.3. Applicable law and jurisdiction
This Agreement is governed by the law of the Republic of Croatia. All claims and disputes that may arise out of or in connection with this Agreement will be submitted to the exclusive jurisdiction of the competent court in Zagreb.