General Terms and Conditions
for provision of software development and hosting services
Last Revised: 28/02/2018 (Download PDF version)
The use of hosting services provided by Modoolar (hereafter referred to as "Modoolar") is subject to the following General Terms and Conditions (or the “GTC”).
1. DEFINITIONS AND INTRODUCTORY TERMS
1.1. The operative parties and terms referred to in this Agreement are defined as follows:
1.2. As an Odoo Official Partner, Modoolar is specialized in Odoo ERP customization and business solutions development. Besides, we build cool apps on top of Odoo platform. Thus, our services (the "Services") are performed using the Odoo-platform (in it's version at the moment of revision of these TOS) and may, as per your needs and from time to time, incorporate
1.2.1. Provision of finished or customized software products (tools) - the "Application/s", creation of new ERP-modules, integration of software with your existing legacy systems, provision of technical support for the Software, provision of training of your personnel for using of the Software and other, as your need may be and as agreed pursuant to our mutual SLA.
1.2.2. Provision of specific hosting services pertinent to functioning of our Applications (as defined herein further).
1.2.3. In addition to the above, Modoolar renders other, various software-related and consulting services as it’s clients’ needs may be, such as Agile Coaching and Training.
1.3. For the purposes of this Agreement, when "Services" are referenced, such reference includes
1.3.1. the service itself (software consulting, i.e. configuration, customization, extensions of existing modules on Odoo platform - adding new functionalities to modules, as well as
1.3.2. development of standalone applications, using Odoo - platform or any other platform as the case may be
1.3.3. all hardware, software, and network resources necessary to provide said Service. In some cases, rendering of a portion of our Services will be conditioned by specifics of software systems already used by your side, and some of our software will have to be integrated, or function in correlation with, such software at your side (the "Legacy Software" or "Legacy System")
1.3.4. any consulting provided in relation to any software or application,
1.3.5. any training and/or coaching in usage of methodologies for application development (in particular, the Agile Method)
1.4. When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Modoolar. Additionally, when the terms "the Site" or "Site" are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
1.5. For the purposes of this Agreement, the term "your Data" refers to all and any data supplied by your side in order to be processed by an Application and thereby subjected to the Hosting Services, disregarding whether such data belong directly to you or to any third parties, and include all and any eventual personal data and information pursuant to applicable EU legislation. Furthermore, the term “Application” refers to a software product either developed, or modified by Us pursuant lto our agreement with You as a party.
1.6. By nature, our Services may involve hosting of your Data on our, or on third-party facilities that we may recommend to our best knowledge - as per your choice and as per our subsequent SLA. Whenever hosting is performed via third-party facilities, all legal terms and conditions of that third party shall apply to you in addition to these TOS. In a case of collision of specific rules and conditions of such third party rules regarding hosting (in particular referring to any limitations, Acceptable Use Policies, legal usage of resources, allowed usage, allowed content, allowed behavior, specific rules imposed by the third-party's legislation), will have precedence over these Terms and Conditions when hosting services (the "HOSTING SERVICES") are concerned, except for the provisions regarding liability of Modoolar and when such provisions are in direct contravention with any imperative legislation under which Modoolar is performing it's business. In a case of doubt and to avoid any misunderstanding, we shall provide you with consulting in that particular area whenever so required.
1.7. You, the Client - As Our Client and the user of the Site or Services, this Agreement will refer to You through any second-person pronouns, such as "Your," "Yours," etc.
1.8. Incorporation by reference: Although this Agreement represents the primary terms and conditions of service for Modoolar Services, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
1.9. More specific and customized Terms pursuant to your needs may be agreed upon with each particular Client by means of formal, written SLA (Service Level Agreement), mutually agreed with you.
1.10. For the sake of clarity, terms and conditions of these GTC referring to “Hosting Services” shall also apply to your access to our Portal.
TERMS AND CONDITIONS SPECIFIC FOR HOSTING SERVICES
2. HOSTING SERVICES
2.1. Choice of hosting services. At the time of entering of our SLA, You will be able to choose from the list of available hosting Services pursuant to which you wish your data to be stored, as well as of available locations for your data (our locations or third-party facilities).
2.2. Facilities. All Modoolar's own facilities used to store and process an Application and Data will adhere to reasonable security standards no less protective than the security standards at facilities where Modoolar processes and stores its own information of a similar type. Modoolar has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and your Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Data, and (iii) protect against unauthorized access to or use of an Application and Data.
2.3. Data Location. You will be able to choose where certain Data will be stored i.e. hosted ("Data Location Selection"), and Modoolar will store it there in accordance with the SLA. If a Data Location Selection is not covered by the Service Specific Terms (or a Data Location Selection is not made by you with respect to any Data), Modoolar may process and store the Data anywhere Modoolar or its agents maintain facilities or on any third-party facility. By using the Services, you consent to this processing and storage of Data. Under this Agreement, Modoolar is merely a data processor. Please note that, in case that you choose to keep the Data on your own location, you shall be required to report any eventual bugs or issues in a specific form (to be provided by Modoolar) so that Modoolar is able to reproduce and resolve the issue in question.
2.4. Maintenance. All subscriptions to Services are subject to formal acceptance by Modoolar. Your subscription to the Services will be deemed accepted by Modoolar when Modoolar delivers a confirmation of the subscription to You. Modoolar reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee found in Section 17 of this Agreement, Modoolar also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional Services shall be considered "Services" hereunder. All Services provided are subject to availability and to all of the terms and conditions of this Agreement and terms and conditions of the SLA. We are not responsible for outages or circumstances beyond our control that hinder access to your site or server.
3. HOSTING AND PORTAL ACCESS SERVICES - ACCOUNT SET UP
3.1. When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
3.2. You are obliged to keep your login credentials secure and to keep your email address updated, as most of our correspondence will be performed over email. Also, you are obliged to act with due care when giving out your account information. Any activity on your account is your responsibility.
3.3. You must provide Us with a primary email address that is checked regularly and frequently. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account. It is also Your responsibility to make sure that Our domain(s), modoolar.com, are not included in any spam block list used by You or Your mail provider.
3.4. Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3 of this Agreement.
3.5. You are responsible for all activity transpiring under Your account. We therefore highly recommend that You secure file, directory, and script permissions to the most restrictive settings possible. You agree that You have the technical ability to properly operate a web site and that You are responsible for any actions performed under Your account, including but not limited to, damage caused to Your site, Modoolar site and/or equipment, and any other site.
3.6. You are responsible to prevent any unauthorized access to any data on our server using your account. You accept that you are liable for any damage caused by yourself, your employees or third parties using your account while logged or operating on our or third-party servers.
3.7. In case that hosting is not performed by us or any third party and the data remains at your server(s), you are completely responsible and liable for the security and integrity of that data. In case that Modoolar can not connect to your server(s) and/or access such data for any reason whatsoever, all liability for any delays, non-performance and damages caused by such inability of Modoolar to access said data is on your side.
3.8. In case that hosting of your data is performed using Modoolar's account on third-party server(s), access to such data by any party including yourself is at Modoolar's sole discretion. Please bear in mind that Modoolar is entitled to withhold your access to it's account and the data hosted in such manner in case of your default in payment obligations towards Modoolar.
3.9. In a case that you report any difficulty or error regarding access to your data hosted by Modoolar pursuant to these GTC, Modoolar reserves the right to charge you for eventual expenses or resolving of such issue pursuant to its' hourly rates if the issue is caused by your side.
4. HOSTING SERVICES - INTELLECTUAL PROPERTY RIGHTS
4.1. All Services provided by Modoolar may only be used for lawful purposes.
4.2. As between You and Modoolar, Modoolar acknowledges that it claims no proprietary rights in or to ANY content supplied by You.
4.3. In connection with performance of the Services and at the sole discretion of Modoolar, Modoolar may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Modoolar or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Modoolar to provide You with the Services ("Host Materials"). Subject to the terms and conditions of this Agreement, Modoolar hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and Modoolar, You acknowledge and agree that Modoolar owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials after termination of this Agreement is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Modoolar.
4.4. This Agreement does not constitute a license to use Modoolar trade names, service marks or any other trade insignia, including any of our products. Any use of any of Modoolar trade names, service marks or any other trade insignia is strictly prohibited, absent Modoolar prior written consent.
4.5. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file a complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute such complaint.
4.6. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
5. HOSTING SERVICES - TAKEDOWN POLICIES AND PROCEDURES
5.1. Modoolar implements the following Takedown Policies and Procedures. Upon receipt of any notification of claimed copyright infringement, Modoolar will act expeditiously to notify its customer of the alleged infringement, and take steps to disable or remove the subject material. Modoolar reserves the right at any time to disable access to, or remove any material or expressive work accessible on or from its servers or services, that is claimed to be infringing, or based on facts or circumstances from which infringing activity is apparent. It is the firm policy of Modoolar to terminate the account of repeat copyright infringers, when appropriate, and Modoolar will act expeditiously to remove access to all material that infringes on another's copyright.
5.2. If the data i.e. material is on our server or on a server which is in our legal apprehension, Modoolar is entitled to remove any data or materials which, as per it's own good judgment, are allegedly illegal i.e. pose risk to be deemed as illegal pursuant to any legislation.
5.3. If the data i.e. material is hosted on your own server(s), it is entirely your responsibility to ensure legality of such materials and you will hold harmless Modoolar, it's employees or founders in any eventual legal proceeding regarding such data.
6. HOSTING SERVICES - CONTENT AND ACCEPTABLE USE POLICY
6.1. You agree to comply with Modoolar Acceptable Use Policy ("AUP") hereby incorporated by as an indispensable part of this Agreement. Modoolar reserves the right to modify the AUP at any time by posting the modified policy on its web site. You agree to monitor the Modoolar.Com home page for any changes to the AUP. Your continued use of the Services after the effective date of any changes to the AUP constitutes Your manifestation of intent to be bound by such changes. Modoolar may, at its sole discretion, immediately terminate Your access to the Services, or this Agreement, if Your conduct violates the AUP, or if any of Your end users' conduct violates the AUP.
6.2. Modoolar will not actively monitor the content of the web sites or web servers or web apps being hosted by Modoolar.Com, although Modoolar.Com, at its sole discretion, may elect to electronically monitor its network and may disclose any content or records concerning Your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate Our network and protect any of Our customers. Modoolar will investigate complaints of a violation of a third party right or of the AUP. Modoolar will cooperate with those attempting to minimize Internet abuse and reserves the right to institute "filters" or other mechanisms for that purpose. Modoolar will cooperate with law enforcement authorities and reserves the right to notify such authorities if it suspects that You or any of Your end users are engaged in illegal activities. Nothing contained in this Section, or anywhere in this Agreement, is intended to bestow any rights on any third party, and no third parties shall be entitled to enforce any terms of this Agreement between the Parties.
6.3. Modoolar may, at its sole discretion, immediately terminate Your access to the Services, and terminate this Agreement for cause, if Your conduct violates the acceptable uses outlined below, or if any of Your end users' or downstream customers' conduct violate such acceptable uses.
6.4. Modoolar takes the issue of child pornography very seriously, and any potential harm to minors using our services is strictly prohibited. Content that is or may be perceived to be child pornography will be immediately removed from public access upon notification or detection by Us. Additionally, Modoolar reserves the right to terminate any account whose website(s) hosts or links to child pornography immediately and without notice to You. If the account is a Modoolar reseller account, the account will be suspended and the reseller will be directed to terminate the responsible account. You agree to cooperate in any such efforts. Content or communications seeking to solicit, lure or entice minors into sexual activity or lewd behavior is also strictly prohibited, and will be treated the same as, or similar to, child pornography, consistent with applicable law. You agree to cooperate with Modoolar in any effort to investigate, disable or remove such content originating with Your end-users. Consistent with federal law, Modoolar will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your downstream customers or end users are engaged in any such illegal activities.
6.5. We respect the intellectual property rights of all parties and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available on request to our clients.
6.6. Our discretion, and without claim of damage or injury by You. While We will attempt to simply disable access to such content without fully deleting it, or suspending all services to your account, We make no warranties concerning harm or injury to the content, and reserve the right to take any necessary actions to disable access to the identified material, including suspension or termination of Services
6.7. Nothing contained in this Section, or any part of this Agreement, shall constitute legal or professional advice regarding any matter referenced therein. You are responsible for obtaining your own legal advice regarding compliance with any and all applicable laws or regulations.
7. HOSTING SERVICES - BACK UPS & DATA LOSS, PERSONAL DATA PROTECTION
7.1. You agree that Your use of Modoolar Services is at Your own risk, and that Modoolar is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
7.2. Should you wish for Modoolar to provide you with routine backup service, in addition to the Services provided under this Agreement please contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
7.3. Modoolar is not liable in any way for any loss, damage or mistreatment of any data which represent personal data pursuant to the applicable legislation of the EU and of the Republic of Serbia, which are originated from your part and which you store using our hosting Services. Legal, software and physical protection of such data remains your sole responsibility. You herewith accept that Modoolar is acting as your agent as if any processing of such data is concerned during performance of Services under this Agreement. You will supply Modoolar with any legal statements to be accepted by Modoolar in this regard if so required by your national legislation or contractual obligations, and Modoolar will make a best effort to provide it's approval to such statements or to issue such statements if so required for the purpose of creation of legally perfect conditions for personal data protection, if such data are among the data stored on Modoolar's facilities, or processed by Modoolar during execution of Application-related Services, all pursuant to our SLA.
More simply put:
We do our best to protect your data!
Due to real world scenarios, there is always a small chance for data loss.
We recommend having a good backup plan for your projects.
8. HOSTING SERVICES - RESOURCE USAGE & SECURITY
8.1. Modoolar does not impose hard set limits on each account's system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Modoolar will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
8.2. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to Modoolar, You hereby agree to compensate Modoolar for any damages plus any and all fees associated with recovery of these damages, including attorneys' fees and costs.
8.3. SECURITY: Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the "Servers") is strictly prohibited and is a violation of this Agreement and the AUP per Section 6 of this Agreement. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as "hacking." In addition, You are prohibited from the following:
8.3.1. Any form of unauthorized access to or use of data, systems or networks, including the Site and/or Services;
8.3.2. Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
8.3.3. Unauthorized interference with service to any user, host or network;
8.3.4. Introducing a malicious program into the network or server (e.g. viruses and worms), including the Site and/or Services;
8.3.5. Circumventing user authentication or security of any host, network or account;
8.3.6. Using an account with another provider to promote Your site with Us in an abusive manner.
8.3.7. Utilizing Our Services for the purpose of compromising the security or tampering with system resources or accounts on computers at Our site or any other site.
8.4. In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause of Your account per Section 3 of this Agreement.
8.5. FAIR USE POLICY: We provide specific Services to our Clients and define normal, fair, and reasonable use in terms of our Modoolar Virtual Private Servers as use that is consistent throughout any given billing period. We expect regular usage patterns from individual component machines and the client solution as a whole. Should we at our sole discretion determine a Client is not using this Service as defined under this Fair Use Policy, we may take actions to mitigate negative impact to Service delivery systems including but not limited to the following:
8.5.1. Rate-limit the data the Client may send and/or receive from the individual machine to the entire solution level
8.5.2. Adjust pricing to a standard bandwidth rate (market-dependent)
8.5.3. Suspend or terminate Service to any or all Client machines
8.6. Acceptable Use Policy (AUP):The Services are designed to enable you and your end users to communicate with others via the Internet for the purpose of your business and to use our products on Odoo platform. You agree to use the Services (and to require your users to use the Services) only to post, send and receive messages and material that is proper and, when applicable, related to the particular Service. By way of example, and not as a limitation, you agree that when you (or your end users are) using a Service, you (and your end users) will not:
8.6.1. Use the Service in connection with unlawful contests, lotteries, or gambling; pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
8.6.2. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
8.6.3. Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, or otherwise unlawful content, such as child pornography or virtual child pornography.
8.6.4. Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group because of their belonging to a race, a religion or a nation.
8.6.5. Upload, or otherwise make available files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.
8.6.6. Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
8.6.7. Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's property.
8.6.8. Download any file posted by another user of a Service that you know, or reasonably should know, cannot be legally distributed in such manner.
8.6.9. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
8.6.10. Restrict or inhibit any other user from using and enjoying the Services.
8.6.11. Violate any code of conduct or other guidelines which may be applicable for any particular Service.
8.6.13. Violate any applicable laws or regulations.
8.6.14. Create a false identity for the purpose of misleading others.
8.6.15. Host TOR exit nodes.
8.6.16. Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.
8.6.17. Network probing or port scanning tools are only permitted if explicitly authorized by the destination host and/or network. Unauthorized port scanning, for any reason, is strictly prohibited.
8.6.18. Utilizing bots for the purpose of repeatedly and/or automatically acquiring merchandise and anything similar that violates 3rd party legal terms and conditions, that could result in the blocking of Modoolar IP space or ASN.
8.6.19. Modoolar reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Modoolar's sole discretion.
8.7. Modoolar does not control or endorse the content, messages or information found in any Service and, therefore, Modoolar specifically disclaims any liability with regard to the Services and any actions resulting from your participation in any Service.
8.8. In the event any instance uses excessive CPU from activities such as cryptocurrency, CPU mining, Modoolar reserves the right to limit the CPU available to your instances in order to maintain a consistent level of performance on all our nodes.
8.9. When you opt for third-party hosting services, your obligation towards Modoolar is to adhere to all rules and conditions of such third party similar to the above rules, in particular those regarding proper and allowed usage of resources, content and it's legality, usage of bandwidth, rules against spamming and hacking and all other standard rules which relate to adherence to any legislation and rights of other users.
9. HOSTING SERVICES -TERMINATION/ACCESS RESTRICTION
9.1. Modoolar has no obligation to monitor the hosting portion of Services. However, Modoolar reserves the right to review materials posted to a hosting Service and to remove any materials in its sole discretion. Modoolar reserves the right, in its sole discretion, to terminate your access to any or all hosting Services and the related services or any portion thereof at any time, with or without notice, for violating any of the rules regarding content hosted on Modoolar's facilities. Your rights and obligations upon termination of any Service are governed by the Terms of Service. Upon termination of the Service, your right to use the Service immediately ceases. Modoolar shall have no obligation to maintain any content termination of the Services.
10. HOSTING SERVICES - UPTIME GUARANTEE
10.1. Modoolar will offer You a Service Level Agreement ("SLA") guaranteeing certain availability of Our Services. If applicable, the terms of any such SLA were separately negotiated between You and Us, and such SLA, if any, is hereby incorporated by reference as an indispensable part of this Agreement.
10.2. When your Data is hosted on third-party facilities, all access-related rules including any limitations and/or guarantees of that third-party shall inherently apply in addiction to the rules contained in this Agreement. In a case of collision between such rules and rules of this Agreement, the rules of a third-party hosting provider shall apply given the fact that your data is hosted with that third party, not Modoolar. Modoolar may recommend third-party hosting services but can not guarantee for the quality of hosting performed by any third party, elected by you via our SLA.
10.3. Unless specifically defined within your customized SLA, Modoolar is not liable whatsoever for any loss or damage, direct or indirect, that may be caused by any interruption of service (downtime) arisen out of causes beyond it's reasonable control or prediction. This provision particularly refers to Services performed via third-party hosting.
11. HOSTING SERVICES – WARRANTIES AND DISCLAIMERS
11.1. You expressly agree that your use of the Services is at your sole and exclusive risk. The services are provided on an "as is, with all faults" and "as available" basis. Modoolar expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
11.2. Modoolar makes no warranty that the Services will meet your requirements, or that the services will be uninterrupted, timely, secure, or error free; nor does Modoolar make any warranty as to the results that may be obtained from the use of the services or as to the accuracy or reliability of any information obtained through the Services or that defects in any software, hardware or the Services will be corrected.
11.3. Any statements made regarding the above matters in promotional materials shall be considered advertising references, and not warranties. You understand and agree that any use you make of any material and/or data downloaded or otherwise obtained through the use of the Services is at your own discretion and risk, and that You will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data.
11.4. Modoolar may make third-party goods, services and/or software available to you that are not part of the Services ("third-party services"). Modoolar has no control over the content of third-party services. Use of any third-party services will be at your own and sole risk and subject to the terms and conditions of a separate agreement between you and the third-party.
11.5. Modoolar makes no warranty regarding any goods or services purchased or obtained through the Services or any transactions entered into through the Services.
11.6. No advice or information, whether oral or written, obtained by you from Modoolar or through the Services shall create any warranty, whether by implication, estoppel or otherwise, including but not limited to any marketing or promotional materials describing the services on Modoolar website.
11.7. Unless otherwise agreed to in writing, Modoolar does not make a backup of your data as part of the services. Accordingly, we encourage you to make a backup of your data on a regular basis.
TERMS AND CONDITIONS SPECIFIC TO SOFTWARE DEVELOPMENT SERVICES PROVIDED BY MODOOLAR
12. ACCESS TO THE PORTAL AND USING OF THE PORTAL TO RAISE ISSUES, PLACE CHANGE REQUESTS OR NEW ORDERS
12.1. In order to enable you to order some of our Services in a most efficient manner, Modoolar may provide you with an access to a special web-portal, established by Modoolar for the purpose. Such web-portal may enable you to place orders for a new software development or customization, extension or any other modification of an existing software, or to raise issues regarding functionality of existing software, or to request changes of a software already developed (or modified, configured or extended by Modoolar). Based upon your request or order for a new software or for amendments of an existing software via portal, Modoolar shall provide you with an estimate of the time and resources required for Modoolar to perform specific software-development or consulting Service. Pursuant to your acceptance of such estimate, Modoolar shall perform and render the Services agreed upon.
12.2. These GTC shall apply to any such particular order or request and you shall confirm your agreement with the above by the very fact that you are using the above mentioned portal as described.
13. THE PROJECT SCOPE
13.1. In addition to placement of requests or orders via portal, Modoolar may offer that the scope of the future project for delivery of Services is established via Scope Discovery Workshop using the Agile Method.
13.2. If we determine that such approach is most suitable, you shall delegate authorized representatives, knowledgeable of your business processes, which shall be able to convey the details of your business processes and your needs and requirements.
13.3. The result of the above Scope Discovery Workshop is a precise list of all elements of the project in question (Project Scope), which need to be developed in order to meet your needs.
13.4. Modoolar is entitled to charge for the hours spent in creation of the above Project Scope in the manner described. In a case that you require a detailed business analysis, Modoolar shall be entitled to charge additionally for such analysis as for a standalone - product of it’s work.
14. MODOOLAR'S STANDARD WARRANTY FOR SOFTWARE DEVELOPMENT SERVICES AND SOFTWARE PRODUCTS
14.1. Modoolar undertakes to do its best to supply Services in due time in accordance with the agreed timeframes. However, none of its obligations can be considered as being an obligation to achieve results. Modoolar cannot, under any circumstances, be required by you to appear as a third party in the context of any claim for damages filed against yourself by your own end customers, partners or any third parties in relation to you. Except as expressly set forth in this Agreement no other warranty, express or implied, is made with respect to the Software or Services provided herein. Modoolar specifically disclaims any other representations and warranties including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising from a course of dealing or performance or usage of trade.
14.2. As if functioning of any Application provided by Modoolar is concerned, and particularly when Services are performed against any Legacy Software of yours, Modoolar specifically disclaims any representation and warranty that the Software will be error free or will function uninterrupted, that any Errors/Bugs or defects in the Software can or will be corrected, that any such correction can or will be made in a timely manner, that the Software will operate in the combinations which the Client may select for Client's use, will produce the results the Client desire, or that the Software's functionality will meet Client's requirements.
14.3. Pursuant to the immediately preceding paragraph, Modoolar shall provide a limited warranty upon its Applications pursuant to this TOS as follows:
No warranty upon functioning of any existing, amended or added modules of Legacy Software or Legacy System.
Notwithstanding the foregoing, Modoolar does not warrant that the Software will operate without interruption or that the performance of said Software will be error free.
Modoolar does not guarantee that all and any existing bugs, errors or deficiencies in the existing Legacy Software will be found and rectified during execution of Services or at any later stage.
Modoolar cannot guarantee the privacy, security, authenticity and non-corruption of any information transmitted through or stored on any server maintained or used by Modoolar, by a third-party or the Client in connection with the Software.
Modoolar is not responsible for any delays, errors, crashes, failures to perform, disruptions or other problems with the Software caused by or resulting from any act, omission or condition beyond Modoolar's reasonable control.
14.4. Any additionally established warranties shall apply only to the extent that the software delivered by Modoolar is not being used or interfaced with other software, data or operating systems that are not functioning properly or if the delivered software has been modified in a manner not authorized by Modoolar.
14.5. The warranties set forth above are made to and for Client's benefit only and will be enforceable against Modoolar only if: a) the software has been properly installed and has been used at all times in accordance with referent documentation and these TOS and SLA; b) all modifications, alterations or additions to the Modoolar's software, if any, have been made by Modoolar; and c) The Client has not made modifications, alterations or additions to the software that cause it to deviate from the documentation.
14.6. All warranty claims must be made with an accompanying formal request, precisely demonstrating the bugs or deficiencies occurred, within the Warranty Period to be set within our mutual SLA. In a case that the remedy provided by Modoolar does not resolve the bug or deficiency so that the Software does not perform substantially in accordance with the documentation, Client's sole and exclusive remedy and the entire liability of Modoolar for breach of warranty shall be limited to the refund of the 10% (ten percent) of the total aggregated value of our mutual SLA.
TERMS AND CONDITIONS APPLICABLE TO ALL SERVICES PROVIDED BY MODOOLAR
15. REVISIONS TO THESE GTC AND TO THE USER AGREEMENT
15.1. From time to time, We may revise these GTC. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to these GTC are in force and enforceable immediately upon posting.
15.2. In case You have entered an agreement with Modoolar on delivery of our Services, consisting of these GTC and any Special Terms and Conditions mutually agreed upon between You and Modoolar (including but not limited to hosting and maintenance SLA, software development agreements or agreements on other types of our Services to be provided), contains the complete and entire terms and conditions that apply to Your use of our Services. Modoolar may modify the terms of these General Terms and Conditions at any time, yet any amendments to our mutual agreement are subject to approval of both parties and the version of these GTC valid at the time of entering of our mutual Special Terms and Conditions shall apply to You.
15.3. The updated or edited version of these GTC supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless
15.3.1. the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect, or
15.3.2. if We have entered an explicit written agreement on delivery of any of our Services based upon that particular version of the GTC as defined above.
15.4. To the extent any amendment of our agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of our agreement be considered valid and enforceable to the fullest extent.
15.5. We agree that if We change anything in these GTC, We will change the "last modified date" at the top of this Agreement. You agree to periodically re-visit this web page, and to use the "refresh" button on Your browser when doing so. You agree to note the date of the last revision to our agreement. If the "last modified" date remains unchanged from the last time You reviewed our agreement, then You may presume that nothing in our agreement has been changed since the last time You read it. If the "last modified" date has changed, then You can be certain that something in our agreement has been changed.
15.6. Should You wish to terminate our agreement due to any unilateral revisions of these GTC made by Us, You must do so in writing via the cancellation form within thirty (30) days of the "last modified" date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
15.7. Waiver - if You fail to periodically review our agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
16. DURATION OF AGREEMENT AND CANCELLATION POLICY
16.1. The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term's length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by Modoolar. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
16.2. Modoolar may also terminate this Agreement in its sole discretion at any time for any reason or no reason. ("Termination without Cause"). In such case, Modoolar will provide You with thirty (30) days written notice before discontinuation of Services.
16.3. If Modoolar cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 15.2, Modoolar shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Modoolar terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to Modoolar prior to the effective date of termination of this Agreement.
16.4. In addition to Modoolar right to terminate this Agreement provided elsewhere in this Agreement, Modoolar may terminate this Agreement effective immediately if, based on Modoolar sole judgment, it determines that You or any of Your end-users: (a) have breached the Acceptable Use Policy ("AUP") as described in these GTC and incorporated herein, (b) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) have not complied with any applicable law, statute or regulation, or (d) have uploaded, published or disseminated any images, text, graphics, code or video which Modoolar consider illegal or a high risk, in its discretion and, notwithstanding all the above mentioned, e) in a case of your default in payment obligations.
16.5. Nothing contained in this Agreement is intended to, or shall, impose any duty or obligation upon Modoolar to monitor or review Your Content or the content of Your end-users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
16.6.The termination of this Agreement will terminate Your access to the Services. Modoolar shall not be liable to You or to any third party for termination of the Services permitted under this agreement. Upon termination of this Agreement, Modoolar reserves the right to maintain copies of Your data files and records for archival purposes, but does not undertake any obligation to do so. Modoolar reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
16.7. If either party cancels or terminates this Agreement for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement host and moving all electronic data, graphics, images, video or text to the new service provider. Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
17. GENERAL TERMS OF PAYMENT
17.1. All set-up fees and special programming fees are non-refundable. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
17.2. Modoolar reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, Modoolar may charge You with penalty fees provided for by the applicable law, per month of the unpaid amount, until paid.
17.3. You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Modoolar is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Modoolar should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Modoolar will invoice You for the difference between payment received and the Fees due.
17.4. You also agree to pay all attorney and collection fees arising from Modoolar efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Modoolar will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
18. PRICE CHANGE
18.1. The amount You pay for hosting will never increase during a specific term or time period for which you have signed up for Our Services. For the sake of clarity, all and any eventual price changes during the period of our agreement will have to be mutually agreed upon. If we terminate this agreement without cause pursuant to paragraph 16.2 of the Agreement, You understand that if We agree to provide Services to You in the future, the amount You paid under any prior term or time period is not determinative of the amount You pay should We provide Services to You again. It is Your responsibility to check with our representatives on eventual price changes should You wish to take advantage of a certain plan or price changes which may have occurred. Modoolar does not automatically update Your plan. All upgrades or downgrades will be performed at Your request and may include modification fees or require reinitiating service with Us.
18.2. If we mutually agree to apply third-party hosting, such third-party's hosting terms and conditions and all legal policies pursued by such third party, including the terms of pricing, shall inherently apply.
19.1. You agree to defend, indemnify, and hold Modoolar and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity; (e) any third party's access or use of Your Content or Your information and data; (f) any violation of the applicable Acceptable Use Policy.
19.2. In the event of a claim under immediately preceding section, Modoolar shall be permitted to select legal counsel to provide a defense to such claim. Modoolar reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Modoolar, which shall not be unreasonably withheld.
20. LIMITATION ON LIABILITY
20.1. You are solely responsible for the quality of your data and proper conduct of your business and all other matters under your control. In no event shall Modoolar be liable to you for any damages arising from or related to your operation of your business or failure to operate your business.
20.2. This section applies to all claims by you or your end users irrespective of the cause of action underlying the claim, including, but not limited to, breach of contract, tort, including but not limited to negligence, strict liability, fraud, and/or misrepresentation.
20.3. Regardless of the type of claim or the nature of the cause of action, you agree that in no event will Modoolar, our affiliates, contractors, service providers, employees, agents, or licensors, or any other party involved in creating, producing or delivering the services, technology, or content available on the services ("affiliates"), be liable to you in any manner whatsoever: (a) for any decision made or action or non-action taken by you in reliance upon the information provided through the services; (b) for loss or inaccuracy of data or, cost of procurement of substitute goods, services or technology; (c) for any indirect, special, incidental, consequential, or punitive damages, including but not limited to loss of revenues, loss of profits or loss of reputation, for business interruption or similar action, even if Modoolar has been advised of the possibility of such damages.
20.4. The total aggregate and maximum liability of Modoolar and the affiliates, arising from or otherwise relating to our agreement (regardless of the form of action or claim) is limited to any amounts you have paid to Modoolar during the six (6) months prior to the accrual of the cause or causes of action.
21. GENERAL PROVISIONS
21.1. JURISDICTION, VENUE, AND CHOICE OF LAW: This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the Republic of Serbia, excluding its conflict of law provisions. The Parties herewith agree to approach resolutions of any eventual disputes that may arise out of this TOS in an amicable manner. In case of unsuccessful amicable resolution, the dispute shall be resolved before the International Commercial Arbitration in Belgrade, Serbia and pursuant to the rules of that Arbitration.
Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
21.2. ARBITRATION: If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the International Commercial Arbitration in Belgrade, Serbia. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Belgrade, Serbia and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
21.3. ASSIGNMENT: The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
21.4. SEVERABILITY: If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
21.5. NO WAIVER: Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
21.6. COMPLETE AGREEMENT: This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
21.7. RELATION BETWEEN THE PARTIES: Modoolar is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties, unless specifically stated otherwise in this Agreement itself or in subsequent agreements between you and Modoolar.
21.8. NON-SOLICITATION: Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of this Agreement or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Modoolar employee who was an employee during the term of this Agreement (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise.
21.9. HEADINGS: Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
21.10. FORCE MAJEURE: Modoolar shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Modoolar performance.
21.11. EXPORT CONTROL UNDER U.S. LEGISLATION. You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
21.12. NOTICES, ELECTRONIC COMMUNICATIONS. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender's identity and the communication's authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.
21.13. DIRECT APPLICATION OF THESE GTC: If for whatever reason Parties (yourself and Modoolar) agree that Modoolar is to perform certain services pursuant to certain conditions, but omit to enter a formal written agreement on execution of any of such services (i.e. opt not to enter formal Special Conditions), than these GTC shall directly apply to their relationship. An agreement for performance of any services and application of any referent prices, deadlines and other details shall be deemed as achieved once the Parties express their agreement around such services, prices and deadlines using e-mail correspondence performed by the authorized representatives. Once you accept terms and conditions of performance of specific services via e-mail correspondence, you shall be obliged to remunerate Modoolar pursuant to an invoice you receive.
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