Terms and conditions
Datalounges General Terms and Conditions
These General Terms and Conditions shall apply unless the parties have entered into any written agreements otherwise or other provisions have been expressly agreed. These General Terms and Conditions may be revised from time to time. The most current version will be available at Datalounges.com/terms-conditions. If the revision, in our sole discretion, is material customers will be notified. Continued use after a revision becomes effective is determined to be an acceptance of the revised General Terms and Conditions
Table of Contents
GENERAL TERMS AND CONDITIONS
DEFINITIONS
The terms used in these General Terms and Conditions shall have the following meanings and apply to all Datalounges contracts and agreements:
1.1. “Contact Information” means the name, email address, phone number, online username(s), telephone number, postal address, and similar information voluntarily submitted by Customer, as well as navigational data relating to each Customer. Contact Information does not include Sensitive Information.
1.2. “Customer Data” means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Service. Customer Data does not include Sensitive Information.
1.3. “Customer” means the person or entity using the Service and identified in the applicable statement or Order Form as the Datalounges customer.
1.4. “Service” means a Service granted under Section 2.1.and means a particular edition and elements of acquired subscription, tools and platform subscribed to by Customer under an Order Form, and developed, operated, and maintained by Datalounges made available to Customer by Datalounges, to which Customer is being granted access pursuant to this Agreement and an Order Form. The Service includes acquired solution, and does not include training services, consulting services, and third party products.
1.5. “Subscription” and “Service Subscription” mean a Subscription granted under Section 2.1
1.6. “Subscription Term” means the duration of a Service as specified in the Order Acknowledgement.
1.7. “License Type” means the type of License applicable to the Software used to provide the Service.
1.8. “Open Source Software” means software components that are licensed under a license approved by the Open Source Initiative or similar open source or freeware license and are embedded in the delivered Service.
1.9. “Order” means a purchase order or other ordering document issued by You to Datalounges that references and incorporates these General Terms and Conditions and is accepted by Datalounges as set forth below in Section 3.
1.10. “Order Form” means the Datalounges approved form by which Customer agrees to subscribe to the Service.
1.11. “Order Acknowledgement” shall mean Datalounges’ written acceptance, including any acceptance transmitted to You by email, of any Order placed with Datalounges by You. The Order Acknowledgement list the specific Service that Datalounges has agreed to provide to You.
1.12. “Datalounges” means Datalounges Oy and any entity which directly or indirectly controls, is controlled by, or is under common control with Datalounges Oy.
1.13. “Software” means the Datalounges Software listed on Datalounges web page – https://www.Datalounges.com/…./ which you use via a Subscription under an Order Acknowledgement, together with any software code relating to the foregoing that is provided to You pursuant to a Service subscription contract and that is not subject to a separate license agreement.
1.14. “Sensitive Information” follows the definition created with implementation of GDPR. Definition of data considered as sensitive can be found here: https://ec.europa.eu/info/law/law-topic/data-protection/reform/rules-business-and-organisations/legal-grounds-processing-data/sensitive-data/what-personal-data-considered-sensitive_en.
1.15. “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the purchased Service for the benefit of Customer and who have been supplied user identifications and passwords by Customer (or by Datalounges at Customer’s request).
1.16. “Issue” means a failure in the Software to operate substantially in accordance with given instructions.
1.17. “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Datalounges for production deployment or use. Configuration of Software options which are intended to be altered is not considered a modification of the Software.
1.18. “Support Plan” means the Support Plan included in the Software Subscription accepted by Datalounges in an Order Acknowledgement. Datalounges Support Plans are set out at the, from time to time, current website https://www.Datalounges.com
1.19. “Subscription period” means the period for which Customer has purchased the Service Subscriptions and unless otherwise agreed, the Subscription Period will commence no later than 30 days after issuance of an Order Acknowledgement. Any subsequent renewal periods and shall commence on the date of purchase of the Service Subscriptions, unless otherwise is set out in an Order Acknowledgement
1.20. “Support” means the provision of telephone or web-based technical assistance by Datalounges to Customer’s technical contact(s) with respect to installation, Issues and technical product problems, in accordance with the Support Plan included in Service Subscription purchased by Customer, as further defined on Datalounges from time to time current website https://www.Datalounges.com/….
1.21. “Support Request” means any written or electronically written request for any Support by a Customer.
USAGE RIGHTS SOFTWARE SUBSCRIPTIONS
2.1. Provision of Service Subscriptions. Subject to the terms of this Agreement, Datalounges shall, during the agreed Subscription Period provide Customer with the Service Subscription specified in the Order Acknowledgement and in accordance with the included Support Plan. Unless otherwise agreed, the Subscription Period will commence no later than 30 days after issuance of an Order Acknowledgement.
2.2. Use of Service Subscriptions.
2.2.1. Customer will use the Service Subscription only for Customer’s internal use.
2.2.2. Distributing access to the Service or any portion of the Service Subscription for the benefit of a third party is a material breach of the Agreement even though the open source licenses applicable to individual software packages may give Customer the right to distribute those packages (and this Agreement is not intended to interfere with Customer’s right under those individual licenses).
2.2.3. Any unauthorized use of the Service Subscriptions is a material breach of this Agreement, such as (i) providing Service access to third parties, and/or (ii) using the Support provided under the Service Subscriptions to provide support to third parties. For the avoidance of doubt, use of the Service Subscriptions for their intended purpose shall not constitute unauthorized use.
2.2.4. The use case determines which Service Subscription is required and what fees are charged. If Customer uses the Service in a manner contrary to a supported use case, Customer is responsible for purchasing the appropriate Service Subscription(s) to cover such usage.
2.2.5. By using a trial subscription, Customer understands that Customer will be using the Service Subscriptions for trial purposes only and Customer understand that Datalounges is relying on the accuracy of Customer representation in providing Customer with access to the trial subscription(s). If Customer uses the Datalounges trial subscription(s) for any other purposes, Customer is in violation of this Agreement and is required to pay the applicable subscription fees in addition to any and all other remedies available to Datalounges under applicable law. Examples of such violations include, but are not limited to, using the Service Subscriptions provided under a trial subscription for production purposes, offering access to third parties, or complementing or supplementing third party support with Service Subscriptions received through a trial subscription.
2.2.6. Datalounges may at any time without notice or liability, limit availability to the Service Subscriptions in order to perform maintenance activities.
2.2.7. End of Availability. Datalounges may, at its discretion, decide to retire Service and/or Service Subscriptions from time to time (“End of Availability”). Datalounges shall notify Customer 60 days in advance. Datalounges shall have no obligation to provide Service Subscriptions for retired Services or to provide Software used in the retired Services.
2.3. Subscription Purchase Requirements.
2.3.1. The subscription term shall be quarterly or annually, based on the user’s selection. Unless either party gives the other written notice that it does not intend to renew the subscription, this Agreement will be automatically renewed on a quarterly or annual basis.
2.3.2. Customer must purchase and/or renew Service Subscriptions at the same Services Level for all implementations of the same Service in a given environment, such as Test, Development, or Production.
2.4. Exclusions
2.4.1. Service Subscriptions do not cover problems caused by the following: (i) unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; neglect; misuse; operation of the Service with other media not in accordance with the manufacturer’s specifications; or causes other than ordinary use; (ii) use of the Service that deviates from any operating procedures as specified by Datalounges; (iii) third party products, other than the interface of the Service with the third party products; (iv) Modified Code; (v) any customized deliverables created by Datalounges, Datalounges partners or third party service providers specifically for Customer as part of consulting services. Customer may request assistance from Datalounges for such problems, for an additional fee.
2.4.2. In the event that Datalounges suspects that a reported problem may be related to Modified Code, Datalounges, may, in its sole discretion, (i) request that the Modified Code be removed, and/or (ii) inform Customer that additional assistance may be obtained by Customer directly by engaging Datalounges professional services for an additional fee.
2.5. Customer Responsibilities. Datalounges obligations regarding Service Subscriptions are subject to the following:
2.5.1. Customer agrees to receive from Datalounges communications via e-mail, telephone, and other formats, regarding Service Subscriptions (such as communications concerning support coverage, Issues or other technical issues and the availability of new releases of the Service and training options).
2.5.2. Customer is solely responsible for the use of the Service by its personnel and shall properly train its personnel in the use and application of the Service.
2.5.3. Customer shall promptly report to Datalounges all problems with the Service and shall implement any corrective procedures provided by Datalounges reasonably promptly after receipt.
2.5.4. Customer shall provide Datalounges with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Service Subscriptions and will do anything that is identified in the relevant Order Acknowledgement as the Customer’s responsibility. Customer’s failure or delay in its performance of any of the foregoing relives Datalounges of its obligations under this Agreement to the extent that such obligations are dependent upon Customer’s performance.
2.5.5. Customer shall provide Datalounges a list of contacts (including names, email addresses and phone numbers) of those individuals authorized to open Support Requests on Customer’s behalf. These authorized contacts must have the access and authority to administer or configure the Service as required by the nature of the Support Request.
2.5.6. Customer is solely responsible for protecting and backing up the data and information stored on Customer computers on which the Service is used and should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before contacting Datalounges for Technical Support. Datalounges is not responsible for lost data or information in the event of errors or other malfunction of the Service or Customer computers on which the Service is used.
2.5.7. If separately agreed, the Customer will have dedicated resources available to work 24X7 on Issues
2.5.8. Customer is solely responsible for maintaining procedures external to the Service for reconstruction of lost or altered files, data or programs to the extent that it deems necessary and for performing any such reconstruction.
2.5.9. Customer is responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, computers, computer operating systems, data storage, network devices and web browsers.
ORDER
3. Your Order is subject to these General Terms and Conditions. No Orders are binding on Datalounges until Datalounges have issued an Order Acknowledgement. Orders issued to Datalounges do not have to be signed to be valid and enforceable
RETURN POLICY
4. Datalounges will not accept the return of supplied subscriptions unless such returns are admissible as per the Datalounges return policies. If the Services received are not those detailed in the Contract, Company shall inform Datalounges no later than 10 business days of delivery.
REPORTING AND AUDIT RIGHTS
5.1. Reporting – Excess Usage. Customer will, without any undue delay, notify Datalounges if the actual number of Service subscriptions utilized by Customer exceeds the number for which Customer has paid the applicable Fees. Such notice shall include the number of additional Service subscriptions and the date(s) on which such were first utilized. Datalounges will invoice Customer for the Service subscriptions in excess. Customer will pay for such services no later than thirty (30) days from the date of invoice.
5.2. Audit Rights. Datalounges, or its third party auditor, may, upon fourteen (14) days notice to You, verify that You have (i) used the Service solely in the manner authorized herein; (ii) paid all applicable Service fees; and (iii) otherwise complied with these General Terms and Conditions and all Order Acknowledgements. Audits will be conducted during normal business hours and Datalounges will use commercially reasonable efforts to minimize the disruption of Your normal business activities. You will reasonably cooperate with Datalounges and/or its third party auditor and will promptly pay directly to Datalounges any underpayments revealed by such audit.
WARRANTIES
6.1. Limited Service Warranty. Datalounges warrants to You that the Service will, for a period of ninety (90) days following delivery (“Warranty Period”), substantially conform to the applicable features as presented to Customer through the Service documentation, provided that the Software (a) has been properly used at all times and in accordance with the applicable instructions; and (b) has not been modified or added to by persons other than Datalounges or its authorized representative. Datalounges will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of the foregoing warranty, either replace the applicable Service or correct any reproducible error in the Service reported to Datalounges by You in writing during the Warranty Period. If Datalounges determines that it is unable to correct the error or replace the Service, Datalounges will refund to You all Subscription fees actually paid by You, in which case the Subscription for the applicable Service and Your right to use such Service will terminate.
6.2. Disclaimer of warranties. The warranties in section 6.1 above are in lieu of and, to the maximum extent permitted by applicable law, Datalounges disclaim, all other warranties, whether express, implied, or statutory, including any implied warranties of merchantability and fitness for a particular purpose, title, non-infringement and any warranties arising from course of dealing or course of performance) regarding or relating to the service or any materials furnished or provided to you under these General Terms and Conditions. Datalounges do not warrant that the service will operate uninterrupted or that it will be free from defects or that the service will meet, or is designed to meet, Your business requirements.
LIMITATION OF LIABILITY
7.1. Limitation of liability. In no event will Datalounges be liable for any lost profits or business opportunities, loss of use, loss of revenue, loss of goodwill, business interruption, loss of data, or any other indirect, incidental, or consequential damages under any theory of liability, whether based in contract, negligence, product liability, or otherwise. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the preceding limitation may not apply to you. Datalounges liability under these General Terms and Conditions will not, in any event, regardless of whether the claim is based on contract, strict liability, or otherwise, exceed the license fees you paid for the software, if any. The foregoing limitations shall apply regardless of whether You have been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
7.2. Further Limitations. Datalounges liability with respect to any third party software embedded in the Service shall be subject to Section 7.1. You may not bring a claim under these General Terms and Conditions more than twelve (12) months after the cause of action arises.
TERMINATION
8.1. These General Terms and Conditions will terminate in its entirety upon the termination of the Subscription Term, unless terminated earlier under this Section 7.
8.2. Termination for Breach. Datalounges may terminate these General Terms and Conditions in its entirety effective immediately upon written notice to You if: (i) You breach any provision in Section 3 and do not cure the breach within ten (10) days after receiving written notice thereof from Datalounges; (ii) You fail to pay any portion of the fees under an applicable Order Acknowledgement within ten (10) days after receiving written notice from Datalounges that payment is past due; (iii) You breach any other provision of these General Terms and Conditions and don’t not cure the breach within thirty (30) days after receiving written notice thereof from Datalounges; or (iv) You commit a material breach that is not capable of being cured.
8.3. Termination for Insolvency. Datalounges may terminate these General Terms and Conditions in its entirety effective immediately upon written notice to You if You: (i) terminate or suspend your business; (ii) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (iii) become subject to any bankruptcy or insolvency proceeding.
8.4. Effect of Termination. If Datalounges terminates these General Terms and Conditions under this Section 8: (i) all rights to all Services granted to You under these General Terms and Conditions will immediately cease to exist; and (ii) You must promptly discontinue all use of all Services, and return, or if requested by Datalounges, destroy, any related Datalounges Confidential Information in Your possession or control and certify in writing to Datalounges that You have fully complied with these requirements. Sections 1 (Definitions),
5.2 (Audit Rights), 6.2 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Termination), and 10 (General) will any survive termination of these General Terms and Conditions.
WAIVER
9. Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement
GENERAL
10.1. Assignment. These General Terms and Conditions and any Orders, and any of Your rights or obligations thereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without the prior written consent of Datalounges. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, these General Terms and Conditions will be binding upon and will inure to the benefit of the parties and their respective successors.
10.2. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
10.3. Compliance with Laws; Export Control; Government Regulations.
You may not use or otherwise export or re-export any Product(s) except as authorized by Finnish law and the laws of the jurisdiction in which You obtained the Product(s). In particular, but without limitation, the Product(s) may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Product(s), you represent and warrant that you are not located in any such country or on any such list.
10.4. Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in relation to or in connection with it is governed by the laws of Finland.
10.5. Order of Precedence. In the event of conflict or inconsistency among these General Terms and Conditions, Terms of Service and the relevant Order Acknowledgement, the following order of precedence shall apply: (a) Terms of Service, (b) Order Acknowledgement and (c) Datalounges General Terms and Conditions.
10.6 Entire Agreement. These General Terms and Conditions, including Order Acknowledgements and Terms of Service, contain the entire agreement of the parties with respect to the subject matter of these General Terms and Conditions and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. These General Terms and Conditions and the Terms of Service can be updated from time to time, in Datalounges sole discretion and will be made available at www.datalounges.com. This agreement can only be modified with a written addendum signed by both parties.
10.7 Publicity. Customer agrees that Datalounges may use Customer use of Services as a commercial reference unless You otherwise inform Datalounges in writing
CONTACT INFORMATION
11. Datalounges Oy, 2663514-3, Kankurinkatu 4-6, 05800 Hyvinkää, FINLAND, tel. +358 40 7567929, email: sales@datalounges.com
DATALOUNGES TERMS OF SERVICE
These Datalounges Terms of Service (the “Agreement”) are entered into by Datalounges and the entity or person agreeing to these terms (“Customer”) and govern Customer’s access to and use of the Subscription Services.
This Agreement is effective when Customer accepts these terms. An individual acting on behalf of an entity represents that he or she has the authority to enter into this agreement on behalf of that entity and warrants that he or she has full legal authority to bind Customer to this Agreement; and has read and understands this Agreement; and agrees on behalf of Customer, to this Agreement.
The terms used in these Datalounges Terms of Service shall have the following meanings:
“Datalounges pricelist” is the pricelist made available by Datalounges from time to time and lists the Service Subscriptions and other Services available to Customer.
“Notification Email Address” is an email address the Customer has specified for material communications related to Services or Subscription Services.
“Confidential Information” shall mean any technical and/or commercial information relating to the disclosing Party’s or any of its Affiliates’ businesses, facilities, products, services, techniques and processes in whatever form, including but not limited to oral disclosure, electronic communication, demonstration, device, apparatus, model, sample of any kind, computer program, optical or magnetic medium, document, specification, circuit diagram, or drawing and visual observation of the aforesaid which is proprietary to the disclosing Party or to its Affiliates or to a disclosing Party’s or its Affiliates’ licensors, contractors or customers (hereinafter “Confidential Information”). For the avoidance of doubt, the existence and the contents of this Agreement and the discussions between the Parties related to the Purpose shall be considered Information as set out in this clause.
“Metrics data” is data collected from systems by R4DAR excluding logs.
GENERAL
Customer and Datalounges Oy have entered to this Agreement to use the Datalounges Subscription Services. Datalounges Subscription Services include but are not limited to those Services and Service Subscriptions made available in the Datalounges pricelist.
SERVICE LEVEL AGREEMENT
During the Subscription Term, Service Subscriptions will provide a Monthly Uptime Percentage to Customer as defined in the Datalounges Service Level Agreement.
DELIVERY
Datalounges will make available Services and Service Subscriptions as defined in the Order Acknowledgement. A new Order Acknowledgement is issued for each new or changed Datalounges Service Subscription. Customer is responsible to provide requested information to Datalounges in reasonable time to enable Datalounges to make available Service Subscriptions.
Datalounges is obligated to notify the Customer in writing without unnecessary delay, if Datalounges becomes aware that there is a risk of delay in delivery or non-fulfilment of any part of the Agreement.
MAINTENANCE
Datalounges maintains the Service Subscriptions during the whole term of the Agreement according to the Datalounges Service Level Agreement. Datalounges warrants that it conforms to the documentation and other specifications, stated in this Agreement and any of its Appendices.
CONFIDENTIALITY
The parties undertake to keep all Confidential Information exchanged under this Agreement strictly confidential and not to disclose to any third party. The party receiving Confidential Information (hereinafter “Recipient”) under this Agreement shall not use such information for any other purpose than for carrying out this Agreement.
The Recipient may disclose Confidential Information to its employees and professional advisors on a strict need to know basis and provided that all such employees and professional advisors are bound by confidentiality obligations substantially similar to those contained in this Agreement. Each party shall be responsible for the observance and proper performance by all of its employees and professional advisors of the confidentiality obligations contained in this Agreement.
Each party recognises the other is a part of an organization of multiple legal entities in several jurisdictions. For this purpose, the parties agree that:
a) each party may disclose Confidential Information to its Affiliates, but only to the extent such Affiliate has a need to know for carrying out this Agreement;
b) disclosure of Confidential Information by or to an Affiliate of a party shall be deemed to be a disclosure by or to that party, as applicable;
c) each party shall be responsible for the observance and proper performance by all of its Affiliates of the terms and conditions of this Agreement.
Any part of Confidential Information that the Recipient can demonstrate to fall under categories a) – e) below shall not be Confidential Information and subject to the confidentiality undertaking described in this section 9:
a) is in public domain at the time of disclosure or later becomes part of the public domain other than as a result of or in connection with any act or omission or breach of this Agreement by the Recipient; or
b) Recipient can prove was in its lawful possession and at its free disposal in writing and recorded in its files prior to disclosure by or on behalf disclosing party and was not previously acquired by the Recipient from disclosing party or any of its Affiliates under obligations of confidentiality; or
c) is, independently developed by an employee of the Recipient without reference to or reliance upon the Confidential Information as defined in this Agreement; or
d) is required to be disclosed under law or by order of a court of competent jurisdiction, provided that disclosing party is granted due advance notice of such a requirement in order to be able to contest same, and then only to minimum extent of disclosure required to comply with such requirement.
The Recipient agrees that the Confidential Information is and will remain property of the disclosing party. The Recipient shall forthwith upon receipt of a written request from disclosing party return to disclosing party all Confidential Information supplied by disclosing party and destroy any copies thereof and any analyses and studies based on the Confidential Information and issue a written confirmation thereof to disclosing party.
Unless otherwise expressly stated under this Agreement, no license under any trademark, patent, copyright or any other intellectual property right is granted to the Recipient or is implied, whether by the disclosure of Confidential Information or otherwise.
Datalounges informs Customer of the persons managing the Service Subscriptions, and grants Customer the right to reject an individual performing the Service.
Confidentiality period is valid three (3) years after termination of the Service Subscription contract period, as applicable.
DOCUMENTATION
Datalounges maintains the documentation of the Datalounges Subscription Services and for any customer-related settings/configurations. Datalounges makes available a copy of the documentation upon request. Documentation is maintained within the Datalounges versioning system.
TERMS OF PAYMENT
Datalounges Services and Service Subscription are invoiced in arrears using metrics defined in Pricelist. Invoicing starts when Customer receives an Order Acknowledgement from Datalounges Payment term is 14 days net.
Services and Service Subscriptions are invoiced at the end of each month or upon acceptance if so specifically agreed in a separate Statement of Work.
Datalounges reserves the right to change items and pricing in Datalounges Pricelist made available from time to time. The interest for payment overdue is according to the Finnish law.
Datalounges reserves the right to invoice Service Subscriptions if the Service is still in use after termination. In case of Customers request of service relocation Customer shall pay for activation fee and actual delivery costs.
FORCE MAJEURE AND LIMITATIONS OF LIABILITY
Neither party shall be liable for delays and damages caused by an impediment beyond his control, which he could not have reasonably taken into account at the time of the conclusion of this Agreement, and whose consequences he could not have reasonably have avoided or overcome (“Force Majeure”).
Either party shall without delays inform the other party of a Force Majeure event and provide an estimate of the expected duration of such interruption in writing. The party shall correspondingly inform the other party of the termination of the Force Majeure event.
In the event that Force Majeure continues more than sixty (60) days, Customer shall have the right to terminate this Agreement and Datalounges shall not have a right, reimbursement or any claim for damages as a result of such termination. In this case the other party cannot claim for damages.
Neither party shall be liable in contract or in tort to the other, excluding breaches of confidentiality as set forth in section 9 of the Agreement and in case of Datalounges breaches of third party IPR, for any indirect, consequential or related damages, loss or claims of third party, unless the damage or loss have been caused by willful or gross negligent acts or omissions.
RESALE OF SERVICE
Customer shall not resale raw resources that are part of Datalounges Services or Service Subscription to third parties. This includes but is not limited to, Virtual CPU, Virtual RAM, Virtual Diskspace and Bandwidth. Furthermore Administrative accounts created for Point of Contact persons shall be handled with relevant security by the Customer and not be given out to third parties.
AMENDMENTS AND CHANGES
Amendments and changes to this Agreement are valid after both Parties have accepted them in writing.
Datalounges may from time to time make commercially reasonable updates to the Services and Service Subscriptions. Datalounges will inform Customer if such changes are material or have material impact on Customer’s use of the Subscription Services.
Datalounges may make changes to this and other Agreement documents from time to time. Datalounges will notify Customers of material changes in advance, except to the extent the changes apply to new functionality or the Data Processing and Security Terms, or are required by applicable law, in which case they will be effective immediately. Material changes are communicated in advance by sending an email to the Notification Email Address and posting a notice to the applicable webpage. If Customer does not agree to the revised Agreement, Customer may stop using the Subscription Services. Customer’s continued use of the Services after such material change will constitute Customer’s consent to such changes.
Datalounges will inform the customer in advance before discontinuing any Service or Service Subscription and discuss with the customer in good faith about continued support of customers business unless Datalounges replaces such discontinued Service Subscriptions or functionality with a materially similar functionality.
THIRD PARTY SOFTWARE
Datalounges may make Software available to Customer, including third-party software. Customer’s use of any Software is subject to the applicable provisions in the third party’s terms
CUSTOMER OBLIGATIONS
Customer will ensure that Customer and its end users’ use of the Services complies with the Agreement and use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Service Subscriptions and Datalounges of any unauthorized use of, or access
Customer is responsible for any consents and notices required to permit accessing, storing, and processing of data provided by Customer (including Customer Data, if applicable) under the Agreement.
Customer must not use the Services or Service Subscriptions in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
SUSPENSION
If Datalounges becomes aware that Customer’s or any End User’s use of the Services violates the Agreement, Datalounges will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of the request, then Datalounges may Suspend all or part of Customer’s use of the Services until the violation is corrected.
Datalounges may immediately Suspend all or part of Customer’s use of the Services if there is reason to believe Customer’s or any End User’s use of the Services could adversely impact the Service Subscriptions, other customers’ or their end users’ use of the Services
TECHNICAL SUPPORT SERVICES
Customer is responsible for technical support of its Customer Applications and Projects unless separately agreed. Datalounges makes available Technical Support Services and Consulting on Time and Material basis.
R4DAR
R4DAR is provided as a Service Subscription. In addition to other terms and conditions of the Agreement, the Service Subscription entitles the Customer to preserve 7 days of Metrics data unless separately agreed otherwise.
This Term of Service contains amendments and/or additions from Datalounges General Terms and Conditions, located here: http://Datalounges.com/terms-conditions/
Order of Precedence. In the event of conflict or inconsistency among this Terms Of Service, Datalounges General Terms and Conditions, Service Level Agreement and the relevant Order Acknowledgement, the following order of precedence shall apply: (a) Terms of Service, (b) Order Acknowledgement, (c) Service Level Agreement and (d) Datalounges General Terms and Conditions
CONTACT INFORMATION
Datalounges Oy, 2663514-3, Kankurinkatu 4-6, 05800 Hyvinkää, FINLAND, tel. +358 40 7567929, email: sales@datalounges.com
CONSULTING TERMS AND CONDITIONS
Consulting terms and conditions depend on your services and are subject to your contract. Please refer to your contract or contact Datalounges to review your terms.
DATALOUNGES SERVICE LEVEL AGREEMENT (SLA)
Datalounges Service Level Agreement (SLA)
During the Term of the Agreement under which Datalounges has agreed to provide Service Subscriptions, the services will provide a Monthly Uptime as a percentage to Customer. The Datalounges Service Level Agreement (SLA) is a policy which applies to each Service Subscription separately as defined in the Order Acknowledgement.
SLA Definitions
“Monthly uptime percentage” is calculated using the following formula: Monthly Uptime percentage = ((Subscription Service time – Agreed Maintenance) / Total Monthly Uptime) * 100%.
“Agreed Maintenance” means Downtime that has been agreed with the Customer OR time required for a Maintenance Window.
“Maintenance Window” means a period of time for which clusters are taken offline for maintenance tasks. This includes upgrading the Kubernetes APIs.
“Downtime” means the time during which Service Subscriptions are not available for customer access due to loss of external connectivity or Kubernetes API access to all applicable running K-clusters with the inability to launch replacement capacity in any Zone. Subscription Service time calculation starts from five or more consecutive minutes of Downtime. Intermittent Downtime for a period of less than five minutes will not be counted towards any Subscription Service Downtime.
“Total Monthly uptime” is calculated based on 30 days per month, 720 hours, excluding February where Total Monthly uptime is calculated on 28 days per month, 672 hours.
“K-cluster capacity control plane” means a Datalounges managed cluster topology that consists of multiple replicas of the K-cluster control plane.
“K-cluster pods in single zone” means the compute capacity provisioned to Datalounges provided K-cluster either by Hiveyard application or Datalounges employees. Availability is measured by ability to provision pods by Datalounges employees to single K-cluster made available to the Customer.
“K-cluster pods in multiple zones” means the compute capacity provisioned to Datalounges provided K-cluster either by Hiveyard application or Datalounges employees. Availability is measured by ability to provision pods by Datalounges employees to any available K-cluster capacity made available to the Customer.
“A Zone” means capacity in a single Datacenter location made available to the Customer.
Monthly uptime percentages for Datalounges Service Subscriptions are as follows:
| Service Subscription | Monthly Uptime percentage |
| K-cluster capacity control plane | 99,95% |
| K-cluster pods in single zone | 99,9% |
| K-cluster pods in multiple zones | 99,95% |
| Datalounges Hiveyard application | 99,9% |
| R4DAR web application access | 99,9% |
Provided that Datalounges Service Subscriptions do not meet these Monthly Uptime percentages and the Customer meets its obligations, The Customer is eligible to receive Financial compensation.
Compensation is calculated as a percentage of the monthly bill for the Service Subscriptions that do not meet the Monthly Uptime percentage respectively. Compensation is only calculated against future payments.
To receive a credit, Customer must notify Datalounges without unnecessary delay and issue a claim to Datalounges within 30 days from the time Customer becomes eligible to receive a Financial compensation. Customer must also provide Datalounges with documentation showing loss of external connectivity errors and the date and time those errors occurred. If Customer does not comply with these requirements, Customer will forfeit its right to receive a Financial compensation. Financial Credits will be in the form of a monetary credit applied to future use of the Service affected Service Subscription and will be applied in the next invoice due after the Financial Credit was requested.
If the Agreement authorizes the resale or supply of Subscription Services to third parties, then all references to Customer in this document mean Partner or Reseller (as applicable), and any Financial compensation(s) will only apply for impacted Partner or Reseller order(s) under the Agreement.
Compensation will be credited on the next invoice from Datalounges confirmation of uptime and is according to the following table:
| Monthly Uptime-% | Compensation-% |
| 100 – or equal to 99,95 | 0% |
| less than 99,95 – or equal to 99,9 | 5% Excluding: -cluster pods in single zone, where Compensation-% is 0% Excluding Datalounges Hiveyard application is 0% R4DAR web application access is 0% |
| less than 99,9 – or equal to 99,00 | 10% |
| less than 99,00 – or equal to 95,00 | 25% |
| less than 95,00 – or equal to 90,00 | 50% |
| less than 90,00 | 100% |
Datalounges SLA exclusions
- Planned or scheduled maintenance breaks agreed on with the Customer
- Breaks resulting from a device or service not included in the Service Subscription of the Provider or from activities of the Customer or a third party
- Force majeure
- Factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the applicable Included Service; (ii) that result from any actions or inactions of the Customer or any third party, including failure to acknowledge a recovery volume or respond to resource health concerns
- Result from equipment, software or other technology and/or third party equipment, software or other technology
- Features designated pre-general availability
- Features excluded from the SLA in the any Agreement
- Results from abuses or other behaviors that violate the Agreement
