FOR THE PROVISION OF MANAGED KUBERNETES, MANAGED OBSERVABILITY AND RELATED
SERVICES BY AVISI MANAGED ENVIRONMENT TO THE CUSTOMER
These terms and conditions apply to your use of our Managed Kubernetics and Managed Observability Services and any additional services. By “we”, “us” or “our” we mean: the limited liability company Avisi Managed Environment B.V., incorporated and having its registered office in Arnhem, the Netherlands and registered with the Dutch Chamber of Commerce under number 76632474.
The following terms are used in this Agreement with (initial) capital letters irrespective if used in plural or singular:
1.1 Agreement: the agreement for the provision of the Services by us to you.
1.2 Defect: a material failure of the Services to comply with the Service Description.
1.3 Infrastructure: the (virtual) hardware in combination with which the Services are used.
1.4 Login Details: the information that allows you to log in to our Platform, e.g. username/password and generated 2FA (two factor authorization) codes, etc.
1.5 Managed Kubernetes
1.6 Managed Observability
1.7 Payment Provider: the payment provider used by us (i.e. Stripe).
1.8 Platform: the part of our website which is accessible only after you have entered your Login Details and where you can select the Services you wish to purchase.
1.9 Service Description: the description and specifications of the Service as found and downloadable from the Platform or our website.
1.10 Service: the services you purchase from or through us under the terms of this Agreement after you have selected them on the Platform.
1.11 Support: the remedying of Defects and the provision of assistance to users.
2.2 Additional Services may also be purchased on the Platform. An (additional) agreement is also concluded electronically by clicking on the order button for the relevant Service. The use of (additional) Services of third parties may be subject to additional (user) conditions of such third parties. These additional terms will be made available to you during the ordering process on our website or our Platform.
2.3 We have the right to amend this Agreement. If we do so, the amended terms and conditions will be made available to you at least one (1) month before the amendments take effect. The additional terms referred to in Section 2.2 may contain specific or different modification provisions.
2.4 Our administrative records are conclusive and binding evidence of the contents of the Agreement, unless you provide evidence to the contrary. 2.5 you may not assign your rights and/or obligations under our Agreement without our prior consent.
2.6 All Agreements and all obligations arising therefrom or related thereto shall be governed exclusively by the laws of the Netherlands. For the sake of clarity the applicability of the Vienna Sales Convention 1980 (CISG) is excluded. Furthermore, in the event of any dispute arising between us out of or in connection with our Agreement which cannot be settled by mutual consultation, the dispute shall be settled by the competent Dutch court at our place of business, unless we agree to mediation or arbitration.
3.1 After logging on to the Platform, you can choose which of our Services you would like to purchase and use. The exact description of the Services can be found in the Service Descriptions, which you can read and download from the Platform or our website.
3.2 Unless we agree otherwise we will provide the following Services to you (A) Managed Kubernetics; (B) Managed Observability; and (C) Support thereof.
3.3 You are responsible for setting up and configuring the Services. If you are unable to do so you may contact our Support department. The basic principle of our Services is that you need to take care of your Infrastructure yourself. Since we have no control over your Infrastructure we cannot reasonably assume responsibility or liability for it. You are therefore also responsible for it.
3.4 Optional (later): If you choose to purchase Infrastructure Services from or through us, we will ensure that such Infrastructure conforms to the applicable Service Description and is optimally configured for use with the Services.
3.5 Our Services are provided from the cloud. We are therefore dependent on (external) networks and third parties over which we have no decisive control. For this reason the Services are provided on an "as is" and "as available" basis. Therefore, we cannot guarantee that the Services will be available uninterruptedly, be free from Defects or operate error-free at all times. We will use our reasonable endeavors to repair or remedy any Defects and/or errors in accordance with clause 4.
3.6 Please note that our Services consist of various third-party tools that may be modified, discontinued or replaced from time to time by such third. Should any such tool be discontinued we will replace it with a tool with similar functionalities. Whilst we will endeavor to maintain functionality as much as possible, we cannot guarantee this. We therefore reserve the right to change the composition and functionality of the Services (and the associated Service Descriptions). If we do so, we will notify you in a timely manner of course. We will try to maintain at least the same level of functionality, but if the change would result in a significant deterioration in the quality or level of the Services, we will give you at least one (1) months’ notice and you may choose to cancel the Services from the time the changes take effect.
4.1 The Support we provide depends on the form of Support you have selected on the Platform (e.g. basic or premium Support). The different forms of Support are described in detail in the relevant Service Descriptions, which you can read and download from the Platform or our website. Our support department is opened during business hours (09.00 – 17.00) in the Netherlands (GMT +1).
4.2 When providing Support, we will try to answer your questions to the best of our ability and to resolve any Defects quickly. However, we cannot guarantee that every question can be answered or every Defect can be remedied.
4.3 If any Defects have been caused by you or any third party engaged by you, or if any Defects are attributable to you, the resolution of those Defects is not within the scope of Support. If we can help in the resolution of such Defects we will do so, but that work will be carried out on the basis of a time and material basis. For work not covered by the scope of Support we will send you a quote. We will start our work after your acceptance of that quote.
5.1 Further to the responsibilities already outlined above, you have additional responsibilities to ensure the proper and secure manner to use our Services. Upon entering into our Agreement you will be provided with Login Details which will allow you to log onto the Platform. You must treat these Login Details with care and keep them confidential. You are not allowed to use anyone else's Login Details or allow anyone else to use your Login Details. As soon as you know or suspect that any Login Details have come into the hands of an unauthorized person, you must take any reasonable steps to prevent misuse, such as deactivating an account and/or changing the Login Details. You must also notify us immediately in order for us to take appropriate measures, if possible. We are not liable for any misuse of the Login Details and may rely on the Login Details being used only by you.
5.2 Furthermore, you are responsible for the use of the Services by you or any person you have authorized to use the Services. You will only use the Services for lawful purposes and you may not violate any applicable laws or other applicable regulations or otherwise act unlawfully in using the Services. You may only use the Services for the benefit of your own business and for the purpose for which the Services are provided.
5.3 If you breach this provision we shall have the right to suspend your use of the Services with immediate effect or terminate our Agreement without being liable for any damages arising from such suspension and without any obligation to reimburse any payments already made by you.
6.1 You will find the prices for the Services on our Platform or on our website. Where these prices have a component based on use or numbers (of, for example, devices), the prices are calculated using the data entered by you.
6.2 Prices are fixed for the calendar year in which you commence using a Service. After the end of that calendar year the prices may be increased on 1 January each year.
6.3 All prices are in Euro and are exclusive of VAT.
6.4 Payment for the Services is made through our Payment Provider.
6.5 If you fail to pay on time you will be in default by operation of law. You will then owe statutory commercial interest (pursuant to Section 6:119a of the Dutch Civil Code) from the due date of the invoice until the date of payment in full, without prejudice to any other rights to which we are entitled, including the right to temporarily suspend the provision of the Service(s) or to terminate our Agreement.
7.1 When you select the Services on the Platform you must also determine the duration of the Agreement. The minimum term for a Service is always one (1) year. After the expiry of the initially selected duration (the "Initial Duration") the Agreement will be automatically be extended by 1 month periods at a time (the "Extended Duration") unless the Agreement is canceled of course. You may cancel a Service at any time on the Platform. Upon such cancellation, the Service will continue until the end of the Initial Duration or the Extended Duration.
7.2 We have the right to terminate the Service(s) at any time (i.e. during the Initial Term and the Extended Term) with 1 months’ notice. If you have paid any amount in advance and we cancel the Service(s), we will refund to you the unused part of the prepaid amount within 1 month after the end of the Service in the same way as you paid us.
7.3 Either party shall be entitled to terminate the Agreement in the event of a material breach by the other party of its obligations under the Agreement after due written notice of default setting a reasonable time for the breach to be remedied.
7.4 We may terminate the Agreement in whole or in part by notice in writing with immediate effect and without notice of default if (i) you are granted a moratorium - provisional or otherwise; (ii) a petition in bankruptcy is filed against you or you are declared bankrupt; (iii) your company is wound up or dissolved.
7.5 If you have already received Services at the time of dissolution, those Services and the related payment obligation cannot be undone unless you prove that we are in default with respect to those Services. Amounts invoiced by us prior to termination for work or Services already performed will become due immediately on termination.
8.1 Our total liability to you for any loss you suffer as a result of our failure to perform the Agreement or otherwise is limited to compensation for direct loss up to the amount paid by our insurance. In no event shall our liability exceed the compensation for six (6) months as invoiced by us prior to the occurrence of the damage. Direct damages means exclusively: (a) reasonable costs incurred by you in determining the cause and extent of the damage, provided that the determination relates to direct damage within the meaning of these terms and conditions; (b) reasonable costs incurred to prevent or mitigate loss, provided that you demonstrate that such costs have resulted in the mitigation of direct loss within the meaning of these terms and conditions.
8.2 Our liability for indirect loss is excluded. Indirect loss includes consequential loss, loss of profits, loss of savings, loss of goodwill, loss due to business interruption and any other loss not referred to in clause 8.1 for whatever reason.
8.3 Our liability for damages will only arise if you give us notice of default in writing as soon as possible (but no later than twelve (12) months after the damage has occurred) which notice gives us a reasonable period of time to remedy the breach in question, and we still fail to do so after the expiry of this period. The notice of default must contain as full and detailed a description of the breach as possible to enable us to respond appropriately.
9.1 We shall not be liable for any loss or be required to perform any obligation if such loss or failure is due to force majeure. Force majeure includes, but is not limited to: power failure, failure of internet and/or other telecommunications connections, computer viruses and attributable or unattributable failure of third parties engaged by us, and any other circumstances beyond our control. If the period of force majeure lasts longer than thirty (30) days, the parties shall be entitled to terminate the Agreement without any obligation to pay damages to the other party.
10.1 All intellectual property rights relating to our Services belong exclusively to us and/or our licensors. You acknowledge our rights and warrant that you will refrain from infringing them. If we develop specific software on your behalf, the intellectual property rights therein belong to us. We may use software provided on the basis of an open source license.
10.2 You are only granted a non-exclusive and non-transferable right to use our Services within your organization for the duration of the Agreement, provided that you fully comply with your obligations under the Agreement and any applicable Additional (User) Conditions.
10.3 We will indemnify you against any claim by a third party that our Services infringe any intellectual property right of such third party. This indemnity is subject to you promptly notifying us in writing of the substance of any such claim and leaving the handling of the matter, including any settlement, entirely to us. you will provide us with all necessary and desirable information and co-operation to enable us to defend ourselves, if necessary on your behalf. If it is irrevocably established in a court of law that our Services infringe the rights of a third party, or if we believe that there is a reasonable likelihood that they will do so, we will do our best to ensure that you can continue to use the Services or functionally equivalent services. Any other or further liability on our part is excluded.