Paid services Agreement (unnumbered)
(public offer) dated of March 07, 2020
Last updated on March 17, 2020
XMSERVER LTD, registry code: 12263775 , address: 2nd Floor College House ,17 King Edwards Road, RUISLIP ,London, HA4 7AE ,UNITED KINGDOM, hereinafter referred to as the “Contractor”, which is the operator of the “XMSERFER.FR” website (hereinafter – the “Operator”), publishes this paid services agreement (hereinafter – “Agreement“) which are Standad Terms for individuals and legal entities hereinafter referred to as “Customers” with the offer of paid services according to the Customer’s order details (hereinafter – “Electronic Services”):
- leasing or subleasing and provision to the Customer of computer systems resources for software hosting, data processing and information-sharing services. This also may include provision to the Customer of Infrastructure as a service (IaaS) and other related cloud computing services and online services;
- development and configuration of virtualization systems for various operating systems using the resources of the Customer;
- preparation of computer systems for operation, creation of infrastructure for operation of the Customer’s resources;
- remote control, administration and maintenance of computer systems;
- protection of the Customer’s resources from attacks and hacking;
- monitoring of the Customer’s resources on the Internet;
- repairing the Customer’s resources after a failure, installing and configuring the software;
- planning, design, inspection and evaluation of the Customer’s computer systems and resources;
- customization, modernization, testing and updating of the Customer’s computer software;
- consulting in the field of computer technology and information security
- other services connected with servicing of the Customer’s computer systems and resources.
Terms and Definitions
Resources – set of the equipment, the computers and the software necessary for ensuring uninterrupted and safe operation of the websites and storage of data of the Customer.
The owner of resources – the legal entity or physical person providing the services and resources to the Customer based on the contract with the Customer.
The login – a conditional name of the Customer or e-mail.
The password – a secret word or a character set intended for confirmation of the identity of the Customer or the Customer’s permissions.
E-mail – technology and opportunities provided by it for shipment and receipt of the (no the) electronic messages (called “letters” or “e-mails”) on distributed (including global) computer network. The main difference from the other systems of transmission of messages (for example, services of instant messages) is the possibility of the postponed delivery and a developed system of interaction between independent e-mail servers.
Payment system – an organization which has in accordance with the legislative regulations the right to transfer the money and the electronic money.
Backup copy – backup, process of creation of a copy of data on a storage medium (a hard drive, a diskette, etc.) intended for recovery of data in the original place of their arrangement in case of their damage or destruction.
Provider – an organization providing services of Internet access and other services connected with the Internet.
Online chat – a system of online help and technical support in real time.
Working days – days of the week Monday through Friday. All other days including holidays are days off.
Working hours – time period between 10-00 hours and 20-00 hours of the time zone of GMT+03:00 on working days.
1. General Provisions
1.1. This Agreement is a Public Offer, a proposal of the Contractor to an indefinite number of persons (Customers), containing the essential terms of the Agreement for the provision of the Electronic Services.
1.2. Full and unconditional acceptance of the conditions (acceptance) of this Public Offer is the implementation by the Customer of any implied-in-fact actions, including the placement of the order on the Contractor’s website; payment for the Electronic Services by any means listed in this Agreement, that is, actions confirming the intention of the person to use the Electronic Services.
1.3. At the time of payment, the Customer is considered to be acquainted with the terms of this Agreement and with its annexes specified in clause 1.14 of this Agreement, and from the time of payment is considered to have entered into a contractual relationship with the Contractor.
1.4. The Customer makes the following actions to conclude this Agreement on the Contractor’s website:
- selects the Electronic Services on the Contractor’s service description page, then proceeds to the order form, where the Customer chooses the characteristics of the Electronic Services, the service period, etc.;
- the Customer places an order by specifying the following information in the form on the website of the Contractor: login (user alias), password, e-mail address, country of residence, first name, last name, service(s) list, service(s) period; other personal data of the Customer is not collected by the Contractor, as this function is performed by the payment system;
- receives from the Contractor by e-mail the Invoice for payment and passes to the automated payment for the order on the website of a payment system.
1.5. The Contractor undertakes to perform personally the Electronic Services paid by the Customer. The amount of the Electronic Services and the service period are determined by the Customer’s order details.
1.6 Obligations of the Contractor are limited to terms of this Agreement, in particular, rendering services to the Customer in provision of access to the Internet, telematic and other communication service are not included in Contractor obligations. Access to the Internet and Electronic Service is provided by the Customer at his own expense. The Contractor does not provide training services with the skills necessary to work with the software and hardware for the Customer and / or the Customer’s employees, unless otherwise provided by the Customer’s order details.
1.7. Necessary condition to start obligation fulfillment by the Contractor under this Agreement is 100% an advance payment made by the Customer for the Electronic Services according to the invoice. The Contractor starts obligation fulfillment under this Agreement within a day after confirmation of the fact of complete payment of the the Customer’s order.
1.8. After full payment of the Contractor’s Electronic Services, the Contractor transmits via e-mail the description, instructions for use and other documentation that is necessary for the Customer to accept the Electronic Services prepared by the Contractor in accordance with the Customer’s order details.
1.9. All claims about the Contractor’s obligations fulfillment are sent by the Customer to the e-mail address of the Contractor or through the website of the payment system. Absence of Customer’s claims is a confirmation of the fact of proper performance of the Contractor’s obligations in the past day. If there are any shortcomings in the Electronic Services provided by the Contractor, the Customer shall send to the Contractor an application for their elimination within 1 (one) hour from the moment of revealing the shortcomings. The absence of an application for discovered shortcomings confirms the fact of proper provision of the Electronic Services.
1.10. If the Electronic Service is ordered by subscription (the term of the payment system) and this Agreement has not been terminated at the initiative of one of the parties, the Customer has the right to prolong the Electronic Service by automatically transferring funds (regular payment – the term of the payment system) from the Customer’s electronic account to the Contractor.
1.11. This Agreement can be changed/updated at any time in parts or in full by the Contractor unilaterally that will not be the basis for the termination of commitments under this Agreement. Information about the date of the last modification of this Agreement is always available to the Customer in the “News” section of the Contractor’s website. The change in price for Electronic Services does not extend to the orders paid by the Customer.
1.12. Changes of this Agreement can have preventive character, in particular, can be directed to prevention of the cases involving causing damage to other Customers, equipment of owners of resources, reputations of the Contractor.
1.13. The parties recognize a legal binding of the documents, notifications and messages sent by the Contractor to the Customer to the e-mail address specified by the Customer. Such documents, notices and messages are equated to documents, messages and notices executed in a simple written form sent by the Contractor to the Customer’s mailing address. In case of any disagreement on the facts of sending, receiving documents, notices and messages, the time of their sending and the content, the parties agreed to consider the evidences of the Contractor’s equipment as reliable and final to resolve the disagreements between the parties.
1.14. Annexes to this Agreement:
- Terms and Conditions for “XMSERVER.FR”, is an integral part of this Agreement (annex).
- Refund Policy for “XMSERVER.FR”, is an integral part of this Agreement (annex).
- Other information on the official website “XMSERVER.FR” of the Contractor specified in the preamble of this Agreement is an integral part of this Agreement (annex), it may contain terms, definitions, prices, volume and quality of the Electronic Services, other information necessary for proper performance of the Electronic Services, including rules, requirements and the Electronic Services delivery.
2. Subject of the Agreement
2.1. The Contractor undertakes to fulfill personally the Electronic Services at the request of the Customer, and the Customer undertakes to pay for and accept these Electronic Services. The scope, quality and timing of the provision of the Electronic Services are indicated in the Customer’s order details and in the Contractor’s invoice.
This Agreement comes into force from the moment of a 100% prepayment of the order by the Customer.
2.3. Sending Acceptance Acts for Electronic Services Rendered and invoices for the rendered Electronic Services with the use of postal service is performed only according to the request of the Customer on condition of compensation by the Customer of postage expenses of the Contractor. In the absence of such a request, the Contractor shall send e-mail scanned copies of an invoice and Acceptance Act for Electronic Services Rendered with the signature of the Contractor to the Customer. The Customer by any convenient method, which allows to confirm the receipt of the signed Acceptance Act for Electronic Services Rendered by the Contractor (including the e-mail address of the Contractor with the scanned copy of the signature of the Customer) undertakes to return to the Contractor at their own expense one copy of the Acceptance Act for Electronic Services Rendered signed by the Customer’s own hand. In case of non receipt by the Contractor of the Acceptance Act for Electronic Services Rendered signed by the Customer within 7 days upon completion of rendering the Electronic Services according to the Customer’s Electronic Services order details, the Services are considered rendered properly based on the Acceptance Act for Electronic Services Rendered signed by the Contractor unilaterally.
3. Rights and obligations of the parties
3.1. The Contractor undertakes to:
- fulfill in a timely manner the obligations undertaken to implement the Customer’s order;
- provide the Customer with the necessary information to access the Electronic Services paid by the Customer;
- issue invoices for payment for the ordered Electronic Services;
- ensure the privacy of information about the Customer, except for the cases provided for by the current legislation and the terms of this Agreement;
- comply with the technical quality standards of the Services and take all reasonable efforts to prevent or suppress attempts of unauthorized access to the Customer’s resources, failures and malfunctions of the Customer’s equipment, penetration of harmful components, etc .;
- take all best efforts in case of emergency for the speedy normalization of the situation;
- notify the Customer not later than 24 hours prior to carrying out the planned scheduled and other maintenance entailing the suspension of the Customer’s Electronic Services, by posting information in the “News” section of the Contractor’s site or by sending a message to the Customer by e-mail;
- in the case of emergency, entailing the suspension of the Electronic Services, the Contractor shall notify the Customer within 12 (Twelve) hours from the time of an emergency situation by posting information in the “News” section of the Contractor’s website or by sending a message to a Customer via e-mail;
- within 7 working days, notify the Customer of changes and additions to this Agreement and its annexes by posting the information in the news section of the Contractor’s website;
- within 30 (thirty) days, review the Customer’s claims and send a reasoned response by e-mail or through the payment system website;
- publish the changes to this Agreement on the Contractor’s site in a timely manner and post the date of the latest update in the news section.
3.2. The Customer undertakes to:
- provide the necessary and reliable information when submitting an order on the Contractor’s website;
- if a request for the verification of the Customer’s identity is received by the Customer from the Contractor, a scanned copy of the identification document with a closed number should be provided to the Contractor within 48 hours;
- timely and fully pay service charges specified in the invoice;
- verify the accuracy of the data specified in the order details when placing an order on the website of the Contractor;
- get acquainted with the changes in this Agreement;
- do not use open proxies, tor-browsers and other tools to hide identity or provider IP address when registering or placing an order on the website;
- to inform the Contractor about changes in their details, contact information within 24 hours from the moment of occurrence of such changes;
- comply with the terms of this Agreement and its annexes.
3.3. The Contractor has the right:
- suspend the the Electronic Services in case of emergency situations;
- suspend and terminate the provision of the the Electronic Services in case of failure to comply with the Customer obligations specified in this Agreement and its annexes;
- block access to the Customer’s information when the Customer violates the rules and conditions of this Agreement and its annexes;
- verify and monitor Customer’s activities and their resources when the Customer using the Electronic Services, including requesting credentials to access Customer’s resources or changing these credentials for information security monitoring, including if there is basis for suspecting the Customer of violating the terms of this Agreement, its annexes and legislation;
- request a scanned copy or a photo of an Identity Document of the Customer with a closed number(s);
- unilaterally change the cost of the Electronic Services;
- unilaterally make changes to the text of this Agreement.
3.4. The Customer has the right:
- be informed of changes in the cost of the Electronic Services, the text of this Agreement and its annexes on the Contractor’s website;
- receive consultations and further information by phone, email, online chat system;
- modify the list of the Electronic Services ordered under this Agreement;
- contact Contractor’s technical support for explanations and clarifications of certain provisions of the text of this Agreement, its annexes or the essence of the ordered Electronic Services;
- renew the Electronic Services hereunder.
- file a complaint to Estonian’s Consumer Protection and Technical Regulatory Authority in the case of dispute between the Contractor and the Customer.
4. Payment for services and procedure of settlements
4.1. The cost of the Contractor’s Electronic Services is determined in accordance with the Customer’s Request on the basis of prices existing at the time of order placement. The cost and amount of services and also time period of their execution are specified in the Invoice sent to the Customer by e-mail. The invoice for payment for services is issued by the Contractor in accordance with the Customer’s order details and prices valid at the time of placement of the order.
4.2. Services are paid by of the European Union in United States dollars or in euros in accordance with the rules of the payment system through which payment is made.
4.3. Prior to the transfer of funds under the invoice issued by the Contractor, the Customer is obliged to carefully read the terms of this Agreement and its annexes.
4.4. Information about the details and methods of payment for the Contractor’s Electronic Services is indicated in the invoice. In case the invoice is paid with a delay of more than 7 (seven) days, the Customer undertakes to clarify whether any changes in the Contractor’s payment details specified in the in the invoice.
4.5. All payments are made on the basis of 100% prepayment. Change of this condition is possible only upon agreement with the Contractor.
4.6. Renewal of services is made by paying an invoice sent to the Customer by e-mail not later than 14 (fourteen) days before the end of the provision of the Electronic Services in accordance with the Customer’s order details.
4.7. To identify the payer, the Customer undertakes to specify the number of the invoice in a payment reference.
5. Responsibility of the parties
5.1. The Customer is responsible for the renewal of subscription services. If, within 7 (seven) days of the end of the service period, the payment necessary for the renewal of such service (in accordance with the Customer’s order details) is not received by the Contractor, the Contractor shall have the right to terminate the provision of such services and delete results (data, settings, author’s program code, etc.) received in the process of providing the Electronic Service. The termination is usually preceded by a suspension of service that is intended to alert the Customer that they should contact the performer to clarify the reason for the lockout.
5.2. In case of a delay in payment for the renewal of the Electronic Services issued by subscription for more than 7 (seven) days from the date of sending the invoice to the Customer, the Customer shall pay a penalty at the rate of 10% of the total amount of the unpaid invoice for the reimbursement of the Contractor’s costs associated with the renewal of the Electronic Services.
5.3. The Contractor is not responsible for the delay in informing the Customer about the expiry of paid services. At the same time the Contractor will do everything possible to remind the Customer of need of prolongation of Services.
5.4. If it is necessary to restore information deleted in accordance with clause 5.1 of this Agreement and if there is a possibility of its recovery from a backup copy, the parties enter into an additional agreement determining the cost of data recovery. At the time of writing this Agreement, the cost of data recovery from a backup is 30 euros. The change in the cost of data recovery from the backup occurs with the placement of the relevant notice to Customers in the “News” section on the Contractor’s website.
5.5. The Contractor is not responsible for not saving a backup copy at the time point which the Customer is interested in.
5.6. The Customer independently bears responsibility under agreements with third parties that are partially or fully executed using the services provided by the Contractor.
5.7. The Contractor is not liable if the inadequate technical condition of the equipment, networks used by the Customer is the cause of improper performance of the Electronic Services provided under this Agreement.
5.8. In case of the violation by the Customer of the legislation, the terms of this Agreement and its annexes, the provision of the service may be suspended or terminated.
5.9. The Contractor is responsible for the disclosure of information about the Customer. Provision of information to the third parties is possible only under the agreement with the Customer or in cases stipulated by the legislation at the request of the officials performing supervising functions and investigation of offenses.
5.10. The Customer is responsible for all activities that occur when using the services provided by the Contractor and the owners of the resources.
5.11. The Contractor is not responsible for the quality of communication lines, the functioning of the Internet network related to the operation of Internet providers, telephone network, Customer’s equipment and other circumstances beyond the competence of the Contractor.
5.12. The Contractor does not bear responsibility for the damage caused due to the blocking or removal of the Customer’s information for violation of the terms of this Agreement.
6. Validity Period of this Agreement
6.1. The present Agreement shall enter into force upon acceptance of the offer
6.2. This Agreement is terminated after complete fulfillment of the Contractor’s obligations under this Agreement.
7. Force majeure circumstances
7.1. The parties are relieved from responsibility for partial or complete failure to fulfill obligations under this Agreement if it is due to force majeure, namely: fire, flood, earthquakes, war or other circumstances beyond the reasonable control of the parties, and if these circumstances directly affect the fulfillment of this Agreement. At the same time, the fulfillment of obligations under this Agreement is postponed proportionally to the time during which such circumstance were in effect.
7.2. A party for whom it has become impracticable to fulfil the obligations under this Agreement shall notify the other party, within 5 (five) days, of the occurrence or termination of the circumstances impeding the fulfillment of the obligations.
Other provisions that are not reflected in the text of this Agreement and of its annexes shall be governed by applicable legislation.