We gladly welcome you to Zivost Technologies Private Limited.
These Terms of Use are between you and Zivost Technologies Private Limited. The terms (“us,” “we, the “Company” or “Zivost” refer to Zivost Technologies Private Limited.)
Terms and Conditions
LANGUAGE OF THE AGREEMENT
The language of this Agreement is English. Where Zivost has provided a translation of the English version of this Agreement, you agree that the translation is provided for your convenience only and that the English language version of this Agreement will govern your relationship with Zivost. If there is any contradiction between what the English language version of this Agreement says and what a translation says, then the English language version will take precedence.
IN CONSIDERATION OF the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Service Provider (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
DEFINITIONS
Take action time – The elapsed time between the time when a service request or incident is submitted to issue tracking system and to the beginning of work on the service request.
Availability – The time the Service Provider agent is available to service requests from the Client.
Work hours – Time spent by the Service Provider agent on servicing the Client requests and/or communication with the Client.
DevOps – is the combination of cultural philosophies, practices, and tools that increases an organization’s ability to deliver applications and services at high velocity: evolving and improving products at a faster pace than organizations using traditional software development and infrastructure management processes.
ITIL – is a public framework that describes best practice in IT service management. It provides a framework for the governance of IT, the ‘service wrap’, and focuses on the continual measurement and improvement of the quality of IT service delivered, from both a business and a customer perspective.
Support plan – is the package of services provided by the Service Provider putting all reasonable efforts to keep the Client servers and applications running smoothly and without interruptions and ensure this by monitoring, fixing issues, improving the technology under the conditions established in this Agreement.
DESCRIPTION OF SERVICES
The Client hereby agrees to engage the Service Provider to provide the Client with services (the “Services”) while following practices established in latest versions of ITIL and DevOps. The Services consist of the support plan which includes the following system administration services:
Updates
The Service Provider will apply updates from approved sources. Only updates from approved sources are included in the support plan. Updates provided by other sources are not included. Server
updates will be applied generally as follows:
security updates will be applied as soon as available;
other patches will be applied within one month.
patches may be requested to be applied at any time.
Critical Applications Updates
The Service Provider will apply critical and major updates for all software applications defined by the Client
Monitoring
The following monitoring services are performed 24 hours a day, 7 days a week and all year round:
Server Health Check
The Service Provider will audit and monitor a number of server variables including, disk usage, system load, CPU utilization, server uptime and memory usage. If issues are detected, an incident will be automatically created at the appropriate priority level.
Network Monitoring
The Service Provider proactively monitors the Customers network devices and servers 24 hours a day, 7 days a week and all year round with network monitoring tools. If issues are detected, an incident will be created at the appropriate priority level.
Application monitoring
The Service Provider will audit a number of server application variables including uptime, performance, memory usage etc. If issues are detected incident will be automatically created at the appropriate priority level.
Proactive Response
The Service Provider will respond to the service outages when detected by our monitoring services or client
notification. If necessary, we may contact your server provider for reboots or assistance in returning your server to normal operation. Proactive response to outages detected by our service is deducted from your included administrative hours.
Security
Monthly security checks are performed as part of the service. We use a variety of tools to assess server security. The Service Provider may select and modify these tools at its discretion. The Service Provider will make best efforts to resolve any security issues. Opening a service request or incident for a server not in
your plan will be treated as case-based support. Failing to follow the incident management procedure outlined within this service level agreement the Client releases The Service Provider from responsibility and penalty for the said incident.
Offsite Data Backup
Our backup service is priced as described in Appendix A. When utilizing our services for backups, we will custom design a solution to meet your requirements.
The Service Provider is responsible for backing up the Clients data as agreed upon on original request. The Service Provider does not make any further guarantee, expressed or implied, to backup any other data on or
off of the Clients premises apart from the particular files and directories officially indicated by the Client. We can not guarantee the data will be usable after a restore. The Service Provider is committed to maintaining the most reliable and redundant infrastructure possible to protect the Clients data. If data backups are not
completed in the time-frame requested, The Service Provider will notify the Client of any issues via email or phone if backups fail for more than 72 hours. If you exceed your storage quota, you will be billed for any
additional storage as described in Appendix A. If your payment account is not in good standing, your data will be removed after 15 days.
Priority Level
When the Client open a service request or incident, the Client may select a priority level ranging from low to high. The level of the incident will determine our minimum response time as well as a minimum charge against your support plan.
Priority level usage guidelines:
Urgent – System down or unusable, resolve immediately.
High – Very important, needed today if possible.
Normal – Needed today or tomorrow.
Low – Can wait a few days for resolution.
The Service Provider schedules services to meet our SLA for all clients. Please select the appropriate priority level for your service request or incident. The priority level provides the guaranteed minimum response time.
Support Channels
To use the web interface is strongly encouraged. The web interface eliminates network and email problems that could interfere with processing your service request. Please remember:
THE TERMS OF THIS SLA ARE VALID ONLY IF YOU USE THE PROPER SUPPORT CHANNELS.
To open a high priority incident, you must either use the web interface, or call the emergency number if you are unable to use the web interface. For the fastest response, please use web interface.
SERVICE FEES
Service fees are described in Appendix A.
The Client shall pay for the Service Provider out-of-pocket expenses as described in Appendix A. The Service Provider will automatically bill the additional fees for out-of-pocket expenses upon your next billing cycle.
Any charges payable under this Agreement are exclusive of any applicable taxes or tariff surcharges arising as a result of the provision of the Services by the Service Provider to the Client under this Agreement and
such shall be payable by the Client to the Service Provider in addition to all other charges payable hereunder.
BILLING
Invoices will be sent to the Client monthly on the 1st day of every month. Payment for outstanding invoices is required within 15 days. Charges will include all server monthly maintenance fees and any coverages for the month.
CANCELLATION OF AGREEMENT
The term of this Agreement (the “Term”) will begin on the date of this Agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
In the event that the Client wishes to terminate this Agreement, the Client will be required to provide 30 days’ notice to the other Party.
In the event that the Service Provider wishes to terminate this Agreement, the Service Provider will be required to provide 30 days’ notice to the other Party.
Notice should be provided in the form of an email to official and agreed email address, a phone call to the billing department, or via a helpdesk incident describing the need to terminate this agreement.
Upon termination, the Parties of this agreement should perform all obligations under this Agreement in full. If this agreement is terminated the Service Provider shall co-operate fully with the Client to ensure an orderly migration of the services to the Client or, at the Client’s request to a new Service provider.
SERVICE LEVELS
Service levels details are detailed in Appendix B of this Agreement.
OBLIGATIONS OF CLIENT
Authorization
The Client agrees to provide an access for the Server Provider and its employees, agents or subcontractors to the Client server at any time for the purpose of server administration.
Under conditions established in this Agreement, the Client authorizes the Service Provider to cooperate with third parties that are going to be necessary (e.g. for hardware maintenance, technical support, server reboots, or other services) in order to implement this agreement. The Client written approval is necessary in order the Service Provider to use third party’s services implementing this Agreement.
Access Procedures
In order to provide the Services, the Client obliges to provide and maintain appropriate server access procedures and necessary information. (incl. All passwords, web site addresses, email, and telephone numbers required). By failing to provide appropriate access information, the Client releases the Service Provider from its responsibilities under this Agreement.
The Client is responsible for advising the Service Provider of changes in the server access procedures and information. This includes but is not limited to the server passwords, the Service Provider contact information, access information, and other third parties access information required for the appropriate administration of the server. The changes in access information should be submitted in written (via e-mail) as soon as the information is changed. Periodically, the Service Provider will request updated access information. The Service Provider should respond to these updates in order to assure the Client has the latest access information.
If the Client fails to provide accurate information, without the Service Provider fault, the Service Provider is released from its responsibilities as outlined by this Agreement.
OBLIGATIONS OF THE SERVICE PROVIDER
The Service Provider under this Agreement obliges to provide the following services:
Operating system updates as required;
Automatic response to server outages;
Server security and health checks;
Server support via the email and ticketing;
Proactive monitoring and weekly service reports;
DevOps and System Administration Services;
Zivost ticketing system access;
manage backup system;
provide other services that according to the Client are necessary to implement this agreement. These other services can be either permanent or project based.
WARRANTY
The Service Provider represents and warrants that:
it will perform the Services with reasonable care and skill; and
the Services and the Materials provided by the Service Provider to the Client under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.
CLIENT’S DATA
The Service Provider shall take all necessary steps to ensure that data or information belonging to the Client which comes into its possession or control in the course of providing the Services is duly protected and compliant with General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and with other relevant country data protection legal acts.
Personal data shall be:
adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);
processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).
In connection with above the Service Provider shall not:
use the data or information on server nor reproduce the data or information in whole or in part in any form except as may be required by this agreement; or
disclose the data or information to any third party or persons not authorised by the Client to receive it, except with the prior written consent of the Client; or
transfer the data to any third party outside EU; or
alter, delete, add to or otherwise interfere with the data or information (except where expressly required to do so by the terms of this agreement).
INTELLECTUAL PROPERTY RIGHTS
The Service Provider agrees to grant to the Client a non-exclusive, irrevocable, royalty free licence to use, copy and modify any elements of the Material not specifically created for the Client as part of the Services. In respect of the Material specifically created for the Client as part of the Services, the Service Provider assigns the full title guarantee to the Client and any all of the copyright, other intellectual property rights and any other data or material used or subsisting in the Material whether finished or unfinished. If any third party intellectual property rights are used in the Material the Service Provider shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for the Service Provider and the Client. For the purposes of this Section 10, “Material” shall mean the materials, in whatever form, used by the Service Provider to provide the Services and the products, systems, programs or processes, in whatever form, produced by the Service Provider pursuant to this Agreement.
CONFIDENTIALITY
Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and Client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
The Service Provider agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Service Provider has obtained, except as authorized by the Client. This obligation will survive indefinitely upon termination of this Agreement.
All written and oral information and material disclosed or provided by the Client to the Service Provider under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Service Provider.
RETURN OF PROPERTY
Upon the expiry or termination of this Agreement, the Service Provider will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.
WAIVER
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
GOVERNING LAW
It is the intention of the Parties to this Agreement that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the Republic of Bulgaria, without regard to the jurisdiction in which any action or special proceeding may be instituted.
DISPUTE RESOLUTION
In the event a dispute arises out of or in connection with this Agreement, the Parties will attempt to resolve the dispute through negotiations.
If the dispute is not resolved within a reasonable period then any or all outstanding issues may be submitted to mediation.
Any claim or controversy of whatever nature, including but not limited to tort, contract claims, and claims arising out of any relationship before, at the time of entering, during the term of, or upon or after expiration or termination of this Agreement shall be resolved by final and binding arbitration.
This mandatory arbitration provision includes any dispute between the Client and the Service Provider. The arbitrator shall not have the authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not award costs or attorneys’ fees to either Party except where expressly provided for by the applicable law.
The parties are prohibited from disclosing the existence, content, or results of the arbitration without the prior written consent of the other party or parties, unless the disclosure is otherwise required by court order.
Each Party shall bear its own costs and expenses of arbitration proceeding. The resolution of any dispute achieved through such arbitration shall be final, binding and enforceable by a court of competent jurisdiction.
ENTIRE AGREEMENT
This agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except
to the extent established by this Agreement.
NOTICES
Any notice provided for or concerning this agreement shall be in writing and be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this agreement.
AS WITNESS the hands of the Parties hereto or their duly authorised representatives the day and year first above written.
DISCLAIMER
ZIVOST Group’s support services are limited to only those services explicitly enrolled in our support plan. You shall not receive any benefits under this SLA in connection with any failure of service caused by or associated with:
Conditions beyond our reasonable control resulting directly or indirectly from acts of any governmental body, war, terrorism, sabotage, insurrection, embargo, strike or other labor disturbances, interruption in traffic or transportation, interruption or delay in telecommunication or third party services, natural disaster or catastrophes, fire, flood, facility power shortages, disturbance in the ability to obtain raw material or supplies, inability to obtain third party software and hardware and any other circumstances beyond our reasonable control in order to provision this SLA.
Any failure of Internet or telecommunication networks caused by a provider’s faulty network equipment or misconfiguration.
Any scheduled and/or emergency maintenance by the network or server provider(s).
Any network or Internet security breaches including virus/worm attack, denial of service and/or misuse of service by authorized/unauthorized users.
Any DNS, domain registration, or email issues beyond direct control of ZIVOST Group.
Any failure of customer’s equipment.
Any omission, knowingly or unknowingly, of non-standard server modifications, add-ons or customizations made by the Client or the Client’s designates.
Any password changes resulting in an inaccessible server or server provider account.
Any firewall restrictions that prevent ZIVOST Group from accessing the server.
Non-paying or delinquent customers.
Any failure to satisfy additional provisions specified in this agreement or addenda.
Please note that geographic condition such as denial of service attack, virus, network
latency and similar issues may impact ZIVOST Group’ ability to execute services in
accordance with this SLA. If Internet conditions beyond ZIVOST Group’ reasonable control
prevent ZIVOST Group from executing this SLA, ZIVOST Group is released from its
responsibilities as outlined in this agreement.
LIABILITY
IN THE EVENT ZIVOST GROUP, ACT OR OMISSION IN THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, AND SUCH ACT OR OMISSION IS THE WHOLE OR PARTIAL CAUSE OF INACCURATE OR INADEQUATE RESULTS OBTAINED BY CUSTOMER OR THE LOSS, ALTERATION, OR IMPROPER ACCESS OF CUSTOMER’S PROGRAMS OR DATA, OR ANY OTHER EVENT OR CIRCUMSTANCE, ZIVOST GROUP, LIABILITY SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED ONE MONTH’S AVERAGE CHARGE TO CUSTOMER, BASED ON ACTUAL MONTHLY CHARGES PAID DURING THE PREVIOUS TWELVE MONTHS OR SUCH LESSER NUMBER OF MONTHS IF CUSTOMER HAS NOT RECEIVED 12 MONTHS’ SERVICE. SUCH LIMITATION SHALL BE THE EXTENT OF ZIVOST GROUP, LIABILITY IN THE EVENT OF ANY ALLEGED DEFAULTS BY ZIVOST GROUP, UNDER THIS AGREEMENT, INCLUDING ALLEGED ACTS OF NEGLIGENCE OR BREACH OF CONTRACT AND REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST ZIVOST GROUP, AND THE FOREGOING SHALL CONSTITUTE CUSTOMER’S EXCLUSIVE REMEDY. UNDER NO CIRCUMSTANCES SHALL ZIVOST Group BE LIABLE FOR ANY LOSS OF PROFITS OR FOR SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF ZIVOST Group HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, NO ACTION REGARDLESS OF FORM ARISING OUT OF THE SERVICES UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE MONTH AFTER THE CAUSE OF ACTION HAS ACCRUED, EXCEPT THAT AN ACTION FOR NONPAYMENT MAY BE BROUGHT WITHIN ONE YEAR OF THE DATE OF LAST PAYMENT.
Appendix A: Service Fees and Parameters
The following hourly tariffs for services provided are applied (excluding Taxes):
Subscription plan Work hours per billing cycle Monthly fee Overage price per work hour
“Elastic” 20 h 1200 USD (billed monthly)
“Core” 40 h 2000 USD (billed monthly)
Appendix B: Service Level Agreement (SLA)
This agreement sets out the minimum level of service that the Client can expect from the Service Provider. The Service Provider under this Agreement obliges routinely to ensure the following minimum level of service:
B.1. Work hours
Pooled work hours are available to be used toward responding to cases, and proactive response to system issues. System administration hours are grouped for all servers enrolled in the server management program. Additional hours are billed at the prevailing hourly rate as described in Appendix A.
B.2. Response Time
In support of services outlined in this Agreement, the Service Provider will respond to service related incidents and/or requests submitted by the Customer within the following time frames:
No. Priority Availability Response time Resolution time
- Critical 24×7 up to 2 hours ASAP – Best effort
- High Monday – Friday
8 A.M – 7 P.M IST up to 2 hours ASAP – Best effort
- Medium Monday – Friday
8 A.M – 7 P.M IST up to 12 hours 12 working hours
- Low Monday – Friday
8 A.M – 7 P.M IST 2 business days 12 working hours
QUESTIONS AND COMMENTS
If you have any questions regarding these Terms or your use of the Services, please contact us at: help@zivost.com