CORTEZA CLOUD ENVIRONMENT AS A SERVICE AGREEMENT

These Terms and Conditions constitute a legally binding agreement (“Agreement”) made between you, whether personally as a professional, or on behalf of an entity you represent and indicated in the Order Form (“You” or “Customer”) and Crust Technology Ltd whose principal place of business is Unit 1G, The Atrium, Blackpool Business Park, Blackpool, Cork, Republic of Ireland, with company ID 644181 (“Crust”, “we,” “us” or “our”), concerning your access to and contracting a Planet Crust Cloud Service offering (“Product”) through https://www.planetcrust.com. (“Website”).

You agree that by contracting our Product through our Website, you have read, understood, and agree to be bound by these Terms and Conditions, which may be executed via electronic signature, electronic online communications, or via emailed PDF-format document. If you do not agree with these Terms and Conditions, please do not contract our Product and cease using our Website immediately.

You confirm that you are fully able and entitled to accept these Terms and Conditions governing the purchase of the Product and are authorized to do so on behalf of the Customer. This service is only available for professionals and companies, and you represent that you are not a consumer or a minor.

TERMS AND CONDITIONS

1. Definitions

Corteza Platform: Corteza is a low-code open source development platform composed of building blocks allowing to flexibly create tailored software solutions for the needs of the Customer. Corteza is published at https://github.com/cortezaproject
Cloud Environment: The technological infrastructure that supports your Corteza Platform that is provided by Crust.
Cloud Services
The provision of the Planet Crust Cloud Environment in order to use the Corteza Platform, as well as the support services and professional services indicated in the Annexes herein.
Effective Date: Date of acceptance of the Order Form and provisioning of the Cloud Services.
Order Form: The online form setting out your details and those of the Cloud plan you have chosen.
Customer Data: Data, information, documents and any other content uploaded or transmitted or managed by the Customer to and on the Corteza Platform.
IPR: Means all intellectual property rights in a work, such as copyrights, patents, trademarks, design rights, utility models and any other similar rights provided by law.
Prohibited Uses: Processing of medical, health or genetic data.

2. Object and scope

The purpose of this Agreement is to regulate the provision of the Cloud Services by Crust to the Customer detailed in the Order Form. The Cloud Services may not be used for any Prohibited Uses. Support on the Service is provided under the terms of the Service Level Agreement. Access to personal data is regulated in the Crust Data Protection agreement.

The Cloud Services are based on the Cloud Environment technology and services contracted by Crust from third parties to host Your Corteza Platform.

This Agreement is not a software license for the Corteza Platform, which is separately licensed to the Customer as set out in clause 8 below.
During any Free Trial period, the terms of this Agreement except as to payment shall apply.

3. Term, termination and effects

a. Term
This Agreement shall commence on the Effective Date and shall continue in force until the date indicated in the Order Form (the “Term”), unless terminated according to section (b) below.

b. Termination
Client may terminate this Agreement by giving not less than one (1) months’ written notice to the other at any time, specifying date such termination becomes effective. In this case, Client has no right to any refund unless termination is for breach by Crust. Crust may suspend services or terminate in the event of material breach of these Terms or non-payment of the corresponding monthly or annual fees and will provide 15 days’ prior written notice of suspension and 30 days’ prior written notice of termination.

Either party may terminate this Agreement, in addition to those reasons provided for by law, with immediate effect if, in respect of the other party, the other party (i) is in material breach of this Agreement where the breach is incapable of remedy, in which case the termination is effective from the reception of a written notice; or (ii) is in material breach of this Agreement where the breach is capable of remedy and fails to be remedied by the breaching party within fifteen (15) days after receiving written formal notice of such breach.

c. Termination effects
The obligations in clauses 7 to 13, in addition to provisions of this Agreement which either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination. Termination shall be without prejudice to the accrued rights of either party at the termination date, in particular the right to claim damages for prejudice. At the time the Cloud Services are terminated, Crust will provide a complete copy of Customer’s data upon Customer’s request.

4. Fees, invoicing and payment

As a material condition of the Agreement, the Customer undertakes to pay the amounts agreed in the Order Form (“Fees”), including any applicable VAT or sales tax thereon when they become due, in accordance with charges in force from time to time and any invoice terms.

Fees are non-refundable and shall be invoiced in currency set out in the Order Form and shall be paid by credit card monthly or annually in advance. The Fees do not include currency conversion fees (if applicable), wire transfer fees or other bank payment charges which shall be borne exclusively by Customer. Overdue amounts are subject to interest at a rate of one percent (1.0%) per month, or the maximum rate permitted by law, whichever is the lower. Customer agrees that Crust may issue its invoices in electronic form, in accordance with applicable legislation.

All Fees are exclusive of taxes. Customer will pay Crust an amount equal to any taxes arising from or relating to this Agreement or an applicable invoice which are paid by or are payable by Crust. “Taxes” means any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on our net income. If Customer is required to withhold or deduct any portion of the payments due to Crust, Customer will increase the sum payable by the amount necessary so that Crust receives an amount equal to the sum it would have received had Customer made no withholdings or deductions or provide Crust the corresponding tax withholding certificate.

The Cloud Services may be suspended or terminated in accordance with article 4, if payment is overdue or cannot be made for any reason. In the event of termination, the Customer must pay all pending balances of its account, calculated according to the previous section, and any accrued interest.

5. Service provision and support

Service provision. The Cloud Services shall be performed diligently and professionally according to high industry standards. Crust guarantees the level of service during the Term of the Agreement in accordance with the service levels set out below. Crust warrants that the Cloud Services shall comply with the contractual specifications, as well as good industry practice and applicable regulations. Crust shall promptly take all reasonable measures to remedy any defects and/or correct any errors identified by the Parties or notified by a third party (e.g. client or user) in the Cloud Services. These corrections shall be carried out in accordance with the service levels set out below.

Service Level. Crust offers 99.9% uptime of the Cloud Service on a yearly basis, except scheduled outages and force majeure. Scheduled outages will be below 4 hours per month, not to exceed six (6) events/month. Crust will provide at least 48 hours’ notice of any scheduled outages. Crust will try to avoid scheduling downtime during normal work hours or peak usage hours for the Cloud Service.

Support. Subject to Customer payment of the fees set forth in clause 4, and in the event there is (a) a failure of availability of the Corteza Platform due to the Cloud Environment; or (b) other failure of the Cloud Environment to run your Corteza Platform (hereunder “Supported Incidents”), Crust will make commercially reasonable efforts to resolve with 24 hours from the notification of any outage, unless otherwise notified to Customers, in particular in the event of force majeure.

Exclusions. Notwithstanding the foregoing, Crust shall not provide support in the following situations:

a) Questions about Corteza Platform, its configuration or custom development support, or non-bug related technical problems without an Essential Support Agreement between the Customer and Crust;

b) A lack in current features of the Crust Cloud Services requiring new programming, and/or requests for Corteza Platform upgrades. Customer shall perform such upgrades itself or order such upgrades from Crust’s Service Department for a fee;

c) The Supported Incident is caused, by any integration of Customer with the Cloud Service (API integration, etc.), negligence, or other causes beyond our reasonable control;

d) The Supported Incident is caused by third party software accessing the Service that is not licensed by or through Crust.

e) Any other requests different from those defined at “Supported Incidents”.

Support contact. Unless otherwise agreed by the Parties, all Support Cloud Services are offered to your designated technical support contacts via email at uptime@planetcrust.com. Customers who have purchased Essential Support Services will also be able to contact designated technical support contacts via email at support@planetcrust.com.

6. Customer’s obligations

Customer shall (i) pay the agreed Fees in the time and manner indicated herein; (ii) be responsible for the legality of its use of the Cloud Services and its Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services and the Corteza Platform, and notify Crust promptly of any such unauthorized access or use; and (iv) use the Cloud Services only in accordance with these Terms and Conditions and applicable laws.

Customer is responsible for maintaining the security of its internal network and Corteza instance from unauthorized access through the Internet. Crust shall not be liable for unauthorized access to Customer’s network or other breaches of Customer’s network security.

Customer shall not (i) sell, resell, rent or lease the Cloud Services, (ii) use the Cloud Services to store or transmit unlawful material or messages, or to store or transmit material or messages in violation of third-party privacy rights, (iii) use the Cloud Services to store or transmit malicious codes, (iv) interfere with or disrupt the integrity or performance of the Cloud Services and/or Environment , or (v) attempt to gain unauthorised access to the Cloud Services or Environment or their related systems or networks.

7. Customer data

The Customer alone is responsible of the accuracy, quality, integrity, legality, reliability, suitability and intellectual property rights in the use of all Customer Data, and neither Crust nor its suppliers will be responsible for its elimination, correction, destruction, damage, loss or error arising during the storage of any such Customer Data unless the same is directly caused by Crust. The Customer represents that Customer Data, the use of the Customer Data and any other activities in connection with the Service do not violate, infringe or misappropriate any third party’s rights.

Customer Data will be backed up every 24 hours. Any Customer Data may be retained, deleted and/or discarded without previous notice if the Customer is in material breach of this Agreement, including without limitation the obligation to pay fees for the Cloud Services. On termination, all Customer Data will be deleted 30 days after termination, except as required for legal and administrative purposes.

For the purposes of maintenance, statistics and for developing and improving the Cloud Services, metadata relating to Customer’s use of the Service may be anonymised and processed by CRUST during and after termination.

8. Intellectual Property Rights

Crust and its licensors (including Corteza Platform project contributors) own all right, title, and interest to the Corteza Platform, technology, documentation, code or software provided to Customer as the basis for development work. Except as expressly stated otherwise in this Agreement, Crust and its licensors retain all such rights. All rights in the Corteza Platform source code base are licensed to Customer under the Corteza project license which is the Apache Software License 2.0 (https://www.apache.org/licenses/LICENSE-2.0), which shall appear in the source code in accordance with the license.

Each Party retains all rights resulting from names, logos and trademarks are owned by Crust, and no right is granted to the other Party to use any of the foregoing except as expressly permitted herein or by the other Party written consent.

To the extent third-party Open Source Software is used in whole or in part in the development in the provision of the Cloud Services, such Open Source Software is licensed in accordance with the terms and conditions of the specific licence under which the relevant Open Source Software is distributed, but is provided “as is” and without limitation, Crust specifically disclaims any implied or express representation that such Open Source Software in conjunction with, or as incorporated or bundled with, the Software, will be capable of (a) to operate in conjunction with any software Corteza Platforms other than those identified as compatible with the software; or (b) to operate uninterrupted or error free. In the event of any bugs or issues arising with respect to third-party Open Source, Crust will report them to the corresponding open source project and use reasonable efforts to obtain a fix in accordance with the open source project’s practices.

9. Confidential Information

Each Party agrees to maintain the confidentiality of any proprietary information (including without limitation non-public trade secrets, proprietary information, ideas, works of authorship, know-how, processes and any other information or data related to a Party and its services, business and contractual relationships) (“Confidential Information”) received from the other during the term of this Agreement and for three years after its termination. As long as the information is not publicly and officially disclosed, each Party agrees not to reveal or use said Confidential Information for any purpose except as necessary to fulfil its obligations and exercise its rights under this Agreement. Except as and when required to do so by competent administrative authority or court of law, neither party shall disclose Confidential Information of the other to any third party.

10. Data Protection

The Parties undertake to comply with the obligations that the current regulations on the protection of personal data impose for the processing activities that they carry out. The Parties undertake to comply with the applicable data protection laws, and in particular with General Data Protection Regulation (EU) 2016/679 (“GDPR”) and any other that may apply or develop the provisions thereof. In accordance with the GDPR, processing the personal data of each Party’s signatory and its technical, administrative or commercial contact persons (name, address, professional email address, telephone) is necessary for the preparation and performance of this Agreement, and as a legitimate interest of the Parties of keeping and managing the relation between themselves. These personal data will not be shared with any third party however, they may be disclosed to third party service providers with whom each Party has a contract for data processing according to the applicable regulations. The Parties will keep this personal data for the whole duration of the Agreement and (blocked) for the period prescribed by law for legal or administrative reasons.

Each Party agrees to inform the abovementioned persons of the possibility of exercising his/her rights of access, rectification, erasure and opposition, limitation and restriction of processing in the terms established by the GDPR and any applicable national privacy laws, by writing to the contact or email address of each Party. In relation to Crust, complaints, if any, may be filed with the Irish Information Commissioner’s Office. The Parties declare that the data about the persons mentioned herein are correct and up-to-date and each Party will promptly send any updates to the other Party.
Crust will access and process personal data on behalf of the Customer under the Crust Data Processing Agreement.

11. Limitation of Warranty and Liability

Except as specifically set out in this Agreement and to the maximum extent permitted by applicable law, the Cloud Services and Corteza Platform are provided to the Customer are “as is” without any warranty of any kind, either expressed or implied, including, but not limited to the implied warranty of satisfactory quality, and fitness for a particular purpose. Crust and its licensors do not guarantee that the use of the Cloud Services and/or Corteza Platform will not be interrupted or error free or comply with regulatory requirements. Customer may purchase support and specific maintenance services separately from Crust (see Essential Support Conditions).

Except for any breach of IPR, confidentiality and data protection specific obligations agreed by Crust in this Agreement, to the maximum extent permitted by applicable law in no event will Crust or its licensors be liable for any indirect, special, incidental, consequential or exemplary damages arising out of or in any way relating to this Agreement, to the use of or inability to use the Cloud Services and/or the Corteza Platform including, without limitation, damages for loss of goodwill, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.

For all events and circumstances, Crust or its affiliates’ aggregate and cumulative liability arising out of or relating to this Agreement will be limited to direct damages and will not exceed the amounts received by Crust from Customer during twelve (12) months immediately preceding the first event giving rise to liability, with respect to the particular items (whether software, services or otherwise) giving rise to liability.

Nothing in this Agreement is intended to exclude or limit Crust’s liability (a) for death or personal injury, or (b) for losses that are caused by gross negligence or wilful misconduct of Crust, provided however in this case that to the extent permitted by applicable law, Crust be not liable for any amounts in excess in the aggregate of the amounts paid to Crust under this Agreement.

This liability limitation applies mutatis mutandis to the Customer.

12. Miscellaneous

a) Independence. The Parties are and shall remain independent traders during the entire term of the Agreement, each assuming the risks for their own operations and acting in total independence. Under no circumstances does the Agreement grant to Crust the role of authorised representative, agent or sales representative of the Customer.

b) Force Majeure. Neither Party shall be liable for any delay or failure to fulfil its obligations under this Agreement which is due wholly or partially to any strike, lock-out or other industrial action, electrical failure, server failure, third party acts or omissions or any other event or act beyond the reasonable control of the Party including without limitation, acts of God, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm.

c) Assignment. Parties may only assign this Agreement without need for the other Party’s consent (a) in the event of any merger, acquisition, or corporate reorganisation or (b) to a purchaser of all or substantially all its assets, so long as the assignee is not a competitor of the other Party, in which case the prior written consent is required.

d) Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other parts of the Agreement.

e) Waiver. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.

f) Notices. Any notices relating to the present agreement shall be considered valid only if notified to the addresses indicated herein or in the Order Form, save for possible changes which shall be notified in writing with a prior adequate notice:

Crust: Contact person (name, surname): Niall McCarthy (niall.mccarthy@crust.tech)
Customer: as set out in the Order Form

All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to Customer at the address listed in the Order Form, or such other address as either Party may specify in writing, or by email to the email addresses set out in the Order Form. Such notice shall be deemed to have been given upon receipt.

g) Entire Agreement. This Agreement, the Annexes, constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof and prevails over any contradictory terms of any Annex (unless expressly provided therein), which are governed by the terms hereof. There are no third-party beneficiaries to this Agreement.

h) Update of terms. These terms may be updated from time to time by Crust and notified to you with at least 30 days’ prior written notice of their entering into effect. The new version will enter into effect on the earlier of (a) your express acceptance of the new terms, or (b) continued use of the Service after the notified effective date.

i) Governing Law and Jurisdiction. This Agreement shall be governed by the laws of Ireland. In the event of an unresolved conflict regarding the interpretation and execution of this Agreement, the parties shall exclusively submit to courts of Dublin, Ireland.

END OF TERMS