1 Term of the Agreement
The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.
Any active user account with access to the Software in creation and/or edition mode. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.
An “App” is a specialized group of features available for installation in the Software, and listed in the Pricing
Is considered a Bug any failure of the Software that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of ESKA Technology LLC (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).
Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 2 (three) most recently released major versions. To be covered by the current Agreement, the Customer has to run the most recent Covered Version at the time of conclusion of this Agreement. When this is not the case, additional costs are applicable $120/hour service fee.
3 Access to the Software
The Cloud Platform is hosted and fully managed by ESKA Technology LLC, and accessed by the Customer. ESKA Technology LLC commits not to disclose individual or named figures to third parties without the consent of the Customer, and to deal with all collected data in compliance. Upon expiration or termination of this Agreement, this license is revoked immediately and the Customer agrees to stop using the ESKA Technology LLC Cloud Platform. Should the Customer breach the terms of this section, the Customer agrees to pay ESKA Technology LLC an extra fee equal to 300% of the applicable list price for the actual number of Users and installed Apps.
4.1 Bug Fixing Service
For the duration of this Agreement, ESKA Technology LLC commits to making all reasonable efforts to remedy any Bug of the Software submitted by the Customer through the appropriate channel (typically, support email email@example.com email address or website form), and to start handling such Customer submissions within 2 business days. The Customer understands that Bugs caused by a modification or extension that is not part of the official Software will not be covered by this service. As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer. For more recent revision of the Covered Version of the Software used by the Customer, the Customer agrees to update its systems to that revision in order to obtain the correction. The Customer will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug. When a Bug is fixed in any Covered Version, ESKA Technology LLC commits to fixing the Bug in all more recent Covered Versions of the Software. Both parties acknowledge that as specified in the license of the Software and in the 7.3 Limitation of Liability section of this Agreement, ESKA Technology LLC cannot be held liable for Bugs in the Software.
4.2 Security Updates Service
ESKA Technology LLC commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.
4.3 Upgrade Services
Upgrade Service for the Software
The Upgrade Service is limited to the technical conversion and adaptation of the Customer’s database to make it compatible with the Target Version, and the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version.
Upgrade Service for third-party extensions
For the duration of this Agreement, the Customer may request optional upgrade services for third-party extension modules of the Software, in addition to the regular Upgrade Services. This optional service is subject to additional fees (120$/hourr) and includes the technical adaptation of third-party modules installed in the Customer’s database and their corresponding data in order to be compatible with the Target Version. The Customer will receive an upgraded version of all installed third-party modules along with the upgraded database.
4.4 Cloud Hosting Services
For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, ESKA Technology LLC commits to providing at least the following service
Hosting in Tier-III data centers or equivalent, with 99.9% network uptime
Grade A SSL (HTTPS) Encryption of communication
Fully automated, verified backupsDisaster Recovery Plan, tested regularly
4.5 Support Services
For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see 4.1 Bug Fixing Service) or guidance with respect to the use of the standard features of the Software and Services (functionalities, intended use, configuration, troubleshooting).
Other assistance requests, such as questions related to development, customizations, or services required to access the Customer’s database, subject to additional fees (120$/hour). In case it’s not clear if a request is covered by this Agreement or a Service Pack, the decision is at the discretion of ESKA Technology LLC.
5 Charges and Fees
5.1 Standard charges
The standard charges for the ESKA Technology LLC subscription and the Services are based on the number of Users, the installed Apps, the Software version used by the Customer, and specified in writing at the conclusion of the Agreement. When during the Term, the Customer has more Users or more installed Apps than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable list price (at the beginning of the Term) for the additional Users or Apps, for the remainder of the Term. If at the time of the conclusion of this Agreement, the Customer uses a Covered Version that is not the most recent one, the standard charges may be increased by 50% for the duration of the first Term, at the sole discretion of ESKA Technology LLC, to cover the extra maintenance costs.
5.2 Renewal charges
Upon renewal as covered in section 1 Term of the Agreement , if the charges applied during the previous Term are lower than the most current applicable list price, these charges will increase by up to 7%.
5.3 Charges for Upgrade Services of third-party modules
ESKA Technology LLC reserves the right to reject an upgrade request for third-party modules under the above conditions if the quality of the source code of those modules is too low, or if these modules constitute an interface with third-party software or systems. The upgrade of such modules will subject to a separate offer, outside of this Agreement.
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when ESKA Technology LLC is legally obliged to pay or collect Taxes for which the Customer is responsible.
6 Conditions of Services
6.1 Customer Obligations
The Customer agrees to:
pay ESKA Technology LLC any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified in the corresponding invoice ;
immediately notify ESKA Technology LLC when their actual number of Users or their installed Apps exceed the numbers specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee as described in section 5.1 Standard charges.
take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the ESKA Technology LLC Software usage, as described in 3 Access to the Software ;
appoint 1 dedicated Customer contact person for the entire duration of the Agreement;
When the Customer chooses to use the Cloud Platform, the Customer further agrees to:
take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities.
6.2 No Soliciting or Hiring
Except where the other party gives its consent in writing, each party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 2 months from the date of termination or expiration of this Agreement. In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching party agrees to pay to the other party an amount of USD ($) 30 000.00 (thirty thousand US Dollars).
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
Definition of “Confidential Information”:
All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
6.5 Data Protection
Processing of Personal Data
The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by ESKA Technology LLC when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services or the Database Upgrade Service), or if the Customer transfers their database or a part of their database to ESKA Technology LLC for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, ESKA Technology LLC commits to:
(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case ESKA Technology LLC will provide prior notice to the Customer, unless the law forbids it ;
(b) ensure that all persons within ESKA Technology LLC authorised to process the Personal Data have committed themselves to confidentiality ;
(c) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure ;
(d) forward promptly to the Customer any Data Protection request that was submitted to ESKA Technology LLC with regard to the Customer’s database ;
(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data ;
(f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of ESKA Technology LLC;
(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
(h) permanently delete all copies of the Customer’s database in possession of ESKA Technology LLC, or return such data, at the Customer’s choice, upon termination of this Agreement, will be completed in 7 business days ;
With regard to points (d) to (f), the Customer agrees to provide ESKA Technology LLC with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.
The Customer acknowledges and agrees that in order to provide the Services, ESKA Technology LLC may use third-party service providers (Subprocessors) to process Personal Data. ESKA Technology LLC commits to only use Subprocessors in compliance with Data Protection Legislation. This use will be covered by a contract between ESKA Technology LLC and the Subprocessor that provides guarantees to that effect.
In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, ESKA Technology LLC may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within the due date specified on the corresponding invoice.
The sections “6.4 Confidentiality”, “7.2 Disclaimers”, “7.3 Limitation of Liability”, and “8 General Provisions” will survive any termination or expiration of this Agreement.
7 Warranties, Disclaimers, Liability
For the duration of this Agreement, ESKA Technology LLC commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
the Customer’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment;
the Customer provides adequate troubleshooting information and, for Self-Hosting, any access that ESKA Technology LLC may need to identify, reproduce and address problems;
all amounts due to ESKA Technology LLC have been paid.
The Customer’s sole and exclusive remedy and ESKA Technology LLC’s only obligation for any breach of this warranty is for ESKA Technology LLC to resume the execution of the Services at no additional charge.
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
ESKA Technology LLC does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort (including strict negligence) or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates’ remedy otherwise fails of its essential purpose.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay is caused by governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8 General Provisions
8.1 Governing Law
Both parties agree that the laws of United States will apply.
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives.
We work with different hosting providers worldwide that always deliver at least 99.9% uptime guarantee.
So we can guarantee 99.9% uptime (3 nines, excluding planned maintenance)*
This corresponds to a maximum unplanned downtime of 2 hours/month.
We usually deliver much better uptime than this (100% most months), as our providers always deliver a much better uptime than their SLA too.
* these metrics refer to the availability of the platform itself for all customers. Individual databases may be temporarily unavailable for specific reasons, typically related to the customer's actions or customizations.
8.4 High Availability
Our data centers are with N+1 redundancy for power, network and cooling
8.5 Backups & Disaster Recovery
- 14 full backups for at least 3 months: 1/day for 7 days, 1/week for 4 weeks, 1/month for 3+ months. For data center disasters (one entire data center is completely and permanently down), Disaster Recovery Plan has these metrics: - RPO (Recovery Point Objective) = 24h, i.e. you can lose maximum 24h of work if the data cannot be recovered and we need to restore the last daily backup - RTO (Recovery Time Objective) = 24h, i.e. the service will be restored from the backup within 24 hours in a different data center
The safety of your data is very important to us, and we design our systems and procedures to guarantee it.
SSL - All web connections to client instances are protected with 256-bit SSL encryption (HTTPS with a 2048-bit modulus SSL certificate), and running behind Grade A SSL stacks. All our certificates chains are using SHA-2 already.
Reliable Platform - Servers with full hardware guarantee, redundant data storage, network and electrical supplies
Passwords - Customer passwords are protected with industry-standard PBKDF2+SHA512 encryption (salted + stretched for thousands of rounds)
Safe System - Our servers are running recent Linux distribution with up-to-date security patches, with firewall and intrusion counter-measures (not disclosed for obvious reasons)
Isolation - Client data stored in dedicated databases - no sharing of data between clients, no access possible from one database to another
8.7 Illegal or Harmful Use
You may not use ESKA Technology LLC services for storing, displaying, distributing or otherwise processing illegal or harmful content. This includes:
Illegal Activities: promoting gambling-related sites or services, or child pornography.
Harmful or Fraudulent Activities: Activities harmful to others, promoting fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
Infringing Content: Content that infringes the intellectual property of others.
Offensive Content: Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
Harmful Content: Malicious and malware content, such as viruses, trojan horses, worms, etc.
Spam Content: Content that is published for "black hat SEO" purposes, using tricks such a link building / link spam, keyword spam, in order to exploit the reputation of ESKA Technology LLC services for promoting third-party content, goods or services.
8.8 Email Abuse
You may not use ESKA Technology LLC services for spamming. This includes:
Unsolicited messages: sending or facilitating the distribution of unsolicited bulk emails and messages, either directly via ESKA Technology LLC services or indirectly via third-party email services. This includes the use of bulk emails lists. Any mass-mailing activity is subject to the applicable legal restrictions, and you must be able to show evidence of consent/opt-in for your bulk email distribution lists.
Spoofing: sending emails or messages with forged or obfuscated headers, or assuming an identity without the sender's permission
8.9 Security Violations
You may not attempt to compromise ESKA Technology LLC services, to access or modify content that does not belong to you, or to otherwise engage in malicious actions:
Unauthorized access: accessing or using any ESKA Technology LLC system or service without permission
Security research: conducting any security research or audit on ESKA Technology LLC systems without written permission to do so, including via scanners and automated tools.
Eavesdropping: listening to or recording data that does not belong to you without permission
Other attacks: non-technical attacks such as social engineering, phishing, or physical attacks against anyone or any system
8.10 Network and Services Abuse
You may not abuse the resources and systems of ESKA Technology LLC. In particular the following activities are prohibited:
Network abuse: causing Denial of Service (DoS) by flooding systems with network traffic that slows down the system makes it unreachable, or significantly impacts the quality of service
Unthrottled RPC/API calls: sending large numbers of RPC or remote API calls to our systems without appropriate throttling, with the risk of impacting the quality of service for other users.
Overloading: voluntarily impacting the performance or availability of systems with abnormal content such as very large data quantities, or very large numbers of elements to process, such as email bombs.
Crawling: automatically crawling resources in a way that impacts the availability and performance of the systems
Attacking: using the ESKA Technology LLC services to attack, crawl or otherwise impact the availability or security of third-party systems
Abusive registrations: using automated tools to repeatedly register or subscribe to ESKA Technology LLC services, or registering or subscribing with fake credentials, or under the name of someone else without their permission.