1. GENERAL
1.1. AG Projects provides you (the Customer) with SIP Thor Platform
(the Product) pursuant to these terms and conditions (the Terms and
Conditions) and the Customer Order Form (the COF), which is considered
incorporated into these Terms and Conditions. The identity of the
Customer and the Product provided by AG Projects will be detailed in the
COF.
1.2. If there is a conflict between the documents, the order of
precedence will be: (1) the COF and (2) an existing Service Agreement
(Contract) and (3) these Terms and Conditions.
1.3. The Customer may not use the Product beyond the capacity purchased
from AG Projects.
1.4. The Customer may not use the Product without a support contract
from AG Projects. The following components: NGNPro, SIP Thor, all
platform configuration files and the database schema may not be used by
the Customer without a support contract from AG Projects.
1.5. The following software packages together with their source code:
NGNPro, SIP Thor, all platform configuration files and the database
schema may not be copied, distributed or made public in any form without
written permission from AG Projects.
1.6. No warranties. Except as expressly provided in these terms and
conditions, AG Projects disclaims all warranties, express or implied,
not explicitly stated in these terms and conditions, and in particular
disclaims all warranties of merchantability, fitness for a particular
purpose, and warranties related to equipment, material, services or
software. The services and any materials or equipment are supplied as
is, to the full extent permitted by law.
1.7. When AG Projects provide Customer access to its own infrastructure,
the Customer will not permit or allow others to: (i) abuse (like sending
unsolicited mail, IM or voice messages from AG Projects addresses) or
fraudulently use The Product, including, but not limited to,
unauthorized or attempted access, alteration or destruction of AG
Projects Customer data or other confidential information stored on AG
Projects infrastructure; (ii) use the Product in such a manner that
causes interference, or tampers with other Customers or users of AG
Projects; or (iii) use the Product in a manner that violates AG Projects
acceptable use policy.
1.8. The Customer may not make any illegal use of the Product.
2. PAYMENT TERMS
2.1. Prices. During the term of any COF, the Customer will pay to AG
Projects the prices set forth in the COF or an attached pricing sheet
(Price-list) to the COF.
2.2. Taxes. AG Projects rates and charges do not include taxes. Except
for AG Projects income taxes, Customer will pay all taxes, imposed on or
based upon the provision, sale or use of its The Product.
2.3. Payment dates. Unless otherwise specified in the COF, the Customer
will pay AG Projects invoices in full in the currency in which the
invoice presents the charges by the invoice due date, before the due
date mentioned on the invoice. The payment will be executed to the bank
account mentioned in the invoice.
2.4. Interest charges. If the Customer fails to pay the charges when
due, AG Projects will charge the Customer interest on those charges
equal to 4 % per month of the outstanding balance or the maximum rate
allowed by law.
2.5. Offset. AG Projects reserves the right to set off any amounts that
are past due from Customer under this Service Agreement against any
amounts that AG Projects or any of its affiliates or related companies
owe to Customer under a separate service agreement. This right of
set-off shall only be exercisable upon at least 5 days prior written
notice (during which Customer will have the opportunity to cure and
avoid the implementation of the impending set-off), and is not
applicable to amounts past due but subject to a bona fide dispute. The
rights of AG Projects invoking set-off pursuant to this Section are in
addition to other rights and remedies that AG Projects may possess.
2.6. Banking fees. Customers from outside the European Union will pay in
full all banking transfer fees related to the payments.
3. DELIVERY
3.1. Notification of delivery. AG Projects will notify the Customer via
the support interface when the Product is installed, tested and
available for usage (the Delivery date). Following this notification,
Customer will have ten business days in which it may reject the
readiness of the Product; otherwise the Product is considered accepted.
4. USE OF NAME, SERVICE MARKS, TRADEMARKS OR TRADE SECRETS
4.1. Neither party will use nor will have any license to the service
marks, logos, trademarks, trade secrets of the other party or any of its
affiliates for any purpose including, but not limited to resale of AG
Projects services without the other party's prior written consent.
5. INTELECTUAL PROPERTY
5.1. No intellectual property is transferred to the Customer by the
purchase of the Product. Intellectual property and copyright belongs to
the authors of each software component of the platform. See the license
that comes with each software package for more information.
5.2. AG Projects maintains and distributes to customers that have
purchased the platform meta-packages with components that contains
software developed inside and outside AG Projects. The meta-packages
aggregate source code from, and not limited to, Debian Linux operating
system and associated libraries, MySQL, FreeRadius, OpenXCAP, CDRTool,
MSRPRelay, Asterisk, CallControl, Apache, SIP Thor, NGNPro, MediaProxy,
PowerDNS, OpenSIPS, SIP SMPLE Client SDK, Blink and SylkServer projects.
See the license and other pertinent files that are available from each
project web site for more information about licensing and usage
information of each component. Customers that need to perform audit of
each individual software license, will bear the costs for finding the
relevant license information.
5.3. The Customer accepts that all contributions and/or change requests
executed by AG Projects or any of its contractors, may, can and will
likely will be contributed back to the original project or software
maintainer and shared with other AG Projects customers.
6. OPERATIONS AND SUPPORT ACTIVITIES
6.1. Operations. The customer is responsible for performing day-to-day
operations on the platform like provisioning and accounting
tasks, monitoring of operating system services, software availability and
performance, CPU load, memory usage, network traffic and other relevant
system resources usage, backup, restore and setup of replication for
system databases and configuration files. Only technical personnel that
have been trained for this purpose must perform operational activities.
6.2. Data provisioning. Any provisioning or collection of data on the
platform is the responsibility of the Customer.
6.3. Support requests. Any request for support will be done by the
Customer by means of opening a separate ticket for each problem in the
support interface at http://support.ag-projects.com. When not specified
in the COF, the price for support activities is 110 EUR per hour; a
minimum of one hour is charged per intervention.
6.4. Response time. Response time for support request submitted by the
customer to AG Projects is next business day except national holidays in
the Netherlands. Business days are Monday till Friday 09:00 till 17:00
CET (Central European Time).
6.5. Emergency maintenance. AG Projects reserves the right to perform
emergency maintenance including replacement of software and
configurations for the software installed on its own or the customer
infrastructure, which might disturb temporary some services should this
prevent or fix a problem that, might be more disruptive at a later time.
6.6. End-of-life product announcement. Products that reached their
end-of life are supported in their delivered form for another 12 months.
It is the responsibility of the Customer to plan for the upgrade to the
new supported software releases in a timely maner. AG Projects provides
part of its support contract, the support for the migration to the new
release versions.
7. CONFIDENTIALITY
7.1. Each party will treat as confidential all non-public information,
marked as confidential, provided by the other party, including but not
limited to pricing and technical information, software source code and
configurations, operational procedures, the terms of any agreement,
including the COF between AG Projects and Customer, the discussions,
negotiations, and proposals related to that agreement of the COF. Such
confidential information will not be disclosed or shared with third
parties without the prior written consent of the disclosing party.
8. LIMITATIONS OF LIABILITY
8.1. Except as provided in a specific COF or SLA, AG Projects will not
be liable for any service or network delay or interruption to the other
party or that partys Customer. In any event, AG Projects entire
liability for damages caused by any failure to perform its obligations
under these Terms and Conditions will not exceed 10% of the yearly
support charge pro-rated at the number of months in the remaining Term.
8.2. Consequential damages. Neither party will be liable for any
consequential, incidental, or indirect damages for any cause of action,
whether in contract or tort or otherwise, including but not limited to
any breakdown of facilities or any interruption or degradation of
service, except for claims for which a party has an obligation of
indemnity under these terms and conditions. Consequential, incidental,
and indirect damages include, but are not limited to, lost profits, lost
revenues, and loss of business opportunity, and incidental damage to
Customer's premises for Service installation, whether or not the other
party was aware or should have been aware of the possibility of these
damages. This limitation of liability will not apply to claims arising
from the parties confidentiality and indemnification obligations under
these Terms and Conditions.
8.3. Liability for content. AG Projects is not responsible for the
content of any information transmitted or received by the Customer
through the purchased Product.
9. ORDER DURATION AND TERMINATION
9.1. These Terms and Conditions are effective on the date of the signed
COF and will not expire until the COF have either expired or terminated.
The date that AG Projects will begin providing the Product is set forth
in the applicable COF.
9.2. Notwithstanding termination of these Terms and Conditions as set
forth in this Section, Customer will remain liable for all invoices,
charges and fees that remain outstanding, whether or not invoiced by the
termination date.
9.3. The support contract duration is for minimum 24 months. The start
date for the duration is the date of the signed COF. The support
contract is automatically renewed for another year unless either party
cancels the support contract in written form with at least 90 days
before its expiration date.
9.4. If Customer terminates an Order before its delivery date, the
Customer will remain responsible for a) all early termination
liabilities imposed on AG Projects by third parties, b) all deployment
fee charges and c) the support charges for the first year.
9.5.Upon termination of the COF, the Customer must decommission the
platform by deleting all software and configuration files belonging to
the platform and may retain the content of its user databases.
10. MISCELLANEOUS
10.1. Governing law. The Terms and Conditions will be governed by the
laws of the Netherlands without regard to choice of law principles.
Where applicable, the English version of the Terms and Conditions will
prevail over any foreign language versions.
10.2. Dispute resolution. Any controversy or dispute arising out of or
related to the Product or these Terms and Conditions that cannot be
amicably resolved will be settled in arbitration. All arbitration
proceedings will be conducted in the English language pursuant to Rules
of the International Chamber of Commerce ("ICC") and will be governed by
the laws of the Netherlands without regard to choice of law provisions.
The place of the arbitration will be Amsterdam, the Netherlands.
10.3. Amendments. Any amendments to an Order or these Terms and
Conditions may only be made by a written amendment signed by both
parties.
10.4. Assignment. Neither party may assign any rights or obligations
under an Order without the other party's prior written consent, except
that AG Projects may assign its rights under an Order and these Terms
and Conditions, after 30 days prior written notice, to a parent company,
controlled affiliate, or affiliate under common control.