General Terms and Conditions

 

WHEREAS:

  • PT Awan Solusi Informatika (Cloudmatika) provides access to online Control Panels which allow Clients to view and subscribe Cloudmatika’s services;
  • Cloudmatika’s services consist, amongst others, of Software as a Service solutions (the SaaS Solutions) hosted and delivered from from Cloudmatika and its Providers;
  • the Client wishes to use the SaaS Solutions made available through Cloudmatika’s Control Panels;
  • Cloudmatika agrees to provide to the Client access to Cloudmatika’s Control Panels and the SaaS Solutions made available via Cloudmatika’s Control Panels.

 

Definitions

Agreement means this service agreement and all exhibits, annex, appendices, amendments that may be attached or made to it.

Control Panel means the online interface made available by Cloudmatika to the Client through which (a) SaaS Solutions may be ordered using dedicated credentials (b) Cloudmatika and/or Providers may monitor the status of the Orders, and (c) incidents can be reported and status of reported incidents can be accessed. The use of the Control Panel requests a prior registration and the creation of accounts with personalized credentials and privileges.

Fees means the fees due by the Client to Cloudmatika in consideration for the order and use by the Client of a specific SaaS Solution. Fees may be adapted from time to time.

Infrastructure means the whole technical infrastructure used to provide the SaaS Solutions and on which amongst other, the Control Panel is hosted and managed.

Intellectual Property means all patents, rights to inventions, utility models, copyright and neighbouring rights (including moral rights), trade marks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill, rights in clientele, trade name, company name and reputation, right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential and/or proprietary information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Payment means definitive receipt of the sums due by the Client to Cloudmatika.

Provider means software vendors, the Infrastructure provider and any third party contractor of Cloudmatika to which Cloudmatika may subcontract the provision of the SaaS Solutions and the Control Panel in whole or in part from time to time in Cloudmatikas sole discretion.

Order means a SaaS Solutions order placed by the Client normally through the Control Panel. An Order may result in additional Fees to be paid by the Client to Cloudmatika in accordance with the Fees available on the Control Panel or Cloudmatika’s web site.

SaaS Solutions means the software applications that may be ordered by the Client via Cloudmatika’s Control Panel and that are provided by third party Providers on a Software as a Service basis.

SaaS Solution Terms means the rules, terms and conditions of use of a particular SaaS Solution as made available by Cloudmatika via the Control Panel.

Staff means a Party’s employees, directors and officers as well as any affiliates, such as agents, sub-contractors, advisors or consultants. Cloudmatika’s Staff comprises in addition the Providers.

Terms and Conditions means Cloudmatika’s terms and conditions, which are available on the Control Panel and must be accepted by the Client as a condition precedent before using the Control Panel and/or the SaaS Solutions.

 

Article 1.Object

The purpose of this Agreement is to determine the conditions under which Cloudmatika gives access to the Control Panel and delivers SaaS Solutions to the Client. It specifies the Parties’ respective rights and obligations stemming from their contractual relationship.

This Agreement is applicable to every SaaS Solution, service, product or software made available by Cloudmatika through the Control Panel.

This Agreement in its entirety shall consist of this Agreement, the SaaS Solution Terms and any applicable additional terms of use and/or license pertaining to the SaaS Solutions, the Control Panel, and the associated software and services.

In the event of an inconsistency between a term or condition contained in any contractual document existing between the Parties, including any incorporated attachments, appendices, exhibits or other documents, the order of precedence, from the most to the least controlling, shall be:

  • the SaaS Solution Terms;
  • the Terms and Conditions;
  • this Agreement; and
  • any other terms available, e.g., on Cloudmatika’s web site.

These terms constitute the entire agreement between the Client and Cloudmatika concerning the object thereof, and supersede all prior statements, whether oral or written, representations, discussions, negotiations and agreements, by phone, e-mail, and instant messaging. Any standard contractual terms and conditions of the Client will not apply to this relationship.

 

Article 2. Obligations of Cloudmatika

Cloudmatika will make its best efforts to provide the SaaS Solutions to the Client in satisfactory conditions, and in particular to:

  • to provide the SaaS Solutions in a workmanlike manner, subject to the limitations set forth in the Agreement;
  • to make the ordered SaaS Solutions available to the Client in accordance with the provisions included in the SaaS Solution Terms or any other applicable terms, as may be amended from time to time;

Cloudmatika’s obligations shall be based on a best efforts basis

 

2.1     Fair Usage

Cloudmatika is providing some unlimited or free-of-charge resources, examples are local & international Internet Bandwidth, IOPS etc. In cases of heavy, above average, utilization of such resources by the client, Cloudmatika reserves the right to take any or all of following actions:

  • Limit the resources available to the client
  • Suspend the client service
  • Suspend the client account
  • Propose a tailored & paid solution based the clients’ usage pattern

 

Article 3. Obligations of the Client

3.1     Compliance

The Client represents and warrants that it holds the licenses, permits and authorizations, both in its own jurisdiction and, where applicable, in the Client’s local jurisdiction to use the Control Panel, the SaaS Solutions and generally perform its obligations under the Agreement.

The Control Panel and SaaS Solutions are provided on an “as is” and “as available” basis. The Client is solely liable for verifying and ensuring that the use of the Control Panel and the SaaS Solutions comply with the Client’s or Client Staff’s local legal, regulatory and statutory provisions (including without limitation provisions on distance selling of services, consumer protection, electronic communication, personnel data protection).

3.2     Client account

The Client will be solely liable for managing the Client account on the Control Panel and for the Client Staff’s actions performed using valid credentials. The Client will indemnify Cloudmatika for any damage arising out of any action performed by the Client or the Client Staff’s on or through the Client account. Any Order placed by a Client Staff shall be deemed to have been placed by the Client itself.

3.3     Credentials

All Orders must be placed through the Control Panel using valid credentials.

The Client will receive first access credentials that enable it or the Client Staff to identify themselves to the Control Panel and to carry out various operations, such as placing Orders, monitoring the Orders placed and receiving invoices.

The Client shall change the first access credentials after the first log-on.

The Client shall bear sole responsibility for the management and preservation of the credentials.

Credentials must be kept, changed and used in accordance with the provisions of this article 3.3, the relevant SaaS Solution Terms and the Provider Terms and Conditions.

The Client is liable for ensuring that the Client and the Client Staff (the Credentials Owners):

  • use passwords with a length of at least seven characters;
  • use passwords that contain numbers and alphanumeric characters;
  • keep their credentials strictly confidential and do not share their credentials with third parties; and
  • are informed of, and follow, the rules and security recommendations included in the relevant SaaS Solution Terms or the Terms and Conditions.

The Client is fully responsible for the use by the Credential Owners of the credentials. In particular, the Client is liable for ensuring that the credentials:

  • remain strictly confidential to the relevant Credential Owner; and
  • will not be disclosed to any third party.

Cloudmatika and Cloudmatika’s Staff shall not be liable for any direct or indirect damages arising from the disclosure of credentials by Credential Owners to any third party (including for the avoidance of doubt to other Credential Owners).

Cloudmatika or Cloudmatika’s Staff, acting individually or jointly, in their sole discretion, may suspend any credentials and/or access rights of the Client or a Credential Owner if they have reasons to believe that (i) the Client or a Credential Owner does not comply with their contractual obligations, (ii) the Client or a Credential Owner represents a threat for the security of the SaaS Solutions, the Infrastructure or a third party’s infrastructure or data, or that (iii) the relevant credentials have been compromised. In this case, Cloudmatika shall use its best efforts to inform the Client within a reasonable delay. Cloudmatika and Cloudmatika’s Staff will not be liable for any direct or indirect damages arising out of the suspension of any credentials and/or access rights pursuant to this article 3.3.

If the Client or a Credential Owner believes that any, several or all of the credentials have been compromised, lost or stolen, the latter should repudiate said credentials immediately by informing Cloudmatika and Cloudmatika’s Staff through the Control Panel or otherwise in accordance with the SaaS Solution Terms. Cloudmatika and Cloudmatika’s Staff will then take as soon as reasonably possible the necessary steps to ensure that any access by means of the repudiated credentials is blocked as soon as reasonably possible and will notify the Client thereof through the Control Panel. The repudiation will be effective (and the concerned credentials will be deemed to have been repudiated) as of the time when this notification is made available to the Client via the Control Panel, as documented on the Control Panel. New credentials will be provided in a reasonable delay to the concerned Credential Owner, subject to a Fee (as indicated on the tariffs available on the Control Panel or the relevant SaaS Solution), for future access. In the meantime, neither Cloudmatika nor Cloudmatika’s Staff shall be liable for any direct or indirect damages arising from the unavailability of the Control Panel or the SaaS Solutions. Cloudmatika will not be liable for any direct or indirect damages arising from the use of the repudiated credentials prior to the effective repudiation.

The Client shall be solely liable for any action on the Client account made with non repudiated credentials. Cloudmatika will not be liable for any account disputes that may arise between various Credential Owners, nor for any changes made to any account or any information pertaining to that account by any Credential Owner or third party using non repudiated credentials.

3.4     General obligations

The Client undertakes to:

  • use the Control Panel and the SaaS Solutions for the Client’s personal use only;
  • use the Control Panel and the SaaS Solutions in accordance with the Agreement, the SaaS Solution Terms, the Terms and Conditions and with any other applicable terms, as amended from time to time and posted on the Control Panel or the SaaS Solutions or otherwise communicated by Cloudmatika from time to time (e.g. via Cloudmatika’s web site); and
  • pay the Fees corresponding to the Order or the use of the Control Panel and the SaaS Solutions, as per the Fees as posted on the Control Panel.

The Client undertakes NOT to use the Control Panel or the SaaS Solutions for any purpose that is unlawful or prohibited by Cloudmatika’s and/or the Client’s and/or the Client Staff’s local legislation or otherwise in any way that could be detrimental to the Infrastructure, the SaaS Solutions, Cloudmatika’s business, customers or Staff, including but not limited:

  • to make or facilitate the use of the Control Panel or the SaaS Solutions in a way that infringes the Intellectual Property or any other right of a third party;
  • to perform an unreasonable number of operations in a limited time (“hammering”); or;
  • to use the Control Panel and/or the SaaS Solutions in a way that is not conform to the relevant and up-to-date technical specifications as accessible from time to time on the Control Panel, the SaaS Solutions or Cloudmatika’s web site, that is always the responsibility for the Client to check at regular intervals and in any case before using the Control Panel or the SaaS Solutions.

Article 4. Service Order Placement

The Client hereby acknowledges and accepts to be legally bound without limitations by any action performed on the Control Panel and the SaaS Solutions by it or by any Client Staff using valid credentials, including without limitation (i) any Order, (ii) any use of the SaaS Solutions or the Control Panel giving rise to the payment of Fees and (iii) the acceptance of SaaS Solution Terms, the Terms and Conditions and any other contractual terms or new version thereof as may be posted on the Control Panel or the SaaS Solutions from time to time.

Orders shall be placed directly through the Control Panel by the Client or by Cloudmatika on behalf of the Client.

Cloudmatika can decide in its sole discretion to reject Orders until all Client’s obligations have been performed and shall inform the Client accordingly. For example without limitation, Cloudmatika can refuse or delay the execution of any Order if all Fees due have not been paid by the Client. Cloudmatika will not accept any liability arising in relation of the consequences of such refusal or delay, nor shall it provide any motivation for such decision nor any compensation to the Client.

An Order shall be considered definitive upon its confirmation using valid credentials on the Control Panel.

 

Article 5. Term

The Agreement is valid for [one (1) calendar year] upon execution (the Term) starting from the date of execution. Unless terminated as stipulated in article 6 of this Agreement, the Agreement will be automatically renewed for additional periods of one (1) year.

 

Article 6. Termination of the Agreement

6.1     Termination for cause:

The Agreement may be terminated before the Term or the expiry of the then current renewal period at any time after one (1) calendar month of the date of written notice of termination, automatically, without recourse to the courts and without compensation due by the terminating Party to the other Party:

  • by either Party if the other Party repeatedly engages in any conduct prejudicial to the business or business interests of the terminating Party;
  • by either Party if the other Party is in material breach of its obligations under the Agreement and the defaulting Party has not cured such breach;
  • by Cloudmatika, if the Client does not pay the Fees or other costs due;
  • by either Party if the other Party becomes insolvent and goes into liquidation or similar procedure Term;
  • by the Client in case of unilateral change of the Agreement (including the Fees); in this case, (a) the notice of termination shall be send by the Client no later then five (5) calendar days after the notification of the unilateral change of the Agreement through the Control Panel, and (b) such change shall not enter into force until the effective termination of the Agreement.

6.2     Termination without cause

Either Party may terminate the Agreement by giving to the other Party [two (2) calendar months] written notice of termination before the expiry of the Term or any renewal term and without justification.

In case of termination by the Client before the expiry of the Term or any renewal term, the latter shall pay to Cloudmatika an early-termination Fee as set out in the tariffs available on the Control Panel.

6.3     Termination procedure

Any notice of termination shall be made through the Control Panel or any other procedure indicated on the Control Panel or Cloudmatika’s web site.

6.4     Effect of the Termination

From the date the termination becomes effective, the Client also undertakes to refrain from using the Control Panel, the SaaS Solutions, the Infrastructure, the credentials as well as any other property or right belonging to or granted by Cloudmatika, including but not limited to Cloudmatika’s or the Providers’ Intellectual Property.

Cloudmatika shall be entitled to delete all data belonging or relating to the Client two (2) calendar months after the date of effective termination, unless the Client subscribes to a payable data migration service (to the extent such data migration service is available for the corresponding SaaS Solution) as available through the Control Panel, subject to the payment of the corresponding Fee.

The Client should verify the existence and conditions of provision of a data migration service for a particular SaaS Solution before subscribing or placing any Order for this SaaS Solution. Cloudmatika will not accept any liability arising out of the absence of such data migration service, or the Client refusing the terms or Fees associated therewith.

Cloudmatika will not accept any liability arising out of the direct or indirect consequences of the destruction of data made in application of this article.

 

Article 7. Intellectual Property

7.1     Supplier’s and Providers’ Intellectual Property rights

Subject to the payment by the Client of the corresponding Fees, the Client will be licensed to use the Control Panel and the relevant SaaS Solution for the duration and in the conditions detailed in the applicable SaaS Solutions Terms. Such license is personal to the Client, non-transferable and strictly limited to the Client’s personal use. This Agreement shall not constitute or be deemed to constitute an assignment of any Intellectual Property owned by Cloudmatika or Cloudmatika’s Staff to the Client.

In particular, the Client will not (a) register, reproduce, sublicense, distribute or dispose of any of Cloudmatika’s or Cloudmatika’s Staff’s Intellectual Property except as specifically provided for in this Agreement; (b) alter, create derivative works of, edit, modify or revise such Intellectual Property except as expressly set forth herein; (c) reverse engineer, reverse compile, decompile or disassemble such Intellectual Property in whole or in part to the extent permissible under applicable law; (d) rent, lease, loan, electronically transfer or otherwise make available such Intellectual Property to a third party; nor (e) permit any other person or entity, including Client Staff or Affiliated Companies to do any of the foregoing.

7.2     Client’s Intellectual Property rights

Any Intellectual Property right of the Client made available to Cloudmatika and/or Cloudmatika’s Staff whilst using the Control Panel, the SaaS Solutions or otherwise in the context of this Agreement will remain the exclusive property and responsibility of the Client [without prejudice to the right for Cloudmatika to retain these items as an accessory and insofar as necessary to obtain the payments of any Fees due hereunder (droit de rétention)].

For the sole purpose of the performance of this Agreement, the Client hereby grants to Cloudmatika and Cloudmatika’s Staff a non-exclusive and non-transferable (except for Cloudmatika’s and/or Cloudmatika’s Staff’s sub-contractors) free-of-charge license to use, process and store the items subject to such Intellectual Property rights for the entire world and for the term of the Agreement, increased by the delay necessary to return the Client’s data or as necessary to perform data migration operations requested by the Client. The Client will indemnify and hold Cloudmatika and Cloudmatika’s Staff harmless (including attorneys’ fees) against any claims, proceedings or actions based on an alleged infringement of a third party’s Intellectual Property or other rights.

 

Article 8. Evolution of the Offering

Cloudmatika retains the right to make changes to the selection of SaaS Solutions offered without prior notice. Said changes shall apply only to Orders passed as from the notification of the change through the Control Panel.

Up-to-date information pertaining to the SaaS Solutions will be made available from time to time through the Control Panel.

Neither Cloudmatika nor Cloudmatika’s Staff will be liable for consequences arising out of changes due to legal obligations or due to modifications, delays, interruptions or cessations of any Provider service. The Client cannot claim any compensation for such change or termination.

 

Article 9. Fees, Invoicing, Payment

9.1     Fees

The Client agrees to pay the Fees corresponding to its use of the SaaS Solution and the Orders.

Unless otherwise specified, all tariffs are indicated in Rupiah (IDR), and are exclusive of VAT and any other applicable taxes. VAT, applicable taxes and all money transfer costs shall be paid by the Client.

Cloudmatika reserves the right to adapt the Fees [for new Orders] from time to time, subject to prior notice to the Client through the Control Panel. [The new Fees shall apply from the date mentioned in the notification of the change posted on the Control Panel without prejudice to the right for the Client to terminate the Agreement pursuant to article 6. Changes in the Fees will not affect Orders placed prior to the date on which the change becomes effective.] Any new Order passed after the effective date of the change will be considered as an acceptance of the new tariffs by the Client.

9.2     Invoicing

Unless otherwise agreed by the Parties, Cloudmatika will invoice the Client on a monthly basis, on the last Supplier’s local working day of each month (the Invoicing Day). On the Invoicing Day, the Client will be charged for the SaaS Solutions the Client Ordered [or used] during the calendar month preceding the Invoicing Day.

Cloudmatika’s obligation with respect to any invoicing errors resulting in overpayments by the Client for the SaaS Solutions received is limited to granting invoice credits equal to the amounts erroneously billed. Under no circumstance will any invoicing error affect the Client’s obligation to pay for the SaaS Solutions Ordered [or used].

All invoices are provided automatically and electronically by email. Any other form of invoice (e.g. by postal mail, with physical signature, Materai etc) can be provided on request and is subject to an administrative charge.

9.3     Payment

The amount of SaaS Solutions that may be Ordered by the Client without prepayment may be limited to the sum specified in the Control Panel or Cloudmatika’s web site .

Invoices issued by Cloudmatika must be paid by the Client within ten (10) calendar days following the Invoicing Day.

Payment of Cloudmatika invoices shall be made by wire transfer, credit card or any other means available or mentioned on the Control Panel or Cloudmatika’s web site.

Each payment shall be first applied to settle the oldest outstanding invoice and avoid therefore the application of accrued interest and charges for late payment.

Any invoice or amount not paid upon falling due shall be subject, without formal notice, to

interest charges amounting to 10 percent of unpaid amounts per year, until the outstanding amount is paid in full.

Additionally Cloudmatika shall be entitled without formal notice to (a) invoice administrative costs amounting up to two-hundred-thousand rupiah (IDR 200.000) per overdue invoice and (b) suspend the relevant SaaS Solutions and/or (c) terminate the Agreement pursuant to article 6, without reimbursement of all sums already paid, even in advance.

 

Article 10. Services Suspension

10.1  Causes for suspension

Cloudmatika shall be entitled to suspend the SaaS Solutions, in whole or in part, immediately after notifying the Client by any means Cloudmatika will deem appropriate:

  • in order to comply with any legal or regulatory obligation, or request or order from law enforcement or a competent judicial, governmental, supervisory or regulatory body;
  • if Cloudmatika has reasonable grounds to suspect that the Client or a Client Staff acts fraudulently, unlawfully, in a criminal way or in a way which could prejudice Cloudmatika, Cloudmatika’s Staff or any third party;
  • in case of violation by the Client of any contractual, legal, regulatory, statutory or administrative obligation;
  • in case of force majeure, as defined in article 14 hereafter;
  • at any time in Cloudmatika’s sole discretion, if the Client has not paid any due invoice or Fee;
  • if Cloudmatika is informed by the Client that credentials have been compromised, or has reason to believe that credentials are used fraudulently;
  • for specific Client Staff or Credentials Owners at the Client’s request, to the extent technically possible;
  • if Cloudmatika establishes or has reasonable doubts that (i) the Client impairs or endangers the operational availability of the Control Panel, the Infrastructure or the SaaS Solutions, (ii) such action is necessary to prevent or protect against fraud, tricks, tampering, schemes, false or invalid numbers, false credit devices, electronic devices, or any other fraudulent means or devices, (iii) such action is necessary to protect Cloudmatika or Cloudmatika’s Staff against actual or potential adverse financial effects;
  • if the Client fails or refuses to provide information, or provides false information, regarding the Client’s creditworthiness, its past or current use of the Control Panel or SaaS Solutions, the jurisdictional nature or characteristics pertaining to its use or planned use of the Control Panel or SaaS Solutions;
  • if the Client’s use of CPU, disk space, bandwidth or other resources results in or presents the risk of degradation of the Infrastructure, the Control Panel, the SaaS Solutions to other clients;
  • where necessary for the Control Panel’s, the Infrastructure’s or the SaaS Solutions’ maintenance. If such maintenance is reasonably foreseeable, the Client will be informed about the outstanding actions by any means Cloudmatika will deem appropriate.
  • If reasonably possible before the suspension, the Client will be informed about the suspension and its reasons.
  • Cloudmatika will make its best efforts to limit the suspension period in cases where the Client is not responsible for this suspension.

10.2  Consequences of suspension

In case of suspension for any of the causes mentioned in this article 10 neither Cloudmatika nor Cloudmatika’s Staff will be liable for any direct, indirect, special, incidental, or consequential damages of any kind (including but not limited to lost profits, loss of chance, or costs incurred to limit any damage sustained) suffered by the Client, directly or indirectly as a consequence of such suspension.

The suspension pursuant to article 10 does not relieve the Client of its obligation to pay Cloudmatika for the SaaS Solutions provided, or Orders passed, before the suspension.

 

Article 11. Indemnification

The Client agrees to defend, indemnify and hold Cloudmatika and  Cloudmatika’s Staff harmless from any claims, losses, damages, causes of action, liabilities and expenses (including attorneys and other legal or professionals’ fees) directly or indirectly related to or arising out of acts or omissions of the Client or Client Staff or and/or breach of any of the representations and warranties hereunder.

 

Article 12. Relationship between the Parties

Cloudmatika is an independent contractor. Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall create or be construed as creating any agency, resellership, association, joint venture or other form of joint enterprise between Cloudmatika and the Client.

The Client will not be entitled to take any action in the name and/or on behalf of Cloudmatika and more generally any action that may bind Cloudmatika without Cloudmatika’s prior and express written consent.

The Client acknowledges that Cloudmatika will subcontract the provision of the Infrastructure, of the SaaS Solutions and/or other services to Supplier’s Staff. The Client hereby expressly accepts and warrants that its only co-contractor is Cloudmatika and that the Client will only be entitled to claim remedy from Cloudmatika and not directly from Cloudmatika’s Staff .

 

Article 13. Non-exclusive character

This Agreement is concluded on a non-exclusive basis. Cloudmatika shall therefore be entitled to sell the SaaS Solutions to any third party including but not limited to other customers which may be competitors of the Client.

 

Article 14. Force Majeure

Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, breakdown of communications, labour strike, lockout, or boycott, provided that the Party relying upon this section, (i) shall have given the other Party written notice thereof promptly and, in any event, within ten (10) calendar days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this article extends for a period in excess of one (1) calendar month, either Party may immediately terminate this Agreement.

 

Article 15. Severability

Should any term or provision of this Agreement be declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the Parties, and the remaining terms and provisions will remain in full force and effect.

 

Article 16. Waiver

Failure from either Party to require performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

 

Article 17. Amending the Agreement

Due to the nature of the services provided hereunder, both Parties agree that the Agreement, the SaaS Solution Terms and the Provider Terms and Conditions need to have an easy evolution process. To that end, the Parties agree to the possibility to update these terms from time to time. Any such update will be brought to the attention of the Client, who will accept them online, without prejudice to the right for the Client to terminate this Agreement in accordance with article 6.

 

Article 18. Personal Data

The Client hereby expressly represents and warrants to be and remain compliant with any and all data protection legislation applicable to the use of the SaaS Solutions.

During the term of this Agreement and whilst providing the SaaS Solutions or otherwise performing its obligations under this Agreement, Cloudmatika may act as a processor to the Client (within the meaning of Indonesian Government Law  Number 82 Year 2012, as it may be amended, restated or replaced) in the context of the processing of personal data belonging to the Client (acting in a capacity as controller or processor to a third party, within the meaning of the same text). To this extent, Cloudmatika hereby undertakes to:

  • process such personal data only insofar as required for the performance of this Agreement (including legitimate rights granted to Cloudmatika hereunder), or as required for the performance of any order placed by the Client pursuant to the Agreement, or otherwise in accordance with instructions given by the Client from time to time; and
  • implement appropriate technical and organizational measures so as to ensure the protection of such personal data against accidental or unlawful destruction or accidental loss, falsification, unauthorized dissemination or access and against all other unlawful forms of processing. The Client acknowledges that the security measures detailed in the Control Panel or the relevant SaaS Solution Terms are sufficient in this respect, taking into account the degree of sensitivity of the relevant personal data.

The Client hereby expressly instructs and allows Cloudmatika to subcontract to Cloudmatika’s Staff, and hereby expressly instructs and allows Cloudmatika’s Staff to sub-subcontract, in whole or in part the abovementioned acts of processing of personal data to third parties.

 

Article 19. LIMITATION OF LIABILITY

Cloudmatika WILL NOT BE LIABLE FOR ANY (a) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO CLOUDMATIKA’S WEB SITE(S), THE CONTROL PANEL OR THE SAAS SOLUTIONS; (b) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR ALTERATION; OR (c) EVENTS BEYOND THEIR REASONABLE CONTROL. ALSO, CLOUDMATIKA WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF CHANCE, OR COSTS INCURRED TO LIMIT ANY DAMAGE SUSTAINED) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, OR OTHERWISE, EVEN IF THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHERE CERTAIN JURISDICTIONS DO NOT ALLOW SUCH EXCLUSION OR LIMITATION OF LIABILITY, LIABILITY WILL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY HEREUNDER EXCEED AMOUNTS PAID BY THE CLIENT OVER THE PAST TWELVE (12) MONTHS.

THE CLIENT IS SOLELY RESPONSIBLE FOR MAINTAINING BACK-UP COPIES OF THE DATA IT POSTS ON, IT HAS PROCESSED OR OBTAINED THROUGH THE CONTROL PANEL OR THE SAAS SOLUTIONS. CLOUDMATIKA BEARS NO RESPONSIBILITY FOR ANY LOSS OR ALTERATION OF SUCH DATA NOR ANY LOSS OR DAMAGE RESULTING DIRECTLY OR INDIRECTLY THEREFROM.

THE CLIENT EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT IT WILL ONLY BE ENTITLED TO CLAIM REMEDY FROM CLOUDMATIKA AND NOT DIRECTLY FROM CLOUDMATIKA’S STAFF OR ANY OTHER PROVIDER OF CLOUDMATIKA. ONLY CLOUDMATIKA WILL BE ENTITLED TO ACT AGAINST CLOUDMATIKA’S STAFF OR ANY OTHER PROVIDER IN RELATION TO THE FAILURE BY THE LATTER.

 

Article 20. No Warranty

The Control Panel and SaaS Solutions are provided to the Client on an “as is” and “as available” basis, that is, (i) with the technical or legal limitations detailed in or resulting from the Agreement, the SaaS Solution Terms, the Terms and Conditions and any other terms as may be available from time to time on the Control Panel or Cloudmatika’s web site, as may be amended from time to time, and (ii) without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.

Any material and/or data downloaded or otherwise obtained through the use of the Control Panel or the SaaS Solutions is done at the discretion and risk of the Client and the latter will be solely responsible for any damage to their computer system or loss of data that results from such use, the download or upload of such material and/or data. Cloudmatika makes no warranty regarding any transactions entered into through the Control Panel. No advice or information, whether oral or written, obtained by the Client from Cloudmatika or Cloudmatika’s Staff will create any warranty not expressly made herein.

 

Article 21.Notice

By way of principle, any communication between the Parties shall be made through the Control Panel or, where stated in the Agreement, Cloudmatika’s web site. Any e-mail, facsimile or other means of communication exchanged between the Parties shall only serve as a reminder, the Control Panel remaining the only official source of information.

 

Article 22. Assignment

Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent. Any attempt to assign, lease or transfer this Agreement without such consent will be null and void and may result in this Agreement being terminated, without prejudice to other remedy available under this Agreement or applicable law. In the event of a sale of substantially all the assets of the Client, or a merger or an acquisition of the Client, Cloudmatika reserves the right to terminate this Agreement at its sole discretion and without compensation to the Client.

 

Article 23. Applicable Law

The Agreement is subject to the laws of Indonesia. The Client agrees that if the Agreement does not specify otherwise, and if the parties do not find an amicable solution within ten (10) Working days of receipt of a formal notice, any dispute arising in context of the Agreement shall be dealt with by the relevant courts of Indonesia.

Specific Terms and Conditions

Context

User shall comply with PT Awan Solusi Informatika’s (Cloudmatika) then current Specific Terms & Conditions (“STC”), as amended, modified or updated from time to time by Cloudmatika, and other Terms and Conditions (collectively called “Terms”) which currently can be viewed under the Terms of Service section of the Cloudmatika Web site. User hereby acknowledges that it has reviewed and understood the Terms. In the event of any inconsistencies between the STC and other Terms and Conditions the STC shall govern.

Privacy

User hereby grants to Cloudmatika a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services, except that with respect to personal information included in the User Content, such license shall be limited to allowing Cloudmatika to use Personal Information in accordance with its Privacy Policy:

digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the User Content; and

Except for the rights expressly granted above, Cloudmatika is not acquiring any right, title or interest in or to the User Content, all of which shall remain solely with User.

Data availability

End User data and Service data will be stored in Indonesia in tire 3 Datacenters.

Grace period

The grace period starts after the service subscription has come to end and no renewal order has been placed. During the grace period, which has duration of 30 days, the service stays fully active. User data is accessible and can be processed.

Hold period

The hold period starts after the grace period. During the hold period, which has duration of 30 days, the service is put on hold. User data cannot be accessed or processed anymore. The User has however the possibility to request a payable data migration service from Cloudmatika.

Data deletion

The service and the user content will definitely be destroyed at the end of the hold period.

Data portability / data format

Authorized users can move or export their data from a Cloudmatika database or repository to one of their choice. Data can be moved out via the FTP protocol, or downloaded via the http protocol.

Backups

User is solely responsible for making back-up copies of User Content. Cloudmatika does not maintain backup copies of User Content. Cloudmatika cannot guarantee that User content will never be deleted or corrupted. Users should always copy all content to a local computer and Cloudmatika strongly suggest that Users make an additional copy (on tape, CD, another desktop, or elsewhere) to ensure the availability of the files. IT IS THE USER’S SOLE RESPONSIBILITY TO MAKE OFFLINE, BACK-UP COPIES OF THE USER CONTENT AND DATA. NOTE: IT IS ESSENTIAL THAT USERS BACKUP FILES OFFLINE.

The user is responsible for maintaining complete backups for any files, content, software, or other items stored from time to time in a VPS account or VPS container. Cloudmatika does not maintain such back-ups.

As part of Cloudmatika’s ongoing hosting, Cloudmatika does create and store on a temporary basis VPS backups which are intended for Cloudmatika’s disaster recovery only which are typically available only in the event of hardware failure, and only for a short period thereafter. Cloudmatika cannot guarantee the existence, accuracy or completeness of any backups. Please note that typically a complete restoration will overwrite anything stored in your account.

 

Additional Terms of Use

Terms and conditions of associated operating systems

Cloudmatika services use different operating system (OS) for the management of the computer hardware resources and the provisioning of common services for application software. The Terms and Conditions of the different OS are considered as “Specific Terms of Use” and are part of the Agreement.

Terms and conditions of associated software

Cloudmatika services possibly consist of one or more associated computer programs that are subjected to different Terms and Conditions. The Terms and Conditions of any associated program are considered as “Specific Terms of Use” and are part of the Agreement.

 

IaaS – Service Level Agreement

Definitions

“Customer” refers to the organization that has purchased the service for its use.
“Incident” means (i) any single event, or (ii) any set of events, that give rise to Service Outages (as defined below).

Cloudmatika Control Panel or CCP means an enterprise platform made available by Cloudmatika to the Customer through which (a) Services may be ordered using dedicated credentials (b) the Customer may monitor the status of the orders (c) incidents can be reported and status of reported incidents can be accessed. The use of the CCP requires a prior registration and the creation of accounts with personalized credentials and privileges.

Maintenance measures” means measures that ensure, amongst others:

  • the optimization of the Provisioning Services provided by Cloudmatika;
  • the enhancement of the production volume of the Cloudmatika platform;
  • the reinforcement of safety and the stability of the Provisioning Services provided by Cloudmatika.

The maintenance measures include in consequence any action related to the patch management and/or software upgrading.

“Maintenance window” is a scheduled time period designated in advance by Cloudmatika, during which preventative maintenance may be performed and could cause service outages.

“Minimum Monthly Uptime”:

“Office Hours” means: Monday to Friday from 8 AM to 5 PM WIB, excluding Indonesia public holidays.

“Service” refers to the Cloud Infrastructure Solution provided to Customer.

Response time” means the time within which Cloudmatika will start to work on resolving the reported issue.

“Scheduled Downtime” means those service outages that arise out of maintenance measures and that have been announced in a timely manner.

“Service Level” means the performance that Cloudmatika agrees to meet, as set forth in this SLA.

“Service Outage” means the minutes during which the Service was not available, excluding (i) Scheduled Downtime; and (ii) any unavailability due to circumstances described in Section “Limitations” hereof.

Introduction

The purpose of this SLA is to provide a clear understanding of the quality of Service offered by Cloudmatika to the Customer. The Service may consist of one or more third party software components, in which case the Terms and Conditions of the specific vendor, which are listed in the appropriate section of the “Specific Terms and Conditions”, will apply.

1.   Uptime Service Levels

We provide our Customers a financial backing to our commitment on our Service availability. If we do not achieve the Service Levels as described in this SLA, then the Channel Partner may be eligible for a credit towards a portion of the Service fee invoiced by Cloudmatika.

 

Monthly Uptime PercentageService Credit
<100%25%
<99.5%50%
<99%100%

 

All support levels include 24/7 system monitoring and service recovery.

Cloudmatika may have to fix unexpected security vulnerabilities and other bugs, and/or to take action in order to improve the usability or performance of the service. Those actions might provoke unexpected service unavailability.

Cloudmatika will notify the User of potential suspensions within a reasonable prior delay. Additionally, Cloudmatika shall make its best efforts to limit the suspension period.

If Cloudmatika takes any action described under this section, User shall not be entitled to a refund of any fees paid in advance prior to such action.

2.   Support level Guarantee

  • Targeted Support Ticket Response times

The table below outlines the targeted response time for requests introduced via the TTS:

Within Office hoursOutside office hours
8 hours16 hours

3.   Enhanced SLA

Customers can request an enhanced SLA on the applications made available. The enhanced SLA on the applications will have to be negotiated case by case and may cover the following topics:

  • Rapid response service
  • Guaranteed Response times on requests/tickets
  • Guaranteed Uptimes on the application
  • Data Centre Uptimes
  • System Monitoring & Network security
  • Service downtime notification

Limitations

This SLA and any applicable Service Level do not apply to any performance or availability issues:

  1. Due to factors outside of Cloudmatika’s control;
  2. That result from the the Customer’s or third party hardware or software;
  3. Resulting from the Customer’s usage errors;
  4. Occurring during pre-release, beta and trial Services (as determined by us);
  5. That result from unauthorized actions or ignored action requirements set forth by Cloudmatika;
  6. That result from the Customer’s failure to respond to Cloudmatika’s queries, to adhere to any required configurations, and follow any policies for acceptable use.

Credit notes are the Customers sole and exclusive remedy for any performance or availability issues with the Service. The Customer may not unilaterally offset any service fee invoiced by Cloudmatika as a compensation for any performance or availability issue.

The treatment of questions, requests and change requests do not come under the scope of this agreement and is always subject to assessment as to whether professional services costs will be charged. In such cases, an offer clearly detailing the work and charges will be proposed.

SLA Updates

We will not modify the terms of your SLA during the initial term. However, if you renew your service order, then the version of the SLA that is current at the time of renewal will apply for your renewal term.

Service Credit Claim

If Cloudmatika does not meet the agreed service uptime and/or any other guarantee, Customer may qualify for a Service Credit provided that

  • they are able to substantiate their claim of any impact stemming from a service failure;

For that purpose, the Customer must submit a Service Credit Claim as annexed to this SLA before the end of the following two Calendar Month in which the Incident(s) occurred.

Cloudmatika will evaluate the submitted information and make a good faith judgment on whether a Service Credit is owed. Cloudmatika will use commercially reasonable efforts to process claims within forty five (45) days of receipt.

Please note that Cloudmatika will only consider Service Credit Claims filed by Customers that are fully compliant to their Agreement and follow applicable policies for acceptable use available on the CCP.

Service Credits owed will be applied against outstanding Service Fees.

Annexe 1: Service Credit Claim Form

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