Service Supply Contract

What you need to know before using our services

Preamble

The following Service Supply Agreement (hereinafter referred to as “TOS”, “TERMS”, “AGREEMENT”) applies when You (hereinafter referred to as “CUSTOMER”, “BENEFICIARY”, “YOUR”, “YOU”, “YOUR”, “YOU”, “YOUR”) use our Website (hereinafter referred to as “WEBSITE”, “CUSTOMER ACCOUNT”), respectively when you Order any of the services provided or options available in the commercial offer of SUN WARE SRL (hereinafter referred to as “SUNWARE”, “WE”, “US”, “OURS”, “SUPPLIER”, “OURS”). Together (“SUNWARE” and “CLIENT”) we are referred to as the “PARTIES”. SUNWARE is a trademark of SUN WARE SRL, and the purchase of a product or service does not grant you any right of use or disposition of the trademark.

Definitions

Unless otherwise defined in this TOS, the following terms are defined as follows:

“Contract” - means the terms of provision of services and all the policies/conditions published on our website in the Legal Terms section which are completed by the Order sent by you for the purchase of services, respectively the emails sent as a result of the order.
“Order” - means any purchase order made by the Client for services found in the SUNWARE offer.
“Site”- refers to the SUNWARE website, both the public website available at the web address www.sunware.ro
“Services” - means any of the services provided by SUNWARE.
“Ticket” - refers to any support request transmitted via email, chat or Client Account.
“AUP” - Terms of Acceptable Use of the contracted Services which constitute an integral part of this contract.
“SLA” - Quality Commitment of the Contracted Services which forms an integral part of this contract.
“ESP” - Email Sending Policy which forms an integral part of this contract.
“PDP” - Personal Data Protection Policy which forms an integral part of this contract.
“CTP” - Contract Termination Policy for Services or Contracts at SUNWARE which is an integral part of this contract.

Clarifications

These terms represent the Contract with SUNWARE which must be accepted before ordering any service from the SUNWARE Website. Any order confirmed by the Client by ticking the box “YES, I agree and declare on my own responsibility that I have read the Legal Terms” and by clicking the “Submit Order” button represents an acceptance by the Client of the SUNWARE offer and of these Terms, under the conditions stipulated by art. 9 of the Law 365/2002 on electronic commerce. Pressing the “Send Order” button represents an electronic signature, in the meaning of art. 4, point 3 of the Law on electronic signature no. 455/2001, having the same value as a handwritten signature.

The technical steps for concluding the Contract involve selecting the desired Service, filling in the order form, reading and accepting the Legal Terms and clicking the “Submit Order” button.

PARTIES TO THE CONTRACT

The Parties to this Contract are:

S.C. SUN WARE SRL with registered office in Hunedoara, Hunedoara County, is registered at the Trade Register Office, under number J20/477/2006 with Fiscal Code RO 18532949 with Headquarters in Hunedoara, Str. Zmbilelor nr.7, bl. 50 sc. A et. 3 ap. 10, represented by Mr. Popa Alexandru Cristian as Administrator as Supplier, and
The legal entity or natural person identified by the data entered in the order form, information that is included in the first invoice received as Beneficiary. The invoice becomes an integral part of this contract.

The beneficiary guarantees that the data entered in the order form are correct and that they are in accordance with reality. By filling in the order form you declare on your own responsibility that you are a natural person over 18 years of age; if you represent a legal person, by filling in the order form you declare on your own responsibility that you have full authority and competence to conclude and sign this contract and to perform the obligations arising from it. In the event that the data entered contains errors, these can be corrected by accessing the customer account using the access data sent by Us after the first order or by resetting the password which can be done using the specific form on the Site. The data can be modified by sending to SUNWARE to the attention of the legal department at [email protected] the necessary documents guaranteeing the identification of the Beneficiary. The filling in of false or incorrect data by the Beneficiary may lead to the suspension or termination, as of right, without notice and without fulfilling any other formalities, of this Contract and/or the Services that are the object of the Contract. The Beneficiary shall also be liable for the actions of its own employees or third parties using the login or access data made available to it by the Provider, which data comes into the possession of the Beneficiary’s employees or third parties through the Beneficiary.

SUBJECT MATTER OF THE CONTRACT

Through this Contract, the Supplier undertakes to make available to the Beneficiary the following services, which are evidenced in the invoices issued by SUNWARE to the Beneficiary, as follows:

Register, transfer or extend the validity of domain names;
Website(s) hosting services;
Renting virtualized servers or dedicated resources;
Selling SSL certificates.

The Supplier undertakes to provide technical assistance for the contracted Services. However, there may be situations in which the resolution of a certain situation does not fall within the limits of competence assumed by SUNWARE.

VALUE OF SERVICES

SUNWARE will issue proforma invoices on the basis of which the Beneficiary must pay the value of the contracted Services in advanced. The only exceptions are:

public institutions subject to the provisions of Law no. 98/2006 on public procurement, for which invoices will be issued after the finalization of the procurement procedures through the SICAP system.
beneficiary of customized projects and, or custom solutions environment for which hourly rates are applicable, depending on the contracted services, and hours worked, respectively assistance and support.

The billing period is chosen by you in the order form or the offer of services. This can be changed by a written request addressed to the Payments department by sending a Ticket. The billing period can only be changed via Tickets for hosting or server rental services and only if the contract is active.

The prices of the Services provided by SUNWARE can be displayed on the Website in Lei and, or in Euro and do not include VAT. In the case of prices in Euro, the conversion is made on the day of the invoice at a fixed exchange rate. The exchange rate is displayed on our Website as well as on the invoice.

TERMS OF PAYMENT

SUNWARE will issue the first proforma invoice immediately, automatically, right after the signing of the Contract or on the first calendar day of following month. Subsequently, 14 calendar days before the expiration of the initial period contracted by the Client or on the first calendar day of the mont, the Supplier will automatically issue proforma invoices for the extension of the Contract according to the invoicing period chosen by the Client. Payment of the value of the Contracted Service becomes due 14 calendar days after the Supplier issues the proforma invoice, i.e. at the expiry of the initial contracted period. The proforma invoice will be sent to the e-mail address associated with the Customer Account, for which reason the Customer is solely responsible for ensuring that he has declared a valid e-mail address, over which he has full right of disposal.

The customer can pay these proforma invoices by Bank Transfer.

DATE ON WHICH THE SERVICE STARTS

SUNWARE is obliged to activate the Services covered by this Contract within 2 business days after the Beneficiary’s payment registration unless otherwise agreed in writing. Payment registration implies for payments made Offline (by bank transfer, cash deposit) its confirmation by our bank and manual processing by a SUNWARE representative.

Manual processing of payments made Offline, is done exclusively from Monday through Friday between 09.00 - 17.00.

The starting date of the provision of the contracted Service is the date on which SUNWARE makes available to the Client by email or in the Client Account the access information or the information necessary for the Client to use the Service.

RETURN OF AMOUNTS PAID

All valid payments made by the Client are non-refundable. Payments made in advance will not be refunded even in the event of early termination of the contracted Services.

WITHDRAWAL OF CONTRACTED SERVICES

The Beneficiary understands and agrees that failure to confirm payment by the due date of the Contract will result in suspension of the Service. SUNWARE will send a notification by e-mail to the correspondence address associated to the Client Account 24 hours before the moment of suspension.

The Beneficiary understands and agrees that the service will be reactivated only after full payment of the invoice has been registered in the system.

The Beneficiary understands and agrees that if the payment for the contracted Service according to the issued proforma is not registered in the system within 30 calendar days after the expiration of the last paid period, the contract will enter into automatic termination procedure. From the moment the contract is in the automatic termination procedure all the data stored on the Provider’s servers will enter the deletion procedure.

This contract shall terminate automatically at the end of the initial contracted period if the Beneficiary does not agree to pay the proforma invoice for the extension of the services. The Contract may be terminated by agreement of the parties, prior to the expiry of the term of the Contract.

SUNWARE may cease/suspend the provision of the Service contracted by the Beneficiary on its own initiative, without any delay and without any other formalities or prior notice, in the event that:

The Beneficiary has not complied with or has breached this Contract, the PUA or the ESP.
The Beneficiary fails to comply with its obligation to pay the amounts due under this contract within 30 calendar days of the date on which they fell due.
The Beneficiary did not provide real information at the time of completing the order, or changed it to fictitious data later through the Customer Account.
The beneficiary is engaged in illegal, fraudulent or any other type of activities that fall within the scope of the law.
The Beneficiary or a representative of the Beneficiary, an employee, a partner (natural or legal person) or an employee/representative of a partner is involved in personal name or as a legal representative in activities that may damage the rights or reputation of SUNWARE, or of a third party.

In addition to the terms mentioned above The Parties may terminate this Contract if:

Either party fails to comply with the terms and conditions of this Contract and does not take all necessary steps to remedy the situation within 30 calendar days of receiving notice from the other party, except in the case of failure to fulfill the payment obligation and failure to fulfill the obligation for 5 calendar days from the moment of the notice received from SUNWARE.
The other party is declared bankrupt and the judicial winding-up action is started, if the procedure has not been withdrawn/terminated within 60 days from the beginning.

In case a national or international authority brings solid arguments incriminating the activity of the Beneficiary, SUNWARE may suspend the Service without any further obligations.

In case of breach of the terms of this Contract by the Beneficiary, SUNWARE will keep, as damages, any amount paid in advance by the Beneficiary and will not be obliged to refund the value of the Services not performed to the Beneficiary.

PRIVACY

SUNWARE will use its best efforts to maintain the confidentiality of the Beneficiary’s data stored or transferred through it. The administration of the Services contracted with SUNWARE is realized through an application called Client Account. After signing this Contract, the Client will automatically receive from SUNWARE, at the e-mail address filled in the order form, a password, a numeric or alphanumeric code necessary for authentication in the Client Account.

The Customer is responsible for maintaining the security of the Customer Account and authentication data. The Customer is fully responsible for the activities that take place on his/her account and any actions in connection with the contracted Service.

The Client is fully responsible for the actions of the partners (legal representatives or their employees) engaged in the realization/maintenance and/or promotion of the contracted Service.

You agree to notify SUNWARE of any unauthorized access or other security breaches. SUNWARE assumes no responsibility for any loss or damage that is beyond the Client’s ability to remedy. You acknowledge and agree that in no event shall Provider be liable in any way whatsoever for any acts or omissions of Client or users of the Service resources to which You provide access, including any damages of any kind incurred by them due to any acts or omissions. In the event that any sums of money will have to be paid by way of damages or fines and other amounts, the Client will be obligated to pay such sums of money, and not SUNWARE.

SUNWARE does not check the content uploaded, stored or transferred by the Beneficiary or any other third party and consequently cannot be held responsible in any way for this content. However, in the event that SUNWARE is notified by a competent authority in accordance with the relevant civil/criminal procedural provisions, SUNWARE may act swiftly to remove or block access to the content subject to the notification.

GENERAL TERMS OF HOSTING SERVICE, GUARANTEES

The hosting service refers to Hosting Contracts (Enduser, Reseller, Hosting), Virtualized Servers Rental (VPS Servers, Cloud Reseller, Shared Servers, Virtual Private Cloud and Virtualized Data Center), Dedicated Servers Rental, Customized Solutions Environment.

SUNWARE guarantees that the contracted Service will be delivered under normal operating conditions. Normal conditions are determined by measuring the uptime registered by the server serving the contracted Service. The measurement is carried out over the interval of a calendar month excluding maintenance periods announced in advance and / or situations of force majeure. All Services benefit from a 99.9% Uptime guarantee, unless otherwise specified.

Conditions, Guarantees and definition of force majeure situations are defined in the SLA document which is an integral part of this contract.

SUNWARE is not liable and is not responsible for the non-performance of the Service, for the degradation or any delay in its provision, which:

may be attributable in whole or in part to the actions or omissions of the Client, its employees, third parties employed by the Client or beneficiaries of its services;
that may occur during maintenance periods planned by SUNWARE;
are the result of force majeure situations;
occur as a consequence of the suspension of the service by the Supplier due to the non-payment by the Beneficiary of the Contract price.

Use of the Service is at Your own risk. The Service is provided on an “AS IS” basis. SUNWARE assumes no responsibility and makes no warranties of any kind, either express or implied, including, but not limited to, customary warranties of merchantability, fitness for a particular purpose. Any material downloaded or otherwise obtained through the use of the Service is done at Your own discretion and risk, and You are responsible for any damage to Your computer equipment or loss of data that results from the download of any material. The security mechanisms built into the Software have inherent/effective limitations and it is Your responsibility to identify Your exact requirements.

SUNWARE hereby does not warrant that:

The service exactly fits your requirements;
The service will run uninterrupted, secure and error-free;
The results obtained by using the Service will be error-free and reliable;
The quality of products, services, information or other materials purchased or obtained by You through the Service will meet Your expectations;
Any software errors will/can be corrected.

SUNWARE will use reasonable efforts to maintain the Service, however, SUNWARE cannot be liable for any damage, loss of data, loss of customer details or vendor details, revenue or other business interruption, loss of data, loss of revenue or other business damage due to delays, mis-transmission or non-transmission of information, due to restriction or interruption of access, bugs or other errors, unauthorized use due to shared access to the Service, or other interactions with the Service.

Upgrading to a higher subscription can be done at any time, according to the Provider’s technical possibility at that time and according to the rules established by this Contract or publicly displayed on the Website in the Frequently Asked Questions section. Switching to a lower subscription can be realized only for active accounts.

The Beneficiary is responsible for the maintenance and back-up of data and any information stored through the Service.

GENERAL TERMS OF SERVICE DOMAINS, GUARANTEES

The Beneficiary understands that SUNWARE provides only the intermediation of the domain name registration service. Registration of domain names is carried out in accordance with the terms and conditions of the specific domain name registry. The Beneficiary accepts the terms and conditions imposed by each Registry that are part of this Agreement, see ROTLD Rules, EURID Rules, NETIM Rules, ResellerClub rules, OPENSRS/ICANN Rules respectively. The Beneficiary understands that acceptance of these terms represents a Contract between him and the Registry, and SUNWARE is a third party to this Contract.

The Beneficiary assumes full responsibility for the data filled in the order form. Submission of the order form constitutes a guarantee to the Registry that the Beneficiary is entitled to use the requested domain name.

The Beneficiary will not involve SUNWARE or the Registry in any litigation or other damages arising from the use of the domain name. Acceptance of an order and registration of a domain name does not mean that SUNWARE or the Registry recognizes that the registrant has the legal right to use that domain name.

Domain names are registered by the Registry only after payment of the registration fee. SUNWARE will register the domain name only after registration of the payment from the Client. SUNWARE is not responsible for the possible registration of a domain name by a third party, in the interval between the filling in of the form and the registration of the effective payment.

SUNWARE can in no way guarantee the registration of domain names, but only takes the Client’s requests and forwards them to the Registry. Also, SUNWARE cannot guarantee the accuracy of the information provided by the Registry.

LIMITATION OF OBLIGATIONS

You understand and agree that SUNWARE, its affiliates or other partners, directors, shareholders or employees of SUNWARE shall not be liable for any direct, indirect, special, exemplary damages, including but not limited to damages for loss of future profits, goodwill, use, data or other intangible assets (even if you have advised SUNWARE of the possibility of such losses), resulting from: Your use of or inability to use the Service, errors, defects, omissions, delays in operations or transmissions or any other failure of the proper functioning of the Service or software; The cost of procurement of goods or services to replace those purchased or obtained through messages or transactions made through the Service; Unauthorized access to or alteration of Your transmissions or data; The representations and conduct of another party in relation to the Service; Any goods or services offered or sold through the Service. Any other matter relating to the Service or software.

APPLICABLE LAW

The law applicable to this Contract and the relationship between the Client and SUNWARE shall be governed by the laws of the Romanian State. This contract is concluded on the date of acceptance of its provisions by the Client, as specified in the first invoice issued by SUNWARE.

This Contract is completed with the information from the invoice sent to the Client by SUNWARE, including the Client’s identification data, the explanation of the services offered and the pricing, which is an integral part of this Contract.

In addition, the following become part of this contract as previously defined: AUP, SLA, ESP, PDP, ROTLD Rules, EURID Rules, NETIM Rules, ResellerClub Rules, OPENSRS/ICANN Rules.

If any provision of this Contract or other incorporated documents is proven by a competent institution to be null and void, the parties agree that this institution shall interpret the contractual clauses as closely as possible to their current form; the remaining contractual provisions shall remain in force.

THE RELATIONSHIP BETWEEN THE PARTIES

This Contract shall not establish any partnership, joint venture, employment or agency relationship between SUNWARE and the Beneficiary. Neither SUNWARE nor the Beneficiary shall have the power to bind the other party or create obligations for the other party without the prior written consent of the other party, except as expressly stated in this Contract.

SUNWARE and Client agree that, except as expressly written in this Agreement, there shall be no third party beneficiaries of this Agreement, such as insurance companies for any party or Client’s users, without limitation.

FINAL CLAUSE

The signatories of this contract confirm that it represents their entire will, the clauses being unanimously accepted, including the non-usual clauses in the meaning of art. 1203 Civil Code.

The Customer agrees that regardless of any other law or statute, any claim or dispute arising out of this Agreement or related to the use of the Services or the Agreement must be brought within one year from the date of the event giving rise to the claim or dispute, or the right of action shall be forfeited.

Any dispute arising out of or in connection with this Contract, including in relation to its conclusion, performance or termination, if it cannot be settled amicably, shall be settled by arbitration by the Commercial Arbitration Court attached to the Hunedoara Chamber of Commerce, in accordance with its Rules of Arbitration Procedure.

In the event that the Beneficiary is a public institution, this arbitration agreement shall take effect in accordance with Article 542 of the Code of Civil Procedure. The contract shall be deemed concluded in Hunedoara, Romania.

INTEGRAL PARTS OF THIS CONTRACT

“AUP” - Acceptable Use Policy of contracted Service which forms an integral part of this contract.

“SLA” - Commitment of quality of contracted services which is an integral part of this contract.

“ESP” - Email Sending Policy that are an integral part of this Agreement.

“PDP” - Personal Data Protection which forms an integral part of this contract.

“CTP” - Contract Termination Policy for Services or Contracts at SUNWARE which is an integral part of this contract.

Section titles in these terms are for convenience only and have no legal or contractual effect.