Terms & Conditions

Service Provision Contract Terms & Conditions

 1. DEFINITIONS

1.1. Contract – the present contract, including all Annexes, amendments and supplements.

1.2. Annexes of the Contract – document or documents signed by the Parties and attached to this Contract, detailing the service provided by Kolmisoft to the Customer, laying down conditions, tariffs and other terms and information; such a number of Annexes shall be signed as many services the Customer wishes to purchase from Kolmisoft; the word ‘Annexes’ used herein shall mean any (one or more) documents signed to this Contract.

1.3. Services – services provided by Kolmisoft to the Customer for remuneration, as detailed in Annex hereto.

1.4. Shortest Period of Service Use – the shortest period as agreed by the Parties for use of the ordered service, determined with reference to Kolmisoft necessary costs related to installation of ordered service for the Customer. The period shall be defined in Annexes of the Contract and shall commence from beginning of provision of respective service.

1.5. Equipment – computer hardware and software, information transfer systems and/or switching and other equipment as owned by Kolmisoft and used to ensure provision of the service to the Customer.

1.6. Add-on – an additional function packet, extending functionality of the base packet.

1.7. Lease – transfer of Equipment owned by Kolmisoft to the Customer for temporary control and use for an agreed payment, in accordance with a lease contract as signed by the Parties and constituting an integral part of the present Contract.

1.8. Installation of Service – the works performed by employees of Kolmisoft, whereby services of Kolmisoft are installed in service installation place.

1.9. Market Value – the amount for which unrelated parties can (intend) buying or selling property.

1.10. Working Time – all the time except Saturdays, Sundays and holidays, from 9:00 to 18:00 GMT+2.

1.11. Response Time – the time period from receipt of a problem notification as confirmed by the Customer till response of Kolmisoft specialist to the Customer or provision of consultations via phone, e-mail, IM, support system.

1.12. Maintenance – remote monitoring of systems (usually on business days) for basic system health, including:

1.12.1. Database (replication monitoring/recovery);

1.12.2. Storage (log file rotation and compression, disk space monitoring, backup policy and setup);

1.12.3. NTP problems;

1.12.4. Updating systems with bug fixes in a timely manner;

1.12.5. Operating system and third party software upgraded as appropriate – this will only be performed upon substantial consultation with the Customer;

1.12.6. Addressing operational problems with the installed software, so long as this pertains to the software’s designed capabilities.

1.13. Support – support of Kolmisoft products, including:

1.13.1. Initial system setup;

1.13.2. Verification and correction of identified program errors;

1.13.3. Bug fixes (for one year after beginning of service provision or upgrade);

1.13.4. Priority – based problem ticket solving in time period described by support plan.

1.14. Custom development – the basic system functionality extension under the Customer’s requests. All Custom development terms and conditions shall be specified in Annex of the Contract detailing the service.

1.15. Upgrades – system upgrade to the newest version, terms and conditions shall be specified in Annex of the Contract detailing the service.

1.16. Migration – Equipment migration to another hardware, terms and conditions shall be specified in Annex of the Contract detailing the service.

2. SUBJECT OF THE CONTRACT

2.1. Kolmisoft shall supply the Services specified in Annexes of the Contract to the Customer under conditions and for remuneration agreed by the Parties, as detailed in Annexes of the Contract as signed by the Parties (a separate Annex of the Contract shall be signed for every service purchased).

3. OBLIGATIONS OF THE PARTIES

3.1. Kolmisoft shall:

3.1.1. Provide to the Customer the Services laid down in Annexes of the Contract;

3.1.2. Begin provision of Service at time stipulated in Annex of the Contract;

3.1.3. Correct any faults of the Services during periods laid down in Annex of the Contract, after receipt of notice from the Customer on faults of the Service;

3.1.4. Lease to the Customer the Equipment related to provision of Services as indicated in Annexes of the Contract, by signing a separate lease contract;

3.1.5. Perform for the Customer maintenance of the leased Equipment and correct, without any charge, any technical faults in Equipment leased to the Customer, as emerged because of a fault of Kolmisoft or manufacturer of the Equipment;

3.1.6. Changes in Customer server are done only with Customer agreement and on confirmed time.

3.1.7. In cases when provision of Service to the Customer is suspended because of its fault and later the reasons of the suspension are corrected, immediately resume provision of the suspended Service, after receipt of information on correction of the said reasons;

3.1.8. When providing the Services as ordered by the Customer, comply with conditions agreed in this Contract and Annexes thereto and laid down in normative legislation of the Republic of Lithuania;

3.1.9. Ensure confidentiality of information supplied by the Customer.

3.2. The Customer shall:

3.2.1. Use the Services in accordance with the conditions laid down in the Contract and Annexes thereto;

3.2.2. Immediately notify Kolmisoft, at contacts specified in Annexes of the Contract, on malfunctions of provision of a Service;

3.2.3. Use the leased Equipment for its proper purpose only and in accordance with the procedure laid down herein, to keep the leased Equipment in good technical order, and to cover its maintenance costs;

3.2.4. Protect Equipment supplied by Kolmisoft, and in case of damage or destruction – completely compensate the damage made;

3.2.5. Assure exclusive right of Kolmisoft to perform maintenance of the leased Equipment and unhindered access to the equipment for Kolmisoft employees;

3.2.6. Settle with Kolmisoft for the services according to produced invoices, pursuant to the procedure laid down in this Contract and Annexes thereto; price of the Services and their installation shall be specified in Annex of the Contract detailing the service;

3.2.7. Use the Services at least for the Shortest Period of Service Use, when such is provided in Annex of the Contract;

3.2.8. Not use the Performer’s data transmission network for illegal purposes;

3.2.9. After rejection of the Services or a part thereof or after termination of the Contract by Kolmisoft in cases stipulated herein, provide, within 5 (five) business days, the possibility for Kolmisoft employees to dismantle Equipment owned by Kolmisoft;

3.2.10. Accept full liability for claims and actions raised to Kolmisoft by third persons because of activities of the Customer, done while using Services of Kolmisoft;

3.2.11. Compensate all the losses of Kolmisoft as suffered because of the Customer’s fault, when the Customer fails to perform its obligations.

3.3. The Parties shall:

3.3.1. Notify the other Party of the Contract on changes of their requisites in writing within 5 (five) calendar days from the date of such changes. A Party failing to perform this requirement shall not be allowed to raise claims that activities of other Party, performed according to the last known requisites, do not conform to conditions of the Contract or that it has not received notices sent according to the requisites;

4. SETTLEMENT PROCEDURE AND CONDITIONS

4.1. Monthly fees for the services and other tariffs are specified in separate Annexes of the Contract, depending on type of the Services provided to the Customer.

4.2. Fees for Services of current month shall be paid by the Customer as specified in separate Annexes of the Contract.

4.3. Invoice for services of current month shall be sent to the Customer, to the address specified herein or other address specified by the Customer in writing, and/or via e-mail, till the 10th (tenth) day of next month.

4.4. If the Customer does not receive invoice for services of current month, the Customer shall contact Kolmisoft.

4.5. If monthly fee payable by the Customer is variable, when signing this Contract the Customer agrees with the monthly fee as calculated by Kolmisoft accounting systems.

4.6. If the Customer fails to settle for the services timely, the provision of services can be suspended pursuant to procedure laid down herein, and Kolmisoft can transfer the Customer’s data to debt exaction companies and/or Defaulting Debtors Administration Database.

4.7. Kolmisoft shall notify the Customer on planned changes of prices, tariffs and payment procedure at least 30 (thirty) days in advance. The prices, tariffs and payment procedure can only be changed by an agreement between the Parties.

4.8. When the Customer fails to settle with Kolmisoft timely, Kolmisoft shall be entitled to demand from the Customer the late-payment surcharges equal to 0.2 per cent of the total delayed amount for each delayed calendar day.

4.9 .Termination of the Contract or its Annexes shall not release the Customer from the obligation to settle with Kolmisoft for the Services provided before the Contract termination date.

4.10. The fees stipulated in this Contract and its annexes are indicated in Euro (EUR) or United States dollar (USD). When the official rate of exchange of USD and Euro changes so that the value of USD decreases or increases in respect of Euro, then, in proportion to the change of the official USD to Euro exchange rate, automatically and without separate agreement between the Parties, the amounts of the fees stipulated in this Contract and its Annexes shall be changed, so that the fees in USD correspond to the equivalents in Euros as specified herein and valid on the day when the Contract is signed.

5. RIGHTS OF THE PARTIES

5.1. Kolmisoft shall be entitled:

5.1.1. To suspend provision of services in cases and under procedure stipulated herein;

5.1.2. To accumulate and provide to third persons information about failures of the Customer to settle and to transfer exaction of debt from the Customer to third persons;

5.1.3. To demand from the Customer compensation of all the costs related to debt exaction.

5.2. The Customer shall be entitled:

5.2.1. To receive the services in the quality specified in Annexes of the Contract.

6. INSTALLATION AND PROVISION OF SERVICE

6.1. The Customer shall create all the conditions for Kolmisoft employees or persons authorised by Kolmisoft, after they produce respective confirming documents, during daytime, unless the Parties agree otherwise, in service installation place to install Equipment necessary for provision of service, to maintain it, to modify it and to dismantle it.

6.2. The Customer shall not be entitled to wilfully change service installation place and to repair or modify Kolmisoft communication Equipment.

6.3. The Customer shall ensure proper conditions of use for Kolmisoft equipment and uninterruptible power supply for Kolmisoft equipment installed in service installation place.

6.4. Hardware used by the Customer shall be in good order and have correctly installed software. Otherwise Kolmisoft shall not accept responsibility for malfunctions arising due to installation of software necessary for communication.

6.5. Provision of services for the Customer shall start from the day of Service installation, as indicated in transfer/acceptance deed, unless the Parties agree otherwise.

7. LIABILITY OF THE PARTIES AND ITS LIMITATIONS

7.1. Liability of Kolmisoft:

7.1.1. Kolmisoft shall not be liable for malfunctions of the service, when these arise because of low-quality operation of the Customer’s computer network or equipment used;

7.1.2. Service provision malfunctions emerging because of a fault of Kolmisoft shall be corrected by Kolmisoft free of charge.

7.2. Limitation of Kolmisoft liability:

7.2.1. Kolmisoft shall not be liable for indirect losses of the Customer, arising because of malfunction of service provision (failed transaction with third parties, production losses, loss of profit, etc.);

7.2.2. Kolmisoft shall not be liable for termination of Service provision or damage suffered by the Customer in relation to this, if this happens because a fault of the Customer or third parties;

7.2.3. Compensation for malfunction of service used by the Customer shall not exceed one monthly fee of the service.

7.3. Liability of the Customer:

7.3.1. The Customer shall be fully liable for its activities when using the service;

7.3.2. When faults are found, the Customer shall immediately notify Kolmisoft and take all the measures to avoid or to reduce any related damage.

7.4. Using original installation – Customer may use the product as it was originally installed by Kolmisoft. In case such modification is noticed, Customer must pay the difference of product prices according to current prices.

7.4.1. It is forbidden to transform 4 servers redundant or 2 servers redundant solution to separate MOR licenses without Kolmisoft permission;

7.4.2. It is forbidden to activate Add-ons without buying them.

8. PROVISIONS FOR VALIDITY, LIMITATION AND TERMINATION OF THE CONTRACT

8.1. This Contract and its Annexes shall come into force from the day when they are signed and remain valid for the Shortest Period of Service Use as indicated in Annexes of the Contract. When neither of the Parties requests termination of this Contract or its Annexes in writing at least 30 (thirty) calendar days before its expiry, the Contract and its Annexes shall be automatically extended for undefined period.

8.2. This Contract can be terminated at any time by mutual agreement between the Parties.

8.3. Kolmisoft can terminate this Contract unilaterally by notifying the Customer thereof in writing at least 30 (thirty) days in advance, when the Customer:

8.3.1. Fails to timely pay a produced invoice;

8.3.2. Puts in hazard operation of electronic communication network, its security or integrity, or restricts possibilities of other subscribers to use the services provided by Kolmisoft;

8.3.3. Engages in activities forbidden in laws;

8.3.4. Sends information of defamatory, offensive or threatening nature or distributes spam;

8.3.5. Wilfully modifies content, amount or other characteristics of services.

8.4. The Customer shall be entitled to terminate this Contract and its Annexes by notifying Kolmisoft thereof in writing at least 30 (thirty) calendar days in advance. If, when the Contract or its Annexes are terminated, the Shortest Period of Service Use as stipulated therein has not yet expired, the Customer shall pay fines stipulated in Annexes of the Contract and compensate losses suffered by Kolmisoft because of the termination of the Contract or its Annexes.

8.5. Compensation of losses shall not release a Party from performance of this Contract and shall not terminate its validity.

8.6. When the Contract is terminated on initiative of the Customer, a Contract Termination Agreement shall be signed, evidencing actual date of terminate of the Contract or specific Annex and debts of the Customer hereunder, existing on the day of signing the Agreement.

9. REFUND POLICY

9.1. Kolmisoft has a NO REFUND policy. All sales are final. There are no refunds.

10. FORCE MAJEURE

10.1. The Parties shall be released from liability in case of force majeure circumstances: cases of lightning, failures of electricity lines, fires, floods, strikes, also wilful activities of third persons, responsibility for which cannot be attributed to the Parties, activities resulting in damage to or destruction of Kolmisoft equipment, and mandatory decisions of State authorities governing telecommunication activities.

10.2. A Party, which is not able to perform the Contract because of the circumstances specified in Clause 10.1, shall notify the other Party on such circumstances in writing within 30 (thirty) days. When a Party fails to notify on emergence of such circumstances and their influence on performance of the Contract, it shall compensate losses of the other Party resulting from the failure to notify.

10.3. When force majeure circumstances last longer than 2 (two) months, the Contract can be terminated by one of the Parties, notifying thereof the other Party in writing at least 10 (ten) days in advance.

11. MISCELLANEOUS PROVISIONS

11.1. Without permission in writing from the other Party, neither of the Parties can transfer its rights or obligations resulting from performance of the Contract to third persons, except when Kolmisoft transfers its rights or obligations to a company of its group of companies and this is necessary for performance of the Contract.

11.2. When one of the Parties is reorganised, this Contract shall remain valid and its provisions shall be mandatory to successors of rights and obligations of that Party.

11.3. When legal status of a Party changes, such Party shall immediately notify thereof the other Party.

11.4. Notices, notifications and other communications in writing related to this Contract or arising from it shall be sent from one Party to the other and considered received:

11.4.1. When sent via fax machine or electronic mail – when recipient confirms receipt of such notice;

11.4.2. When sent via registered mail (recorded delivery), courier post or delivered personally.

11.5. All the ownership rights, including intellectual ones, related to Equipment and software of Kolmisoft and any related technical documentation supplied by Kolmisoft to the Customer during installation and provision of service shall remain property of Kolmisoft or its licensors.

11.6. Equipment and software of Kolmisoft, also any related technical documentation, supplied by Kolmisoft to the Customer for provision of Service, can be used by the Customer only to the extent related to use of the Service and, without permission in wiring from Kolmisoft, it shall not be transferred to third persons, copied, modified or used for other purposes that are not specified in this Contract or its Annexes.

11.7. All the Annexes, amendments and supplementations of this Contract, also other agreements of the Parties, constitute an integral part of the Contract and are valid only when made in writing and confirmed with signatures of authorised representatives of both Parties.

Kolmisoft