SaaS Subscription Aggreement
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SaaS Subscription Aggreement

Note:   Version 1c – 2021-02-28

By subscribing to the skycyber.net services (the “Services”) provided by Sky Cybernet Indonesia PT. and its affiliates (collectively, “Sky Cybernet”) in relation with BisnisKu ERP/CRM  &  Sky DMS  (the  “Software”), hosted  on Sky Cybernet’s Cloud platforms (the  “Cloud Platform”), you (the “Customer”) are  agreeing  to be bound  by the following terms and conditions (the “Agreement”).

 

1. Term of the Agreement

The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.

 

2. Definitions

User

Any user account indicated as active in the Software, with access to creation and/or edition mode.  Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.

App

An “App” is a specialized group of features available for installation in the Software and listed in Sky Cybernet’s website (https://www.skycyber.net).

BisnisKu Partner

A BisnisKu Partner is a third-party company or individual, chosen by the Customer, and working with the Customer for their BisnisKu related services. The Customer can decide at any time to work with a different BisnisKu Partner, or to work with Sky Cybernet directly (subject to prior notice).

Covered Extra Module

a Covered Extra Module is an Extra Module for which the Customer chooses to pay a maintenance fee to get support, upgrade and bug fixing services.

Bug

Is considered a Bug any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Sky Cybernet (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).

Covered Versions

Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 2 most recently released major versions.

3. Access to the Software

The Customer can use the Software hosted on the Cloud Platform. The Cloud Platform is hosted and fully managed by Sky Cybernet and accessed remotely by the Customer.

For the duration of this Agreement, Sky Cybernet gives the Customer a non-exclusive, non- transferable license to use the BisnisKu software.

The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the BisnisKu usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of Users, the installed Apps, and Covered Extra Modules.

Sky Cybernet commits not to disclose individual or named figures to third parties without the consent of the Customer, and to deal with all collected data in compliance with its official Privacy Policy, published at https://skycyber.net/privacy-policy/.

Upon expiration or termination of this Agreement, this license is revoked immediately, and the Customer agrees to stop using the BisnisKu software and the Cloud Platform. Should the Customer breach the terms of this section, the Customer agrees to pay Sky Cybernet an extra fee equal to 300% of the applicable list price for the actual number of Users and installed Apps.

4. Services

4.1. Bug Fixing Service

For the duration of this Agreement, Sky Cybernet commits to making all reasonable efforts to remedy any Bug of the Software and Covered Extra Modules submitted by the Customer through the appropriate channel on https://billing.skycyber.net/contact.php, or when working with an BisnisKu Partner, the channel provided by the partner), and to start handling such Customer submissions within 2 business days.

As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer.  If the Customer is using a Covered Version, they will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug.

When a Bug is fixed in any Covered Version, Sky Cybernet commits to fixing the Bug in all more recent Covered Versions of the Software.

Both parties acknowledge that as specified in the license of the Software and in the 7.3 Limitation of Liability section of this Agreement, Sky Cybernet cannot be held liable for Bugs in the Software or in Covered Extra Modules.

4.2. Security Updates Service

Sky Cybernet commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.

4.3. Upgrade Services

This service provided through a platform in order to allow unattended upgrades once a previous version of the Customer’s database has been successfully upgraded for a Covered Version.

The Upgrade Service is limited to the technical conversion and adaptation of the Customer’s database to make it compatible with the Target Version, the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version, and the conversion of the source code and data of Covered Extra Modules for the Target Version.

It is the responsibility of the Customer to verify and validate the upgraded database to detect Bugs, to analyse the impact of changes and new features implemented in the Target Version, and to convert and adapt for the Target Version any third-party extensions of the Software that were installed in the database before the upgrade (e.g. non-covered Extra Modules).

4.4 Cloud Hosting Services

For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, Sky Cybernet commits to providing at least the following services:

  • Choice of multiple hosting regions (Europe, America, Asia/Pacific)
  • Hosting in Tier-III data centers or equivalent, with 99.9% network uptime
  • Grade A SSL (HTTPS) Encryption of communication
  • Fully automated, verified backups
  • Disaster Recovery Plan, tested regularly

The details of the Cloud Hosting Services are described on the Service Level Agreement page at https://www.skycyber.net/sla-security-policy.

4.5. Support Services

Scope

For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see 4.1 Bug Fixing Service) or guidance with respect to the use of the standard features of the Software and Covered Extra Modules.

Other assistance requests, such as questions related to development or customizations may be covered through the purchase of a separate service agreement. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of Sky Cybernet.

Availability

Tickets can be submitted via the web form on https://billing.skycyber.net/contact.php, or when working with an BisnisKu Partner, the channel provided by the partner, subject to local opening hours.

4.6. Working with an BisnisKu Partner

For bug fixes, support and upgrade services, the Customer may either work with an BisnisKu Partner as the main point of contact, or work with Sky Cybernet directly.

If the Customer decides to work with an BisnisKu Partner, Sky Cybernet will subcontract services related to the Covered Extra Modules to the BisnisKu Partner, who becomes the main point of contact of the customer. The BisnisKu Partner may contact Sky Cybernet on behalf of the customer for second-level assistance with regard to standard features of the Software.

If the Customer decides to work with Sky Cybernet directly, services related to Covered Extra Modules are provided if and only if the Customer is hosted on the BisnisKu Cloud Platform.

5. Charges and Fees

5.1 Standard charges

The standard charges for the BisnisKu subscription and the Services are based on the number of Users and the installed Apps used by the Customer and specified in writing at the conclusion of the Agreement.

When during the Term, the Customer has more Users or more installed Apps than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable list price (at the beginning of the Term) for the additional Users or Apps, for the remainder of the Term.

5.2. Renewal charges

Upon renewal as covered in section 1 Term of the Agreement, if the charges applied during the previous Term (excluding any “Initial User Discounts”) are lower than the most current applicable list price, these charges will increase by up to 6%.

5.3. Taxes

All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”).  The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when Sky Cybernet is legally obliged to pay or collect Taxes for which the Customer is responsible.

6. Conditions of Services

6.1. Customer Obligations

The Customer agrees to:

  • pay Sky Cybernet any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified at the signature of this contract.
  • immediately notify Sky Cybernet when their actual number of Users or their installed Apps exceed the numbers specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee as described in section 5.1 Standard charges.
  • take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the BisnisKu usage, as described in 3 Access to the Software.
  • appoint 1 dedicated Customer contact person for the entire duration of the Agreement.
  • provide written notice to Sky Cybernet 30 days before changing their main point of contact to work with another BisnisKu Partner, or to work with Sky Cybernet directly.
  • take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else.
  • make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities, and strictly observe the rules outlined in the Acceptable Use Policy published at https://www.skycyber.net/acceptable-use-policy

6.2. No Soliciting or Hiring

Except where the other party gives its consent in writing, each party, its affiliates, and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement.  In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching party agrees to pay to the other party an amount of USD 30.000 (thirty thousand USD).

6.3. Publicity

Except where notified otherwise in writing, each party grants the other a non-transferable, non- exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos, and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.

6.4. Confidentiality

Definition of “Confidential Information”:  All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.

For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.

6.5. Data Protection

Definitions   “Personal Data”, “Controller”, “Processing” take the same meanings as in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any regulation or legislation that amends or replaces them (hereafter referred to as “Data Protection Legislation”)

Processing of Personal Data

The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by Sky Cybernet when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services or the Database Upgrade Service), or if the Customer transfers their database or a part of their database to Sky Cybernet for any reason pertaining to this Agreement.

This processing will be performed in conformance with Data Protection Legislation. Sky Cybernet commits to:

 (a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case Sky Cybernet will provide prior notice to the Customer, unless the law forbids it.

(b) ensure that all persons within Sky Cybernet authorised to process the Personal Data have committed themselves to confidentiality.

(c) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration, or disclosure.

 (d) forward promptly to the Customer any Data Protection request that was submitted to Sky Cybernet with regard to the Customer’s database.

 (e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data.

 (f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Sky Cybernet.

(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted, or mandated by the Customer.

(h) permanently delete all copies of the Customer’s database in possession of Sky Cybernet, or return such data, at the Customer’s choice, upon termination of this Agreement, subject to the delays specified in Sky Cybernet’s Privacy Policy (https://www.skycyber.net/privacy-policy).

With regard to points (d) to (f), the Customer agrees to provide Sky Cybernet with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.

Sub processors

The Customer acknowledges and agrees that in order to provide the Services, Sky Cybernet may use third-party service providers (Sub processors) to process Personal Data.   Sky Cybernet commits to only use Sub processors in compliance with Data Protection Legislation. This use will be covered by a contract between Sky Cybernet and the Sub processor that provides guarantees to that effect. Sky Cybernet’s Privacy Policy, published at https://skycyber.net/privacy-policy provides up-to-date information regarding the names and purposes of Sub processors currently in use by Sky Cybernet for the execution of the Services.

6.6. Termination

In the event that either Party fails to fulfil any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.

Further, Sky Cybernet may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.

Surviving Provisions:  The sections “6.4 Confidentiality”, “7.2 Disclaimers”, “7.3 Limitation of Liability”, and “8 General Provisions” will survive any termination or expiration of this Agreement.

7. Warranties, Disclaimers, Liability

7.1. Warranties

For the duration of this Agreement, Sky Cybernet commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:

  • the Customer’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment.
  • the Customer provides adequate troubleshooting information and, for Self-Hosting, any access that Sky Cybernet may need to identify, reproduce, and address problems.
  • all amounts due to Sky Cybernet have been paid.

The Customer’s sole and exclusive remedy and Sky Cybernet’s only obligation for any breach of this warranty is for Sky Cybernet to resume the execution of the Services at no additional charge.

7.2. Disclaimers

Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.

Sky Cybernet does not warrant that the Software complies with any local or international law or regulations.

7.3. Limitation of Liability

To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim.  Multiple claims shall not enlarge this limitation.

In no event will either party or its affiliates be liable for any indirect,  special, exemplary, incidental or consequential damages  of any kind, including  but not limited  to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill  or delay, lost or corrupted data, arising out of or in connection with this Agreement  regardless of the form of action, whether in contract, tort (including strict negligence) or any other  legal or equitable theory,  even if a party or its affiliates have been advised of the possibility  of such damages, or if a party or its affiliates’ remedy otherwise fails of its essential purpose.

7.4. Force Majeure

Neither  party  shall  be liable  to the other  party  for the delay in any performance or failure  to render  any performance under  this Agreement  when such failure  or delay finds its cause  in a case  of force majeure, such as governmental regulations, fire, strike,  war,  flood, accident, epidemic,  embargo,  appropriation of plant or product  in whole or in part by any government or public authority,  or any other  cause  or causes,  whether of like or different nature,  beyond  the reasonable control  of such party as long as such cause or causes exist.

8. General Provisions

8.1 Governing Law

This Agreement and all Customer orders will be subject to Indonesian law.  Any dispute arising out of or in connection with this Agreement or any Customer order will be subject to the exclusive jurisdiction of the Indonesian Business Court.

8.2 Severability

In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired.  Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives.

THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS   OR IMPLIED, INCLUDING BUT NOT LIMITED   TO THE WARRANTIES OF MERCHANTABILITY, FITNESS   FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.   IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION   WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.