Terms and Conditions

[ Last Update: 01.01.2020 ]

This document sets out the terms and conditions for your Spearhead account and the services provided in relation to the Spearhead platform. It also sets out other important things that you need to know and to agree to before creating your account with Spearhead.

These terms and conditions, along with the Fees page, the Acceptable Use Policy, the Privacy Policy, the Support Services Policy (SLA) and any other terms and conditions that we publish and apply to our services, form a binding legal agreement (which shall collectively be referred to as the agreement) between:

  • you, the holder of the account; and
  • us, Spearhead Systems S.R.L.

“We”, “our”, and “us”, that is, Spearhead Systems S.R.L., are a Romanian company, headquartered in Bucharest, Aleea Hobita, no. 4, bl. 301, ap. 18, room 2, District 2, registered with EUID ROONRC.J40/2351/2011 and VAT number RO28109017.

Whenever “you” or “your” is written in this agreement, it refers to the holder of the account with the Spearhead platform, that is, the company (legal person) whose details are filled-in when creating the account with Spearhead and who enters into this agreement with us. The natural person creating the account on behalf of the company confirms that it has the necessary authority to represent that company and enter into the agreement on behalf of that company.

You must read and agree to this agreement and related policies as part of the process of creating your account with us. When you purchase services from us, create an account with us, or use or allow the use of an account after being notified of a change to the agreement, you acknowledge your understanding of the then-current agreement and agree to respect it.

You can find this agreement at any time on our webpage and we will notify you of changes made to the agreement.

Services and Cost

    • What are the Spearhead services we offer?
    You can choose between any of the following cloud services:

  • Compute Service – Spearhead’s public cloud, an end-to-end solution that delivers computational power for running operating systems, containers or container hosts.
  • Network File System (NFS) – A distributed filesystem protocol, allowing users on a client computer to access files over a computer network.
  • Reserved Instance Service – Customers may choose to reserve instances Compute Service, for period of one year or three-years for better cost optimization.
  • Manta Service – Object storage and converged analytics solution, a highly scalable, distributed object storage service with integrated Compute Service that enables the creation of analytics jobs (more generally, compute jobs) which process and transform data at rest.
  • Professional services – technical support services for break-fix scenarios or consulting.

Price

    You can find our list of fees here: https://spearhead.cloud/pricing/ We provide the services as a monthly subscription, with the exception of some services which are paid in advance:

  • the Reserved Instance Service is paid in advance for one or three years, as applicable;

How you will be invoiced

    Invoice

  • For monthly subscription services, we will issue and send you an electronic invoice at the end of each month.
  • For services paid in advance, we will issue the invoice after you confirm your order.
    Currency

  • The payment currency is written on your invoice.

How you pay

    Payment

  • The amounts we invoice you shall be due to be paid in 10 days from the date we send the invoice to you.
  • If you agreed to pay by card, we will charge (and you agree to pay) all invoiced fees immediately on the date we issue the relevant invoice.
  • If you do not pay the invoiced amounts until due date, we shall charge an additional delay penalty of 0.1% of the outstanding amount per day of delay or the highest rate allowed by applicable law, whichever is lower.
    Not set-off

  • You cannot set off your payment obligation – that is, you and we both have to honour our obligations towards each other when they are due. If we owe you anything we shall pay you even if you owe us something on due date. The same shall apply to your payment obligations towards us.
  • You need to check the invoice we sent you and if you feel there is an error in the invoice, you shall notify us before the invoice due date. Otherwise, we shall consider you have accepted that invoice and you must pay it.

No refunds

    Refundes

  • We start providing the services and accrue costs for provisioning machine resources in order to be able to deliver the services to your specifications from the moment you fill-in an order for the services using your account.
  • Payments are non-refundable and we do not provide refunds or credits for any partial – month subscriptions.
  • If you are a consumer you confirm you understand that due to this, you cannot withdraw from the contract in order to receive partial-month refunds.

Tax withholding

    Withholding tax

  • When we calculate our fees, we do not take into account any withholding tax your jurisdiction might impose (that is, when you pay us our fees some authorities might require you to retain a part of the fees due to us as tax).
  • If such deduction should be required under the applicable law or by the relevant authorities, you agree that you shall gross-up the fees due with an amount so that, after the deduction, we shall be left with the same amount as if no deduction would have been required.

Your obligations

    The main things you have to respect in order to allow us to perform the services are:

  • you shall respect all your obligations laid out in this agreement and follow all the policies made available to you on the platform;
  • your use of the services must respect our Acceptable Use Policy (which you can find here);
  • you shall pay the fees on time;
  • you shall notify us of any problems with the services and you shall give us correct and accurate information regarding your use of the services;
  • you shall not misuse our services (For example, don’t interfere with our services or try to access them using a method other than the interface and the instructions that we provide. You may use our services only as permitted by law, including applicable export control laws and regulations.)

We may suspend or stop providing our services to you if you do not comply with our terms or policies or if we are investigating a suspected misconduct.

    You are solely responsible for how you use the services made available to you and whom you make the services available to, including for:

  • the data that is created, transmitted, stored, or displayed by, from, or within your account or uploaded to your account (we refer to this as “your data”);
  • ensuring all users of your account comply with this agreement and the applicable law;
  • the conduct of all users of your account and for any consequences of such conduct;
  • any third-party software that you run on your account;
  • how your end-users’ use the services provided by you through our services.

You must ensure all your end-users comply with all conditions related to this agreement, the services and with all applicable law. All non-compliant end-users shall be immediately barred from any of the services.

By “users of your account”, “your users” or “end-users” we mean those persons which you grant access to your account or to the instances or other systems that you run using our services.

Safety and your data

    You have the following obligations related to your data and the services:

  • you are responsible for using reasonable security precautions to prevent unauthorized access and maintain appropriate security protection of all of your data;
  • you must keep account credentials safe; you shall immediately notify us if you suspect a breach of account login credential confidentiality or any unauthorized use of your account;
  • you are solely responsible for compliance with any applicable laws in relation to your data used, uploaded, and generated using your account and your use of the services and your account.

Backup

    Data backup. Data preservation

  • You are responsible for backing-up your data and any other content that you use with the services. Best practices include routine archiving of data.
  • We use systems redundancy and adequate data loss prevention measures. However, if some data is lost due to your actions (for example, you delete the data by mistake), recovery of such data (such as historical drive images) is only available if you have purchased additional Backup Services.
  • We are not obliged and shall not retain any of your data after the termination of your account or of your access to the services for any reason.

Third-party Products

    Software and services from third parties

  • If you use the services in conjunction with third party data, products, services, or platforms, you are solely responsible for complying with the terms and conditions required by such third parties, and all such use is at your own risk.
    When we might block access to your account

  • While we reserve the right to monitor your use of the services, we are under no obligation to do so.
  • The safety of your account is important to us. We might prevent you from fulfilling certain actions related to your account if we’re reasonably concerned about its security or that it might be used fraudulently or without your permission.
  • We might also have to block your account to meet our legal obligations. We’ll tell you about this as soon as possible either before or after we block your account. We’ll also let you know why we’ve done it (unless it would reduce your or our security or it would be unlawful).

Support

    How we support you to use our services

  • If you use the services in conjunction with third party data, products, services, or platforms, you are solely responsible for complying with the terms and conditions required by such third parties, and all such use is at your own risk.

The end of our services

    How long the agreement between you and us will last

  • Once the agreement has started it won’t end until you or we end it.
  • If you end the agreement you will still have to pay any fees and charges you owe us up to that point.
  • If either you or we are no longer happy with this agreement, we may terminate it by providing a 30 days’ advance notice.
    In some cases, we may end the agreement with immediate effect, by sending to you a written notice (no other formalities or court rulings being necessary), for the following reasons:

  • your actions violate any of our Acceptable Use Policies;
  • you do not pay your invoice for more than 10 days from the due date;
  • there is a force majeure event preventing us from delivering the services for more than 30 days;
  • we have good reason to believe that your use of the services is harmful to us or our software, systems or hardware;
  • we have to do so under any law, regulation, court order or instructions of a state authority;
  • we have good reason to believe that your use of the services could damage our reputation or goodwill;
  • we have good reason to suspect that you are behaving fraudulently;
  • you haven’t given us (or someone acting on our behalf) any information we need, or we have good reason to believe that information you have provided is incorrect or not true.

You may also end the agreement immediately, under the same terms, if we do not ensure the services at the agreed quality and quantity for more than 30 days after you have notified us of the issue.

Closing your account

    When you tell us you want to close your account we will give you the opportunity to download or retrieve all your data.

  • Once the agreement has started it won’t end until you or we end it.
  • We will not hold your data after you close your account or if you stop paying for the services provided.
  • As a reminder, you are responsible for backing up all the data you use with the services.

Some final legal details

    How you become part of this agreement

  • You become a party in this agreement by either accepting these terms in an online user journey (you cannot create an account with us and access the services if you do not agree to be part of this agreement) or by signing this agreement on paper.
    Notices between us

  • Official communication between us shall be done in writing.
    Notifications

  • You can contact us at contact@spearhead.systems.
  • We shall use the contact details you entered when creating your account to contact you from time to time regarding our services and our relationship. You must keep us updated if you change your contact details.
  • Messages sent by email shall be considered received the next day the message leaves the sender’s email server if no delivery failure message has been received.

Change in terms

    We may change these terms from time to time

  • We may change these terms and conditions, our fees or the policies related to the services from time to time. We shall notify you of such changes and they will become applicable in 30 days from such notification. If you do not agree with the changes, you can end the agreement before the changes become applicable.
  • If you have paid in advance for certain services, the initial agreement shall apply to you in relation to those services, for the whole period you have paid for in advance. However, provisions which contradict laws or legal obligations shall be replaced as provided by law.

Liability limitation

We’ll do as much as reasonably possible to make sure that our services are not interrupted and are accessible at a reasonable quality. However, we can’t guarantee that this will always be the case or that the services will be free from faults.

We will let you know about any changes to our system that will affect your ability to use our services.

    While we are responsible towards you for the damages caused to you by our direct actions, we won’t be responsible to you for any indirect damages or losses, that arise in connection with this agreement, such as:

  • loss of income or profit;
  • loss of goodwill or damage to your reputation;
  • loss of business contracts or opportunities;
  • loss of anticipated savings; or
  • any other indirect damages.

Our total liability towards you arising from this agreement shall be limited to the amount you paid to us during the last twelve (12) months preceding the event that caused such liability.

    We also won’t be liable for any loss you suffer as a direct or indirect result of the following:

  • you giving us incorrect or incomplete information;
  • any delays in or disruptions to our services caused by your actions;
  • information or services provided by third parties; or
  • anything a third party does or fails to do.

When you might be responsible for our losses

    You may be responsible to us for certain losses. If you have broken these terms and conditions, and this has caused us to suffer a loss, the following will apply:

  • you will be responsible for any losses we suffer as a result of your action (we will try to keep the losses to a minimum);
  • if your actions result in us losing profits, you may also be responsible for those losses. You won’t be responsible if this would mean that we are compensated twice for the same loss; and
  • you will also be responsible for any reasonable legal costs that arise as a result of our losses.

Force Majeure

Neither you nor us will be liable for failure or delay in performance of this agreement if circumstances beyond our control, including acts of God, natural disaster, terrorism, riots, or war have prevented us to respect this agreement, provided that you or us shall notify the other of the occurrence of such event in 5 days’ time.

IP ownership

    Our intellectual property

  • We own all the intellectual property in our services (for example, the software used to provide the services, the content on our website, our trademark). Using our services does not give you ownership of any of our intellectual property rights. You may not use content from our services unless you obtain permission from the owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our services. Don’t remove, obscure, or alter any notices displayed in or along with our services.
  • We own and will continue to own our services, including all related intellectual property rights. We may make software components available, as part of the services. In such case, we grant to you a non-sublicensable, non-transferable, non-exclusive, limited license for you and your users to use the object code version of these components, but solely as necessary to use our services and in accordance with this agreement.
  • You shall not decompile or reverse-engineer any of our services or tools (that is, reproduce them after a detailed examination of their construction or composition).

Your data and intellectual property

    Client data/IP

  • You own all your data. In order to allow us to (a) to provide, maintain and update our services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Privacy Policy; and (d) as expressly permitted in writing by you, you grant us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display your data, only as reasonably necessary.
  • You promise and guarantee to us that you have secured all the rights necessary to grant this license.

Indemnification

    Our indemnification of you

  • We will defend you from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of our services as permitted under the agreement infringes on a third party’s intellectual property rights, and will indemnify you for all reasonable attorney’s fees incurred and damages and other costs finally awarded against you in connection with or as a result of, and for amounts paid by you under a settlement we approve of in connection with such claims; provided, however, that we will have no liability if a claim against you arises from (a) your data on our services; and (b) any modification, combination or development of the services that is not performed by us, including in the use of any application programming interface (API).
  • You must provide us with prompt written notice of any claim and allow us the right to assume the exclusive defence and control and cooperate with any reasonable requests assisting our defence and settlement of such matter. This section states our sole liability with respect to, and your exclusive remedy against us for, any such claim.
    Your Indemnification of Us

  • You will defend us and the members of our group from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your or any of your users’ violation of the agreement, and will indemnify us for all reasonable attorney’s fees incurred and damages and other costs finally awarded against us in connection with or as a result of, and for amounts paid by us under a settlement you approve of in connection with, a claim against us.
  • We must provide you with prompt written notice of any claim against us and allow you the right to assume the exclusive defence and control and cooperate with any reasonable requests assisting your defence and settlement of such matter.
  • Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

Our contract with you

    No assignment

  • Only you and we have any rights under the agreement. The agreement is personal to you and you cannot transfer any rights or obligations under it to anyone else.
    Our right to transfer

  • We will only transfer any of your and our rights or obligations under the agreement if we reasonably think that this won’t have a significant negative effect on your rights under these terms and conditions or we need to do so to keep to any legal or regulatory requirement.
    Romanian law applies

  • The laws of Romania apply to this agreement.

Applicable law

If you have broken the agreement between you and us and we don’t enforce our rights, or we delay in enforcing them, this will not prevent us from enforcing those or any other rights at a later date.

    Taking legal action against us

  • If you want to take legal action against us in the courts, only the courts of Romania can deal with any matter relating to this agreement.
    You must comply with all laws

  • Everything you do with the services we provide and all your activity related to the services and tools we provide must not break any laws or affect other person’s rights.
    Export control

  • We forbid the access to our services to any natural person or company object of export control regulations – that is, which is listed on the list of restricted parties by the Government of United States of America, the European Union and the United Nations.
  • You declare and guarantee to us that you are not listed as sanctioned party by any export control lists and that you do not access the services for the benefit of a sanctioned party according to such lists.
  • We may suspend your access to our services at any time if we suspect or discover the contrary.
    How we process your personal information

  • To provide services under this agreement we need to collect information about you or your representatives. For more information about how we process personal information, please see our Privacy Policy.
  • For data which is uploaded by you and which contains personal information about third parties we are what is known as the ‘data processor’. In such case, both you and us shall comply with the Data Processing Agreement (found here) governing such processing.