Public Agreement (offer) for the provision of services for temporary use of the virtual infrastructure of Tucha (LLC "KHMARA")

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Comes into force from 01.01.2020

LIMITED LIABILITY COMPANY "KHMARA" (hereinafter the Сontractor), represented by the Director Melnyk Volodymyr Mykolaiovych, who acts on the basis of the Statute,  publicly offers any person the opportunity to receive services in the provision of temporary paid use of the virtual infrastructure of Tucha (hereinafter the Services), for that reason, the Contractor publishes this Public Agreement (offer) on the provision of services for the provision of temporary paid use of virtual infrastructure Tucha (hereinafter the Agreement) about the following:

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1. BASIC CONCEPTS AND DEFINITIONS OF TERMS

Customer — any person (private person, business entity, etc.) to whom the Сontractor provides services under the terms of this Agreement. 

Party  the Customer or the Contractor, depending on the context. 

Parties — the Contractor on one side and the Customer on the other side. 

Virtual Infrastructure — a set of components (individual or shared with other Customers), which can include: technical support, virtual network infrastructure, virtual servers, software usage, and other components if they are included in the current Service configuration, which is available to the Customer via the Internet using the Customer's own equipment. The Virtual Infrastructure is deployed in accordance with the Service configuration agreed by the parties, which can be changed based on requests submitted in accordance with the terms of this Agreement, Tariffs, and the Service Level Agreement. 

The Tariffs for the provision of services and for the provision of temporary paid use of the virtual infrastructure (hereinafter the Tariffs) are public tariffs that the Contractor sets independently and places on its website.  

The Service Level Agreement is the document that describes the technical characteristics of Services provided to the Customer in accordance with the Tariffs and depending on the selected level of technical support (basic or extended). 

The Customer's Personal Account is a personal account that is opened by the Contractor in its own database of Customers who are connected to the Services, and on which the quantitative and cost accounting of all Services provided to the Customer of the Services, as well as the accounting of Customer payments. The Customer's Personal Account matches the Agreement number. 

The Contact person (persons) of the Customer — the Customer or its authorized representative, whom the Customer assigns to interact with the Contractor within the scope of responsibility provided in this Agreement. 

The Access Details to the control panel and the Access Details for uploading data (hereinafter the Details) are the details consisting of the protocol and access address, account name and password. 

Website of the Contractor  the Contractor`s website on the Internet, located at: https://tucha.ua/. 

Official notification — is a written message from the Contractor, sent by email to the email address of one or more Contact persons of the Customer and/or posted on the Contractor's Website. An Official notification may be an administrative, financial, informational, advertising, or others. By concluding the Agreement, the Customer agrees to receive Official notifications to the email addresses of the Customer's Contact persons.  

2. ACCEPTANCE OF THE AGREEMENT

2.1. This Agreement is concluded by providing the Customer's full and unconditional consent (acceptance) to conclude the Agreement in full, without signing a written copy of the Agreement by the Parties. 

2.2. The Agreement has legal force in accordance with Article 633 of the Civil Code of Ukraine and is equivalent to the Agreement signed by the parties. The contract can be concluded at the request of the Customer in writing by making the application for joining the Agreement. 

2.3. The terms of this Agreement are the same for all customers in accordance with Articles 633, 641 and Chapter 63 of the Civil Code of Ukraine. 

2.4. The Сustomer confirms that they have read and agreed to all the terms of this Agreement in full by accepting it.  

2.5. In accordance with Article 642 of the Civil Code of Ukraine any of the following actions is considered as acceptance of this offer: 

  • the fact of registration by the Customer on the Contractor's Website, where the Customer fills out the relevant application form; 
  • payment for the Services in the amount and in the way determined by the Tariffs and terms of this Agreement; 
  • written (including electronic form by e-mail) notification of the Customer about acceptance of the terms of this Agreement; 
  • transfer of the Details to the control panel by the Contractor to the Customer – conclusion of the joining application to the Agreement; 
  • the transfer of the Access Details to the control panel from the Contractor to the Customer;
  • conclusion the application for joining the Agreement

2.6.  After accepting this agreement, the Customer is assigned the Personal Account. 

2.7.  By concluding the Agreement, the Customer automatically agrees to the full and unconditional acceptance of the provisions of this Agreement, the Tariffs, the Service Level Agreement and all annexes that are integral parts of the Agreement. 

2.8.  If the Customer does not agree to the terms of the Agreement, they have no right to conclude the Agreement and have no right to use the Services under this Agreement. 

3. SUBJECT OF AGREEMENT

3.1. Under terms of the Agreement, the Contractor undertakes to provide Services to the Customer, and the Customer undertakes to accept and pay for Services to the Contractor under the terms in the Agreement, Tariffs and Service Level Agreement, which are integral parts of the Agreement. 

3.2. The exact configuration is determined when accepting the Agreement.

4. TERMS OF SERVICES

4.1.  Services are provided under the following conditions: 

  • acceptance of the Agreement by the Customer; 
  • the Contractor`s technical ability to provide the Services to the Customer; 
  • payment by the Customer to the Contractor's current account of a sufficient amount of money to use the selected Service in accordance with the Tariffs and according to the agreed period. 

4.2.  In case of absence of technical capability, debts of the Customer to the Contractor and/or non-payment by the Customer of a sufficient amount of money to the Contractor's current account to use the Services according to the Tariffs and according to the agreed period, the Latter has the right to refuse to provide the Services and shall inform the Customer with the reasons of refusal (orally – during the order of Services, in writing – to the Customer's written requests within 20 calendar days from the date of receipt of the request). 

5. PROCEDURE FOR PROVIDING SERVICES

5.1. To provide the Services, the Contractor and the Customer conclude the Agreement. 

5.2. After acceptance of the Agreement, the Contractor compiles and sends the Customer an invoice for payment in the amount of one month cost of the Services at the time of the Agreement conclusion or in the amount of one cost of the Services (TuchaHosting, TuchaHost) at the time of the Agreement conclusion, for the agreed in the Agreement pay period if agreed in the Agreement paid period for the Services provision (TuchaHosting, TuchaHost) is more than one calendar month (hereafter the Initial Payment). The Customer shall pay the invoice within 5 (five) business days from the date of its invoicing. If the invoice is not paid within the specified period, the Contractor has the right to suspend the provision of the Services until such invoice is paid by the Customer. 

5.3. The Contractor configures the Services in accordance with the Service configuration agreed when accepting this Agreement and transfers the Customer Access Details to the control panel.  

5.4. The Control panel Access Details are considered to have been duly transferred to the Customer from the moment the Contractor has sent an email with the control panel Access Details to the Customer`s Main Contact person email address. From the moment of transferring the Access Details to the control panel, the Contractor is not responsible for the content and quality of information, data, programs, libraries, operating systems, drivers that are placed, changed, or deleted by the Customer and/or a third party. 

5.5. The start date of the Services is the date when the Contractor sends an email with the Access Details to the control panel to the email address of the Main Contact person of the Customer unless otherwise provided in the application for joining the Agreement. 

5.6. The Customer undertakes to change the Access Details to the control panel provided by the Contractor. The Contractor is not responsible for the Customer's failure to comply with this clause and does not compensate for any losses that may be caused to the Customer as a result of using the Access Details to the control panel. 5.7. After the Contractor transfers the Access Details to the control panel, the Customer can change the Service configuration configured by the Contractor according to their own needs, thereat the cost of the Services may change according to the Tariffs and depending on the Services configuration selected by the Customer. 

5.8. The Contractor provides the creation and storage of snapshots of virtual server images (Snapshots) for the Customer's Virtual Infrastructure if this is stipulated by the Service Level Agreement. The Customer provides data backup independently, and the Contractor recommends to backup data at least once every 24 hours and uses the backup hosting service for storing backups (https://backup.tucha.ua/). 

6. CHANGING SERVICE CONFIGURATION

6.1. The Customer may change the configuration of the Services (which may affect the cost of the Services) in accordance with the terms of this Agreement. 

6.2. To change the configuration of the Services the Customer sends the email from the email address of the Main Contact person of the Customer to the Contractor's email address inbox@tucha.ua the corresponding request shall specify: the Personal Account number, the essence of the request with indicated Virtual Infrastructure components, and the desired date of implementation by the Contractor of such change. 

6.3. After receiving a request from the Customer to change the configuration of the Services, the Contractor sends a response letter or calls the Customer's Main Contact person to confirm that the Customer has submitted the corresponding request. 

6.4. The Сontractor agrees or rejects the Customer's request to change the configuration of the Services by email to the email address of the Customer's Main Contact person, within the period stipulated in the Service Level Agreement. 

7. TEMPORARY TERMINATION OF SERVICES

7.1.  The Сontractor has the right to temporarily terminate the provision of the Services under the Agreement if: 

7.1.1. there is a negative balance on the Customer's Personal Account; 

7.1.2. if the Customer has violated the terms of the Agreement, as well as in cases stipulated by the current legislation of Ukraine, immediately, with notification (electronic or voice) of the Main Contact person of the Customer; 

7.1.3. implementation of planned preventive maintenance in order to improve the quality of the Services provided, during which for technical reasons the Customer will not be able to use the Services. In case of scheduled maintenance work, the Contractor notifies the Customer's Contact person by e-mail on technical issues, such work at last 24 hours before it begins. Planned maintenance in the Agreement and Service Level Agreement refers to a set of maintenance activities aimed at maintaining the proper state of the Virtual Infrastructure, both as a whole and its individual components;  

7.1.4. implementation of urgent (unscheduled) works that are carried out promptly to prevent accidents and failures of the Virtual Infrastructure, both as a whole and its individual components. In the case of urgent (unscheduled) work, the Contractor notifies the Customer's Contact person for technical issues by email about such works immediately before the start of their implementation. 

7.2. In the case of temporary termination of the Services on the basis of paragraph 7.1. of this Agreement, such suspension of the Services will not be deemed improper performance by the Contractor of the obligations assumed under the Agreement. 

7.3. The re-establishment of the Customer Services in the case of a temporary discontinuance of the Services due to the cause specified in clause 7.1.1. of the present Agreement is carried out after replenishment by the Customer of their Personal Account to the amount according to the invoice in clause 7.6. of this Agreement and 100% cost of the Service for the current month (period) in accordance with the Tariffs and/or on the basis on the Contractor`s invoice. The Contractor re-establish the provision of Services within one hour, and in case of impossibility within a period that does not exceed two working days from the date since the funds in the amount provided by this paragraph were received by the Contractor.  

7.4. The Contractor makes a note of the temporary termination of the Services for the reasons specified in clauses 7.1.1.-7.1.2 of this Agreement in one`s database. If such suspension lasts more than 7 calendar days, the Contractor has the right to delete the Customer's data and destroy the images of disk drives of virtual equipment, namely the Customer's virtual servers, without a separate agreement with the Customer, and terminate the Agreement in accordance with clause 19.3.6. of this Agreement. 

7.5. Re-establishment of the provision of the Services to the Customer in case of temporary termination of the Services due to the reason specified in clause 7.1.2. of this Agreement, performs within 2 (two) business days from the date of elimination of violations. To verify the fact that violations are eliminated, the Contractor may conduct an internal investigation and demand from the Customer to provide a report on the measures taken by the Customer to terminate the actions specified in clause 7.1.2.of this Agreement.  

7.6. If the Contractor temporarily stops providing the Services under clause 7.1. of this Agreement, the Customer, in order to maintain their Virtual Infrastructure in the ordered configuration of Services, continues to pay the Contractor the current cost of Services in full. Payment is made on the basis of the invoice issued by the Contractor. 

8. INTERRUPTIONS IN THE PROVISION OF SERVICES

8.1. If there is a technical problem that made it impossible to access the services (hereinafter the Break), the Customer shall inform the Contractor about it in strict compliance with the procedure defined in this Agreement. The conditions regarding the Break and its consequences are binding for the Contractor only provided the Customer clearly observes the notification procedure. 

8.2.  Under terms of the Agreement, the following procedure is applied for the notification about the Break and its solution: 

8.2.1. The Customer's Сontact person (for any questions), indicating the Customer's Personal Account and describing the Break informs the Contractor about the Break by voice message at +380 44 583-5-583. If there is a technical possibility to access the Internet, the Customer's Contact person duplicates the message about the Break from their email address to the Contractor's email address support@tucha.ua; 

8.2.2. the Contractor informs the Customer's Contact person about the elimination of the Break or its absence by voice message or, in the case of sending an electronic message about the Break to the Contractor's address, by providing a response to such message. 

8.3. The Break period calculates from the moment the Contractor receives a notification from the Customer's Contact person confirming the fact of the Break and ends when the Customer resumes receiving the Services. 

8.4. If the Break is a consequence of the guilt (including careless) actions of the Customer (including the actions of their employees that are not previously agreed by the Contractor), the Customer pays the Contractor the cost of Services and corresponding payments, in accordance with the Agreement and current Tariffs, for the entire Break period, fully in accordance with the Tariffs and the current configuration of the Services.  

9. TEMPORARY BLOCKING OF SERVICES INITIATED BY THE CUSTOMER

9.1. If the Customer has a need for short-term temporary blocking of access to the Services (TuchaHost, TuchaOffice, TuchaFlex/TuchaFlex+), the Customer shall notify the Contractor about this in strict compliance with the procedure specified in the Agreement. The conditions regarding the Break are binding for the Contractor only provided the Customer clearly observes the notification procedure. 

In terms of the Agreement, the following procedure for notifying about the blocking of the Services is applied: 9.2.1. The Customer's Administrative Contact person sends in advance to the Contractor`s email address support@tucha.ua a written message that shall contain the following information: a Personal Account and a voice password that the Customer is going to use to block Services. In case of receiving a corresponding written notification to the email address, the Contractor verifies (confirms the validity) of such a message by sending the clarification request in response. The data about the voice password for blocking the Services are used by the Contractor only after receiving a confirmation response from the Customer to the clarifying request. 

9.2.2. If required, the Customer's Administrative Contact person informs the Contractor about the need to apply the procedure for blocking Services by voice message at +380 44 583-5-583 with the mandatory indication of the Customer's Personal Account for which the Services should be blocked, and the pre-agreed voice password. 

9.2.3. If the data provided by the Customer's Administrative Contact matches the data that the Contractor has, the Contractor will block the Customer's Services. 

9.3. When blocking the Customer's Services, in order to maintain its Virtual Infrastructure in the ordered Services configuration, the Customer continues to pay the Contractor the current cost of the Services in full.  

9.4. The Customer's Administrative Contact person sends a written notification to the Contractor about unblocking the Services to the email address support@tucha.ua with the mandatory indication: The Customer's Personal Account on which the Services are blocked, the agreed voice password, and the desired date for unblocking the Services. If the relevant notification is received from the Customer's Administrative Contact person, the Contractor verifies (confirms the validity) of such notification by sending the clarification request in response. The Contractor unblocks the Services only after receiving the confirmation response to the clarification request from the Customer's Administrative Contact.

10. RIGHTS AND OBLIGATIONS OF THE CUSTOMER

10.1.    The Customer has the right: 

10.1.1. On timely and quality receipt of the Services. 

10.1.2. Receive free of charge comprehensive information from the Contractor about the list, cost, and procedure for providing the Services and the status of financial settlements. 

10.1.3. Change the configuration of the Services and to order additional Services. 

10.1.4. Provide their suggestions and proposal for improving the Services. 

10.1.5. Terminate this Agreement (refuse the Services) in accordance with the procedure and conditions established by this Agreement. 

10.1.6. Other rights defined by legislation and this Agreement. 

10.2.     Customer undertakes: 

10.2.1. Before using the Services, read the Agreement posted (published) on the Contractor's Website and comply with the terms of this Agreement. 

10.2.2. Promptly accept and pay in full the cost of the Services in accordance with this Agreement and the tariffs. 

10.2.3. Keep in secret their credentials, the Access Details, and other confidential information. 10.2.4. Independently take all necessary measures to ensure the security of information, including confidential information transmitted over the Internet and placed in the Customer's Virtual Infrastructure, from unauthorized access by third parties. The customer bears all risks associated with the use of such confidential information by third parties and is solely responsible for all losses caused to him, the Contractor, or other persons. 

10.2.5. Visit the Contractor's Website at least once every 10 days in order to get acquainted with Official Messages that may be posted by the Contractor.

10.2.6.   Approve tax invoices/adjustment calculations, if they meet the requirements of the current legislation of Ukraine, or reject tax invoices/adjustment calculations, indicating the reason for rejection, in case of violation of any requirements stipulated by the current legislation of Ukraine.

10.2.7.   Register adjustment calculations that provide for a reduction in the amount of compensation for the cost of the Services, compiled by the Contractor, and executed in accordance with the current legislation of Ukraine, within 15 calendar days from the date of compilation.

11. RIGHTS AND OBLIGATIONS OF THE CONTRACTOR

11.1.    The Contractor has the right: 

11.1.1. Demand timely payment for the Services by the Customer in accordance with the terms of this Agreement. 

11.1.2. In case of changes in legislation, regulations and other acts, tariffs, the introduction of other mandatory payments and fees, or other circumstances that affect the cost of the Services, unilaterally change the Tariffs (which may affect the cost of Services) with the warning of the Customer by means of Official notification not later than 7 (seven) calendar days before the new Tariffs come into force. 

11.1.3. Temporarily suspend the provision of the Services in accordance with the procedure and conditions established by the Agreement and the Customer Service Level Agreement. 

11.1.4. Terminate this Agreement in accordance with the procedure and conditions provided in the Agreement. 

11.1.5. Restrict access to resources/services on the grounds and in the manner prescribed by the current legislation of Ukraine. 

11.1.6. Other rights defined by legislation and this Agreement. 

11.2.     The Contractor undertakes: 

11.2.1. Provide the Customer with proper quality Services. 

11.2.2. Ensure the performance of the computing environment in which the Virtual Infrastructure operates, and provide technical support to the extent determined by the Customer Service Level Agreement. 

11.2.3. Objectively inform the Customer about the Services and terms of their provision. 

11.2.4. Keep records of the Services provided to the Customer. 

11.2.5. Inform the Customer about changes in the Services by means of Official notifications. 

11.2.6.   Issue tax invoices without a separate written request from the Сustomer in accordance with the current legislation of Ukraine. Thereof the Contractor in electronic form using the electronic document management module in the software "M.E.DOC IS" or similar software sends to the Customer: tax invoices/adjustment calculations, if they made up, within 15 calendar days from the date of their statement. Tax invoices/calculations adjustments that are made up if the amount of compensation for the cost of services (goods) is expected to increase in favor of the Contractor shall meet the following requirements:

a) be issued in accordance with the procedure established by the current legislation of Ukraine;

b) contain the E-signature of the authorized person of the Contractor;

c) be registered in the Unified register of tax invoices.

11.2.7.    Виконувати інші обов’язки відповідно до законодавства.
 

12. THE COST OF SERVICES

12.1. The cost of the Services depends on the configuration of the Services provided to the Customer and calculates according to the current Tariffs. 

12.2. The Parties agree that the cost of the Services determined in Euros on the 01st day of each current month is subject to adjustment in accordance with the official exchange rate of the Hryvnia to the Euro set by the National Bank of Ukraine on the above date. If the 01st day of the current month falls on a non-working Bank day (holiday or weekend), the cost of the Services is subject to adjustment in accordance with the official exchange rate of the Hryvnia to the Euro exchange rate set by the National Bank of Ukraine on the last banking day of the month preceding the current month. The Parties agree that such adjustment of the cost of the Services is not a unilateral change in the cost of the Services by the Contractor. 

12.3. If the paid Service period agreed in the Agreement is more than one calendar month, the cost of the Services paid in one payment for the entire paid period agreed in the Agreement is not subject to adjustment in accordance with the change in the Euro exchange rate in accordance with clause 11.2. of this Agreement. In case of early refusal of the Customer from the Services for the agreed paid period, which is more than one calendar month, the residual funds paid for this period are not returned to the Customer. 

12.4. The cost of the Services in terms of granting the Customer the right to use the Contractor's copies of the software is charged monthly in the amount of 1 (one) monthly cost of using the corresponding software, even if the Customer used such a right for less than a month. The procedure and terms of providing from the Contractor to the Customer and the use provided by the Contractor access to Microsoft software are regulated by terms of the Agreement with the Customer as end-user of Microsoft software, which is an integral part of this Agreement. 

12.5. The cost of the Services for the next paid period in terms of registration (re-registration) and domain name support can be adjusted by the Contractor in accordance with the current Tariffs without a separate agreement with the Customer. The Parties agree that such adjustment of the cost of the Services is not a unilateral change in the cost of Services by the Contractor. 

12.6. If the Services configuration is changed, the cost of the Services for the day on which such changes were made, including if the service configuration was changed several times during the day, is calculated for the service configuration selected by the customer on that day, which has the highest cost. 

12.7. The Сontractor keeps records of the Services provided to the Customer using one`s accounting tools. The Contractor's accounting tools are the only source of information about the amount of the Services provided to the Customer. The Customer agrees that during disputes, data from the Contractor's accounting tools will take precedence over other data. 

12.8. The basis for unilateral changes in the cost of the Services is: change of the current at the time of conclusion of the Agreement legislation of Ukraine, including regulatory acts of different legal force that affect the Tariffs and cost of the Contractor`s Services; significant changes in the economic situation on the market of communication services and/or in general; the introduction or increase of obligatory payments in the sphere of communications; changes in tariffs and fees, of State Service of Special Communication of Ukraine and other operators if their services are used in the provision of the Services to the Customer, an increase of electricity tariffs, changes in the Tariffs of the Contractor and other reasons that have a direct impact on the formation of cost of the Contractor`s Services. 

12.9. If the Customer disagrees with the Contractor's unilateral change of the terms of the Agreement regarding changes in the cost of the Services, the Customer shall notify the Contractor within no more than 10 (ten) calendar days from the date of Official notification. If the Customer disagrees with the change in the cost of the Services and notifies the Contractor about it within the specified period, such notification is considered as refuse to perform the Agreement on the changed terms, and the Agreement is considered terminated without signing any additional documents from the moment the new cost of Services enters into the force or in agreement with the Contractor, from the moment the funds on the Customer's Personal account are depleted. 

13. SERVICES PAYMENT PROCEDURE

13.1. The Customer pays for the Contractor's Services on the basis of this Agreement and Tariffs in the national currency of Ukraine – Hryvnia (UAH). 

13.2. Payment for the Services is made by transferring funds to the Contractor's current account or using other payment methods specified on the Contractor's Website. 

13.3. The moment of payment for Services is considered the moment when funds are credited to the Contractor's current account.

13.4. Payment for the Services is made on the terms of 100% prepayment. If the Customer does not receive an invoice for the Services until the 05th of the current month, the Customer shall contact the Contractor by sending a letter to the Contractor's email address billing@tucha.ua to receive such an invoice. Failure to receive an invoice by the Customer is not a reason for the non-payment of the Services. 

13.5. The Contractor can issue an invoice for the Services to the Customer at any time if the balance of funds on the Customer's Personal Account is not sufficient to pay for the Services for the current month (period), taking into account the current configuration. 

13.6. If the cost of actual Services provided by the Contractor in the reporting month (period) exceeds the amount of advance payment for the corresponding month (period), the Customer undertakes to make an additional payment of the corresponding amounts of money on the basis of the Contractor's invoice. In this case, the Contractor issues the invoice that specifies: 

  • the difference in cost between the actual cost of the Services provided by the Contractor in the reporting month (period) and the amount of advance payment for the reporting month (period);
  • total cost of the Services for the current month (period). 

13.7. If the cost of actual services provided by the Contractor in the reporting month (period) is less than the prepayment amount for the corresponding month (period), the excess of the prepayment amount is counted as a prepayment for the current month (period). In this case, the Contractor issues the invoice that specifies: the difference in cost between the total cost of the Services for the current month (period) and the excess of pre-payment amounts. 

13.8. To prevent the formation of payment debts for the Services, the Contractor recommends paying the recommended amount in advance, which the Contractor can add to the invoice. 

13.9. Services payment procedure for the Customer: 

13.9.1.  The initial payment is made by the Customer within 3 (three) banking days from the date of conclusion of the Agreement by the Parties. 

13.9.2. The monthly payment for the Services (payment for the selected period) and payment for the Services in case of insufficient amount on the Customer's Personal Account is made by the Customer within 10 calendar days from the date of issuing the corresponding invoice by the Customer. 

13.9.3. At any time in agreement with the Contractor the Customer can refill their Personal Account balance for any amount;

13.9.4. In case of temporary termination of the Services due to the reason specified in clause 7.1.1. of this Agreement, payment is made by the Customer in accordance with clause 7.3. of this Agreement. 

13.10. The Parties agreed that the cost of the Services provided to the Customer and the funds that will be received from the Customer to pay for the Services, the Contractor records in their Personal Account. If there is a debt on payment for one of the Services, the Contractor can use the funds received as the payment for another Service to repay the existing debt. 

13.11. When making payments, the Customer specifies the Personal Account number to identify the payment.  

13.12. Non-use of Services by the Customer on their own initiative without following the procedure of termination (Termination) of the Agreement is not a reason for non-payment. 

13.13. The Customer independently and at their own expense pay the cost of third-party services, if this is necessary to obtain the Contractor's Services under this Agreement (for example, Internet access services and others). 13.14. If at the time of termination of the Agreement the Customer's Personal account has a balance of unused funds, then on the basis of an official written application of the Customer (if the Customer is a business entity, the application is submitted on the Customer's letterhead, signed by an authorized person and the chief accountant, verified by the Customer's seal), such balance is transferred to the current account of the Customer that specified in the application, within 30 (thirty) calendar days from the date of receipt of the written application by the Contractor. Refunds are made to the Customers who have identified themselves properly. By a separate written agreement of the Parties, the Contractor may provide additional paid Services to the Customer for the amount of such residual funds. 

14. PAYMENT OF COMPENSATION

14.1. If the Contractor has not canceled the Break during the time specified in the Service Level Agreement, the Contractor enters compensation in the amount of the cost of the Services for the day in which the Break was recorded, but not more than once a day. 

14.2. Compensation is calculated once a month during the billing period for the current month (period). The invoice for the Services for the current month (period) is issued based on the amount of compensation for the previous month (period). 

14.3. Refund guarantee: 14.3.1. Within the first 30 (thirty) calendar days from the date of start of the Services, the Contractor guarantees a full refund to the Customer, if the Service parameters do not match the ordered ones and the Contractor has not eliminated such difference after the Customer's request. 

14.3.2. The funds will be returned to the Customer minus bank and/or payment system commissions within 10 (ten) business days from the date of receipt by the Contractor of a written request for a refund to the account details specified in it, sent to the Contractor within 30 (thirty) calendar days from the date of start of the Services. 

14.3.3. If the Contractor returns funds to the Customer using the bank details specified in the refund application, the Contractor is not responsible for a bank's actions if the bank does not transfer or transfer funds to the Customer in time. 

14.3.4. Refunds are not made if the Customer violates the terms of this Agreement and/or orders special offer Services, and/or if the Customer has not provided the Contractor with the opportunity to eliminate the difference of the parameters of the ordered Services. 

15. ACCEPTANCE-TRANSFER OF SERVICES

15.1.  The fact of proper provision of the Services under the Agreement is formalized by acts of acceptance and transfer (provision) of services that are provided to the Customer at his request. The act of acceptance and transfer (provision) of services (without the Customer's signature) is considered valid and confirms the fact of the provision of the Services properly and in full.

15.2. Sending of source documents (invoices, acts of acceptance, acts of reconciliations, other documents) may be done in electronic form in compliance with the current legislation of Ukraine on electronic digital signature (in particular, with the application of reproduced in the prescribed manner digital signatures of authorized persons each of the Parties and specialized software ("M.E.Doc" (My Electronic Document), "SONATA", etc.), in the manner and time stipulated in this Agreement.

15.3. A sufficient confirmation of sending the document in electronic form is the software report ("M.E.Doc" (My Electronic Document), "SONATA", etc.). An electronic document is considered received from the moment the Contractor sends the corresponding document to the Customer in electronic form. 

15.4.  Electronic digital signature (a qualified electronic signature and seal (if any), hereinafter the E-signature) of the Parties is a mandatory essential detail of an electronic document that is used to identify the signatory of an electronic document. Application of the E-signature completes the creation of an electronic document. The original of an electronic document is considered an electronic copy of the document with mandatory details, including the E-signature.

15.5.    In case of dispute related to the authenticity of the document given in accordance with this section, an interested Party within 1 (one) business day of receipt of the document, send the other Party a written notice stating the reasons of their claim and indicating the date and number of the disputed electronic document. The request is considered within 2 (two) business days from the date of its receipt with a written response. 

15.6.    In case of non-settlement of disputes, representatives of the Parties resolve the dispute by determining the type of dispute in accordance with this section within 3 (three) business days from the date of receipt by the interested Party of the response to its request. The basis for dispute resolution is written notifications/responses of the Parties, electronic archives of the Parties. 

15.7.    To resolve the dispute, the Parties provide the external drives with key information, a disputed electronic document in the form of a file with the E-signature attached to it. 

15.8.    When considering a dispute, representatives of the Parties check the authenticity of electronic documents, as well as the correctness of key information. 

15.9.    Types of dispute resolution and procedure for their consideration: 

15.9.1. the dispute "denial of a fact that an electronic document was sent" (the sender claims that the electronic document was not sent, and the recipient claims that this electronic document was received) is resolved as follows: the recipient provides an electronic document; - checks the authenticity of the provided electronic document; if the electronic document is true, the dispute is resolved in favor of the recipient, otherwise, in favor of the sender; 

15.9.2. the dispute "denial of a fact of receipt of an electronic document" (the receiver claims that the electronic document was not received, and the sender that the electronic document was sent) is resolved as follows: the sender provides the electronic document; - verifies the authenticity of the electronic document that was provided; if the electronic document is genuine, the conflict is resolved in favor of the sender, otherwise, in favor of the receiver; 

15.9.3. the dispute "sent electronic document does not correspond to the received" (the sender claims that the electronic document they sent does not correspond to the received electronic document and the recipient claims that the received electronic document corresponds to the documents sent by sender) is resolved as follows: the recipient provides the electronic document; - verifies the authenticity of the electronic document; if the received electronic document is true, the conflict is solved in favor of the recipient, otherwise, in favor of the sender. 

15.10.    Based on the results of resolving disputes between the Parties, an act is drawn up which reveals the essence and type of the dispute and is signed by authorized representatives of the Parties. 

16. LIABILITY OF PARTIES

16.1. The Сontractor is responsible to the Customer in cases stipulated by this Agreement and the current legislation of Ukraine. 

16.2. For late performance by the Customer of the financial obligation, a penalty is charged in the amount of double discount rate of the National Bank of Ukraine for each day of delay in performance. 

16.3. In case the Customer violates of terms of the notice the Contractor about termination under this Agreement, the Customer shall pay to the Contractor the penalty (fine) in the amount of the current configuration of the Services for one month and if the pay period is longer than one month, the Customer pays a fine in the amount of the balance on the Personal Account.  

16.4. The Customer independently ensures the availability of their own hardware for accessing the Virtual Infrastructure, its operability, and the ability to access the Internet. To ensure reliable access to the Internet, the Contractor recommends the Customer use a backup connection.

16.5. The Customer does not have the right to use the Contractor's Services for illegal purposes or in any way that somehow contradicts the current legislation of Ukraine or international legislation, or violates the rights and legitimate interests of third parties, and is solely responsible for the violation. 

16.6. The Contractor is not responsible to the Customer and/or third parties for: 

16.6.1. any damages and/or losses of the Customer and/or third parties, including loss (including 
partial) data as a result of delays, non-receipt, non-delivery, misdirection or interruption of the Services that are the result of errors, negligence or fault of the Customer 
(including their employees, representatives, clients, etc.), as well as their direct fault; 

16.6.2. content of data transmitted/received by the Customer through the Services; 

16.6.3. any actions of the Customer using the Services; 

16.6.4. consequences of the Customer's use of the Services for any specific purpose;  

16.6.5. violation of the obligations accepted under this Agreement, if the cause of such violation is not the direct fault of the Contractor, including the actions of third parties; 

16.6.6. use by the Customer any software with violation of the license terms; 

16.6.7. placement or distribution by the Customer of any materials that contradict international standards or current legislation of Ukraine; 

16.6.8. quality of the Services in case of equipment failure owned by the Customer; 

16.6.9. quality of lines operation, channels and communication nodes provided by other organizations; 

16.6.10. use (theft) by third parties of confidential information, including the Customer`s credentials and Access Details; 

16.6.11. force majeure circumstances (force majeure).  

16.7. Any termination of the Services provided by the Contractor does not release the Customer from paying the debt under the Agreement. 

17. GROUNDS FOR RELEASE FROM LIABILITY

17.1. The Parties are released from liability for failure or improper performance of their obligations according to this Agreement if such failure is the result of the action of force majeure circumstances (force majeure – fire, flood, earthquake or other natural disasters, international sanctions, protests, strikes, hostilities, the imposition of emergency or martial law, terrorist act, blockade, revolution, civil disorder, explosion, acceptance of normative legal acts, decisions or regulations by the authorized state bodies of Ukraine), as the result of which the Parties assigned additional duties or additional restrictions which directly affect the execution of this Agreement and occurred after its conclusion, as well as other actions or events that exist outside of the will of the Parties. 

17.2. The Party that is unable to fulfill their obligations under the Agreement as a result of force majeure circumstances shall notify the other Party in writing about the occurrence of such circumstances within 5 (five) calendar days from the date of their occurrence, and provide the certificate of the chamber of Commerce and Industry of Ukraine within 30 (thirty) calendar days from the date of the end of such circumstances. Failure to notify or untimely notification about force majeure circumstances deprives the relevant Party of the right to refer to these circumstances that release from liability. 

17.3. The occurrence of force majeure circumstances at the time of delay in the performance of the Party's obligations under the Agreement deprives this Party of the right to refer to these circumstances as a ground for releasing from liability under the Agreement.

17.4. Performance of this Agreement, in full or in part, is terminated for the duration of such circumstances. If the force majeure event lasts for more than three months, each Party has the right to refuse to provide/receive part of the Services or terminate this Agreement, and in this case, neither Party has the right to demand from the other Party payment of possible losses. The Parties undertake to make the remaining settlements within 1 (one) month, if there are debts between them. 

18. CONFIDENTIALITY OF INFORMATION

18.1. Confidential information includes, in particular, Access Details, the Customer's Personal Account number, personal data, terms of the Services, and other information/documents noted as "confidential information". 

18.2. The Parties undertake to keep confidential information obtained as a result of the performance of this Agreement, except for cases when this is authorized in writing by the other Party or required by state authorities in accordance with current legislation. 

18.3.  The Party is responsible for the disclosure of confidential information in accordance with current legislation. 

19. TERM OF THE AGREEMENT

19.1. The agreement is public and perpetual and is valid until its termination by either Party in accordance with the procedure established by this Agreement or current legislation, but in any case until its final execution by the Parties. 

19.2. This Agreement is considered to be agreed by the Customer and concluded at the Contractor's location from the date of acceptance. 

19.3. The agreement may be terminated prematurely: 

19.3.1. at the request of one of the Parties, the latter shall notify the other Party in writing no later than 30 (thirty) calendar days in advance by sending a letter to e-mail, as well as make mutual settlements and fulfill all financial obligations to each other in compliance with the terms of this Agreement; 

19.3.2. if the temporary termination of the Services due to the reasons specified in clauses 7.1.2.-7.1.4 of this Agreement lasts for more than 30 (thirty) calendar days, the Contractor has the right to terminate the Agreement unilaterally with notification of the Customer by sending an Official notification. Official notification of termination (termination) of the Agreement under the terms of this clause, specifying the reasons, is sent to the Customer at least 10 (ten) calendar days before the date of termination of the Agreement;

19.3.3. by court decision; 

19.3.4. in case of force majeure (more than three months), the Parties undertake to make financial settlements within one month and are not entitled to claim damages from the other Party; 

19.3.5. in case of violation by the Customer of the provisions of this Agreement, improper performance of their obligations under the Agreement and its annexes, the Contractor has the right to terminate the Agreement unilaterally. Official notification of termination (termination) of the Agreement under the terms of this clause is sent to the Customer at least 10 (ten) calendar days before the planned date of termination of the Agreement;

19.3.6. in the case of implementation of the Contractor`s right under clause 7.4. of this Agreement. Official notification of termination of the Agreement and deletion of the Customer data and destruction of images of disk drives of virtual equipment, namely virtual servers of the Customer, is sent at least 10 (ten) calendar days before the date of deletion of the Customer data and destruction of images of disk drives of virtual equipment. Clause 19.5. of this Agreement does not apply to the termination (termination) of the Agreement under the terms of this clause;

19.3.7. by mutual agreement of the Parties. 

19.4. The Agreement that is terminated (terminated) for any reason specified in the Agreement is considered terminated (terminated) except for the part related to the Customer's performance of the financial obligation, which loses its force only after the Customer's performance of the financial obligation in full. 

19.5. In case of termination of the Agreement, the Contractor (at the request of the Customer) sends to the email address of the Customer's Contact person for technical issues Access Details for downloading files, and the Customer undertakes to accept them and independently upload images of disk drives of virtual equipment, namely virtual servers, within 3 (three) business days from the date of termination of the Agreement. At the end of this period, the Contractor undertakes to destroy the above-mentioned images, unless otherwise agreed in writing by the Parties. 

20. AMENDMENTS AND ADDITIONS TO THE AGREEMENT

20.1. The Сontractor independently determines the terms of the Agreement in accordance with and in compliance with the requirements of the current legislation of Ukraine. During the validity of the Agreement, the Contractor has the right to independently change and/or supplement the terms of this Agreement, Tariffs, and the Service Level Agreement with mandatory Official notification of the Customer not later than 7 (seven) calendar days before their entry into force. At the same time, the Contractor guarantees and confirms that the current version of the text of this Agreement posted on the Contractor's Website is valid. 

20.2. If the Customer does not agree with the changes and/or additions made to the Agreements, Tariffs and/or Service Level Agreement, this Customer has the right to terminate the Agreement in accordance with the procedure set out in the Agreement, within 10 (ten) calendar days from the day when it learned or could have learned about the changes made to the Agreement, Tariffs and/or Service Level Agreement. Failure by the Customer to terminate the Agreement within the specified period indicates the Customer's consent to the changes made to the Agreement. 

20.3. Changes regarding the Customer's Contact persons can be made on the basis of the official letter from the Customer and/or on the basis of a corresponding request from the Customer's administrative Contact person sent to the Contractor's email address support@tucha.ua. In case of receiving a request to the email address, the Contractor verifies (confirms the validity) of such a request by sending the clarification request in response. Changes are made only after receiving the confirmation response from the Customer to the clarifying request. 

21. DISPUTE RESOLUTION

21.1. The Contractor and the Customer will take all measures to resolve disputes and disagreements that may arise in relation to the Agreement or about it, through negotiations. 

21.2. If the negotiations do not lead to a resolution of the dispute, the case is referred to the appropriate court in accordance with the rules of jurisdiction and jurisdiction defined by the current legislation of Ukraine.  

21.3. Written complaints (claims) of the Customer is considered by the Contractor in accordance with the procedure provided for by current legislation.

22. OTHER TERMS AND CONDITIONS

22.1. The Customer under this Agreement does not have the right to transfer their rights and obligations to third parties without the consent of the Contractor.

22.1.1.    If necessary, the Contractor has the right to transfer their rights and obligations to such Providers of cloud solutions Tucha:

  • LIMITED LIABILITY COMPANY "TUCHA" is registered in Ukraine, EDPNOU (National State Registry of Ukrainian Enterprises and Organizations) code 39481519; 
  • LIMITED LIABILITY COMPANY "UPTIME" is registered in Ukraine, EDPNOU (National State Registry of Ukrainian Enterprises and Organizations)  code 37038333;
  • SOLE PROPRIETORSHIP MELNYK VOLODYMYR MYKOLAIOVYCH registered in Ukraine, Registration number of taxes and other liabilities payer's registry card 2915401614.

22.1.2. If the Contractor transfers the rights and obligations under this Agreement to another provider of cloud solutions Tucha, the Customer will be notified by an Official notification 10 (ten) calendar days before such transfer. 

22.2. By entering into the Agreement, the Parties, in accordance with the Law of Ukraine "On Personal Data Protection", give mutual consent to each other for the processing of their personal data. The Parties are notified that their personal data are included in the personal data database, and are also notified of their rights under the Law of Ukraine "On Personal Data Protection". Personal data is processed in accordance with the privacy policy.  

22.3. The Customer is granted the right to use copies of the software included in the current configuration of the Services by reproduction, limited installation, copying, launching, exclusively in their internal activities, without the right to alienate or transfer them to third parties. 

23. FINAL PROVISIONS

23.1. This Agreement is made in accordance with the current legislation of Ukraine, in particular the Civil Code of Ukraine, the law of Ukraine "On Telecommunications", Regulations for the provision and receipt of telecommunication services, approved by the resolution of the Cabinet of Ministers of Ukraine from 11.04.2012 № 295, Main requirements to the agreement on the provision of telecommunication services, approved by the NCCIR (National Commission for the State Regulation of Communications and Information) decision from 29.11.2012 № 624, other normative legislative acts. 

23.2. Each Party guarantees to the other Party that has the necessary legal capacity, as well as all the rights and powers necessary and sufficient to conclude and perform this Agreement in accordance with its terms. 

23.3. Unilateral modification of the terms or refusal to fulfill the terms of the Agreement is not allowed, except for the cases provided in this Agreement. 

23.4   The Contractor confirms that it is a payer of income tax on general terms at the rate stipulated by the Tax Code of Ukraine.

23.5.    The Contractor is included in the Register of telecom operators and providers in accordance with the decision of the National Commission for communications regulation of Ukraine dated 17.03.2015 No. 136.

23.6.    This Agreement does not terminate in case of changes in the details of the Parties, their constituent documents, changes in ownership, organizational and legal form, and so on. If the details are changed, the Party undertakes to notify the other Party within 10 (ten) calendar days.

23.7.    The parties agreed on usage (use) facsimile reproduction of the signature of the Contractor`s director by means of mechanical copying on all primary documents that are drawn up between the Parties, and on other documents (letters, requirements, documents that confirm the facts of business transactions, additional agreements, and so on).
Sample of personal and facsimile reproduction of the signature of the Director Melnyk Volodymyr Mykolaiovych using mechanical copying tools:

Personal signature Facsimile reproduction of the signature
 Зразок особистого підпису   Зразок Факсиміле
24. CONTRACTOR'S SERVICES DEPARTMENTS

Technical Department

  • Sphere of responsibility - Technical issues    
  • E-mail address - support@tucha.ua    
  • Phone number +380 44 583-5-583 (round-the-clock)

Customer Care Department    

  • Sphere of responsibility - Financial issues, changing the configuration of services, quality of services, offers, requests, and so on
  • E-mail address - billing@tucha.ua
  • Phone number +380 44 583-5-583 (round-the-clock)

Sales Department    

  • Sphere of responsibility - Ordering new services
  • E-mail address- sales@tucha.ua
  • Phone number +380 44 583-5-583 (round-the-clock)

Annex

  1. Application form for joining the Public Agreement (offer) for the provision of services for temporary use of the virtual infrastructure of Tucha.
25. DETAILS OF THE CONTRACTOR:

LIMITED LIABILITY COMPANY "KHMARA"

EDRPOU code 39481519 

individual tax number 394815126517

UA073808050000000026000599177 in JSC "JSC Raiffeisen Bank Aval»

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