Warpcache Terms of Service

Version 1.1 – November 2016

RECITALS

  1. Warpcache offers a multi-CDN solution which enables Customers to serve their content via the CDN which offers optimal performance (the “Warpcache Service”);
  2. Customer publishes or serves content via the Internet and wishes to use the Warpcache Service to improve the speed and/or reliability of the delivery of its content;
  3. Warpcache and Customer have laid down their entire agreement regarding the authorized use by Customer of the Warpcache Service in this Agreement.

AGREEMENT

ARTICLE 1 – DEFINITIONS
  1. Agreement: This Terms document, and all referenced annexes, by which a complete agreement is established between Warpcache and Customer, involving the authorized use of the Warpcache Service by Customer.
  2. CDN: Content Distribution Network. Content distribution networks enable Internet content to be cached closer to users/viewers, in order to allow a faster and/or more reliable delivery of such content.
  3. Warpcache: Warpcache B.V., having its registered office at Neuweg 2F, 1211 LW, Hilversum, Netherlands. Warpcache is also what “we”, “us” and “our” refer to in this document.
  4. Content Recipient: a person who receives content from Customer, served using the Warpcache Service.
  5. Customer: the customer whose contact details are listed in the online order or in the Agreement.
  6. Data Traffic: the amount of digital information, expressed as an amount of bits or bytes (e.g. megabyte, MB, or gigabyte, GB) which is served using the Warpcache Service and includes ingress, midgress and egress traffic.
  7. Initial term: the time period between the effective date and the expiration date.
  8. Login Details: the details, such as e-mail address or username and password, which must be entered to gain access to the Website.
  9. User: the natural person rightfully authorized under this Agreement to use the Warpcache Service (e.g. Customer’s employees).
  10. Warpcache Service: Warpcache’s multi-CDN solution which enables Customer’s content to be served via the CDN which offers optimal performance, depending on certain preferences or settings provided by the User.
  11. Website: my.warpcache.com and any subdomains of warpcache.com.
ARTICLE 2 – CONDITIONS OF USE
  1. Any right to use the Warpcache Service is at all times conditional to Customer’s payment of the applicable fees and compliance with the Acceptable Use Policy (“AUP”) published at https://www.warpcache.com/aup/.
  2. Warpcache will respond to (notifications of) violations as set forth in the AUP published at https://www.warpcache.com/aup/ and its Notice and Takedown Policy (“NTDP”) published at www.warpcache.com/ntd.
ARTICLE 3 – AVAILABILITY AND SUPPORT
  1. Warpcache strives to make the Warpcache Service available for Customer without any downtime or disruptions. Any indication of availability or performance shall not be construed as a guarantee, unless a guarantee has explicitly been provided in an SLA, containing also the remedies available in the event such guarantee would not be met.
  2. Customer can report disruptions and ask questions about the Warpcache Service via the contact details provided on the Website. The hours during which support will be available may be limited to a certain service window. Further parameters regarding support may be provided in an SLA.
ARTICLE 4 – PRICING AND PAYMENT TERMS
  1. The data relevant for billing, such as the amount of Data Traffic which is generated by Customer using the Warpcache Service and the amount of DNS queries, is recorded by Warpcache. Unless agreed otherwise in writing, Warpcache will send Customer an invoice for the applicable amounts every month (normally as a pdf-file, via e-mail).
  2. Warpcache will bill Customer monthly in advance for committed Data Traffic and monthly in arrears for any additional Data Traffic used above the committed Data Traffic billed in the prior month.
  3. Warpcache will bill Customer monthly for a minimum of 1TB per month per active property.
  4. All amounts are in USD and exclusive VAT, unless specified otherwise.
  5. If Customer pays for the Warpcache Service by credit card, Customer will provide Warpcache with valid credit card information and promptly notify Warpcache of any changes necessary to charge the credit card. The provision of credit card information to Warpcache authorizes Warpcache to charge the credit card for all Warpcache services used by Customer.
  6. Invoiced amounts are due immediately on the invoice date.
  7. If a credit card payment is declined or disputed the Customer will be in default immediately without any further notification being required.
  8. If Customer is in default, Warpcache reserves the right to suspend the Warpcache Service with a four (4) hour email notice.
  9. If Customer is in default, statutory interest will be due in respect of the outstanding invoice. Further, Customer shall be obliged to fully compensate both the judicial and extrajudicial collection costs, including legal fees and the costs of collection agencies, in addition to the amount that is owed and the interest due in respect thereof.
ARTICLE 5 – LOGIN DETAILS
  1. Each of the Parties shall observe proper care with respect to any user names, passwords and other Login Details which may provide access to the Warpcache Service, in order to avoid unauthorized access to and use of (a) the Warpcache Service, and (b) any personal or otherwise confidential information of Customers and Warpcache.
  2. Customer shall require its Users to observe proper care with respect to their Login Details.
ARTICLE 6 – PRIVACY AND PROTECTION OF PERSONAL DATA
  1. Warpcache and Customer shall each comply with all applicable laws and regulations regarding privacy and the protection of personal data and implement appropriate security measures in order to prevent loss and unlawful processing of personal data.
  2. In its delivery of the Warpcache Service, Warpcache endeavors not to process any personal information about Content Recipients of the Customer, or to anonymize such information as soon as possible. For example, in some cases (depending on the CDN), Warpcache does not have access to any complete IP-addresses from Content Recipients, but merely processes parts of IP-addresses, as necessary to establish how content can be delivered to them as quickly and reliably as possible, while in other cases, where Warpcache does have access to complete IP-addresses, Warpcache itself anonymizes such information as soon as possible.
ARTICLE 7 – UPDATES AND MODIFICATIONS TO THE WARPCACHE SERVICE
  1. Warpcache shall make commercially reasonable efforts to adjust the Warpcache Service from time to time to improve its functionality and to correct faults/errors. If an adjustment leads to any significant change in functionality, Warpcache shall inform Customer thereof by means of release notes.
ARTICLE 8 – WARRANTIES, LIABILITY
  1. Except to the extent an SLA expressly stipulates otherwise, Warpcache provides the Warpcache Service and the Website “as is” and “as available”, without any warranty of any kind. To the extent permitted by applicable law, Warpcache disclaims any implied warranties or representations.
  2. The entire liability of Warpcache on whatever ground, including product liability, tort, contractual liability, and breach of warranty, shall be limited to direct damages, to the amount of fees actually paid by Customer for the use of the Warpcache Service in the six (6) months preceding the damaging event, up to a maximum of 10.000 (ten thousand) euro.
  3. The limitations of liability contained in this article 8 shall not apply in the following cases:
    1. wrongful intent and gross negligence,
    2. bodily injury.
  4. In order to qualify for any compensation by Warpcache, Customer must notify Warpcache in writing of any loss or damage as soon as possible after the event has occurred. Any claims for damages against Warpcache shall expire by the mere passage of six (6) months from the date on which the claim arose.
ARTICLE 9 – INTELLECTUAL PROPERTY RIGHTS
  1. Warpcache and its licensors retain any intellectual property rights in the Warpcache Service. Nothing in this Agreement shall be construed as an assignment or transfer of any intellectual property from Warpcache to Customer.
ARTICLE 10 – FORCE MAJEURE
  1. Warpcache shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, cybercrime, failure of a utility service or transport or telecommunications network, war, riot, fire, flood, storm or unforeseeable default of suppliers or subcontractors, provided that the Customer is notified of such an event.
ARTICLE 11 – TERMINATION OF THIS AGREEMENT
  1. Unless agreed otherwise in writing, neither Party may unilaterally terminate this Agreement before its expiration date, unless for cause, in the following circumstances:
    1. upon the other Party’s material breach of an obligation under this Agreement, or, in case of a remediable breach, if the other Party fails to cure such breach within thirty (30) days after receipt of formal written notice specifying the breach;
    2. the other Party has applied for or received, whether provisional or not, a moratorium, or
    3. upon the other Party ceasing to conduct business other than for reconstruction or amalgamation while solvent, or becoming or being declared by a bankruptcy court to be insolvent or bankrupt.
  2. Unless agreed otherwise in writing, this Agreement will automatically renew itself on its expiration date, for the same period as the Initial Term, unless either Party has given notice of its wish to terminate at least two (2) months before the expiration date, in which case this Agreement shall terminate on the expiration date.
ARTICLE 12 – AMENDMENTS
  1. Warpcache reserves the right to make minor amendments to the Terms at any time without notice to Customer.
  2. Customer will be notified of any Amendments to the Terms of Service which Warpcache considers of material impact on the Customer’s rights under the Agreement, at least 30 days before the amendment will take effect.
  3. Customer has the right to refuse material amendments to the Terms. Such refusal must be communicated to Warpcache (preferably by e-mail) before the date on which the amendments take effect. In such case, the Agreement will remain in effect unamended until terminated.
  4. Amendments to the Terms shall also apply in respect of Agreements that have already been concluded.
ARTICLE 13 – INTERPRETATION, CHOICE OF LAW AND CONFLICT RESOLUTION
  1. Choice of law. This Agreement shall be governed exclusively by Dutch law, excluding any conflict of law provisions contained in Dutch law.
  2. Mediation clause. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be The Hague, The Netherlands. The language to be used in the mediation shall be English.
  3. Choice of forum. Any disputes which cannot be resolved by mediation shall be submitted to the competent court in The Hague, The Netherlands.
  4. Precedence. This Agreement supersedes any and all prior written or oral agreements and / or arrangements between the Parties on the same subject. In case of any conflict between these Terms and any referenced Annexes the Annex shall prevail.
  5. With respect to notices and correspondence the Parties elect domicile at the addresses specified in this Agreement.
  6. When this Agreement states something must be “written” or “in writing”, this includes e-mail or other electronic messages, provided that the integrity and authenticity of the electronic message can be verified to a reasonable level of certainty.
  7. Each Party signing this Agreement acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there shall be no presumption that ambiguities shall be construed or interpreted against the drafter.
  8. The headings and titles are merely a tool to enable easy reading. The language contained within each clause itself shall be given more weight in its interpretation than the heading of the Article.
  9. Any terms and conditions or exceptions put forward by Customer will not form part of the Agreement, unless explicitly accepted in writing by Warpcache.
  10. This Agreement may only be amended or supplemented by a written agreement between the Parties, except where otherwise specified in this Agreement.
  11. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.