Cloud Services Agreement
This Cloud Services Agreement (CSA) and applicable Attachments and Statement of Works (SOWs), as provided from Time to time, along with the "Terms And Conditions" hosted at form the complete agreement regarding transactions under this CSA (together, the "Agreement") under which Client may order Cloud Services. Attachments typically, and may not wholly, contain additional terms that apply to similar types of offerings. SOWs, such as service descriptions, order documents or statements of work, contain specific details related to an order for a Cloud Service and there may be more than one SOW and SOW providing the details of an order. In the event of conflict, an Attachment prevails over this CSA and the generic terms and conditions hosted at the website and a SOW prevails over both the CSA and any Attachment.
- Cloud Services
a) A Cloud Service is an "Pinakastra Technologies Private Limited" (henceforth referred to as Pinakastra) branded offering provided by Pinakastra and made available via a network. Each Cloud Service is described in an Attachment or a SOW. Cloud Services are designed to be available 24/7, subject to maintenance. Clients will be notified of scheduled maintenance. Technical support and service level commitments, if applicable, are specified in an Attachment or SOW.
b) Client accepts an Attachment or SOW by ordering, enrolling, using, or making a payment for the Cloud Service. When Pinakastra accepts Client's order, Pinakastra provides Client the authorizations specified in the SOW, if any. The term, including any renewal term, for a Cloud Service is described in an Attachment or SOW.
c) Pinakastra will provide the facilities, personnel, equipment, software, and other resources necessary to provide the Cloud Services and generally available user guides and documentation to support Client's use of the Cloud Service. Client will provide hardware, software and connectivity to access and use the Cloud Service, including any required Client-specific URL addresses and associated certificates. An Attachment or SOW may have additional Client responsibilities.
d) Client may access a Cloud Service only to the extent of authorizations acquired by Client. Client is responsible for use of Cloud Services by any user who accesses the Cloud Service with Client's account credentials. A Cloud Service may not be used in any jurisdiction for unlawful, obscene, offensive or fraudulent Content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. Client may not i) resell direct access to a Cloud Service to a third party outside Client's Enterprise; or ii) combine Cloud Services with Client's value add to create a commercially available Client branded solution for which Client charges a fee.
- Content and Data Protection
a) Content consists of all data, software, and information that Client or its authorized users provides, authorizes access to, or inputs to the Cloud Service. Use of the Cloud Service will not affect Client's existing ownership or license rights in such Content. Pinakastra and its contractors, and sub-contractors may access and use the Content solely for the purpose of providing and managing the Cloud Service, unless otherwise described in a SOW.
b) Client is responsible for obtaining all necessary rights and permissions to enable, and grants such rights and permissions to, Pinakastra, and its contractors and sub-contractors to use, provide, store and process Content in the Cloud Service. This includes Client making necessary disclosures and obtaining consent, if required, before providing individuals' information, including personal or other regulated information in such Content. If any Content could be subject to governmental regulation or may require security measures beyond those specified by Pinakastra for an offering, Client will not input, provide, or allow such Content unless specifically permitted in the terms of the relevant SOW or unless Pinakastra has otherwise first agreed in writing to implement additional security and other measures.
c) Upon request by either party, Pinakastra, Client or their affiliates will enter into additional agreements as required by law in the prescribed form for the protection of personal or regulated personal data included in Content. The parties agree (and will ensure that their respective affiliates agree) that such additional agreements will be subject to the terms of the Agreement.
d) Pinakastra will return or remove Content from Pinakastra computing resources upon the expiration or cancellation of the Cloud Service, or earlier upon Client's request. Pinakastra may charge for certain activities performed at Client's request (such as delivering Content in a specific format). Pinakastra does not archive Content, however some Content may remain in Cloud Service backup files until expiration of such files as governed by Pinakastra's backup retention practices.
e) Each Cloud Service is designed to protect Content as described in the Agreement. Pinakastra's Data Security and Privacy Principles for Pinakastra Cloud Services (DSP), to apply for generally available Cloud Service offerings or as described in the applicable SOW. Pinakastra will treat all Content as confidential by not disclosing Content except to Pinakastra employees, contractors, and sub-contractors, and only to the extent necessary to deliver the Cloud Service, unless otherwise specified in a SOW. Specific security features and functions of a Cloud Service may be provided in an Attachment and SOWs. Client is responsible to assess the suitability of each Cloud Service for Client's intended use and Content. By using the Cloud Service, Client acknowledges that it meets Client's requirements and processing instructions.
f) Client acknowledges that
i) Pinakastra may modify the DSP from time to time at Pinakastra's sole discretion and
ii) such modifications will supersede prior versions. The intent of any modification to the DSP will be to
i) improve or clarify existing commitments,
ii) maintain alignment to current adopted standards and applicable laws, or
iii) provide additional commitments. No modification to the DSP will materially degrade the security of a Cloud Service.
- GDPR Compliance
How we classify data?
Pinakastra classifies customer data into two categories: customer content and account information.
We define customer content as software (including machine images), data, text, audio, video, or images that a customer or any end user transfers to us for processing, storage, or hosting by Pinakastra™ Cloud in connection with that customer's account, and any computational results that a customer or any end user derives from the foregoing through their use of Pinakastra™ services. For example, customer content includes content that a customer or any end user stores in Pinakastra™ Cloud. Customer content does not include account information, which we describe below.
We define account information as information about a customer that a customer provides to us in connection with the creation or administration of a customer account. For example, account information includes names, usernames, phone numbers, email addresses, and billing information associated with a customer account. The information practices described in the Pinakastra Privacy Notice apply to account information.
Who owns customer content?
As a customer, you maintain ownership of your content, and you select which Pinakastra™ services can process, store, and host your content. We do not access or use your content for any purpose without your consent. We never use customer content or derive information from it for marketing or advertising.
Who controls customer contents?
As a customer, you control your content.
- - You determine where your content will be stored, including the type of storage and geographic region of that storage.
- - You choose the secured state of your content. We offer customers strong encryption for your content in transit and at rest, and we provide you with the option to manage your own encryption keys.
- - You manage access to your content, and access to Pinakastra™ services and resources through users, groups, permissions, and credentials that you control.
The Pinakastra Privacy Notice describes how we collect and use account information. We know that you care how account information is used, and we appreciate your trust that we will do so carefully and sensibly. The Controller of Personal Data: the entity which determines how and why the data is processed.
The Processor of Personal Data: the entity which processes personal data on behalf of the controller. Examples of Processing are storage, recording, organisation or retrieval.
a) Pinakastra may modify a Cloud Service, without degrading its functionality or security features. Pinakastra may withdraw a Cloud Service on 30 days’ notice, unless otherwise stated in a SOW. Pinakastra will continue to provide the Cloud Service for the remainder of Client's unexpired term or work with Client to migrate to another Pinakastra offering.
b) Since this CSA may apply to many future orders, Pinakastra may modify this CSA by providing Client three months' written notice. Changes are not retroactive; they apply, as of the effective date, only to new orders, ongoing Cloud Services that do not expire, and renewals. For transactions with a defined renewable contract period, Client may request that Pinakastra defer the change effective date until the end of the current contract period. Client accepts changes by placing new orders or continuing use after the change effective date or allowing transactions to renew after receipt of the change notice. Except as provided above, all changes to the Agreement must be in writing accepted by both parties.
a) Pinakastra warrants that it provides Cloud Services using commercially reasonable care and skill in accordance with the applicable Attachment or SOW. The warranty for a Cloud Service ends when the Cloud Service ends, due to whatever reasons, as initiated either from Pinakastra or the Client.
b) Pinakastra does not warrant uninterrupted or error-free operation of a Cloud Service or that Pinakastra will correct all defects or prevent third party disruptions or unauthorized third party access. These warranties are the exclusive warranties from Pinakastra and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. Pinakastra warranties will not apply if there has been misuse, modification, damage not caused by Pinakastra, failure to comply with instructions provided by Pinakastra, or if otherwise stated in an Attachment or SOW. Non-Pinakastra services are sold under the Agreement as-is, without warranties of any kind. Third parties may provide their own warranties to Clients.
- Charges, Taxes, and Payment
a) Client agrees to pay all applicable charges specified for a Cloud Service, charges for use in excess of authorizations, and any late payment fees. Charges are exclusive of any customs or other duty, tax, and similar levies imposed by any authority resulting from Client's acquisitions under the Agreement and will be invoiced in addition to such charges. Amounts are due upon receipt of the invoice and payable within maximum of 30 days of the invoice date to an account specified by Pinakastra. Prepaid Services must be used within the applicable period. Pinakastra does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid. Pinakastra may change penalty charges on thirty days' notice or as specified in a SOW. Where taxes are based upon the location(s) receiving the benefit of the Cloud Service, Client has an ongoing obligation to notify Pinakastra of such location(s) if different from Client's business address listed in the applicable Attachment or SOW.
b) Client agrees to:
i) pay withholding tax directly to the appropriate government entity where required by law specifically;
ii) furnish a tax certificate evidencing such payment to Pinakastra;
iii) pay Pinakastra only the net proceeds after tax; and
iv) fully cooperate with Pinakastra in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.
- Liabilities and Indemnity
a) Pinakastra's entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Client up to the amounts paid (if recurring charges, up to previous 12 months' charges apply) for the service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to Pinakastra, its subsidiaries, contractors, sub-contractors, and suppliers. Pinakastra will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings.
b) The following amounts are not subject to the above cap:
i) third party payments referred to in the paragraph below; and
ii) damages that cannot be limited under applicable law.
c) If a third party asserts a claim against Client that an Pinakastra Service acquired under the Agreement infringes a patent or copyright, Pinakastra will defend Client against that claim and pay amounts finally awarded by a court against Client or included in a settlement approved by Pinakastra, provided that Client promptly (i) notifies Pinakastra in writing of the claim, (ii) supplies information requested by Pinakastra, and (iii) allows Pinakastra to control, and reasonably cooperates in, the defense and settlement, including mitigation efforts.
d) Pinakastra has no responsibility for claims based on non-Pinakastra products and services, items not provided by Pinakastra, or any violation of law or third party rights caused by Client's Content, materials, designs, or specifications.
a) Pinakastra may suspend, revoke or limit Client's use of a Cloud Service if Pinakastra determines there is a material breach of Client's obligations, a security breach, or violation of law. If the cause of the suspension can reasonably be remedied, Pinakastra will provide notice of the actions the Client must take to reinstate the Cloud Service. If Client fails to take such actions within a reasonable time, Pinakastra may terminate the Cloud Service. Failure to pay the fees or usage charges is considered as material breach.
b) Either party may terminate this CSA: i) without cause on at least 30 days notice to the other after expiration or termination of its obligations under the Agreement; or ii) immediately for cause if the other is in material breach of the Agreement, provided the one who is not complying is given notice and reasonable time to comply. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to successors and assignees. Termination of this CSA does not terminate SOWs, and provisions of this CSA as they relate to such SOWs remain in effect until fulfilled or otherwise terminated in accordance with their terms.
Client may terminate a Cloud Service on 30 day’s notice :
(i) at the written recommendation of a government or regulatory agency following a change in either applicable law or the Cloud Services;
(ii) if Pinakastra's modification to the computing environment used to provide the Cloud Service causes Client to be noncompliant with applicable laws; or
(iii) if Pinakastra notifies Client of a modification that has a material adverse effect on Client's use of the Cloud Service, provided that Pinakastra will have 90 days to work with Client to minimize such effect. In the event of such termination, Pinakastra shall refund a portion of any prepaid amounts for the applicable Cloud Service for the period after the date of termination. If the Agreement is terminated for any other reason, Client shall pay to Pinakastra, on the date of termination, the total amounts due per the Agreement. Upon termination, Pinakastra may assist Client in transitioning Client's Content to an alternative technology for an additional charge and under separately agreed terms.
- Governing Laws and Scope
a) Each party is responsible for complying with:
i) laws and regulations applicable to its business and Content; and
ii) import, export and economic sanction laws and regulations, including defense trade control regime of any jurisdiction, including the International Traffic in Arms Regulations and those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Client is responsible for its use of Pinakastra and non-Pinakastra products and services.
b) Both parties agree to the application of the laws as laid out by Govt Of India, to the fullest extent as applicable. The rights and obligations of each party are valid only in the country of Client's business address. If Client or any user exports or imports Content or use of any portion of the Cloud Service outside the country of Client's business address, Pinakastra will not serve as the exporter or importer. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory rights of consumers that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement.
a) Pinakastra is an independent contractor and service provider, not Client's agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of Client's regulatory obligations, or assume any responsibility for Client's business or operations. Each party is responsible for determining the assignment of its personnel, and all contractors and subcontractors, and for their direction, control, and compensation.
b) Pinakastra maintains a robust set of business conduct and related guidelines covering conflicts of interest, market abuse, anti-bribery & corruption, and fraud. Pinakastra and its personnel comply with such policies and require contractors and sub-contractors to have similar policies.
c) Account Data is information Client provides to Pinakastra, other than Content, about Client or its users that Pinakastra needs to enable Client's use of a Cloud Service or information concerning such use. Pinakastra, its contractors and subcontractors may process, store and use Account Data wherever they do business to enable product features, administer use, personalize experience, and otherwise support or improve use of the Cloud Service as described in Pinakastra's Online Privacy Statement.
d) Pinakastra Business Partners who use or make available Pinakastra Cloud Services are independent from Pinakastra and unilaterally determine their prices and terms. Pinakastra is not responsible for their actions, omissions, statements, or offerings.
e) Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. Assignment of Pinakastra rights to receive payments or assignment by Pinakastra in conjunction with the sale of the portion of Pinakastra's business that includes a service is not restricted.
f) This CSA applies to Pinakastra and Client and their respective Enterprise companies who avail themselves of the CSA. The parties shall coordinate the activities of Enterprise companies under the Agreement. Enterprise companies include (i) companies within the same country that Client or Pinakastra control (by owning greater than 50% of the voting shares), and (ii) any other entity that controls, is controlled by or is under common control with Client or Pinakastra and has signed a participation agreement.
g) All notices under the Agreement must be in writing and sent to the business address specified for the Agreement, unless a party designates in writing a different address. The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing. Any reproduction of the Agreement made by reliable means is considered an original. The Agreement supersedes any course of dealing, discussions or representations between the parties.
h) No right or cause of action for any third party is created by the Agreement or any transaction under it. Neither party will bring a legal action arising out of or related to the Agreement more than two years after the cause of action arose. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval, acceptance, consent, access, cooperation or similar action by either party is required, such action will not be unreasonably delayed or withheld.
i) Pinakastra may offer additional customization, configuration or other services to support Cloud Services, as detailed in a SOW