THIS AGREEMENT (this "Agreement") is entered into and made between:
(1) Immutable Solutions AB, registration number 556968-0308 (“Immutable Solutions”); and (2) The account holder of the nixbuild.net platform (the “Customer”).
(1) and (2) referred to individually as a “Party” and collectively as the “Parties”.
1 BACKGROUND INFORMATION¶
Immutable Solutions offers a service for efficient builds, smart caching and fast CI pipelines through the nixbuild.net platform (the “Service”).
The Service is offered to the Customer in the form of a Software-as-a-Service solution (SaaS).
Subject to the terms and conditions of this Agreement, Immutable Solutions shall provide the Service to the Customer, including a non-exclusive and non-transferable right to use the Service or to receive the Results in the manner agreed upon by the Parties.
2 THE SERVICE¶
Immutable Solutions shall provide the Service, substantially in accordance with this Agreement.
3 PRICE AND PAYMENT¶
The Customer shall pay a fee for the Service based on CPU hours. The price is € 0,12 per CPU hour. The calculation of CPU hours is further described on the website: https://docs.nixbuild.net/pricing
Payment shall be made monthly in arrears. Payments are handled by the service Stripe which automatically charges the Customer’s credit card.
Immutable Solutions shall have the right to change the prices. Price changes must be communicated to the Customer in writing no later than one (1) month before the changes takes effect.
4 THE CUSTOMER’S OBLIGATIONS¶
The Customer shall only use the Service and the Results as part of the Customer’s own activities and in accordance with this Agreement and any instructions of use provided, at each time, by Immutable Solutions.
The Customer shall provide Immutable Solutions with supporting data and assistance to the extent and at the times reasonably required to enable Immutable Solutions to meet its obligations under the Agreement.
The Customer must manage log-in details, user IDs and passwords with the necessary care to prevent unauthorised persons from gaining access to them. The Customer must as soon as practicably possible notify Immutable Solutions in writing if the Customer has reason to suspect that unauthorised persons have access to or may be able to gain access to the Service.
The Customer may not:
- allow the Service to be used by or for the benefit of a third party;
- store illegal, or offensive material (in Immutable Solutions' reasonable opinion) in the Service or otherwise use the Service in violation of the purpose for which the Service is provided as set out in the Agreement;
- send to the Service or store in the Service viruses, trojans or other malicious code; or
- knowingly interfere with or interrupt Immutable Solutions' provision of the Service or data therein (to the extent that this materially affects Immutable Solutions' ability to provide the Service).
The Customer shall be responsible for securing necessary communications, hardware and software for connecting to and using the Service at its own.
5 BLOCKING OF THE SERVICE¶
Immutable Solutions may block the Customer’s access to the Service if
- an invoice is due for payment and the Customer has failed to pay the amount due, along with interest, ten (10) days after receiving a payment reminder; or
- Immutable Solutions reasonably suspects the Customer to be in breach of Section 5.
Immutable Solutions shall restore the Customer’s access to the Service without undue delay after Immutable Solutions has received payment for all unpaid debts along with interest and has been given acceptable guarantees (in Immutable Solutions’ reasonable opinion) that the breach has been remedied and will not be repeated.
Immutable Solutions’ exercise of its right to block access to the Service does not limit Immutable Solutions’ right to terminate the Agreement in accordance with Section 11.
The Customer is responsible for ensuring that data or other information entered and/or provided by the Customer (the “Customer's Data”) is accurate, complete and up-to-date. The Customer is liable for ensuring that Immutable Solutions' processing of the Customer's Data does not infringe the rights of any third party. The Customer shall indemnify Immutable Solutions and hold Immutable Solutions harmless against claims from third parties asserting that the processing of the Customer's Data.
7 PROCESS OF PERSONAL DATA¶
If Immutable Solutions processes personal data on the Customer's behalf within the context of the Service, whereupon the Customer becomes the personal data controller and Immutable Solutions becomes the personal data processor, the Parties shall enter into a separate Data Process Agreement which shall constitute an appendix to this Agreement.
Immutable Solutions warrants that the Service operates in accordance with the Agreement in all material respects. Immutable Solutions shall, however, not be responsible for any downtime in the Service.
Immutable Solutions shall not be liable for any indirect damage or loss, including loss of income, loss of profit, loss of data and loss of anticipated savings. Furthermore, Immutable Solutions’ total and aggregate liability towards the Customer for any loss or damage arising out of, connected with or resulting from this Agreement shall be limited to an amount equal to the payments for the Service made by the Customer for the last 12 months’ period.
This Agreement enters into force when accepted by the Customer and shall be valid for an indefinite period. The Agreement may be terminated by either Party at any time by giving not less than six (6) months written notice.
Each Party may terminate the Agreement by notice in writing immediately if
- the other Party is declared bankrupt or applies for bankruptcy, enters into liquidation, ceases its payments, enters into negotiations with its creditors for a composition or may otherwise be deemed insolvent; or
- there is a breach by the other Party of its obligations hereunder which is of material importance to the Party and which is not remedied within thirty (30) calendar days of written notice to do so or if a section of the Agreement which is of essential importance to the Party is declared invalid.
Furthermore, Immutable Solutions may terminate the Agreement by notice in writing immediately if without Immutable Solutions’ prior written consent, there is a change in the ownership of the Customer.
If the Agreement is terminated pursuant to this Section 11, any fees paid by the Customer to Immutable Solutions will not be refunded.
11 INTELLECTUAL PROPERTY RIGHTS¶
Any intellectual property relating to the Service and the Platform, and to the Service or the Platform associated software, equipment and know-how, and any updates and modifications thereof (the “IPR”) shall be the sole property of Immutable Solutions and the Customer agrees not to attempt to register, use or infringe, directly or indirectly, or permit to be registered, used or infringed by any other person, the IPR or any of Immutable Solutions’ patents, copyrights, trademarks, trade names or any other intellectual property right belonging to Immutable Solutions.
The Customer shall give Immutable Solutions notice of any acts of infringement by third parties involving IPR of which the Customer has knowledge. The Customer shall assist Immutable Solutions in proceeding against an infringer.
Each Party acknowledges for the benefit of the other Party that all information concerning the other Party or its affiliates, their products, business, finances, practices, policies or plans and other trade secrets (“Confidential information”) is strictly confidential and such Confidential information shall not be used or disclosed to any third party by the receiving Party during or after the term of this Agreement.
The foregoing restrictions will not apply to information that:
- is or comes into the public domain other than through breach by the receiving Party of this Agreement;
- is demonstrably in the receiving Party’s possession prior to receipt thereof from the other party;
- is demonstrably received by the receiving Party from third parties without any obligation of confidentiality; and
- the receiving Party is under an obligation to disclose under any statute, ordinance, court order, rules of a stock exchange or the like.
In case of information under c) above, the Party may not disclose to others the fact that the same information was received from the other Party hereunder.
13 FORCE MAJEURE¶
Neither Party shall be liable for failure to perform any obligations under this Agreement, other than the payment of money, when the failure is caused by circumstances beyond the reasonable control of the affected Party, including but not limited to flood, fire, strike or other labour disputes, accidents, pandemics and other widespread infections, wars, riot, insurrection, acts of government, governmental regulation, shortage of energy, transport or supplies or delays or failure to perform by suppliers and subcontractors.
This Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and supersedes any previous written or oral promises and undertakings made by the Parties in relation hereto, unless otherwise expressly stated herein.
No amendment to or modification of this Agreement shall be valid unless made in writing and signed by both Parties.
Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party.
15 GOVERNING LAW AND DISPUTES¶
This Agreement shall be governed by the substantive law of Sweden.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English.