PUBLIC SERVICES AGREEMENT EXECUTION OFFER
Last updated: 16.05.2019
This Services Agreement Execution Offer (hereinafter the “Offer”) shall govern the general services provision terms and conditions (hereinafter the “Agreement”) between Melbikomas Closed Joint-Stock Company (UAB “Melbikomas”), registration code 304130898, with its registered office at 11B Svitrigailos Str., Vilnius, Republic of Lithuania (hereinafter the “Contractor”), of the one part, and an individual or a legal entity that has accepted the terms and conditions hereof by acceding to this Offer fully and unconditionally (hereinafter the “Customer”), of the other part, hereinafter jointly referred to as the “Parties” and each individually as a “Party”.
This Offer and relations between the Parties arising out of the Offer shall be governed by the laws of the Republic of Lithuania (hereinafter “Lithuania”). In accordance with Articles 6.167 and 6.168 of the Civil Code of the Republic of Lithuania (hereinafter the “CC of Lithuania”), this Offer is an offer to any individual and (or) legal entities to execute the services agreement (hereinafter the “Agreement”) under the terms and conditions thereof, provided that the Contractor is technically capable to provide the services, and the Customer has end-user equipment in running order. The Contractor shall be deemed to have executed this Agreement with the individual who will accept this Offer. The Offer may be accepted by an individual only by fully acceding to the Agreement. The provisions of the CC of Lithuania governing the procedure for and conditions of executing a public offer (Article 6.171 of the CC of Lithuania), acceptance form and terms (Articles 6.167-6.176 of the CC of Lithuania), offer sending and acceptance receipt (Articles 6.167-6.175 of the CC of Lithuania) shall be applicable to the procedure for and conditions of executing the Agreement.
This Offer shall enter into force upon posting thereof on the Contractor’s official website on the Internet at http://melbicom.net, http://melbicom.ru and its subdomains (hereinafter the “website”) and shall remain in effect until the Offer is withdrawn by the Contractor in any form.
The Contractor may amend or withdraw the Offer at any time at its own discretion. If the Offer is amended by the Contractor, the amendments shall enter into force upon posting of the amended conditions hereof on the website unless another term is specified by the Contractor. Unless the Customer rejects the Offer and terminates the Agreement within ten (10) calendar days following amendment of the conditions of the Offer, it shall be deemed to have fully accepted the amendments.
The Agreement shall be deemed to have been executed under the terms and conditions stated below, and the Offer shall be deemed to have been accepted after the Customer signs up to the personal account on the Contractor’s website. The date of signing up to the personal account on the Contractor’s website shall be the effective date of the Agreement.
By accepting the Offer in the abovementioned manner, the Customer confirms that he/she:
• is of full legal age and legally capable (if the Customer is an individual) or is an authorised representative of the legal entity (if the Customer is a legal entity).
• has read and understood the Offer and fully agrees with the terms and conditions hereof.
• expresses his/her free will and is under no pressure.
1. TERMS AND DEFINITIONS
• Domain name means a name consisting of symbols designated for website addresses on the Internet in order to provide access to the information posted on the Internet.
• Domain name registration actions mean entry of data on the domain name into RIPE NCC database in order to provide for uniqueness of the domain use and to obtain rights to administer the domain.
• Payment system means an aggregate of organisations interacting under the payment system rules in order to transfer funds, including the payment system operator, payment infrastructure service operators and payment system participants, which include at least three funds transfer operators.
• Account means an aggregate of user’s information stored in the computer system, including the login (the name used to identify the user in the computer system), password, access rights, personal files and settings, and orders.
• Personal account means a section on the Contractor’s website which includes the self-service system, by means of which the Customer is granted access to the data on the services it is provided, settlements with the Contractor and other information.
• IP address (network address) means an identifier in the data communication network determining the customer station or other communication facilities included into the information system when services are provided.
• Virtual server services mean services of providing a part of capacities of the Contractor’s physical server for temporary use.
• Server means a communication facility designated for storing information.
2. SUBJECT MATTER OF THE AGREEMENT
2.1. In accordance with this Agreement, the Contractor shall provide to the Customer, and the Customer shall pay for the following services ordered (hereinafter the “Services”):
• Virtual server
• Physical server
• IP address provision
• Domain name registration actions
• Provision of non-exclusive rights to use the software (hereinafter the “licences”)
• Provision of additional equipment
• Technical support
2.2. The Customer shall pay for the services at the rates published on the Contractor’s website (hereinafter the “Rates”).
3. LOGGING-IN RULES
3.1. The Customer shall log in on his/her own via the Personal Account.
3.2. When logging in, the Customer shall furnish his/her authentic data by filling up all required fields.
3.3. In case it is established in the course of the check that the Customer has furnished inauthentic personal data when logging in or has refused to provide confirmation documents, the Customer’s account shall be blocked without refund of the funds paid.
3.5. The Contractor shall ensure integrity of the personal data and use all the Customer’s personal data furnished when logging in on the website only to provide the respective services, identify and support the Customer.
3.6. The Customer may demand to change or edit incorrect or inauthentic personal data from the Contractor.
3.7. VoIP (SIP) telephone numbers, voice mail and call forwarding mechanisms may not be used when logging in.
4. COST OF THE SERVICES AND SETTLEMENT PROCEDURE
4.1. The Customer shall pay for the services on the basis of advance invoices issued in the personal account (hereinafter the “Invoice”). The Contractor shall reserve the right to provide some services free of charge on a one-time basis during the test seven-day period. Information on applicable free-of-charge test services is posted on the website in respective sections.
4.2. Payment shall be effected in any manner available in the personal account at the Customer’s discretion.
4.3. The Invoice issued in the personal account shall be cleared by the date specified therein.
4.4. Payment shall be deemed to have been effected only if it is registered in the Customer’s personal account. If no payment has been registered, the Customer shall contact the accounts department and agree upon the payment procedure.
4.5. If no payment is made for the following period, provision of the services shall be suspended for twenty-four (24) hours upon expiration of the service term which has been paid for.
4.6. After the virtual server service is suspended, the disk image shall be stored for three (3) days. Information on the back-up server shall be stored for fourteen (14) days following suspension if the respective service has been activated.
4.7. Information on the physical server shall be stored for two (2) days following suspension of the service.
4.8. Upon expiration of the abovementioned terms, the server shall be formatted by the Contractor (including all information stored on the back-up server).
4.9. Provision of the service shall be resumed within twenty-four (24) hours following receipt of the full advance payment. The Customer is recommended to create a request for the arrears paid.
5. PAYMENT FOR AND WITHDRAWAL FROM WINDOWS OS LICENCES AND ADDITIONAL EQUIPMENT
5.1. The right to use licences for any Windows operating systems on a temporary basis (hereinafter the “licence”) shall be paid from the first day until the first day of the month regardless of the terms of payment for other services.
5.2. The month when the right to use the licence is created shall be paid for in full (as one (1) month).
5.3. The minimum term of temporary use of the licence and additional equipment shall be one (1) calendar month, excluding the month when the right to use it was created.
5.4. The Customer shall notify of withdrawal from the licence or any additional equipment at least thirty (30) days before the beginning of the following month.
6. CONTROL PANEL LICENCES
6.1. The Contractor shall only grant a temporary right to use the licence necessary for operation of the respective control panel.
6.2. The cost of the temporary right to use the control panel licence does not include technical support by the Contractor’s personnel.
6.3. If the right to use the control panel licence has been granted to the Customer together with the server (prior to the transfer of the client server access data), the control panel with default parameters recommended by the manufacturer shall be installed free of charge.
6.4. If the right to use the licence has been created upon installation of the server, the panel shall be installed on a paid basis in accordance with the applicable rates.
6.5. Installed software is supplied “as is” in accordance with the licensing conditions of its manufacturer.
6.6. The control panel shall be set up and customised upon its installation by the Customer.
6.7. In order to obtain technical support on operation of the control panel software, the Customer shall consult the documents or contact the official forum or support service of the developer of the respective software, or order paid services of the Contractor’s technical support at the applicable rates.
6.8. The right to use the licensed software shall be exercised only on the server where it has been installed during the term of the virtual or physical server service. The licensed software may not be used on (transferred to) a third-party virtual or physical server (which does not belong to the Contractor).
7. SERVER TECHNICAL SUPPORT
7.1. Free-of-charge services which are provided by the Contractor for server technical support are listed on the website.
7.2. The Contractor shall grant the Customer access to the server via SSH protocol with root rights (for Linux/FreeBSD) or RDP protocol (remote desktop) with administrator’s rights (for Windows). After the Customer is connected for the first time, all Contractor’s obligations to install and support server software shall be deemed to have been fulfilled. All further actions to provide for server operation shall be taken by the Customer.
7.3. The Contractor’s liability shall be limited to solution of issues related to operation of the server components and network issues (not related to setting up of software of an individual server) within the data centre.
7.4. Any other technical support of operation of the Customer’s virtual or physical server shall be rendered on a paid basis at the applicable rates.
8. WARRANTIES AND LIMITATION OF THE CONTRACTOR’S LIABILITY
8.1. Notwithstanding any other provisions hereof, the Contractor shall not be obliged to control contents of the Customers information and materials, and under no circumstances shall the Contractor be liable for their contents and compliance with the legal requirements, infringement of copyright, related or other rights, unauthorised use of trademarks, company names and logotypes as well as possible infringement of third-party rights due to placement of information and materials. In case of any third-party claims related to placement of the Customer’s information and materials, the Customer shall settle these claims in its sole discretion and at its own expense.
8.2. If any unfavourable consequences are suffered by the Customer as a result of the use of the services, the Contractor shall consider the Customer’s claims and take measures to eliminate such consequences in accordance with the terms and conditions hereof and laws of Lithuania.
8.3. The Contractor shall provide for operation of the network, virtual or physical servers, but it shall not be liable for their continuous operation, loss of any data placed by the Customer or any other losses which have been or may be incurred when using the services.
8.4 The Contractor shall reserve the right to suspend operation of the Customer’s services and servers for scheduled maintenance due to DDOS or other network attacks, acts of God or other force majeure circumstances (natural and industrial disaster, wars, hostilities, terrorist attacks, riots, strikes and adoption of laws and regulations which render performance of this Agreement impossible). The Contractor shall not guarantee absence of unscheduled server reboots.
8.5. The Contractor shall not be liable for speed of access to the Customer’s resources at intermediate hosts outside the data centre and inaccessibility of services from certain IP sub-networks.
8.6. The Contractor shall not be liable for the Customer’s choice of the operating system, software, control panel, server configuration and consequences it may entail.
8.7. The Contractor shall reserve the right to replace elements of physical servers with models having equivalent or better parameters without prior consent or notice.
8.8. The Contractor shall not be liable for the Customer’s failure to receive important informational notices by e-mail. The archive of all automatic notices may be viewed in the Customer’s personal account.
8.9. The Contractor shall not be liable for non-fulfilment or improper fulfilment of any of its obligations resulting from any faults in telecommunication and power supply networks, malware, functional failures of Internet provides as well as third-party malpractice aimed at unauthorised access to and (or) putting the Contractor’s service and server software and (or) hardware out of operation.
8.10. The Contractor shall not assume an obligation to return or dispose of any materials posted or furnished by the Customer.
8.11. The Contractor shall not be liable for incorrect operation of servers, faults and shutdowns in operation thereof, data corruption or loss if they result from force majeure circumstances, including fires, epidemics, extreme weather conditions, power supply faults, propagation of computer viruses as well as third-party wilful illegal acts.
9. FORBIDDEN ACTS
9.1. When using the virtual hosting, virtual or physical server, the following is forbidden:
• To use servers and (or) hosting in any manner which may prevent their proper operation.
• To upload, publish, transfer or otherwise make public any information which fails to comply with the laws of Lithuania.
• To use automated data collection and/or other host or machine network interaction software, and to try to gain access to hosts and (or) networks in any manner by the password attack, hacking or otherwise against their holder’s will.
• To post any promotional information, commercial offers, campaign materials, disseminate spam, chain messages (messages to be sent over to one or several users), financial pyramid schemes or invitations to participate therein, other obtrusive information, except for cases when posting of such information is approved by the Contractor in writing.
• To place download portals, audio/video portal, file hosting, storage and sharing services as well as streaming, video and photo storage websites and other resources with high traffic consumption/generation without prior consent of the Contractor.
• To place and use torrent clients and trackers, other p2p and file sharing tools.
• To change network settings of the server so that they will cause faults and failures in operation of the Contractor’s technical platform or other Customers’ servers.
• To use pirated or non-licensed software or infringe any third-party intellectual property rights in any other manner.
• To place, store or process personal data of an individual in breach of the laws of Lithuania or applicable laws of other countries.
• Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
• Sending Unsolicited Bulk Email ("UBE", "spam"). The sending of any form of Unsolicited Bulk Email through XXX's servers is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, email address or utilizing any resource hosted on Contractor's servers, is prohibited. Contractor accounts or services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.
• Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Contractor customers must be Closed-loop ("Confirmed Opt-in"). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to from any Contractor-hosted domain, or referencing any Contractor account, is prohibited.
• Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Agreement or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, denial of service attacks.
• Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org/rokso.
• Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (e.g., "cracking").
• Obtaining or attempting to obtain service by any means or device with intent to avoid payment.
• Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any Contractor customers or end-users by any means or device.
• Knowingly engage in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Contraftor network or on another provider's network.
• Using Contractor’s Services to interfere with the use of the Contractor network by other customers or authorized users.
• Running public Proxies, VPN services .
• Virtual currency (*coin) mining, TOR exit nodes.
10. DATA INTEGRITY
10.1. The Customer shall create and update backup copies of all the data it needs.
10.2. The Contractor shall not be liable for data integrity on the Customer’s server.
10.3. In case of breakdown of the hard drive of the physical server, it shall be replaced with the blank (empty) drive of the same capacity.
10.4. If the server is equipped with RAID1, replacement of the drive shall be accompanied by data resynchronisation from the backup drive.
10.5. If there has been no RAID1 on the server, replacement of the system (boot drive) shall be followed by free-of-charge reinstallation of the operating system.
10.6. The Customer shall restore data from its own backup copies on its own.
11. CLAIM PROCESSING
11.1. If a claim is lodged, a new request shall be created in the Customer’s personal account with summary of the claim.
11.2. The Customer shall take all reasonable measures to eliminate the violations and prevent recurrence thereof in the future, furnish its explanations on the merits of the claim (what and why has happened, and what measures have been taken).
11.3. In case if no notice of the measures taken is received from the Customer within the established term, the Contractor may suspend provision of the services until the matter is settled.
11.4. Taking into consideration the nature, quantity and merits of the claims lodged, in order to minimise possible consequences if measures are not taken in a timely manner, the Contractor shall reserve the right to suspend provision of the services as soon as it is notified of the violations.
12. SUSPENSION OF THE SERVICES AND TERMINATION OF THE AGREEMENT
12.1. The Contractor may suspend the services or terminate the Agreement in the following cases:
• the Customer knowingly furnishes inauthentic information when logging in or refuses to provide their documental confirmation;
• the Customer delays settlement of invoices or is in arrears to the Contractor;
• the Customer commits any forbidden act listed in Clause 9 hereof;
• the Customer responds to (takes measures on) the claims lodged with delay, or recurrent claims are lodged after the Customer takes measures;
• there is an active DDOS attack on the Customer’s server (for the entire period thereof);
• there is increased load on the data centre network infrastructure, and no measures are taken to decrease it upon notice;
• the Contractor’s services are used for any illegal purposes;
• the Customer has committed fraud, hindered normal operation of the Contractor or wilfully damaged the Contractor’s interests, including its goodwill;
• the Customer behaves inappropriately with the Contractor’s staff, including being rude, using offensive language, threatening and spreading slander on the Contractor.
12.2. The Customer shall receive an informational letter to its personal account where the reason and term of termination of the Agreement (suspension of the services) are specified.
12.3. If the Agreement is terminated on the grounds specified in Section 10 hereof, the Customer’s balance shall be recognised as a forfeit and not be refunded.
12.4. The Contractor may terminate the Agreement at its own initiative at any time without assigning any reasons by notifying the Customer thereof at least three (3) days in advance.
12.5. The Customer may terminate the Agreement at its own initiative at any time by submitting the respective application to the accounts department via the personal account.
13.1. If the Agreement is terminated at the Contractor’s initiative as stipulated in Clause 11.4, the funds shall be repaid to the Customer pro rata with the period, which has not been used, after the Customer’s arrears and other obligations to the Contractor are repaid.
13.2. If the Agreement is terminated at the Customer’s initiative, the funds shall be repaid only for the full unused month without account of discounts, bonuses and special conditions furnished due to down payment for the services.
13.3. If the Customer is in arrears when the Agreement is terminated or the service is withdrawn from, the debt shall be settled automatically from the funds to be repaid.
13.4. In order to have its funds repaid, the Customer shall send a respective request to the accounting department specifying the reason for withdrawal from the services from the personal account.
13.5. If the Contractor has incurred any damages (disconnection of servers, networks, inclusion of IPs into the blacklist, fines etc.) through the fault of the Customer which the funds are repaid to, the amount of the costs incurred by the Contractor in this regard shall be charged from the amount to be refunded, on a case-by-case basis.
13.6. Funds shall be repaid within thirty (30) days upon receipt of the respective request via the payment system specified on the Contractor’s website at the Customer’s choice. Herewith charges of the payment system, which the funds are repaid through, shall be paid by the Customer.
14. TRANSFER AND ACCEPTANCE OF THE SERVICES PROVIDED
14.1. The service shall be deemed to have been properly provided by the Contractor and accepted by the Customer unless the Customer lodges a substantiated claim explaining why, in its opinion, the provided service is of low quality or improper, accompanied with documents and/or evidence confirming the claim (hereinafter the “Claim”), within seven (7) calendar days following expiration of the period when the service was provided.
14.2. The Customer agrees that receipt of the unsubstantiated Claim by the Contractor shall not deprive the latter of the right to believe that the service has been properly provided and accepted by the Customer in accordance with the Agreement.
14.3. Lodging of the Customer’s Claim to the Contractor shall not release the Customer from its obligation to pay for the services until the Contractor agrees that the services provided have been of low quality, or it is proved in court.
15. FINAL PROVISIONS
15.1. This Offer shall be governed and interpreted in accordance with the laws of Lithuania.
15.2. This Offer and any published amendments hereto shall be in force in full scope and remain in effect during the entire period of use by the Customer.
15.3. If any provision(-s) hereof is found to be invalid or unenforceable for any reason, it shall not affect validity and applicability of the remaining provisions.
15.4. The Customers may contact the Contractor with regard to all issues and claims by the contact details on the Customer’s website.
15.5. Execution of the Agreement by accepting the Offer shall be equivalent to execution of the Agreement in writing.
15.6. Any disputes related to this Offer and Agreement shall be settled by means of negotiations. If a conflict cannot be resolved in this manner, the dispute shall be examined by the respective court of the Republic of Lithuania.
16. AFFILIATE PROGRAM
16.1. According to the affiliate program described in this chapter (hereinafter the “Affiliate Program”), the Customer may get a right for a bonus for a referral of a person who becomes a customer for the Contractor on terms and conditions indicated herein.
16.2. In order to use the benefits of the Affiliate Program, the Customer invites a person to become a Contractor’s customer (hereinafter the “New Customer”) by using the advertising tools, which allow the Customer to trace the connection between the New Customer and Customer’s participation in the Affiliate Program (hereinafter – “AdTools”), and the New Customer becomes an actual customer of the Contractor.
16.3. The AdTools are:
16.3.1. special link to the Customer’s web-page;
16.3.3. other means allowed for use by the Contractor from time to time.
16.4. All AdTools may be generated in the Personal Account by clicking the appropriate link.
16.5. The total amount of a bonus available for the Customer using the Affiliated Program (hereinafter – the “Bonus”) for a particular month equals to
3% (monthly turnover 0 – 50 eur)
5% (monthly turnover 50 – 200 eur)
7% (monthly turnover 200 – 500 eur)
10% (monthly turnover > 500 eur)
of the fees paid by the New Customer for the Services for the said month. The amount of the Bonus may be agreed individually by the Parties. The information
about the due sum of the Bonus can be found in the Personal Account.
16.6. The Bonus for a current month shall be paid within 40 days upon the end of the said month. If the New Customer refuses to use the Services during the first 30 days after becoming a Contractor’s customer, the Customer loses the right for the Bonus and the Bonus is considered null.
16.7. The Bonus may be used by the Customer as a payment for the Services or be transferred to the Customer’s bank account or any other account in the other payment system accepted by the Contractor (hereinafter – the “Receiving Account”) upon a request made in the Personal Account. In case of a Bonus’ transfer to the Receiving Account, a verification of the Customer’s identity may be required. For this case, a copy of a valid high-quality ID document, as well as correct and valid Receiving Account details shall be provided to the Contractor. The Contractor may ask for additional documents. Customer is in charge of all money transfer fees.
16.8. The minimum sum of the Bonus to be transferred to the Customer is EUR 100 (one hundred). The Contractor reserves 30 days for transferring the Bonus to the Customer from the date of the receipt of the appropriate request.
16.9. By agreeing to this Offer and using the benefits of the Affiliate Program as described herein, the Customer acknowledges its responsibility and grants to the Contractor that all the state and municipal fees, duties, taxes and other payments that are or may be due on Customer’s behalf in any country (if any) because of using the Affiliate Program or a Bonus’ receipt, will be paid by the Customer. The Customer pledges and undertakes to indemnify the Contractor and hold the Contractor harmless from any damages, liabilities and other risks arisen from using of the Affiliate Program or a Bonus’ receipt.
16.10. AdTools or any other advertising instruments concerning the Services shall not be advertised in the following way:
• illegally or by using a spam method of advertising;
• by using methods that deceive or mislead people, or promote AdTools secretly;
• in a way which negatively affects the public image or reputation of the Contractor;
• by using not approved advertising instruments or methods, if they are not explicitly approved by the Contractor;
• by using iframes or any other techniques or technology that places your affiliate tracking cookie by any means other than an actual click-through;
• by using web-page containing lewd, obscene, illegal or pornographic material, including, but not limited to, any material of adult nature or material promoting hatred, any illegal or immoral activity (the designation of any materials as such is subject to Contractor’s reasonable opinion).
16.11. The Contractor can at any time refuse the Customer to participate in the Affiliate Program without any prior notice.
17. FAIR USE POLICY OF SHARED RESOURCES
17.1 Contractor uses a Fair Use Policy (FUP) for services considering sharing of resources, fe virtual private servers (VPS) to control the consumption of shared resources like network traffic, disk IO and CPU.
17.2 The FUP aims to prevent overload of the network, abuse and inconvenience to other users. The FUP is intended to inform Customer about what you can expect from our services, to prevent you from facing unexpected costs and to make sure you can use your services worry-free.
17.3 Contractor reserves the right to monitor the amount of resources and limit usage. Under normal circumstances, there is no overusage of resources. If the amount of CPU usage, network traffic or disk IO differs significantly from the average, Contractor will contact the customer about how to normalize the usage. If the Customer does not normalize his consumption, Contractor can limit (temporarily) consumption of resources or charge the Customer.