Terms & Conditions

Online Transactional Agreement
Terms & Conditions
YOU AGREE THAT BY PLACING AN ONLINE ORDER THROUGH THE CLUSTERPOWER WEBSITE YOU WILL BE BOUND BY THE HEREBY TERMS AND CONDITIONS OF THIS ONLINE TRANSACTIONAL AGREEMENT. IF YOU ARE PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE HEREBY TERMS AND CONDITIONS, IN SUCH EVENT, “YOU”, “CLIENT” AND “THE CLIENT” AS USED IN THE TERMS AND CONDITIONS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO FOLLOW AND BE BOUND BY THE HEREBY TERMS AND CONDITIONS, YOU SHALL NOT PLACE AN ONLINE ORDER OR USE THE SERVICES LISTED.

The Terms and Conditions set out in the Online Transactional Agreement are concluded between CLUSTERPOWER S.R.L. with registered office in 2 Viitorului St., Mischii Commune, Dolj County, registered with the Trade Register under No. J16/2899/2021, VAT number: RO41861113,  hereinafter referred to as the “Provider” or “CLUSTERPOWER”
and
The individual, company, or other legal entity that has ordered the CLUSTERPOWER services via the online e-shop, as detailed in the Billing Information form.

Definitions:
Activation Date means the beginning date of the provision of Services, as defined in the Onboarding and Activation Process.
Services means the services provided by the Provider to the Client as listed in the Cluster Power E-Shop and ordered by the Client.
SLA (Service Level Agreement) means the quality parameters of the Services, contractually guaranteed by the Provider, as set out in the Technical Annex to this Agreement;
Client Content means any software, data (including personal data), text, image, audio, video, photograph, third party or non-Provider applications and any content and material, in any format, provided by the Client or any of Client’s users that is stored on or operated on or through the Services. Client Content includes any third party content that is contributed by the Client to the Services as a result of Client’s use of the Services provided by Provider. The Services covered by this Agreement and the Provider’s intellectual property and all derivative works thereof are not included in the Client Content;
Third Party Content means any software, data, text, image, audio, video, photograph or other content and materials, in any format, that are obtained or derived from non-Provider third party sources that the Client may access through, as part of, or in connection with the use of the Services.

1. Object and Duration of the Agreement
1.1. The Provider shall make available to the Client the selected Services listed at checkout.
1.2. In connection with the Services subject to this Agreement, the Client may not cause or permit any other person to: (a) use the Services to harass any person; damage or harm any person or property; publish any material that is untrue, defamatory, harassing or obscene; violate any rights of privacy; or promote bigotry, racism, hatred or offence; transmit unsolicited group, junk, spam or chain letters; infringe proprietary rights; or otherwise violate applicable laws, ordinances or regulations; (b) conduct or disclose the results of any benchmarking or availability testing of the Services; or (c) conduct or disclose the results of any performance or vulnerability testing of the Services without the prior written consent of the Provider or conduct or disclose test results relating to network discovery, port and service identification, vulnerability scanning, password access or remote access relating to the Services; or (d) use the Services to conduct cyber currency or crypto currency mining (paragraphs (a) through (d) above are collectively referred to as the “Acceptable Use Policy”). In addition to the other rights that Provider has under this Agreement, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to materials that violate the policy.
1.3. This Transactional Agreement shall be effective as of the order date and shall be valid for services ordered and the duration of the provision of the ordered services. (“Term of the Agreement”).
1.4. Any amendments to this Agreement can be made by concluding an addendum.

1.5. Additional Services may be ordered either online, via the ClusterPower e-Shop and concluding a new Transactional Agreement or by contacting our sales team and concluding an new, offline agreement.

2. Fees and billing
2.1. The Client owes the services fee related to all Services, as set out in the online order.
2.2. The Services fees shall be billed in advance for the entire Services Period.

3. Payment
3.1. The Client shall pay all amounts due, in full, on the basis of the online order.
3.2. Billing shall only be done electronically. The Provider shall send the invoice to the Client by e-mail and the invoice shall be deemed to have been received (i) on the same day, if no error message has been issued by the recipient’s server and/or if there is a dispatch confirmation report, if it was sent on working days between 09.00 am and 6.00 pm or (ii) on the next working day, if it was sent outside the above-mentioned time interval.
3.4. In the event of a dispute over the billed amounts:
3.4.1. The Client shall notify the Provider in writing of its dissatisfaction, accompanied by all the evidence on which the Client relies its claim, within 5 (five) days of receipt of the invoice;
3.4.2. The Parties shall cooperate, in good faith, to resolve the dispute within 10 calendar days of written notice by the Client.
3.5. If the Client does not dispute the invoice within 5 (five) days from the date of receipt, the invoice shall be deemed to have been accepted and the Client may not subsequently invoke any non-conformity regarding the amounts stated on the invoice.

4. Cessation of Agreement
4.1. Cases of cessation of the Agreement:
a) by the Parties’ agreement;
b) at the end of the Term of the Agreement;
c) by unilateral termination under the terms set out below;
d) by termination by either Party under the terms set out below;
e) under the terms laid down in this Agreement relating to force majeure;
f) in any other situation provided for by the Agreement or by law.

4.2. Termination of the Agreement
4.2.1. The Client may terminate this Agreement by sending a written notice to the Provider by registered letter with acknowledgement of receipt or by e-mail, without the intervention of the court, without notice of default and without any further formality and the termination shall take effect upon expiry of the cure period set out below, if the Provider fails to perform its contractual obligations, performs them late or performs them defectively, and (in the case of a curable breach) does not remedy the breach within 30 (thirty) days of receipt of written notice from the Client. This provision does not apply to remedies for any deviations from the Service quality parameters set out in the SLA and any remedies governed by the SLA.
4.3.1. The Provider may terminate this Agreement by giving written notice to the Client by registered letter with acknowledgement of receipt or e-mail, without the intervention of the court, without notice of default and without any further formality, such termination to take effect upon the expiration of the remedy period set forth below, if:
a) the Client fails to perform any contractual obligations, performs them late or performs them defectively, and (in the case of a curable breach) does not remedy the breach within 30 (thirty) days of receipt of written notice from the Provider; or
b) the Client breaches the Acceptable Use Policy, in which case termination takes effect from the time of notification and no additional notice, default or remedial period applies unless the Provider decides otherwise.
4.4. Other cases of termination of the Agreement
4.4.1. Any service delivered to the Provider by a third party, essential to the provision of the Services and the fulfilment of the Provider’s obligations under this Agreement, is no longer available at all and no suitable replacements/alternatives are available.
4.4.2. The Provider loses or fails to obtain any authorization, license or other approvals/agreements required to provide the Services.

4.5. Unilateral termination of the Agreement
4.5.1. The Client may terminate the Agreement in respect of any Services early, during the Term of the Agreement, by giving written notice by registered letter with acknowledgement of receipt or email, with at least 30 (thirty) calendar days’ notice.
4.6. Upon ceasing of the Agreement as a result of termination due to the fault of the Client, the provision of the Services shall be immediately discontinued by the Provider.
4.7. Upon ceasing of the Agreement as a result of termination either unilaterally or due to the fault of the Client, the Client recognizes and agrees that it shall not be entitled to a refund for any purchase under any circumstances.

5. Suspension of Services
5.1. The Provider may, without terminating this Agreement, immediately suspend, in whole or in part, the Services if the Client fails to respect the acceptable usage policy.

6. Contractual Liability and Client Warranties
6.1. The Provider shall only be liable to the Client for damages that were foreseeable at the time of the conclusion of the Agreement and which comprise only the direct and necessary consequence of non-performance, late performance or defective performance of the obligation. By way of example, the Provider shall not be liable for, but not limited to, loss of profit or loss of opportunity, investment or other similar losses. In all cases, the Provider’s liability under the Agreement shall not exceed the value of the Services not performed or performed inadequately or late. Furthermore, in no event and for no breach shall the Provider’s liability arising out of or in connection with the Agreement exceed the amount of the invoice issued by the Provider under this transactional Agreement and online order and paid by the Client. In addition, in relation to the provision of the Services, the Provider shall be liable under Section 5 of the Technical Annex below.
6.2. The Provider shall be responsible for the maintenance of the equipment located in the Data Center, necessary for the provision of the Services contracted under this Agreement.
6.3. The Client gives the following warranties to CLUSTERPOWER:
6.2.1. That it holds all applicable or necessary approvals, licenses and authorizations with respect to the performance of its obligations under this Agreement and that it shall fully perform its obligations under the Agreement and in compliance with the relevant legislation;
6.3.2. That, to the extent within the Client’s control, it shall not use the Services provided to infringe any law, regulation, patent, trademark, intellectual property rights, copyright, database rights, know-how, trade secrets and other similar rights or obligations (whether or not registrable) of any third party in any country.
7. Domain name and IP address
7.1. Any IP address allocated by the Provider to the Client remains the Provider’s property. The Client receives an agreement to use the IP address until the termination of the Agreement. The Agreement may not be sold or transferred to a third party.

8. Obligations and Warranties.
8.1. The Client acknowledges that in any event, the Provider does not operate, control and is not responsible or liable for any Third Party Content or any third party websites, platforms, information, products and services of any kind (“Third Party Services”) that the Client may access through the Services. In general, the Provider does not operate, control and is not responsible for Internet content, and the Client must enter into contracts or comply, as applicable, with the terms and conditions of access and use of any Third Party Services. Thus, the Provider is not responsible, directly or indirectly for:
8.1.1. Information, products, content of services provided, available or accessible via the Internet;
8.1.2. Use of such items by the Client; or
8.1.3. The activity of other Internet providers, including, but not limited to, restricting access to the Internet.
8.2. Any operations performed by the Client through the Services in connection with Client Content or Third Party Content are operations of the Client for which the Provider has no responsibility.
8.3. Neither Party shall have any other obligation to the other Party except those expressly undertaken and those incumbent upon it under this Agreement or under the provisions of law.
8.4. The Provider shall guarantee to the Client the contracted Services, continuously, at the technical parameters specified in this Agreement and in the Annexes to the Agreement and shall use all reasonable efforts and diligence to provide and maintain the Services for the Client as set out herein.

9. Confidentiality
9.1. The Parties agree that all information that comes to their knowledge in the course of this Agreement is confidential, whether or not marked as such (“Confidential Information”). The Parties are not entitled to disclose them to a third party. This Agreement itself, including its price, terms, conditions and provisions are considered by the Parties to be Confidential Information.
9.2. However, either Party shall have the right to disclose Confidential Information to its employees, its affiliates or related companies, Providers, auditors, legal, financial, accounting consultants to the extent necessary to perform this Agreement. However, the Party enforcing this clause and disclosing Confidential Information shall ensure that each third party is notified of the confidential nature of such information and is subject to similar restrictions on use and disclosure.
9.3. The above provisions shall not apply to Confidential Information that:
9.3.1. Become available to the public through actions other than those of the Recipient;
9.3.2. Must be disclosed as a result of any obligation imposed by any governmental or regulatory body or authority, or by law, or as a result of a court order or arbitration or the rules of a recognized stock exchange, in which case it shall promptly bring this situation to the attention of the other Party;
9.3.3. Is developed independently by the Recipient.
9.4. Should the Recipient be required to disclose Confidential Information pursuant to clause 9.3.2, that Party shall immediately notify the other Party in writing of the need for such disclosure. The provisions of this Article 9 shall continue to have effect after termination of this Agreement for a period of 3 years.

10. Intellectual Property
10.1. Unless otherwise expressly provided in this Agreement, all rights in the software or applications that the Provider makes available to the Client for the use of the Services shall remain at all times the property of the Provider or its licensor.
10.2. To the extent it is entitled to do so, the Provider grants the Client a non-exclusive and non-transferable licence to use such software solely for the purpose of using the Services during the Term of the Agreement. The Client shall not reproduce the software; it is allowed to make one back-up copy and for security purpose sonly. The Client shall not modify, adapt, translate, reverse engineer, disassemble or decompile the Software in any way.
10.3. Copyright in all documents, drawings and information including, if applicable, any access codes provided in connection with this Agreement shall remain with the copyright holder. Such documents, drawings and information are confidential and shall not be copied, disclosed or used (other than for the purpose for which they were provided) without the prior consent of the other Party.

11. Governing Law
11.1. This Agreement is subject to Romanian law and the rights and obligations of the Parties shall be interpreted in accordance with the laws of Romania.

12. Jurisdiction
12.1. The Parties shall use their best efforts to settle amicably any dispute arising out of this Agreement. If this is not possible, any dispute arising out of or in connection with this Agreement, including its conclusion, performance or termination, shall be settled by the competent courts in the Municipality of Bucharest.

13. Force Majeure
13.1. Except where they have expressly provided otherwise, neither Contracting Party shall be liable for non-performance, failure to timely perform or improper performance, in whole or in part, of any of its obligations under this Agreement if caused by force majeure.
13.2. Force majeure is any external, unforeseeable, absolutely invincible and unavoidable event which prevents a Party, totally or temporarily, from fulfilling its contractual obligations.
13.3. The Party claiming force majeure must notify the other Party of the occurrence of the event immediately, but no later than 5 (five) days from the date of occurrence, and must prove the impossibility of performance of obligations by documents issued by the Chamber of Commerce and Industry of Romania or other institutions authorized for this purpose, within 10 (ten) days from the date of the event, and must take any measures available to it to limit the consequences of the event.
13.4. If within fifteen (15) days from the date of its occurrence, the said force majeure event does not cease, each Party shall be entitled to notify the other Party of the automatic termination of this Agreement, without either Party being entitled to claim damages from the other.

14. Notices
14.1. Any communication, notification or notice addressed by one Party to the other Party shall be validly made if sent by at least one of the following means (i) in person, (ii) by fax, (iii) by courier, (iv) by electronic mail – e-mail or (v) by post with acknowledgement of receipt, to the following addresses:
14.1.1. If to the Client:
Postal address: [as mentioned in the Billing information form]
To the e-mail address: [as mentioned in the Billing information form], attention [as mentioned in the Billing information form]
14.1.2. If to the Provider:
Postal address: 29-31 Telescopului St., apt. 1, district 1, Bucharest, for the attention of Mr. Cosmin Georgescu.
E-mail address: [email protected]
If the communication, notification or notice is made by post, it shall be sent by registered letter with acknowledgement of receipt (AR) and shall be deemed to have been received by the addressee on the date stated by the receiving post office on such acknowledgement. If the communication, notification or notice is made by courier, it shall be sent with acknowledgement of receipt and shall be deemed to have been received by the addressee on the date indicated by the courier company’s representative on the acknowledgement of receipt.
If the communication is delivered personally, it shall be deemed to have been received at the time of delivery, proof of which shall be provided by the receipt signature.
If the communication is sent by e-mail, it shall be deemed to have been received (i) on the same day, if no error message has been issued by the recipient’s server and/or if there is a dispatch confirmation report, if it was sent on working days between 09.00 am and 6.00 pm, or (ii) on the next working day, if it was sent outside the above-mentioned time interval.
Verbal communications, notifications or notices may be considered by the Parties but must be confirmed by one of the means set out above.
A Party that changes its address and/or fax number and/or e-mail address indicated for communications, notifications or notices, as well as the contact persons/representatives designated for the performance of this Agreement, shall immediately notify the other Party in writing in this respect.

15. Provisions on Negotiation and Interpretation of the Agreement
15.1. By agreeing to this Agreement, the Parties confirm that it fully reflects their entire shall with respect to the subject matter of the Agreement, and that this Agreement supersedes any other agreements, understandings, or negotiations that have taken place between the Parties prior to the signing of this Agreement, and that there are no secondary matters relating to this Agreement and the understanding between the Parties that have not been reflected in this Agreement.
15.2. The Parties acknowledge that each and all the terms of this Agreement were reviewed by the Parties and negotiated in accordance with their requirements and objectives, and that the provisions of the Civil Code relating to adhesion contracts and standard clauses are not applicable. This Agreement is recognized by each Party as the result of negotiations between them, during which both the Provider and the Client have had the right to propose amendments/completions to the contractual terms.
15.3. Each of the Provider and the Client expressly agrees to each clause of this Agreement, including clauses relating to the limitation of liability, suspension of performance, forfeiture of rights or benefit of the payment term, or any other clauses which, if not subject to negotiation, would qualify as standard clauses under Article 1203 of the Civil Code. In accordance with the provisions of the Civil Code, the Client declares by signing this Agreement that it is aware of the provisions of Article 1.203 of the Civil Code and that it expressly accepts all the clauses contained in this Agreement.
15.5. The Parties confirm that this Agreement has been negotiated and entered into between professionals and no rule shall apply which would construe the clauses against the Party that proposed them.
15.6. In the event of any conflict between the provisions contained in the body of this Agreement and the provisions of the Annexes thereto, the provisions of the Annexes shall prevail.

16. Representations of the Parties
16.1. Each Party warrants to the other Party that on the date of signing this Agreement: (i) it is a company duly organized and registered and validly existing under the laws of its country of registration; (ii) it has obtained all necessary domestic approvals and has the capacity and rights necessary to enter into and perform this Agreement; (iii) its performance and fulfillment of its obligations under this Agreement and any other documents to be drawn up pursuant to this Agreement shall not result in a breach of any provision of the governing law, its Articles of Incorporation or any other contract, agreement or arrangement to which it is a party or by which it is bound; and (iv) it has the capacity and rights necessary under its incorporation and operating documents, and under its authorizations, if any, to perform all obligations required to be performed under this Agreement.

17. Severability
17.1. The invalidity or ineffectiveness for any reason whatsoever of any provision of this Agreement, in whole or in part, shall not affect the validity of the remaining provisions or parts of provisions. If any provision of this Agreement becomes invalid in whole or in part, it shall not affect the validity of the remaining provisions. The inoperative clause shall be replaced by an appropriate clause which, to the extent lawfully acceptable, comes closest to what the Contracting Parties intended.

18. Assignment of the Agreement
18.1. The Agreement may not be assigned by either Party, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. However, assignment of the Agreement is permitted to affiliates of the Provider, provided that the Provider owns or exercises control over such affiliate or such affiliate owns or exercises control over the Provider, as the case may be.
Any direct or indirect transfer of the Provider’s or the Client’s share capital shall not be deemed an assignment of this Agreement.

19. Miscellaneous
19.1. The Agreement or the Annexes thereto may only be amended in writing, with both Parties’ consent, by means of an addendum or of a new Annex replacing the amended Annex and containing the new conditions applicable to the Parties, which shall form integral part of the Agreement from the moment it is signed by them.

19.2 The Provider shall have the right to indicate, publish and use the name and logo of the Client and of the group of the Client, as the case may be, as a reference for the Services provided under this Agreement. For the purposes set out in this clause, the Client shall grant the Beneficiary a non-exclusive licence, for a term equivalent to the term of the Agreement and an additional 5 years, unlimited territorially, to the right to publicly communicate the Client’s logo as a reference for the Services provided under this Agreement. References may be made in promotional materials, websites, written presentations and the like and may include general information about the services provided by the Provider to the Client under this Agreement. The actions to which the Provider is entitled under this clause do not constitute a breach of the Client’s obligation of confidentiality or of any intellectual property rights.

20. Personal data protection
20.1. When processing personal data in connection with this Agreement, each Party undertakes to comply with applicable personal data protection legislation, including, but not limited to, Regulation No. 679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the Regulation), implementing legislation and decisions that the Romanian supervisory authority (ANSPDCP) may issue from time to time.
20.2. Each Party shall disclose to the other Party personal data relating to its employees or representatives responsible for the signing and execution of this Agreement, which data shall be processed by each Party for its own purposes, each Party acting as an independent data Controller for its own processing. Such data shall consist of: identification data, position, employer, telephone number, email address of relevant employees/representatives.
20.3. Where the Client Content includes personal data, the Provider shall act as Processor for the processing of personal data carried out for the provision of the Services and the Client as Controller. In doing so, the Parties shall comply with the Agreement on the Processing of Personal Data set out in Annex 4 to this Agreement.

21. Anti-corruption and money laundering
21.1. The Client declares that (i) the Client, (ii) its shareholder(s) and (iii) its directors (hereinafter referred to as “Stakeholders”) have not been and are not engaged, and the Client undertakes that the Stakeholders shall not engage, either directly or indirectly, in any practices contrary to or prohibited by the Anti-Corruption and Anti-Money Laundering Legislation.

21.2. The Client declares that it has and shall conduct its business in compliance with the Anti-Corruption and Anti-Money Laundering Legislation and that it has established and maintains policies and procedures to promote and ensure compliance with the Anti-Corruption and Anti-Money Laundering Legislation.

21.3. “Anti-Corruption and Anti-Money Laundering Legislation” means all current and future applicable laws to combat corruption and money laundering, European Union legislation on the prevention of terrorist acts and the financing of terrorist acts, and any other local laws to prevent and punish money laundering.

21.4. Without prejudice to the generality of the foregoing, the Client declares that it has not and undertakes not to:
Make any payment or offer or promise any such payment, directly or indirectly, to any person or entity, whether governmental, quasi-governmental or private, for the purpose of obtaining or retaining a business relationship or obtaining an improper advantage in connection with any business or contract to which ClusterPower is a party or is otherwise involved; or
Receive or solicit, directly or indirectly, any money or thing of value from any person or entity, whether governmental, quasi-governmental or private, for the purpose of obtaining an improper advantage from such person or entity; or
Offer or promise financial or personal benefits to persons holding public office in connection with the performance of those duties.
The Client agrees to promptly report to ClusterPower all relevant facts regarding any solicitation, request, or other demand for bribes, improper gifts, or other gratuities made by any party in connection with any of the activities performed under the Contract, and if ClusterPower elects to conduct an investigation, the Client agrees to fully cooperate and assist ClusterPower until the investigation is completed.
ClusterPower shall have the right to terminate the Agreement, by written notice to the Client, without further formality or court intervention, without right of set-off, after the expiry of a period of 30 (thirty) days from the date of sending the notice, if any of the representations made by the Client under this section are invalid or if the Client breaches the undertakings made under this section. The following are non-exhaustive examples of when ClusterPower may terminate the Agreement: (i) if any of the Interested Parties are convicted under a final court order of committing a criminal offense under Romanian law or any other jurisdiction where the aforementioned law is applicable and (ii) if any of the Interested Parties (as defined above) becomes included in certain lists of the US Office of Foreign Asset Control (the list of persons can be accessed at https://sanctionssearch.ofac.treas.gov) or is subject to financial sanctions imposed by the EU Service for Foreign Policy Instruments (updated list can be accessed at https://ec.europa.eu/fpi/what-we-do/sanctions_en).

Technical Annex for the Cluster Power Cloud Computing Service

Description of Services and Specific Definitions
Specific Definitions
In addition to the definitions described above, the following specific definitions apply to the Cluster Power Computing service and the services listed in the ClusterPower E-Shop.
Data refers to the data of the Client and its Users, including direct or indirect personal data, hosted under the Agreement and accessible only to the Client and its Users.
Data Center is a building, a dedicated space in a building or group of buildings, used to house computer systems and associated components such as telecommunications and storage systems.
Disaster Recovery is an extension of the Infrastructure as a Service (IaaS) platform through which we offer the Cluster Power Computing service and which offers Clients the possibility to host their virtual machines in one of the Cluster Power data centers, other than the production one, hereafter considered: replication data center.
Monthly availability, hereinafter referred to as SLA, of the Cluster Power Computing service is the percentage of time the service is available as defined in the Cluster Power scope of responsibilities.
Unique Client ID: the unique Client number designated by the Provider when signing the agreement
Application Programming Interface (or API) means the programming interface that allows you to access vDC resources using a software.
The vCloud Director administration interface provides access to the administrative functions of the service, where administrators can log in to manage the resources of the Cluster Power Computing service. This technical administration interface requires knowledge of network and security features to configure different network policies and security rules.
Client license(s) means the third-party software licenses that a Client subscribes to and that are used in the Infrastructure.
Virtual Machine (or VM) means a software application that fully simulates the operation of the hardware components of a computer system.
Organization (or vOrg) means a virtual private space provided by the VMware vCloud Director application, the software underlying the Cluster Power Computing service. The organization includes all virtual data centers (vDCs) for the hosting of VMs.
RPO (Recovery Point Objective): the last point in time from which applications/virtual machines can be retrieved.
RTO (Recovery Time Objective): how quickly applications protected by the Disaster Recovery solution resume operations from the moment of a computer incident.
SR number means the registration number assigned to a support ticket at the time of the Client incident report
Operating system means a core set of software used by a computing device as an interface between hardware and software applications
Remediation time is the maximum time Cluster Power commits to remediate the Cluster Power Computing service.
User(s) means natural persons using the Service under the responsibility of the Client.
Virtual Datacenter (or vDC) means the VMware logical object of the same name. A vDC is a pool of computing resources (vCPU power expressed in Ghz, RAM capacity expressed in GB), storage resources (expressed in GB) and virtual networks (Internet and VPN access, firewall) used to create a secure network architecture.
vApp means a logical group in which VMs are created. This group helps to easily and consistently manage a range of VMs that are grouped together for certain reasons (functional or security).

Services description

Computing resources

The operating frequency of a vCPU is 2.4Ghz.
RAM is allocated at a unit fraction of 1Gb.
Storage resources
Cluster Power offers the following types of storage:

IOPS resources are shared among all VMs using the vDC on which the Client deploys its VMs.
Storage in “VMDK” format is made available to VMs in a vDC as storage profiles that VMs can access to use as hard disks. The size of a VMDK file is limited to 16 TB. When a virtual machine needs to have more than 16 TB of storage space, you need to add more VMDK files to the virtual machine to reach the target size.
The unit fraction for storage resources is 1 Gb.
BackUp
By default, the service provides snapshot backup of virtual machines, free of charge, with a retention period of 3 days (a copy of the last 3 days is kept). Internal backup mechanisms require VMs to incorporate an updated version of “vmware tools” software. Most backup system failures are due to outdated versions of vmware tools.
Public or private templates catalogue
Organization administrators can access the Cluster Power public catalog, which provides ready-to-use vApp templates, in the administration interface. These vApps contain a single virtual machine, which comes with an operating system already installed and pre-configured. The public catalogue evolves regularly as new software versions become available. The Client can also manage their own template catalogues. Storage of these private catalogs uses storage space from the space available in the first vDC in the list displayed by vCloud Director.
Disaster Recovery
This feature gives the Cluster Power Computing service the ability to resume business following a computer incident by replicating VMs from the primary Cluster Power Computing Advanced site to the replication data center. This solution has an administration portal, which is made available to the Client together with the administration interface.
This feature makes it possible:
Protecting virtual machines of a vDC
Restoration between the main site and the virtual machine replication site
Setting priorities in virtual machine replication
Setting up replication groups. Multiple VMs can replicate as a group.
Testing the consistency of virtual machine replication.
Replication traffic between Cluster Power Data Centers is provided, free of charge. Any number of virtual machines can be replicated during the Term of the Agreement, depending on the resources available in the replication Data Center.
The storage type chosen for the replication Data Center may be different from the profile chosen for the primary data center. For example, data stored on SSD storage can be replicated to SAS storage.

Specific Provisioning Conditions

Client Obligations
Password configuration and access security in the administration portal is the sole responsibility of the Client.
It is the Client’s responsibility to keep the “vmware tools” software up to date.
In the case of Disaster Recovery, the Client is responsible for:
the selection of VMs for protection or the implementation of such protections (the sole responsibility of the Client). However, Cluster Power can provide complementary services upon request to meet the Client’s support needs.
testing and execution of replication tests for protected applications.
organising and carrying out post-incident recovery tests and main virtual machine restore tests. The Client shall not incur additional costs for testing the solution.
sizing its resources according to the load of its applications;
Operating system availability of the application infrastructure, applications installed on virtual machines
Security of systems at the virtual machine level, security and integrity of applications and stored data, security of data connections and information transferred over Cluster Power connections
Setting access policies on virtual machines and to hosted applications
Virtual machine and application management, internal network beyond the WAN interface of Cluster Power equipment
Licensing of operating systems and software solutions installed on the virtual infrastructure

Cluster Power Obligations
Availability of the Cluster Power Computing platform – of the physical infrastructure: (servers, network equipment, and virtualization platform)
Integrity and security of data automatically backed up daily from the Cluster Power Computing platform
Management of the virtualization platform and physical infrastructure
Managing and configuring VPN connections
Virtual private cloud platform security
Cluster Power ensures that there is no restriction on the amount of traffic through the Cluster Power network to or from the Client’s contracted virtual servers.
In case of Disaster Recovery
Cluster Power does not make any commitment to RPO (Recovery Point Objective) or RTO (Recovery Time Objective).

Onboarding and Activation Process
The Client shall receive an email confirming the activation of the Cluster Power Computing service to the technical contact address provided, hereinafter referred to as “Administrator”, together with the access credentials for the administration interface. The Client may invite Users with rights to use the Services into the Cluster Power Computing service organization. Users to whom the Client has granted the appropriate rights may, themselves, invite other Users.
The Client has a test period of 72 hours from the sending of the email confirming the activation of the service, during which time they can open a support ticket to implement changes/enhancements if necessary, as described below.
If within 72 hours after the email confirming the activation of the service has been sent the Client does not need any changes, the Activation Date is considered to be the date on which the email confirming the activation of the service was sent.
If the Client needs improvements and opens a support ticket for this purpose within the 72-hour period, then the Activation Date shall be the date on which the support ticket is closed. The Client shall use all reasonable commercial/technical efforts to provide all necessary information to resolve the support ticket as quickly as possible. During the settlement of the support ticket in order to activate the service, the Client undertakes not to use ClusterPower services except for the purpose of testing their functionality.

Service Limitations

The number of vCPUs of a VM must be an integer number (a VM cannot have, for example, 1.5 vCPUs). The vCPU frequency is aligned with the physical Processor frequency, in line with VMware best practices, to give the Client the best possible performance.
The maximum space allocated on a disk (*.vmdk) is 16Tb and the recommended space is 1Tb; a virtual machine can be allocated a maximum of 60 disks.
The technical maximum RAM allocation per virtual machine is 4TB RAM, the recommended maximum is 2TB.
When consuming memory and disk, there is an overhead (additional memory required to run a virtual machine) which is allocated from the space paid by the client.
Limitations of Liability
In the event of repeated failure to back up a VM linked to an outdated version of vmware tools, Cluster Power cannot be held liable for loss of data if the VM is not backed up properly due to an outdated version of vmware tools software.
Specific Security Policies
The vCloud Director portal is accessed via the Internet. The standard (default) security level is password protection. When the first administrator account is created by Cluster Power, a password is created that meets the security requirements. However, the Client may create new administrator accounts at any time.
Service Availability
All Services described in this Agreement are made available during the following business hours: 24 × 7 × 365 (24 hours / day, 7 days / week, 365 days / year).

This is equivalent to an Agreed Service Time (AST) of 8760 hours/year or 730 hours/month.

If at least one of the redundant components of the power supply system or the air conditioning system in the computer room is functioning, then the Services are considered to continue to be provided and the AST is not diminished nor is an interruption recorded in these cases.

The Services shall be available 99.982% of the AST specified in this SLA. This is the Agreed Service Availability (ASA).

Service Availability (SA) is calculated after each month as a percentage of the AST using the following formula:
SA= (AST-IT)/AST ×100
Where Interruption Time (IT) is the sum of the interruption hours during the month for which the calculation is made. Minutes and seconds of interruption periods are converted into hours. The maximum IT is 0.1460 hours per month or 8 minutes and 45 seconds per month.
The service interruption time is calculated as the interval between the Client reporting the incident (time of ticket registration) and the service becoming available again according to the agreed parameters.
The quality parameters shall not be applicable in the first month after the Service Activation, which is considered as the Service testing period.
If any component of the Services provided is down or is operating abnormally to such an extent that it may be deemed inaccessible, an outage shall be declared.

Interruptions caused by force majeure events, as defined in the Agreement, shall not be considered as Incidents and shall not be counted as Service interruptions under the responsibility of the Provider.
Outages shall qualify as an Incident under this Annex (“Incident”).

SUPPORT SERVICES
We offer support and assistance 24 hours a day / 7 days a week / 365 days a year. In case of failure of any component of the service, a ticket describing the Incident must be logged in the Jira Cloud platform. If you have a request, you must follow the procedure described below.
Registration of support requests by the Client
Access to technical support services can only be done formally, by creating a support ticket in the Jira Cloud online support request management platform, available 24x7x365. If the Jira Cloud platform is not available, technical support services can be accessed by sending an email to: [email protected], with the subject: Support request {client name}, {client ID}, {priority medium/low}.
A unique identification ID (SR number) shall be assigned to each reported request, which shall be automatically sent by the system to the Client, via an e-mail notification, to the person at the Client who reported the incident.
Incident reporting must be at a sufficiently consistent level of detail and include at least the following information:
· Service(s) affected;
· The time interval in which the Incident occurred;
· Estimated number of users affected and their role;
· Operational impact of the Incident;
· Background of the Incident;
· Logs/errors that could provide information about the Incident.
Each request opened in the Jira Cloud system shall describe a single Incident.
The ticket shall be closed by the technical support team when the Incident is resolved. Incident resolution time is automatically recorded by the Jira Cloud application when the ticket is closed.
Emergency levels
Any support request recorded shall be classified according to the urgency levels below. The level of urgency that shall be assigned by the Client at the time of opening the ticket can be medium or low. To escalate the ticket to High or Critical levels, the Client shall call the unique support number where they shall enter:
Unique Client ID
The ID (SR number) generated by the JIRA Cloud platform at the time of ticket registration.
Digit 1 for Critical or digit 2 for High
· CRITICAL: there is a critical operational impact that prevents the Client from benefiting from the basic functions of the Service and there is a major impact on business continuity;
· HIGH: there is an operational impact that prevents the Client from benefiting from the basic functions of the Service or the basic functions of the Service are available but limited or performance is degraded.
· MEDIUM: there is an impact that only affects the functioning of the Service to a small extent;
· LOW: there is a minor impact on the Service; this includes service type requests (information requests, questions, etc.).

SERVICE LEVEL TARGETS

The response time corresponding to each urgency level is the time elapsed from the registration of the support request in the Provider’s online support request management system and the moment when a technically trained person from the Provider confirms that the support request has been received and the investigation of the request has been initiated; the confirmation shall be made by e-mail notification; if the Jira Cloud platform is not available, the confirmation shall be made by phone. Support requests that are found to be unwarranted are not considered Incidents and shall not be counted as Service interruptions. The investigation shall be initiated in the following intervals, depending on the level of urgency of the request for support:

COMPENSATION

Service Availability shall be measured for each calendar month according to the formula in point 3 above.

If the Availability of a Service is less than 99% of the AST, the Provider shall compensate the Client in the form of Service Credits. The amount of compensation shall be set as a percentage of the value of the Service in question for the month in which the Service Availability was less than 99%, as shown in the table below:

Any compensation in the form of service credits to be given to the Client due to the Provider’s inability to provide the Service Availability Levels undertaken shall be calculated for one calendar month. The Client may use the service credits accumulated during the term of this Agreement, at its discretion, by written request, to purchase new services from Cluster Power’s offering or to offset amounts owed by the Client under the Agreement. Credits may be used until the termination of this Agreement, their validity cannot be extended and they cannot be assigned or transferred under any circumstances.