I – OBJECT
The purpose of this term is the licensing of software, called “SKYMAIL”, “MICROSOFT EXCHANGE ® SKYEXCHANGE”, “CLOUD” and “CLOUD BACKUP” as well as their implementation.
SKYMAIL is obliged to grant the CONTRACTOR the right to use its proprietary software necessary for the use of the services agreed upon through this term.
The use of the software and the support provided will begin immediately after acceptance of this term, and will not be linked to the disconnection of the services previously used by the CONTRACTOR.
II – ADJUSTMENT
The cost of the services will be agreed between the CONTRACTOR and SKYMAIL through a commercial proposal, accepted by E-Mail or communication.
The cost of services must be paid on the date previously agreed between the parties.
The cost of services is subject to monetary correction in accordance with the IGP-M (FGV), accumulated from the date the services were first provided until the date of each effective adjustment, or by any index that replaces it.
In the event of an increase in the tax rate applicable to the products contracted herein or the imposition of new taxes related to them, or an increase in the licensing price of third-party software that makes up the solution, the increased amount will be passed on to the price of the products upon 60 (sixty) days’ prior notice, with which the CONTRACTING PARTY agrees.
III – DEFAULT
The breach of any clause or non-compliance with any obligation established in this contract and/or documents that comprise it constitutes breach of contract by the CONTRACTING PARTY.
Failure by the CONTRACTOR to comply with the obligation to pay any amount within the timeframes and in the manner provided for in this instrument and its annexes will subject it, by operation of law, regardless of any notice or interpellation, judicial or extrajudicial, to the following sanctions:
1. Payment of a fine of 10% (ten percent) on the amount of the debt, plus interest of 0.33% (zero, thirty-three percent) per day, until the date of effective settlement;
2. If the default is greater than 45 (forty-five) days, counting from the due date of the NFE (Electronic Invoice), SKYMAIL may suspend the provision of services and block access, and the amounts charged monthly will continue to be due due to the maintenance of the entire infrastructure and storage of the CONTRACTOR’s data.
3. After the 60th day of default, Skymail may terminate the provision of services for just cause due to breach of contract, at which time all data, information, emails, infrastructure, licenses, systems, etc. will be permanently deleted from the SKYMAIL database, without the need for any communication or notification to the CONTRACTING PARTY. Cancellation due to default does not exempt the customer from payment of outstanding amounts, prior notice, or other conditions set forth in the TERM AND CANCELLATION clause.
4. The CONTRACTING PARTY declares that it is aware that SKYMAIL will not be responsible under any circumstances for the provision or storage of data, information, emails, infrastructure, licenses, systems, etc. after termination for just cause described in the previous item, even if the CONTRACTING PARTY settles its debts with SKYMAIL.
5. All legal expenses and costs, as well as attorney’s fees, are hereby fixed at 20% (twenty percent) of the total debt, if there is judicial collection, or 10% (ten percent), in the case of extrajudicial intervention by an attorney.
IV – SLA
1. SKYMAIL undertakes to maintain the services and licensing established in this agreement, in accordance with the specifications mentioned herein, for at least 99.8% of the time, each month.
2. The CONTRACTOR will be subject to the payment of a Vm fine in the form of a discount on the CONTRACTOR’s monthly fee up to the maximum limit of the value of the contracted monthly fee, in cases where services are unavailable due to the CONTRACTOR’s responsibility, according to the formula below:
Vm = (number of unavailable hours – SLA tolerance)/12* Monthly fee
3. Discounts will not be granted in the event of any of the following cases: Inadequate operations, failures or malfunctions of equipment/networks that are not the responsibility or direct control of SKYMAIL or its representatives:
3.1. Failure in the CONTRACTOR’s infrastructure, equipment or internal network;
3.2. SKYMAIL equipment failure caused by the CONTRACTOR, provided it is proven;
3.3. Carrying out necessary tests, adjustments and maintenance, provided that they are notified at least 24 (twenty-four) hours in advance;
3.4. Act of God or force majeure.
4. SKYMAIL is exempt from liability for losses and compensation for lost profits arising from any unavailability, with the discount described above being the sole and exclusive means of compensating the CONTRACTOR for any unavailability.
V – SPAM
1. THE CONTRACTOR undertakes not to send SPAM using SKYMAIL’s infrastructure or services.
2. The CONTRACTING PARTY will be notified, by email or telephone, of the main occurrences of complaints of possible SPAM sent by the CONTRACTING PARTY, which are sent to SKYMAIL.
3. If SKYMAIL finds that the CONTRACTOR uses its email accounts for the purpose of sending SPAM, SKYMAIL may immediately suspend the services related to the CONTRACTOR’s account, without prejudice to the termination of this contract.
VI – CONFIDENTIALITY
1. The CONTRACTING parties undertake to maintain confidentiality regarding information processed in the operations described above, as well as the entire content of this instrument, governed by commercial ethics and good faith.
2. For the purposes of this instrument, information, data, materials, documents, technical or commercial specifications, innovations or improvements will not be considered “CONFIDENTIAL INFORMATION” that:
3. At the time of its disclosure by one of the parties that are already demonstrably known to the other party, provided that such prior knowledge was obtained in a manner considered legitimate;
4. Are in the public domain;
5. They are objects of written permission, respecting the limits and conditions set out in the permission for the disclosure of information;
6. Are requested by court order and/or by the Public Administration or whose disclosure is determined by law, respecting the strict limits of the request or determination, and,
7. They are necessary for perfect execution.
8. The parties undertake to restrict access and keep confidential the confidential information transmitted between them, disclosing it only to those employees who need it to perform the functions assigned to them under this contract, entering into a specific agreement with them, a confidentiality agreement regarding the information received.
9. The commitments set forth in this confidentiality clause are assumed on an irrevocable and irrevocable basis, and will survive the termination of any commercial or other relationship existing between the parties for a period of 01 (one) year after the respective termination.
VII – VALIDITY AND CANCELLATION
1. The term of this contract is twelve months from the date of issue of the first invoice for the provision of services to the customer.
2. Cancellation may be requested by the CONTRACTOR to the CONTRACTED PARTY after the 12-month contractual term and upon contract renewals, provided that it is requested with 60 (sixty) days’ prior notice. Termination before the end of the contractual term may be requested by both parties, observing the prior notice and other specific conditions negotiated between the parties.
3. After contract cancellation, Skymail has up to 30 days to delete customer data from its infrastructure.
4. Cancellation due to default is considered the customer’s motivation, and does not exempt the customer from paying prior notice and other specific conditions negotiated between the parties.
VIII – USE OF THIRD-PARTY SOFTWARE IN THE SKYMAIL CLOUD
1. In case of using Cloud Skymail, you may be authorized to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”).
2. If you use the Microsoft Software, Microsoft and its licensors require that you agree to these additional terms and conditions:
2.1. The Microsoft Software is not sold or distributed to you, and you may use it only in conjunction with Cloud Skymail.
2.2. You may not transfer or use the Microsoft Software outside of the Skymail Cloud.
2.3. You may not remove, modify, or suppress any copyright, trademark, or other proprietary rights notices contained in the Microsoft Software.
2.4. You may not reverse engineer, decompile, or disassemble the Microsoft Software, except as expressly permitted by applicable law.
2.5. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liabilities of Microsoft or its suppliers for damages, whether direct, indirect or consequential, arising out of the Software Services.
2.6. Microsoft is not responsible for providing any support related to the Software Services. Do not contact Microsoft for support.
2.7. You are not permitted to use the Microsoft Software in applications that control aircraft or other means of mass human transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weapons systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include using the Microsoft Software for administrative purposes, storing configuration data, engineering and/or configuration tools, or other non-control applications whose failure would not result in death, bodily injury, or severe physical or environmental damage. These non-control applications may communicate with the control applications, but should not be directly or indirectly responsible for the control function.
2.8. Microsoft is distinguished as an intended third-party beneficiary of this Section 2 with the right to enforce its provisions.
3. In any instance of running Microsoft Software (each, a “Microsoft Instance”), you may not use embedding, containerization, or similar technologies to sell or resell multiple instances, portions of an instance, or containers running within a Microsoft Instance unless:
3.1. You are the end user of the Microsoft Instance;
3.2. You have supplemented the Microsoft Instance with your own applications;
3.3. You have added primary and significant functionality to the Microsoft Instance.
4. In addition to any liabilities you may have to Skymail, you agree that you will be legally responsible to Microsoft for any breach of these terms and conditions.
5. You must allow Skymail to disclose any information requested by Microsoft in accordance with the Agreement between the parties. Microsoft will be a third-party beneficiary of your agreement with Skymail, with the right to enforce provisions of your agreement with Skymail and verify your compliance.