General Terms and Conditions of Use
1.1. Clever Cloud provides professional developers and corporate entities with a hosting services platform (hereinafter “the Platform”) that allows them to easily deploy and operate their applications, based on deployment software and additional components (databases, search engines, file systems, …) automatically configured, optimized and updated. The Platform allows its users to focus on the development and execution of their products and services without having to manage the hosting infrastructure and its optimization.
The Platform includes products developed and marketed by Clever Cloud, as well as products developed and published by third parties, offered and marketed on their own terms through Clever Cloud.
For purposes of interpretation hereof, an “Application” shall mean any software deposited on the Platform whose source code is hosted and executed on Clever Cloud’s servers.
1.2. The Platform accessible at www.clever-cloud.com is operated by Clever Cloud, a simplified joint stock company registered in the Nantes Trade Register under number 524 172 699, whose registered office is located at 4 rue Voltaire, 44000 Nantes, FRANCE (hereinafter “Clever Cloud” or “we”).
1.4. The Terms are intended to govern the relationship between Clever Cloud and each user of the Platform (hereinafter, without distinction, “Customer”, “User”, or “you”). By logging into the Platform and requesting to create a user account, you agree to be bound to us by the Terms from the moment you confirm the creation of your account by clicking the link received on the email address you provided, and until the termination of the contract thus made between you and us (“the Contract”). The Contract may also be entered into by signing a purchase order to which these Terms are attached, in which case it shall take effect on the date of execution of the oldest purchase order in effect.
2. Licenses for use
2.1. Subject to and in consideration of your full compliance with the Terms, Clever Cloud grants to you for the entire term of the Contract and throughout the world the non-exclusive, personal, non-sublicensable right to use the Platform for the purpose of testing and deploying your applications on the Platform, and to provide access to third parties (your customers) to the applications you choose to deploy.
2.2. Unless otherwise stated and with the exception of software distributed under specific licenses (e.g. open source code under a free license), the source code of the Platform is the sole property of Clever Cloud and you have no right to modify, distribute, copy, adapt, reverse engineer, decompile or otherwise attempt to extract it. If reverse engineering is required to enable interoperability of the Platform with another platform, it will only be permitted to the extent that Clever Cloud has not responded within a reasonable time to an express request for APIs, in which you have told us what data you wish to access and the input format accepted by the third party platform’s APIs.
2.3. You retain all intellectual property rights attached to the data you own and upload to the Platform. For the strict purposes of operating the Platform and performing these Terms, however, you grant to Clever Cloud, on a worldwide basis and for the duration of the Contract, the non-exclusive, transferable and sub-licensable right to reproduce, adapt, modify, publish, make available to the public, or otherwise use any data and applications that you post on the Platform. To the fullest extent permitted by law, Clever Cloud will not provide third parties with access to any such data and applications, except for those you have chosen to share with third parties in your Use of the Platform.
2.4. By registering on the Platform and deploying an Application, you grant Clever Cloud the irrevocable right to use your trademarks, logos, names, and other distinctive signs throughout the world and on all physical or immaterial media for the purpose of advertising your use of Clever Cloud’s services, in particular on its website, its commercial presentations and its communication media. This authorization is valid for the entire duration of the Contract and for 2 (two) years following the termination of the Contract.
3. Your obligations and prohibitions
3.1. You must use the Platform in an appropriate and reasonable manner and in accordance with applicable law and the Terms, including the Acceptable Use Policy, which you must consult regularly. In particular, you are reminded that any use of the Platform to infringe the rights of third parties, to make available content aimed at committing or inciting crimes or offenses, inciting racial hatred or suicide, advocating crimes against humanity, inciting or advocating acts of terrorism, or disseminating or collecting content containing elements of child pornography is prohibited.
3.2. You are solely responsible for your use of the Platform and the use made by you or third parties of your applications, and must take all necessary precautions and measures to avoid use contrary to the Terms. Clever Cloud is under no obligation to monitor, and Clever Cloud’s failure to notify Customer of any activity that violates the Terms shall in no way constitute an acceptance of such activity.
3.3. You must provide third parties with easily accessible and readable information allowing them to contact you in order to report any illegal content available through your application.
3.5. You must ensure that you do not allow third parties to access your user account on the Platform. It is your responsibility to keep your credentials strictly confidential and you must inform Clever Cloud if you suspect that a third party has gained or may gain access to your data, for example if you believe that your password has been disclosed.
3.6. You must inform Clever Cloud as soon as possible of any anomalies and malfunctions encountered in your use of the Platform (including availability, stability, billing, …), and assist in their resolution if necessary.
3.7. You must provide us with truthful and up-to-date contact information.
4. Maintenance and Support
4.1. Clever Cloud provides remote technical assistance (“Support”) relating to your use of the Platform by email integrated into the Platform or, subject to subscription to a service option giving you access to it, by telephone at the times indicated on the Platform website. Only the holder of the account opened on the Platform or a person explicitly designated by him/her has the right to use this Support.
4.2. The price of the Support is included in the Platform’s invoicing price for any specific request for advice in the use of the Platform or for any intervention to restore normal use of the Platform. Requests for specific services may be invoiced with the Customer’s express Contract.
4.3. Clever Cloud will use its best efforts to respond as quickly as possible to requests sent to Support. However, the Customer acknowledges and agrees that, except as specified in the Premium Support Policy which may be subscribed to at any time by the Customer, Clever Cloud does not provide any guarantee as to the response time and handling of reported incidents.
4.4. A “Critical Incident” is an incident that completely prevents the use of the Platform. A “Major Incident” is deemed to be an incident that substantially degrades or restricts the performance and/or one or more major functionalities of the Platform.
4.5. Customer acknowledges and agrees that in order to correct, prevent or terminate an incident, Clever Cloud may access all of Customer’s data and applications and make any changes, deactivations or deletions deemed necessary to resolve the incident. Clever Cloud may also perform any updates to the Platform and software on which the proper performance of Customer’s application depends.
4.6. Customer acknowledges that the Platform is provided to Customer as is, and that it is impossible for Clever Cloud to guarantee the absence of any anomalies or to promise to correct all anomalies, errors, incidents or other problems that may affect the use of the Platform. Customer also acknowledges that Clever Cloud cannot guarantee the proper functioning of the Platform on all computer systems on the market, and that it is therefore the Customer’s responsibility to use a system that is compatible with the Platform and its ongoing development.
5. Availability Guarantee (SLA)
5.1. Unless otherwise specifically provided for in a specific service level guarantee option subscribed to by the Customer, Clever Cloud guarantees an average availability rate of the Platform of 99.9% per year for the entire duration of the Contract, under the conditions set out in this title.
5.2. “Downtime” means the period during which the Platform is subject to a Critical Incident or Major Incident due to a cause attributable to Clever Cloud (hereinafter “Downtime”). Excluded from the Unavailability Period are any interruptions in the operation of all or part of the Internet network over which Clever Cloud has no control, as well as unavailability due to maintenance operations requested by the Customer from Support, or scheduled with at least ten (10) days’ notice.
5.3. In case of unavailability higher than the rate indicated in article 5.1, the Customer will be entitled to claim from Clever Cloud for a given period (at least one consumption statement period, i.e. one calendar month) a maximum compensation calculated according to the formula P = Tunavail x R x 2 in which:
- P = amount in euros of the penalty;
- Tunavail = rate of unavailability over the period considered by dividing the number of consecutive minutes of unavailability of the Platform by the total number of minutes of the period;
- R = amount of the Fee invoiced and paid in full by the Customer during the twelve (12) months prior to the start of the unavailability period.
In any event, the amount of this indemnity is capped by mutual agreement at a maximum of 10% of the total amount of Fees invoiced to the Customer during the twelve (12) months of the Contract preceding the start of the period of unavailability. In the event that this indemnity limit is reached, the Customer shall be entitled to terminate the Contract without notice and with immediate effect.
5.4. The Customer acknowledges and agrees that the compensation thus calculated covers the entirety of the loss that may be attributable to Clever Cloud due to such unavailability of the Platform, and that no additional compensation or reduction of the amounts invoiced may be claimed. It is the Customer’s responsibility to document evidence of the Unavailability Periods and to notify Clever Cloud as soon as the Platform becomes unavailable. To be admissible, any claim for compensation must be made no later than two (2) months after the end of the unavailability.
5.5. Clever Cloud agrees to apply patches within 12 hours of the release of patches to zero-day security vulnerabilities affecting the Platform, for all vulnerabilities with a score equal to or greater than 8.5 according to the CVSS v3.1 ranking available at https://www.first.org/cvss/user-guide.
6. Price and payment
6.1. The use of the Platform is subject to the payment of a sum which amount depends on the subscribed services, hereafter called “Fee”. Any order placed by the Customer implies acceptance of the associated Fee amounts as indicated, exclusive of taxes, in Clever Cloud’s price list accessible at the following address: https://www.clever-cloud.com/pricing/
6.2. The amount of the Fee is payable monthly in advance (in arrears) for any subscribed service. Any month started is due, however when applicable the amount of the Fee will be calculated on a pro rata basis according to the number of days remaining.
6.3. At its sole discretion, Clever Cloud may ask the Customer to enter a valid means of payment on the Platform and to provide information useful for the verification of the Customer’s identity. Access to the Platform may then be suspended until the requested information is received and processed.
6.4. Clever Cloud is free to revise its price list at any time. If applicable, the Customer will be informed by e-mail of the change of the Fee price at least thirty (30) days before the date of application of the new price. Any use of the Platform after this date shall constitute acceptance of the new price, the Customer being free to terminate with immediate effect, without notice and without compensation between the date of notification of the new price and its effective date.
6.5. Any delay in payment by the Customer of more than thirty (30) days after the due date of an invoice constitutes a serious breach of the Customer’s obligations, giving Clever Cloud the right to suspend the Services without notice under the conditions indicated in Article 7. In the event of non-payment of all or part of the Fee, any unpaid amount will automatically and by operation of law produce late interest from day to day until the date of its full payment in principal, interest, costs and accessories, at a rate equal to FIVE (5) times the legal interest rate, without the need for a reminder and without prejudice to damages and other recoveries of costs that Clever Cloud reserves the right to seek in a judicial manner. A fixed indemnity for collection costs of 40 euros will also be claimed.
7. Suspension of Services
7.1. Suspension of Services means the total or partial deactivation of the rights of access and use of the Platform’s functionalities, such as but not limited to access to the console, the execution of applications and add-ons or access to the source code, documents and other data deposited on the Platform. Suspension of Services may be temporary or permanent. In the event of a permanent and total suspension, this will result in the de facto termination of the contract.
7.2. In case of violation of the Terms, or reasonable suspicion of violation of the Terms, Clever Cloud reserves the right to decide to suspend the Services. The Customer will be informed of this decision by email sent to the address associated with the account in question, and will have the right to present his observations in order to have the suspension decision lifted.
7.3. Suspension of Services may be permanent in any of the following circumstances:
- Customer fails to end the breach of contract within the time period specified in the Suspension notice;
- Customer has repeatedly misused the Services or violated the Terms;
- The Customer has committed a sufficiently serious breach of any of the obligations indicated in the Conditions.
7.4. Clever Cloud reserves the right to refuse, in its sole discretion, any new Contract that you request, or any Contract that Clever Cloud has legitimate reason to believe is directly or indirectly related to a customer who has been subject to an action of Suspension of Services.
8. Warranties and limitations of liability
8.1. Clever Cloud warrants that it has the right to grant or sub-license all third party software accessible on the Platform, as of the date of the Customer’s subscription to services using such software, and warrants the Customer against any recourse by third parties in this respect. The Customer acknowledges and accepts that the terms and conditions of the licenses granted by third parties may be modified or withdrawn by them at any time, without Clever Cloud being held liable. It is the sole responsibility of the Customer to verify the suitability of its applications to the terms and conditions of third party software licenses.
8.2. The Customer is solely responsible for its data backup policy and redundancy of its services. Apart from the cases covered by the Availability Guarantee mentioned in Article 5, Clever Cloud does not guarantee that the Platform will operate without defect, interruption or error, and no compensation can be claimed in case of direct or indirect damage caused by a failure of the Platform, such as loss or leakage of data, loss of customers, loss of turnover, damage to image or loss of opportunity.
8.3. In any event, the total amount of Clever Cloud’s pecuniary liability is limited to the amount of the Fees paid by the Customer during the twelve (12) months preceding the first event giving rise to the alleged damage(s), to the full extent permitted by law.
8.4. You fully indemnify Clever Cloud and its affiliates against all claims and proceedings by third parties relating to your improper use of the Platform, for all expenses and damages suffered or incurred by Clever Cloud, including those caused by the content or use of your Applications.
8.5. The Parties shall not be held to be in default in the performance of the Contract in the event of delay or non-performance due to a case of force majeure usually recognized by jurisprudence, for example in the event of a natural or climatic disaster, conflict involving the armed forces, act of terrorism, riot, epidemic, embargo, flood, shortage of energy or raw materials, cut-off or restriction of the Internet networks, etc. The case of force majeure suspends the obligations of the Parties whose performance is thus prevented.
9. Intellectual Property and Confidentiality
9.1. With the exception of the Customer’s data and to the fullest extent permitted by law, all elements constituting the Platform (including its source code, images, texts, videos, graphic appearance, logos, etc.) belong to Clever Cloud, its licensees, or to third parties who have given permission to exploit them, and are protected by intellectual and industrial property rights. When third party licenses apply, for example to content distributed under open source licenses, Clever Cloud refers to these licenses.
9.2. “Clever Cloud” is a registered trademark of Clever Cloud SAS. Any use of the Clever Cloud trademark or logo is prohibited, except to publicize your use of the Platform.
9.3. The Parties undertake to treat as confidential and therefore not to disclose to third parties, to the fullest extent permitted by law, all information communicated to the other Party, for the entire duration of the Contract and for five (5) years following its termination. As an exception to the foregoing, information that was already publicly available, information validly held by a Party prior to disclosure by the other Party, and information obtained from a third party authorized to disclose such information shall not be considered confidential.
9.4. For the protection of the other party’s confidential information, each party agrees to take the minimum protective measures that it would take to protect its own confidential information, and agrees to ensure that its employees, service providers and subcontractors, if any, who have access to the confidential information have signed a confidentiality Contract with obligations equivalent to those set forth in this section prior to any disclosure to them.
10. Personal data
10.2. You are solely responsible for processing the personal data of users of your applications and third parties whose data you choose to process through the Platform, subject to the Data Processing Agreement (“DPA”) between you and us.
The Contract is concluded for an indefinite period.
It may be terminated at any time at the Customer’s initiative from the Clever Cloud console or by asking the Support or at Clever Cloud’s initiative by giving a two (2) months’ notice by email to the Customer. Any deletion of the account at the request of the Customer from the Platform will result in the termination of the Contract.
12. Effects of termination / reversibility of data
12.1. In the event of termination of the Contract under the conditions set forth in Article 11, Clever Cloud may permanently suspend all rights of use and access to the Platform as of the date of termination of the Contract.
12.2. In the event of termination of the Contract at the Customer’s initiative, the Customer is solely responsible for making a copy of its data, such as source codes and databases, prior to the termination date of the Contract. The Customer may request the assistance of the Clever Cloud Support in order to obtain a copy of the data in an open format of the Customer’s choice, in which case this service may be subject to a fee agreed with the Customer. All Customer data may be permanently deleted by Clever Cloud at the end of the Contract.
12.3. In the event of termination of the Contract at Clever Cloud’s initiative, except for termination due to non-payment or unlawful content, Customer has the right to receive or download a copy of their data stored on the Platform in an open and/or standard format which does not require access to the Platform to be reused. This right may be exercised during 30 (thirty) days following the Contract termination by sending an e-mail to email@example.com.
13. Amendments and Notifications
13.1. Clever Cloud reserves the right to change the Terms at any time without notice to you, and will notify you of sreserves the right to change the Terms at any time without notice to you, and will notify you of such changes by any appropriate and proportionate means (such as, for example, a message posted on the Platform Console, or an email to the address you provided to us when you registered on the Platform). You should check the Platform and related communications periodically to review any changes notified to you. Your continued use of the Platform constitutes acceptance of such changes.
13.2. In the event of a substantial change to the Terms and unless an exceptional event occurs that does not allow for such a delay, the change will not come into effect until a date at least thirty (30) days after the date of notification. You have the right to terminate the Contract without notice or compensation until such time as the new Terms come into effect. Any continued use of the Platform after such date shall constitute acceptance of such changes.
14. Non-solicitation of Employees
14.1. Unless otherwise expressly agreed between the Parties, the Customer waives the right to hire any Clever Cloud employee who has directly or indirectly participated in the performance of the Contract, even if the initial request is made by the employee in question. This obligation is valid for the entire duration of the Contract and for twelve (12) months following the end of the Contract or its termination, regardless of the cause and/or basis thereof.
14.2. In the event that the Customer fails to comply with this prohibition, the Customer undertakes to compensate the other party (in particular for selection and recruitment expenses, training costs, damages resulting from its personal reputation or commitments already taken into account) by immediately paying it a lump-sum indemnity equal to twelve (12) times the last gross monthly salary that the employee in question will have received from the party in breach.
15. Autonomy of stipulations
15.1. In the event that any provision of the Contract is held to be invalid or unwritten by a court decision that has the force of res judicata in the main proceedings, the parties agree to attempt to limit the scope of such invalidity as far as possible so that the other contractual provisions remain in force and the economic balance of the Contract is respected.
16. Applicable Law, Jurisdiction and Evidence Contract
16.1. The place of performance of the Contract is the registered office of Clever Cloud, in Nantes (France). It is governed by French law, both for the rules of form and substance. In the event of a dispute relating to the interpretation, performance or termination of the Contract, the Parties shall endeavor to reach an amicable agreement. In the event of failure to reach such an agreement within 15 (fifteen) working days following notification of the dispute by registered letter with acknowledgement of receipt sent to the registered office of the Party in question, JURISDICTION IS EXPRESSLY GIVEN TO THE COMPETENT COURT OF NANTES, EVEN FOR REFEREAL PROCEEDINGS, except in the case of material or territorial jurisdiction from which it would not be possible to derogate contractually.
16.2. The Customer acknowledges that insofar as they relate to the dispute in progress, the log files and other digital documents kept by Clever Cloud are authentic until proven otherwise to establish the reality of the actions performed by the Parties.
|Update of the registered office address
|Modification of clause 12 to clarify contract termination
|Modification of clauses 11 and 13 to better clarify the procedures and effects of contract termination, in particular to specify that Clever Cloud keeps a 30 days backup only in case of termination on its own initiative.
|Correction of typing errors (numbering 8.3 to 8.5)
|In Clause 1.3 and 10, addition of a hyperlink to the DPA
|Totally rewritten Terms and Conditions