Terms of Service

Koyeb Terms of Service - April, 27th 2021

This Koyeb Terms of Service (the “Agreement”) governs the relationship between Koyeb, a simplified joint-stock company with a share capital of 37,518.80 euros, registered in France with the Trade and Commerce Register of Nanterre under the number 850 183 948, having its registered address at 9, Rue des longs près – 92100 Boulogne-Billancourt, France (“Koyeb”) and any natural or legal person who has subscribed an account on the multi-cloud platform published by Koyeb (the “Customer”).

Koyeb and the Customer are hereinafter referred to individually as a “Party” and collectively as the “Parties”.

1. Definitions

Terms and expressions whose first letter of each word is in capital letters have, within the Agreement, the meaning assigned to them below, whether they are used in the singular or in the plural.

“Application” means any software run by the Customer from the Instance.

“Authorized User” means the identified user, natural person, authorized by the Customer to access the Platform in accordance with the provisions of the Agreement and the chosen Subscription.

“Bots” means a software tool designed to automatically emulate the actions of a human user, used in particular for data entry; data loading; data migration; loading tests; performance tests, checks and measures; stress tests; conduct traffic exchange operations; and/or mining cryptocurrencies (e.g. Loadrunner, Winrunner, QALoad, Hitleap).

“Customer Data” means Content when it is qualified as personal data.

“Confidential Information” means any information communicated (written, orally or by any other mean, directly or indirectly) by one Party to the other Party prior or after the Agreement’ entry into force including, without limitations, its operations, processes, plans, know-how, commercial secrets, inventions, techniques, commercial opportunities and activities.

“Content” means all items (e.g., data, files, information, systems) collected, processed, reproduced, stored, transmitted, used and/or operated by the Customer as part of the Services.

“Fees” means the sums owed by the Customer to Koyeb in consideration for the use of the Platform. The Fees scheme, which determines the amount of the applicable Fees based on the chosen Subscription, the use of the Services by the Customer and, where applicable, the Authorized Users accessing the Platform, is available at the following URL: https://www.koyeb.com/pricing (opens in a new tab).

“Force Majeure” means an unforeseeable and irresistible event external to the Parties, as defined by the case law of the French courts, including: war (declared or undeclared); terrorist act; invasion; rebellion; blockade; sabotage or act of vandalism; strike or social conflict, total or partial, external to each of the Parties; bad weather (including floods, thunderstorms and storms); event declared "natural disaster"; fire; epidemic; invasion of zombies; blockage of means of transport or supply (including energy); failure in the supply of electricity, heating, air conditioning, telecommunications networks, data transport; failure of satellites.

“Instance” means a set of resources (e.g., storage capacity, bandwidth, computing power, RAM) allocated to the Customer that can (i) be dedicated to the Customer; or (ii) be shared with other Customers. The resources allocated to the Customer’s Instance depend on the chosen Subscription.

“Platform” means the multi-cloud platform published by Koyeb that allows the Customer to benefit from cloud computing Services, in particular through the management of multiple cloud environments from a single interface.

“Service” means the various features provided by the Platform that the Customer has access to in consideration for payment of the Fees.

“Service Credit” means a discount granted to the Customer on the amount of the Fees in case of non-compliance with the Service Level.

“Service Failure” means any reproducible malfunction affecting the Platform, not caused by a misuse.

“Service Level” means the performance levels to which Koyeb commits in the provision of the Service. The Service Level to which Koyeb commits includes the Service Failure resolution time and Availability Rate.

“SLA” means the Service Level Agreement.

“Subscription” means the various plans that allow access to the Platform. Depending on the Subscription chosen by the Customer, the available features, the number of Authorized Users or the right to access the Support vary. The various Subscriptions available are described at the following URL: https://www.koyeb.com/pricing (opens in a new tab).

“Support” means Koyeb’s support service concerning the functional use of the Platform and assistance with the operation of the Platform. The right of access and contact details of the Support depend on the Subscription chosen by the Customer. The contact details of the Support are specified in the SLA.

2. Purpose

The purpose of the Agreement is to define the conditions under which Koyeb makes the Platform available to the Customer and provides the Services, as well as the conditions under which the Customer may access it.

3. Entry into force – Duration

The Agreement take effect as from the Customer’s registration on the Platform, for an indefinite period.

Notwithstanding the provisions of Article 14, the Agreement may be terminated at any time via the Customer account. In this situation, the Customer will continue to have access to the Services until the end of the billing period in accordance with the chosen Subscription. At the end of this period, the Customer shall immediately cease to use any element provided as part of the Services. In addition, the Customer’s account and, where applicable, those of its Authorized Users will be deleted.

Notwithstanding the expiry or termination of the Agreement, it is expressly agreed between the Parties that Articles 10, 12, 15 and 17 will remain fully applicable between the Parties.

4. Access to the Platform

4.1 Registration

In order to access the Platform, the Customer must complete the fields of the registration form with complete and accurate information. Data whose communication to Koyeb is mandatory is identified as such when the Customer registers.

The Customer declares and guarantees that s/he uses the Platform for her/his professional activity and that, as such, s/he cannot be qualified as a consumer within the meaning of the preliminary article of the French Consumer Code.

In the event of an incomplete or erroneous declaration, the Customer’s account (and, where applicable, that of its Authorized Users) may be closed, ipso jure, without notice and without prior formality. In any event, the Customer agrees to guarantee Koyeb against all consequences that may result from this incomplete or erroneous declaration.

The Customer’s account and, where applicable, the Authorized User’s accounts are created by the Customer using the email addresses it has provided to Koyeb and the passwords it has chosen or via a compatible authentication provider. When defining passwords, Koyeb advises the Customer to respect the NIST password guidelines to ensure security standard are met in this field.

The Customer’s personal account and, where applicable, that of each Authorized User, allows them to update the data concerning them.

4.2 Authorized Users - Access to the Platform

Access to the Instance is limited to the Customer and, where applicable, only Authorized Users with their own login and password.

Through its account, the Customer can create additional Authorized User accounts to allow new access to the Platform and/or delete them. The Customer is informed that the creation of an additional Authorized User account will be invoiced to her/him under the conditions defined in Article 6. The creation of an additional Authorized User account will be for the duration of the Agreement unless the Customer deletes that additional Authorized User account.

The Customer is solely responsible for the security of logins and passwords. In the event of unauthorized access to a login and/or password, whether actual or suspected, the Customer undertakes to modify or deactivate the login and/or password without delay.

Failing that, any action taken via a login belonging to the Customer or to one of the Authorized Users shall be deemed to have been taken by the Customer.

In this context, the Customer is committed to ensuring that each Authorized Users complies with the terms and conditions of the Agreement.

5. Description of Services

The Platform is a software solution that allows Authorized Users (i) to deploy Applications on Instances; (ii) to operate and administer Instances; and (iii) to manage Applications distributed over various cloud platforms in a unified and centralized manner. The precise features of the Platform and the terms of its use are described in the documentation available at the following URL: https://www.koyeb.com/docs (opens in a new tab).

6. Financial terms

6.1 Amounts payable by the Customer

The amount of the monthly Fees that the Customer must pay to Koyeb is indicated on its Customer account.

The amount of the Fees is calculated dynamically according to the chosen Subscription, depending on the number of Authorized Users accessing the Platform and the Services used by the Customer. If the number of Authorized Users and Services included in the Subscription are exceeded during the month, Koyeb will charge the Customer based on usage, according to the ongoing pricing policy.

6.2 Payment terms

Each month, Koyeb sends the Customer an invoice for the Fees.

Invoices are payable within seven (7) days of receipt of the corresponding invoice.

In the event of non-payment of any amount within the contractual deadlines:

• any unpaid amount shall automatically bear interest from day to day until the date of its full payment in principal, interest, fees and incident SLA, at a rate equal to three (3) times the legal interest rate in effect, without any prior formality, and without prejudice to the damages that Koyeb reserves the right to seek in a judicial manner;
• Koyeb reserves the right to (i) suspend, ipso jure and at any time from the seventh day of late payment of the Fees, the performance of all or part of the current or future Services until full payment of the amounts due and (ii) terminate the Agreement, ipso jure and at any time from the fourteenth day of late payment of a Fees invoice;
• all costs incurred by Koyeb for the recovery of sums due shall be borne by the Customer, including bailiff's fees, legal fees, and attorney’s fees, which may not in any event be less than the fixed compensation referred to in Article L. 441-6 I 12e of the French Commercial Code, in an amount of forty (40) euros.

The sums paid by the Customer to Koyeb under the Agreement shall remain the property of Koyeb and shall therefore not be refundable, even in the event of termination of the Agreement or any other contract concluded between Koyeb and the Customer.

6.3 Price review

Koyeb can change the Subscription plans as well as the price of the Services at any time. However, any pricing changes shall only apply after a minimum of thirty (30) days after Koyeb's notification.

In the event that the Customer does not accept the pricing change, he may terminate the Agreement under the conditions defined in Article 3.

7. Use of the Platform

The Customer subscribes to Koyeb, in order to use the Platform for its professional needs under the conditions and limits specified in the Agreement. This right of use is granted on a non-exclusive, non-transferable, and non-assignable basis, for the entire world and for the duration of the Agreement, in return for the payment of the Fees.

This same right to use is granted to each of the Authorized Users as part of their professional use of the Platform through their Authorized User account.

As part of its right to use the Platform, the Customer undertakes without reservation not to:

• make a copy of the Platform or element of the Platform in any way;
• analyze, or have analyzed by a third party, in the sense of observing, studying, and testing the operation of the Platform to determine the ideas and principles on which the elements of the program are based when the Platform performs the loading, display, execution, transmission or storage operations;
• attempt to discover or reconstruct the source code, ideas underlying it, algorithms, file formats, or the Platform's programming or interoperability interfaces except to the extent permitted by Article L. 122-6-1 of the Intellectual Property Code, in any manner whatsoever. If the Customer wishes to obtain information to implement the Platform’s interoperability with other software, the Customer undertakes to request this information from Koyeb, which may provide the necessary information to the Customer, subject to payment by the latter of the associated costs.

The Customer guarantees that the provisions of this Article 7 will be respected by the Authorized Users.

8. Undertakings of Koyeb

8.1 Provision of Services

The services that the Customer wishes to see performed will be provided under the terms and conditions of the Agreement by Koyeb, which undertakes, unless otherwise expressly stated, to exercise its reasonable endeavours.

Koyeb is committed to ensuring that all its staff apply all their know-how and knowledge to the proper execution of Services. In the event of difficulties in the provision of Services, Koyeb shall inform the Customer immediately.

Koyeb reserves the right to modify at any time the characteristics of its technical infrastructures, the choice of its technical suppliers and the composition of its teams. Furthermore, for security reasons and/or in order to maintain the Platform in operational conditions, Koyeb reserves the right to limit certain features on all or part of the Customer's Instances (e.g., port closures, protocol restrictions).

8.2 Tax and social obligations

Koyeb declares, as necessary, that it is registered with the Trade and Companies Register, with the URSSAF and/or with any administrations or bodies (including social insurance administrations or bodies) required for the performance of the Agreement. Registrations made in accordance with this article, as well as registrations made prior to the conclusion of the Agreement, must expressly cover all the Customer's activities for the performance of the services pursuant to the Agreement. In accordance with the provisions of articles L. 8221-1 and following and D. 8222-5 of the French Labour Code, Koyeb undertakes to provide the Customer with all supporting documents relating to its registration, the payment of its social and tax contributions and the employment of its employees.

8.3 Updates

Throughout the term of the Agreement, the Customer benefits from the Platform updates that are developed and released by Koyeb.

The Customer therefore accepts that Koyeb may, without notice and at any time, modify one or more of the Platform’s features.

9. Undertakings of the Customer

9.1 Commitments of the Customer

The Customer undertakes:

• to cooperate in good faith to facilitate Koyeb's interventions, including by providing all relevant or requested information within a time frame that allows Koyeb to fulfil its obligations;
• to have the appropriate skills to use the Services, including setting up and administering them;
• not to target the Platform when running a Bot from the Instance (and/or an Application that acts similarly to a Bot);
• to have an up-to-date Internet browser and a high-speed Internet connection, the costs of which are at his own expense;
• not to use the Platform in such a way that, from the point of view of Koyeb, the performance or functionality of the Platform, or any other computer system or network used by the Platform or any third party, is adversely affected or that the Platform’s users are adversely affected;
• not to load or transmit on the Platform or use any equipment, software or routine that contains viruses, Trojan horses, worms, time bombs or other programs and processes intended to damage, interfere or attempt to interfere with the normal operation of the Platform, or appropriate the Platform, or use any means to cause saturation of Koyeb systems or infringe the rights of third parties.

As such, the Customer indemnifies Koyeb, without limitation, against all damages, losses, actions, costs, expenses or sentences arising from any technical difficulties occurring at a time when the Customer is in breach of its commitments or resulting from a breach of the Customer's commitments.

Koyeb cannot be held liable for any breach by the Customer or Authorized Users of applicable legislation.

9.2 Content and Applications

Koyeb is a host within the meaning of Article 6, I, 2° of the French law on Digital Economy Confidence (the “LCEN”). As such, it is not bound by a general obligation to monitor hosted content.

As a consequence, the Customer acknowledges and agrees that Koyeb does not perform any control, validation or update of the Content. The Customer is committed to the content being lawful and used in accordance with applicable regulation. Any use of illegal Content (e.g., Child Pornography Content; Content aimed at inciting crimes and offenses, inciting racial hatred or suicide, apology for crimes against humanity, provoking and apologizing for acts of terrorism; Content that violates third-party rights such as personality or intellectual property rights) in the context of the Services is prohibited. Similarly, Applications shall comply with applicable regulation and the Customer undertakes to use them without infringing the rights of third parties or violating applicable regulation (e.g., cardsharing, spam, proxy anonymization services).

These actions may result, at Koyeb's discretion, in the immediate suspension of all or part of the Services provided or in the termination of the Agreement at the Customer's fault, without prejudice to any rights and judicial actions that Koyeb may have.

The Customer is informed that Koyeb does not make any specific back-up of the Content operated or used in the context of the Services provided. The Customer shall ensure that it takes all necessary measures to safeguard its Content in order to prevent the risk of loss or deterioration.

10. Intellectual property

The Customer acknowledges that the Platform, including all patches, workarounds, updates, upgrades, improvements and modifications made available to the Customer, as well as all trade secrets, copyrights, patents, trademarks, trade names and other related intellectual property rights remain at all times the full and exclusive property of the Platform and that none of the provisions of the Agreement shall be construed as a transfer of any of these rights to the Customer.

Any ideas, know-how or techniques that may have been developed by Koyeb are the exclusive property of Koyeb. Koyeb may, at its sole discretion, develop, use, market and license any item like or in connection with developments made by Koyeb for the Customer. Koyeb has no obligation to disclose any ideas, know-how or techniques that may have been developed by Koyeb and that Koyeb considers confidential and proprietary.

11. Protection of personal data

11.1 Processing of Customer Data

In the context of the execution of the Agreement, Koyeb is required to process, among the Customer Data, personal data in the name and on behalf of the Customer.

Consequently, Koyeb acts as a processor, the Customer being responsible for the collection and processing of this personal data.

The Parties entered into a contract in accordance with the provisions of Article 28 of the Regulations (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”) as set out in the Data Processing Agreement.

11.2 Data processing by Koyeb

In addition, Koyeb, in its relations with the Customer, is required to process, on its own behalf, the personal data of the Customer’s employees, managers, subcontractors, agents and/or service providers.

In this context, the Customer’s staff have the right to access and, if necessary, rectify, delete or transfer data concerning them. They also have the right to define guidelines on the fate of their personal data after their death.

In addition, the Customer’s staff may object for legitimate reasons to the processing of personal data concerning them, withdraw their consent or even limit it.

These rights can be exercised at any time by writing to Koyeb at the following address dpo@koyeb.com.

The Customer's staff have the possibility to lodge a complaint with a supervisory authority.

The Customer undertakes to inform its employees, managers, subcontractors, agents and/or service providers of these rights.

Koyeb will keep the personal data of the Customer’s employees, managers, subcontractors, agents and/or service providers for a period of three (3) years from the expiry of the Agreement.

Koyeb will process the said personal data on its exclusive behalf within the framework of the Agreement and will refrain from communicating them to a third party.

12. Liability

It is expressly agreed between the Parties that the provisions of this Article 12 have been agreed between the Parties in the context of a global negotiation, so that each of the Parties considers them justified and proportionate in the light of its other commitments under the Agreement.

Koyeb does not grant any warranty to the Customer that is not expressly referred to in the Agreement.

Koyeb can only be held liable for direct and foreseeable damage within the meaning of Articles 1231-3 and 1231-4 of the Civil Code caused by a breach by Koyeb of its obligations under the Agreement, and shall not be held liable for any loss of profit or revenue; loss of customers; loss of opportunity; loss of image or reputation; loss of any cost to obtain an alternative product, software, service or technology; or any technical difficulty in delivering a message via the Internet.

Koyeb shall not be held liable for any loss or damage resulting from the loss or destruction of files, information, transactions or data resulting from the Customer's use of one or more elements provided as part of the services.

Koyeb shall not be held liable for non-compliance with their obligations by cloud platforms managed through the Platform. Therefore, Koyeb shall not be held liable for any problem related to a failure of the latter.

Koyeb shall not be held liable in any case for (i) the loss, alteration or destruction of all or part of the Content since the management of the continuity of the Customer's activities (including safeguard operations) is not the responsibility of Koyeb, as well as (ii) the mismatch between the Services and the Customer's needs which was fully informed at the time of the conclusion of the Agreement.

The total cumulative liability of Koyeb, all damages combined and for any reason whatsoever, may not exceed the amounts received by Koyeb under the Agreement during the six (6) months preceding the occurrence of the last harmful event.

In any event, the Customer may only hold Koyeb liable for a breach of the Agreement for a period of twelve (12) months from the occurrence of the breach in question, which the Customer expressly acknowledges and accepts.

Koyeb shall in no event be liable for any damages resulting from the Customer's failure to comply with its legal and contractual obligations.

13. Suspension of Services/Termination

13.1 Suspension of Services

Koyeb reserves the right to suspend all or part of the Services, ipso jure, without notice, and without liability in the event of (i) a serious or renewed violation by the Customer or one of the Authorized Users of its legal or contractual obligations, (ii) a request from the competent administrative or judicial authorities, (iii) a delay in payment of the Fees under the conditions specified in Article 6.2, (iv) a recognized risk to the security and/or stability of the Platform or any other computer or network system used by the Platform, (v) a notification from a third party within the meaning of Article 6 of the LCEN, or (vi) a scheduled maintenance.

Koyeb undertakes to make reasonable efforts to limit the impact of the suspension on the normal operation of the Services.

13.2 Termination for breach

In the event that the termination of the Agreement results from a serious breach by the Customer of one of its contractual obligations, the Agreement will be terminated ipso jure, without notice and the Customer's access to the Services will automatically cease. However, the Customer shall pay the full Fees for the current invoice period.

14. Export of Content

Upon expiration or termination of the Agreement, Koyeb will retain the Customer's Content for a period of seven (7) days. During this period, the Customer may request Koyeb to provide a copy of all its data available on the Platform to itself or to any other third-party of its choice.

This data shall be made available to the Customer for download.

In this situation, Koyeb shall provide a complete export of Customer’s data on the Platform in a state-of-the-art format. This export of the Customer's data shall include the basic data as provided by the Customer at the time of the conclusion of the Agreement, as well as the processing and improvements of this data performed by Koyeb during the performance of the Agreement.

Any provision of a complete export of Customer’s data, in addition to a single export after the expiration or termination of the Agreement, will be charged to the Customer in accordance with the quotation that will have previously drawn up by Koyeb.

At the end of the reversibility period, Koyeb shall completely delete Customer’s Data, except for data that applicable legislation requires Koyeb to retain.

15. Confidentiality

15.1 Concept of Confidential Information

The following does not constitute Confidential Information:

• information currently accessible or becoming accessible to the public without breach of the Agreement by a Party;
• information lawfully held by one Party prior to its disclosure by the other;
• information not resulting directly or indirectly from the use of all or part of the Confidential Information;
• information validly obtained from a third party authorized to transfer or disclose such information.

15.2 Confidentiality Agreement

Each Party commits on its behalf and on behalf of its employees, agents, subcontractors and partners, during the term of the Agreement and for a period of five (5) years after its termination, to:

• not to use the Confidential Information for any purpose other than the performance of its obligations under the Agreement;
• take any precaution it uses to protect its own Confidential Information of significant value, it being specified that such precautions shall not be less than those of a diligent professional;
• not disclose the Confidential Information to any person by any means whatsoever, except to its employees, agents, service providers or subcontractors to whom such information is necessary for the fulfilment of its obligations by each of the Parties.

At the end of the Agreement, due to the occurrence of its term or termination, each Party shall promptly deliver to the other Party all Confidential Information, regardless of its medium, obtained under the Agreement (except for Confidential Information that applicable legislation requires Koyeb to retain). Each Party is not authorized to keep a copy of it in any form whatsoever, except with the express prior written consent of the other Party.

16. Miscellaneous

16.1 Assignment/transfer of the Agreement

Koyeb shall have the possibility of transferring all or part of the rights and obligations resulting for it from the Agreement to any third party of its choice, including to any subsidiary to be constituted and/or in the event of a merger, demerger, partial transfer of assets or total or partial transfer of its business.

It is expressly agreed between the Parties that any change in the capital structure of Koyeb, including a change of control, shall not affect the performance of the Agreement.

The Customer is not authorized to transfer all or part of its obligations under the Agreement, in any manner whatsoever, without the prior, written and express consent of Koyeb.

16.2 Notification – Computation of time limits

Any notification required or necessary pursuant to the provisions of the Agreement shall be in writing and shall be deemed validly given if sent via the Support platform provided by Koyeb.

Unless otherwise specified in an article of the Agreement, the deadlines are calculated per calendar day. Any period calculated from a notification shall run from the first attempt to deliver it to the addressee, the postmark or time-stamp of the Support platform being proof.

16.3 Force majeure

Each of the Parties shall not be held liable in the event that the performance of its obligations is delayed, restricted or made impossible due to the occurrence of an event of Force Majeure. It is expressly agreed between the Parties that the provisions of this Article 16.3 shall not apply to obligations to pay.

In the event of the occurrence of a Force Majeure, the performance of the obligations of each Party shall be suspended. If the Force Majeure continues for more than one (1) month, the Agreement may be terminated at the request of the most diligent Party without, however, any liability on the part of one Party to the other. Each Party shall bear the cost of all costs incumbent upon it as a result of the occurrence of Force Majeure.

16.4 Suppliers - Contractors - Subcontractors

Throughout the duration of the Agreement, Koyeb shall be free to use any supplier, service provider and/or subcontractor of its choice.

In this context, Koyeb will remain, under the conditions set out in the Agreement, responsible for the provision of the services.

16.5 Convention of evidences

The computerized records will be kept in Koyeb’s computer systems under reasonable security conditions and will be considered as proof of the exchanges and/or actions carried out by Authorized Users on the Platform, which the Customer declares that it accepts.

16.6 Waiver

The fact that either Party does not exercise any of its rights hereunder shall not constitute a renunciation by it of its exercise, such renunciation being subject only to an express declaration by the relevant Party.

16.7 Validity

If one or more provisions of the Agreement are considered invalid by a competent court, the other provisions shall retain their scope and effect.

The provision considered invalid shall be replaced by a provision whose meaning, and scope shall be as close as possible to the provision thus invalidated, while remaining in accordance with the applicable legislation and the common intention of the Parties.

16.8 Entirety

The Agreement constitute the entire agreement between the Parties, to the exclusion of any other document, in particular those that may be issued by the Customer before or after the Customer’s acceptance of the Agreement.

• Change of the Agreement

Koyeb reserves the right to make, at any time, any change it deems necessary and useful to the Agreement.

In the event of a change in the Agreement, Koyeb will require the Customer acceptance to the new terms of services, fifteen (15) days before the date of their entry into force.

17. Applicable law – competent jurisdiction

The Agreement is governed by French law.

The Parties expressly agree to submit any dispute relating to the Agreement (including any dispute concerning their negotiation, conclusion, performance, termination and/or cessation) and/or commercial relations between the Parties as well as their possible termination, to the exclusive jurisdiction of the Paris Courts, notwithstanding plurality of defendants or warranty claims, and including summary proceedings and ex parte motions.