1 Scope and Subject Matter of Agreement
1.1 The cloud computing platform www.scalingo.com (hereinafter referred to as the “Platform”) is operated by Scalingo SAS, located at 15 avenue du Rhin,. F-67100 Strasbourg, France (hereinafter referred to as “Scalingo” or “We”)
1.2 Scalingo offers the Platform to entrepreneurs only. Entrepreneurs have legal capacity and act in their commercial or independent professional capacity when entering into a legal transaction.
1.3 By signing up for an account, selecting a user name and a password and providing a valid email address, you invite Scalingo to make you an offer to enter into an agreement entitling you to use the Platform pursuant to these Terms of Service (hereinafter referred to as the “Agreement”). Scalingo will make such offer by sending you an activation link by email. The Agreement is concluded if and when you activate your account by clicking the activation link.
1.4 The Platform lets you independently upload, deploy and operate software (hereinafter referred as “Apps”) for access and use by your customers. Once an “App” is deployed, it is composed of “Containers”, representing the base resource unit. The Platform offers access to basic services provided by Scalingo (referred to as the “Services”), and may offer access to add-ons provided by Scalingo (referred to as the “Scalingo Add-Ons”) and add-ons provided by third parties (referred as to the “Third Party Add-Ons”), each as defined below.
1.4.1 The Services are the basic services made available by Scalingo through the Platform, which include access to our website, use of our cloud computing runtime environment and our API, and may also include other software or services Scalingo may at its discretion decide to integrate into the Platform from time to time. The Services may also include displaying third party offers for the use of Third Party Add-Ons as defined below.
1.4.2 The Scalingo Add-Ons are services made available by Scalingo through the Platform subject in each case to acceptance of a separate order submitted via the according functionalities of the Platform, and subject in each case to the payment of separate fees.
1.4.3 The Third Party Add-Ons are all services made available by third parties through the Platform subject in each case to a separate agreement between you and such third parties, which may also be subject to separate fees. We are not responsible for the contents of any Third Party Add-On. In respect of Third Party Add-Ons, we merely act as a commercial agent bringing you together with such third party vendors over our platform.
1.5 Your use of the Platform, the Services and any Scalingo Add-Ons is exclusively subject to these Terms of Service. Your use of any Third Party Add-Ons is subject to separate agreements concluded between you and the relevant third party vendors. Regarding Third Party Add-Ons, we merely act as a commercial agent bringing you together with such third party vendors over our Platform. Your general terms and conditions will become part of this Agreement only if expressly agreed in writing between you and Scalingo.
1.6 Scalingo reserves the right to modify these Terms of Service at any time, with the exception of the provisions determining the parties' primary contractual obligations hereunder. The parties' primary contractual obligations will not be changed in the manner described in this Section 1.6. Scalingo will inform you of any proposed modification of these Terms of Service, provide you with the proposed new version of these Terms of Service and notify you of the date when these new Terms of Service will be implemented. Any change is subject to a prior written notice of four (4) weeks. If you do not expressly refuse the respective modification within six (6) weeks from the date on which the new Terms of Service are implemented, you are deemed to have approved the modification of these Terms of Service. In the aforementioned notice of the proposed modification, Scalingo will inform you expressly and specifically about the right to object within the six (6) weeks period and the consequences of not expressly refusing the proposed modification.
2 Scalingo's Obligations
2.1.1 Scalingo shall operate the Platform with an annual average availability of 98% on a best effort basis except for downtime by maintenance, software updates and when the web server cannot be accessed via the internet due to difficulties that are outside the scope of influence of Scalingo such as force majeure, third party fault, or similar circumstances.
2.1.2 You may increase the annual average availability by entering into a Support Plan as specified in Sec. 4 and additionally increasing your numbers of containers. Scalingo will then operate the Platform with an annual average availability on a best effort basis according to the following table, based on the number of containers you use (see Section 2.4.1 below). Necessary downtime for preventive maintenance is not included in this availability level. Such necessary downtime will be announced as early as possible and whenever possible at times when the Platform is least used. Scalingo will use its best efforts to address disruptions of its technical facilities – within the technical and operational capabilities of Scalingo as quickly as possible.
|Number of containers
||Minimum availability in % of the annual mean
2.2 Scalingo will provide the Services and grant access to the Platform subject to these Terms of Service.
2.3 Subject to Scalingo’s acceptance of any separate offers submitted via the according functionalities of the Platform, and subject in each case to the payment of separate fees, Scalingo will provide access to the Scalingo Add-Ons subject to these Terms of Service.
2.4 Scalingo will enable third party users (i.e. members of the public that do not have to be registered users of the Platform) to connect to your deployed Apps over the Internet and use their functionalities including functionalities implemented through any Add-Ons subject to these Terms of Service.
2.4.1 When you deploy an App on the Platform, it becomes available. Subject to payment of the appropriate fees under Section 9 of these Terms of Service, Scalingo will enable third party users (your customers) to connect to such App. You can set the number of containers available for your App and the size of those containers by logging into your user account and selecting appropriate numbers.
3 Your Obligations; Use of the Platform, Services and Scalingo Add-Ons
3.1 You will use the Services, Platform and/or any Add-Ons appropriately and reasonably. In particular, you will
3.1.1 keep current your registration data, including without limitation your e-mail address and, if applicable, billing information (including billing address).
3.1.2 ensure the fulfillment of all legal regulations and licensing requirements and comply with all applicable data privacy laws and data security regulations;
3.1.3 keep your password confidential and inform Scalingo immediately if you have reason to suspect your password has been disclosed to or otherwise obtained by any third party; and
3.1.4 notify Scalingo about any experienced deficiencies or damages to the Services, Platform and/or Scalingo Add-Ons (error notification) and reasonably assist Scalingo in the identification of any such deficiencies or damages and their causes, and in the remedy of such deficiencies or damages.
3.2 In using the Services, the Platform and/or any Add-Ons, you will not do or attempt to do any of the following:
3.2.1 abuse the access to Scalingo’s Services and/or engage in any illegal or unlawful actions in relation to the Services, the Platform and the Scalingo Add-Ons in any form; In particular it is prohibited to use any Services and/or Add-Ons that specifically provided to or in connection with third parties’ user accounts (e.g. Add-Ons or storage space connected to such third parties’ user accounts) without such third parties’ permission;
3.2.2 upload to or create on the Platform any kind of malware, spyware, viruses, worms, Trojan horses or similar harmful code;
3.2.3 otherwise abuse or manipulate the Services or use the Services in a way that violates these Terms of Service;
3.2.4 extract / read / change the content or passwords / emails, files or similar assets belonging to a system operator or other users of the Services, Platform and/or Scalingo Add-Ons, unless it is through regular use of the intended functionalities of an App;
3.2.5 interrupt or block any communication features, e.g. causing overloads or distributing spam;
3.2.6 distribute or enable access to illegal content of any kind via the Platform. This applies without limitation to pornographic, racist, violent or any otherwise illegal or immoral content, especially if it attacks the free democratic basic order or the concept of international understanding, as well as to propaganda material of anti-constitutional groups or parties and their respective replacement organizations;
3.2.7 infringe any third party’s rights, including without limitation trademarks, copyrights, patents, business and trade secrets and/or any other intellectual property rights.
3.2.8 create multiple accounts in order to circumvent the limits on free trial (Section 9 of these Terms of Service)
3.2.9 create multiple apps in order to reserve names for Apps (name grabbing).
3.3 Commercial use of the Platform is permitted, i.e. you may use the Platform to deploy Apps that serve commercial purposes. This includes the right to deploy Apps on behalf of third parties.
3.4 You may grant other Scalingo users permission to work on your Apps. You will however remain the owner of each App you create through your user account, and you will be fully responsible for such App under these Terms of Service.
3.5 Scalingo may modify or remove at its discretion any content you upload to the Platform that Scalingo determines in its discretion to violate these Terms of Service.
4 Service and Support
4.1 Service and Support beyond the services agreed in this Terms of Service can be ordered by activating one of the available service and support packages as specified on our website in your account. Service and Support packages are subject to additional fees. You can find out more about the extent of the offered performance and the fees at https://www.scalingo.com/pricing.
4.2 For Service and Support packages the following definitions shall apply:
The interval between a customer-initiated request and the sent receipt of a response from Scalingo.
Emergency hotline 24/7:
Valid for one named contact person dedicated counterpart to be used for emergency situations where critical functions of the application are unavailable, there is no work around and the business is significantly impacted.
Professional Services covers assistance related to issues generated directly from the customer's code base and out of Scalingo's control. Professional services include five categories of advice specified below:
a) Deployment advice:
The deployment advice aims to help new customers to easily migrate and/or launch new applications on Scalingo as well as questions related to internal development workflow.
b) Performance optimization:
Scalingo support engineering team assists customers with questions regarding best practices or recommendations about performance optimization in the customer code base for specific features related to the Scalingo platform.
c) Database assistance:
Scalingo support engineering team assists customers with questions regarding best practices or recommendations for customer database Add-On and schema. If the database in question is provided by a third party Add-On provider the Scalingo support engineering team will directly handle the issue with the specific provider.
d) Proactive monitoring:
By providing Scalingo with a URL to the customer application it will be added to Scalingo's monitoring system. The emergency response team will be alerted in case of unavailability of the customer application independent of its root cause and try to resolve the issue or contact the named contact person.
e) Problem diagnostic:
In case of issues in the customer code base the Scalingo support engineering team will assist the customer in analyzing and identifying root causes.
4.3 For the 24/7 emergency hotline available in the Agency and Enterprise plans a contact person on the part of the contracting partner has to be specified. He or she will be the only person who has access to the 24/7 hotline.
4.4. The Scalingo support hours are from Monday to Friday from 9 am to 6 pm CET/CEST excluding French public holidays.
4.5 Response time refers to the time period starting from the receipt of the support message. The processing of the support enquiries begins within the defined response time of the plan. A solution can take longer than the started period of time and could fall outside Scalingo’s sphere of influence. The response time applies during the support hours mentioned in Sec. 4.4.
4.6.1 The costs for the support packages Start-up to Enterprise amount to the higher value of
15% of the monthly invoice amount for containers and add-ons or
the fixed amount for the chosen package.
4.6.2 In the first month of the contract the contracting partner will be charged the costs per day on a pro rata basis.
4.6.3 You have the option to upgrade the service and support package at any time. After this change of agreement the higher proportionate costs will arise per day.
4.6.4 You have the option to downgrade the service and support package at any time. After this change of contract the higher proportionate costs will arise per day until the end of the month. After that the new support package will be in place.
4.6.5 The valid prices of the respective service and support packages are listed on the Scalingo website (available at: https://www.scalingol.com/pricing).
4.7 The parties agree that service and support packages have a minimum term until the end of the month. If the parties do not cancel the service and support package to the end of the month, the service and support package agreement will be extended automatically by another month.
5 Scalingo’s License Grant; License Restrictions
5.1 Scalingo grants you a non-exclusive, personal, worldwide, non-transferable, non-sublicensable license, limited to the term of this Agreement and subject to the payment of such fees as may be agreed upon regarding individual Services and/or Scalingo Add-Ons, to use the software provided to you by Scalingo as part of Services and/or Scalingo Add-Ons, except where such software is expressly provided under a diffethe rent license (e.g. an Open Source License). This license is for the sole purpose of enabling you to use the Services and/or Scalingo Add-Ons, as permitted by these Terms of Service.
5.2 Scalingo grants you a non-exclusive, personal, worldwide, royalty-free, non-transferable, non-sublicensable license, limited to the term of this Agreement, to display the Scalingo trademarks, limited to the blip and name mark description, for the sole purpose of promoting or advertising that you use the Services. You will refrain from any use of Scalingo’s trademarks that could damage the goodwill, reputation or interests of Scalingo.
5.3 You may not attempt to disable or circumvent any security mechanisms used by the Services, Platform and/or any Scalingo Add-On, or copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services, Platform or any Scalingo Add-On or any part thereof, unless (i) specifically authorized by Scalingo, in writing (e.g., through an open source software license), (ii) permitted under provisions of the French Intellectual Property Law (“Code de la Propriété Intellectuelle”), or (iii) to the extent such acts are necessary to achieve interoperability with a third software, but only if (a) Scalingo had not published details about the interfaces of the Service/Platform/Add-On before and has not provided such details upon your written request, (b) only those parts of the Service/Platform/Add-On are disassembled that are necessary to achieve interoperability (c) the gained information is only used to achieve interoperability, (d) the gained information is not made available in any way to any third party; and (e) the gained information is not used to develop or market a software which is similar to the Service/Platform/Add-On or for any other actions that infringe Scalingo’s rights.
6 License Grant from You
6.1 You grant Scalingo a non-exclusive, worldwide, royalty-free, transferable and sublicensable license, limited to the term of this Agreement, to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any content, including any App, you upload or create on the Platform, for the sole purpose of enabling Scalingo to provide you with the Services and otherwise perform its obligations hereunder.
6.2 You agree that Scalingo, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
7 Term and Termination; Inactive Apps
7.1 This Agreement is concluded for an indefinite term.
7.2 Scalingo may terminate the agreement in writing (e-mail sufficient) at any time with 90 days’ notice effective at the end of a month without stating reasons. You may terminate the agreement immediately by deleting any Apps on the Platform and then deleting your user account using the appropriate functionality within the user account.
7.3 To the extent that Scalingo provides services voluntarily (i.e. services which are not mandatory under the definition of Services under this Agreement), Scalingo reserves the right to discontinue those voluntary services at any time. No claim to a reduction or compensation will result from this discontinuation.
7.4 Scalingo reserves the right to delete any Apps that have not been deployed at least once. In those cases the user will be informed via email a minimum of 24 hours before deletion and can take countermeasures to the process after receipt of such information by deploying code to the App. If the user fails to do so within the aforementioned time frame, Scalingo may delete the undeployed App.
Scalingo reserves the right to delete any Apps that show no active usage (i.e. no dynamic requests) for more than 90 (Ninety) consecutive days and use free resources only in order to reduce the security risks caused by unmaintained software. In those cases the user will be informed via email a minimum of 30 (Thirty) days before deletion and can take countermeasures to the process after receipt of such information by actively using the App. If the user fails to do so within the aforementioned time frame, Scalingo may delete the inactive App.
7.5 Scalingo may terminate the Agreement effective immediately if the user (i) breaches any of the obligations stated in Section 3.2 of this Agreement, or (ii) does not pay any amount owing under Section 9 of this Agreement within 30 (Thirty) days of the due date, or (ii) breaches any other obligations hereunder and does not remedy such breach upon a warning setting a reasonable time period for such remedy.
7.6 Scalingo may delete any data stored on the Platform by the user after any effective termination of the Agreement.
7.7 Both parties’ right of extraordinary termination for good cause remains unaffected.
7.8 Term and termination of service and support packages shall be governed by Sec. 4.7.
8.1 The functionalities of the platform and/or your Apps may be extended by Add-Ons (i.e. databases, statistics tools, video and audio capabilities, testing tools, email services, etc). Add-Ons apply to one individual App. Details and options are defined on the product page of each Add-On.
8.2 Add-Ons are either provided by Scalingo or by third parties. Third Party Add-Ons are provided by third party providers under separate agreements that you conclude with such third parties. Scalingo merely acts as a commercial agent bringing together the parties of such agreements through the Platform. The provider of each Third Party Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on.
8.3 Add-Ons can be ordered and added to the user’s account as follows: You must first visit the relevant product description page on the Platform and chose the Add-Ons you require. You can then place a binding order for an Add-On either by using the relevant functionality on the Platform (accessed via the Website or the “scalingo” Command Line Client) or in some cases by implementing and running an according API call. The order is accepted by Scalingo or the third party provider (as applicable) by a confirmation message, actual provisioning of the Add-On or actual provisioning of login data for the Add-On (as required), whichever occurs first. The price/fees and the contractual scope of functionality of each Add-On are determined by the description on the relevant product description page at the time of the order.
8.4 Scalingo handles the collection of payment for providers of Third Party Add-Ons. This means that all payments you make will be to Scalingo. You acknowledge and agree that Scalingo may submit claims in the name of such third party providers.
9 Free Basic Use; Fees
9.1 Scalingo grants every account a free trial during of 30 (Thirty) days. The free trial begins when the account is created. The free trial is limited to a maximum of 1 App using a maximum of 5 Containers, whereby one Container equals one 512MB resource unit. Creating more apps or scaling to more than 5 containers will break the free trial and subsequent fees will apply.
9.2 When the free trial ends, if the user has not setup any payment method, all the apps he has created will be automatically stopped. Then, the user has then 30 days to add its payment information, otherwise the concerned applications would be deleted definitely and consequently, their Add-Ons would be deprovisioned.
9.3 For Services provided beyond such basic use, Scalingo charges fees on the basis of consumed Meh.
9.4 Scalingo Add-Ons (Section 8) may be subject to additional fees as stated on the relevant product description or support plan page.
9.5 If you sign up for the Service and/or any Scalingo Add-On with monthly fees in the course of a calendar month or change the container settings of a Deployment during the course of a month, fees for the containers will be charged on an according pro rata basis.
9.6 Prices stated exclude the VAT rate. The payable fees are billed monthly at the end of each month and will include VAT if applicable. For European residents please refer to the VATMOSS directive. For non-European residents, VAT isn’t applicable. All invoices are payable immediately, and must be paid without deduction.
10 Limited Warranty ("Garantie")
10.1 Subject to this Section 10, Scalingo warrants that the Platform, Services and Scalingo Add-Ons will perform essentially as agreed and Scalingo will remedy defects. The term “Defect” means any error and/or fault that revokes (“Substantial Defect”) or reduces the suitability for the specified purpose of use (“Minor Defect”).
10.2 Scalingo does not warrant that the Platform, Services and Scalingo Add-Ons will work in every respect without interruption and without errors and that the functions contained therein can be executed in every conceivable combination, to the extent that any such interruption, error or restriction does not materially impair the suitability of the Platform, Services and Scalingo Add-Ons for normal use or the use envisaged by contract.
10.3 If and to the extent a Substantial Defect occurs, and until it is remedied, usage or consumption based Services will not be charged. If and to the extent a Minor Defect occurs, and until it is remedied, charges for usage or consumption based Services will be reduced by reasonable amounts.
10.4 You are not entitled to claim damages for Defects of the Platform, Services and Scalingo Add-Ons that (i) exist at the time of conclusion of the Agreement, or (ii) that occur later but that Scalingo is not responsible for.
11 Copyright Policy and Privacy
11.2 If your Apps/Deployments collect, process and use third party personal data, you are solely responsible for complying with applicable data protection law. For this purpose, you may conclude a separate data processing agreement with Scalingo.
12 Limitation of Liability
Scalingo’s liability, on whatever legal grounds, whether arising from the breach of the contract or torts, is exclusively determined in accordance with the following provisions:
12.1 To the extent that Scalingo provides the respective Service, Platform and/or Add-On giving rise to liability free of charge, Scalingo is only liable for intent and gross negligence.
12.2 In case of fee-based Services and/or Scalingo Add-Ons, Scalingo’s liability is unlimited in cases of intent and gross negligence.
12.3 In case of slight negligence, Scalingo is only liable for the breach of Essential Contractual Obligations. The liability in the event of breach of such an essential obligation is limited to the typical contractual damage foreseeable upon conclusion of the contract on account of the circumstances known at that time. “Essential contractual obligations” are those obligations whose fulfillment is essential to enable the proper implementation of the contract and the achievement of its purpose and whose observation the Customer may therefore generally rely upon.
12.4 Scalingo is not liable for disturbances within the network that are not caused by Scalingo.
12.5 You are responsible for regularly backing up your data. Scalingo is liable for loss of data in accordance with the foregoing paragraphs only to the extent that such a loss could not have been avoided by adequate backup measures by you.
12.6 The limitations of liability of this section 16 are not applicable to any damage of life, body or health, for breaches of a guarantee (French; “Garantie”), which has to be explicitly designated as such, or for fraudulently concealed defects. Liability under the Product Liability Act (French: “garantie des vices cachés”) remains unaffected.
12.7 This limitation of liability also applies to Scalingo’s officers, employees, representatives and agents.
You will indemnify and hold Scalingo harmless for any and all expenses and damages, including reasonable attorneys’ fees, incurred or suffered by Scalingo in connection with any breach of this Agreement by you, including without limitation any damages caused by any content, including Apps, you upload to the Platform, and further including without limitation any damages caused by any alleged infringement of third party rights by your use of the Services, Platform or any Add-On.
14.1 Place of performance is Scalingo’s registered office in Strasbourg, France.
14.2 The Agreement is subject to French law, excluding of the UN Convention on Contracts for the International Sale of Goods. The Parties submit to the jurisdiction of the courts at Scalingo’s registered head office for all disputes arising out of or in connection with this Agreement. Scalingo is also entitled to bring claims at the user's place of performance.
14.3 Should one or more individual parts of this Agreement be or become void, invalid or unenforceable entirely or partly, the validity of the remaining Agreement shall remain unaffected. The provisions thus rendered void, or invalid or unenforceable shall be replaced by valid and enforceable provisions in a manner which ensures that the legal and economic purposes intended with the invalid provisions are achieved to the greatest extent possible. The same shall apply to any gaps in the contract.
14.4 The English language version of these Terms of Service shall control, however giving full effect to any French terms contained therein.
This document is an adaptation of the cloudControl Terms of Service. The original work has been modified. cloudControl GmbH is not connected with and does not sponsor or endorse Scalingo or its use of the work.