General Terms and Conditions for Cloud Services
PLEASE READ THESE GENERAL TERMS AND CONDITIONS ("GTCs") CAREFULLY BEFORE USING THE SERVICES OFFERED BY MCLIMATE ("COMPANY"). THIS GTCs SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE CLOUD SERVICES OWNED AND OPERATED BY THE COMPANY (COLLECTIVELY "SERVICE/S"). BY USING THE SERVICES IN ANY MANNER, YOU AGREE TO BE BOUND BY THIS GTCs. THIS GTCs APPLIES TO ALL CUSTOMERS,
"Affiliate" — of a Party means any juridical person that is (a) directly or indirectly owns or controls the Party, or (b) under the same ownership or direct or indirect control of the Party, or (c) owned directly or indirectly or controlled from the Party, as long as such property or control lasts.
"Agreement" — means the individual agreement between the Company and the Customer, consisting of these General Conditions and any other clause applicable to the Cloud Services.
"Cloud Service(s)" — means cloud-based SaaS (software as a service) Internet of Things Monitoring and Control Platform by the Company to Customer, as well as a mobile application, available in Google Play Store, Apple App Store and other relevant app stores, as outlined in the Agreement.
"Company" — means the company MClimate Jsc, a Bulgarian company with registered office at Alexander Malinov 31 Boulevard, Sofia 1729, Bulgaria.
"Customer" — means the company that signs the Contract with the Company.
"General Terms" — means these General Terms and Conditions 2022.
"Intellectual Property Rights" — means all patents, utility models, design rights, copyrights (including the right to modify, modify, develop and assign), trademarks, trade names, inventions, trade secrets, domain names, know-how and any other industrial or intellectual property right (including related applications).
"Party" — and "Parties" mean jointly and separately the Company and the Client.
"Fee(s)" — means the compensation paid by the Customer for the license to use the Cloud Services.
"Web Site" — means the Company's website at https://mclimate.eu
2.1 Subject matter of these General Terms and Conditions for Software as a Service is the granting of the right of online use, via the internet, of software which is described in more detail in the contract and/or in the Service Level Agreement and/or in the product description (“SaaS Software”) as well as the storage of customer data by (i) Melissa Climate Jsc or (ii) an Affiliate of MClimate JSC ( (i) and (ii) individually or collectively “MClimate”). The customer is given the technical possibility and authorization to access via the internet SaaS Software hosted directly or indirectly by MClimate and to use the features of the SaaS Software within the framework of this contract (“SaaS”).
2.2. These General Conditions are applicable to the Agreement between the Customer and the Company and establish the terms under which the Company will provide the Cloud Services to the Customer.
2.3 The Customer enters into a Agreement with the Company by completing the relevant form located on the Cloud Services site and accepting these GTCs and any other clause applicable to the Agreement, as appropriate.
2.4. In case supplementary services (e.g., consultancy services, trainings) are provided in combination with SaaS, they are subject to separate contractual agreements.
2.5 The use of the Cloud Services is subject to the Agreement at any time.
3. Cloud Services
3.1 The descriptions of the services that define the features and characteristics of the Cloud Services have been defined on the Company's website. The Company will provide the Cloud Services to the Customer substantially as established on the Company's Website and as set forth in the Agreement.
3.2 The scope of the Cloud Services is not fixed, and may vary depending on the Cloud Services that the Customer chooses to order from time to time, selected from the standard Cloud Services made available by the Company, and described in detail in the individual agreement between the Company and the Customer.
3.3 The Customer may, from time to time, order the Cloud Services from the Company under the following conditions:
3.3.1 Orders can be made by the Customer on the Company's Website, Cloud Services UI (user interface) or Affiliated Resellers.
3.3.2 Customer will be responsible for any order placed under Customer's account, either by the Customer, its authorized users, or Customer's data systems automatically, and will be responsible for payment of all Commissions based on orders placed under the Customer's Account;
3.3.3 No order placed by the Customer is valid until acceptance by the Company. It is deemed that the Company has accepted the order if it provides the Cloud Services to the Customer. The Company reserves the right to check and limit the Customer’s orders for the Cloud Services;
3.3.4 After accepting the order, the Company will provide the Cloud Services to the Customer without undue delay.
3.4 The Company reserves the right to make changes to the Cloud Services at any time. If a change made by the Company has an adverse effect on the agreed contents of the Cloud Services or agreed service levels, the Company will inform the Customer of such change at least thirty (30) days prior to the effective date of the change. In this case, the Customer will have the right to terminate the Contract with thirty (30) days written notice. The notice of termination must be delivered to the Company in writing before the effective date of the change.
3.5 The Company will always have the right but will have no obligation to make such changes to the Cloud Services that (a) relate to the Cloud Services production environment and have no adverse effect on the agreed contents of the Cloud Services or service levels agreed upon, (b) are necessary to prevent any data security risk for the Cloud Services, or (c) arise from the law or an administrative order.
3.6 The Client is not entitled to terminate the Contract as described in Section 3.4 if the change is based on the reasons set out in Section 3.5.
3.7 Unless expressly provided otherwise, the Cloud Services are not subject to particular levels of service and are provided to the Customer strictly "as is" and "as available", and the Company makes no representations or warranties regarding the availability of the Cloud Services in a determined moment. Any applicable service level has been defined on the website (Service Level Agreement – SLA) and applies only to the individual cloud service, as established. Any compensation established in connection with these levels of service will be the sole remedy of the Customer and the sole responsibility of the Company for any non-compliance with these levels of service, and such non-compliance will not constitute a violation of the Agreement.
3.8. The average availability of the performances provided is stipulated in the agreement and / or product description / SLA. However, the availability can be temporarily restricted in case of technical malfunctions or maintenance.
3.9. If the SaaS is unavailable due to scheduled maintenance, MClimate will inform the customer in due time by email in written form.
3.10 All the facilities used to store and process the Customer's data will comply with reasonable safety standards no less protective than the safety standards in facilities where the Company (or its subcontractor as relevant) processes and stores its own information of a similar type.
4.1. MClimate provides during its usual business hours a technical support hotline that can be reached by email. The e-mail solely serves to provide support to the customer regarding the use of the performance owed by MClimate under the agreement.
4.2. The conclusion of a separate service level agreement (“SLA”) can be a prerequisite for getting access to support services. In such SLAs, further optional services can be agreed upon, subject to availability. Support availability, error classification and response times are specified in the respective SLA.
5. Reservation of Changes
Upon expiry of the minimum term, MClimate shall for the first time be entitled to amend the remuneration provided that MClimate notifies the customer in writing no later than six weeks before such price change comes into effect. The customer has an extraordinary right of termination which becomes effective as of the date of the price change. MClimate shall expressly refer to this right of termination in the notification. If the customer does not exercise this right within four weeks of receipt of the notification, the change is deemed to be accepted.
6. Intellectual Property Rights
6.1 All rights, title and interest, including all intellectual property rights relating to the Cloud Services and any changes thereto, belong exclusively to the Company or its licensors. Except for the express license to use the Cloud Services granted to the Customer pursuant to and in accordance with the terms and conditions of the Contract, Customer shall not and will not, under the Contract, obtain any right, license or interest in and for cloud services or any related intellectual property rights.
6.2 Customer will have a limited, non-exclusive, non-transferable and non-sublicensable right to use the Cloud Services during the term of the Contract.
6.3 Customer will be solely responsible for the use of the Cloud Services, including any breach of the Contract by the Customer or one of its authorized users.
7. Customer Obligations
7.1 The Customer will be responsible for paying any fees due correctly in accordance with the invoices sent by the Company.
7.2 Customer will be responsible for their devices, systems, applications, connections and software used to access Cloud Services.
7.3 Customer will be responsible for the protection of communications of customer data and data systems and costs for communications and other comparable costs related to the use of the Cloud Services.
7.4 The Customer may authorize users to use the Cloud Services under the Customer's account (for example, to use the Customer's databases). Customer must ensure that all users who authorize the use of the Cloud Services under Customer's account comply with the Agreement at all times and use the Cloud Services only in accordance with the Agreement. Customer will be responsible for any use of the Cloud Services under Customer's account.
7.5 Customer is responsible for ensuring that its authorized users diligently keep their user names and passwords and not disclose them to third parties. The Customer undertakes to inform the Company without delay if a password has been disclosed to third parties or if the Customer has reason to suspect an improper use of a username or password. The Customer's responsibility for the improper use of the Cloud Services through the use of the user's username or password will expire when the Company has received written and sufficiently detailed communication from the Customer.
7.6 The Customer must change the password required for the use of the Cloud Services upon written request of the Company, if necessary, due to the data security risk for the Cloud Services.
8. LNS Permissions
8.1 The Customer has access to connect LoRaWAN Network Server (LNS) to the Cloud Services which are performing processes strictly in-line with the LoRaWAN specification.
8.2 A working hard cap is set to 99 LoRaWAN Network Servers instances connected, and with a written request between Customer and Company, this limit may be increased to a new agreed value.
9. Personal Data and Customer Data
9.1 To the extent that the Customer enters personal data in the Cloud Services, the Company (or its subcontractor where appropriate) processes such data on behalf of and for the benefit of the Customer while the Customer remains the controller of such personal data at all times. The Company processes the personal data provided by the Customer to the Company in accordance with the Customer's instructions and applicable data protection legislation.
9.2 The Company implements appropriate technical and organizational measures to protect the Customer's personal data; these measures include the implementation of reasonable and sufficient confidentiality obligations.
9.3 The Company will make available to the Customer the information reasonably necessary to demonstrate compliance with applicable data protection laws and will contribute to the checks carried out by the Customer or his representative in relation to the processing of personal data by the Company. The Company is entitled to charge for any reasonable costs and expenses incurred by the Company.
9.4 Customer understands and approves that Customer's data may be provided to the Company's subcontractors for the purpose of providing the Cloud Services and to ensure and improve their services as well as other purposes set forth in this Agreement. The Company must reasonably ensure that such subcontractors are subject to equivalent requirements in matters of confidentiality and data protection, such as those set forth in this Agreement.
9.6 The Customer is solely responsible for the creation of appropriate backups of its data and the Company or its subcontractors will not be in any way responsible for the cancellation or non-memorization of Customer data or other communications kept or transmitted to the use of the Cloud Services.
10. Acceptable use policy
10.1 Customer must use and ensure that its authorized users use the Cloud Services in accordance with the following acceptable use policy. The Customer is solely responsible for ensuring that the Cloud Services are not used:
10.1.1 to violate or encourage the violation of the legal rights of others (including, without limitation, intellectual property rights);
10.1.2 to engage, promote or encourage any illegal activity;
10.1.3 to intentionally distribute viruses, worms, Trojan horses, damaged files, hoaxes or other elements of a destructive or deceptive nature;
10.1.4 to violate the security or integrity of any network, computer or communications system, software application or network or processing device (such violations include without limitation unauthorized access, interception of data or traffic or falsification of the 'origin) or to make connections to any user, host or network unless the Customer is permitted to communicate with such network abuses to include without limitation monitoring or scanning, denial of service attacks, intentional interference, open operational proxies, open mail relay or recursive domain open name server, or to avoid system restrictions);
10.1.5 to interfere with the use of the Cloud Services, or the equipment used to provide the Cloud Services, by others;
10.1.6 to disable, interfere with or circumvent any aspect of the Cloud Services;
10.1.7 use the Cloud Services, or any interface provided with the Cloud Services, to access any other product or service of the Company or its subcontractors in a manner that violates their applicable terms of service.
10.2 The Company (and its subcontractors, where appropriate) reserve the right but do not assume any obligation to investigate the Customer's use of the Cloud Services, including Customer data to ensure compliance with the Acceptable Use Policy and discontinue use of the Cloud Services by the Customer. and remove all illicit customer data. The Company (and its subcontractors, if any) may report suspected infringing activities to officers, regulators or other appropriate third parties, including disclosure of appropriate information relating to the Client.
10.3 If Customer becomes aware that the use of the Cloud Services violates the policy outlined here, Customer agrees to immediately cease the use of the Cloud Services without notice. The Customer agrees to satisfy any request of the Company regarding the termination of any use of the Cloud Services that violates the policies established herein.
11. Suspension and Interruption of Service
11.1 The Company will have the right to suspend the provision of the Cloud Services for a reasonable period of time if this is necessary to perform installations, modifications or maintenance work in connection with the Cloud Services or if such suspensions result from the installation, modification or maintenance work, relating to public communications networks.
11.2 The Company will also have the right to suspend the provision of the Cloud Services and / or deny Client access to the Cloud Services without first hearing the Customer due to a data security risk for the Cloud Services or if the legal order or administrative requires the Company to do so or if the Company becomes aware or reasonably suspects any business of the Customer or its authorized users that violates the policies set forth in Section 7 above or if the Cloud Services are used in a contrary or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that compromises the provision of the Cloud Services to other users.
11.3 The Company will always have the right to suspend the Cloud Services, if the Customer is in default with the payment of the fees due under the Contract and will not pay such fees despite a request for payment within fourteen (14) days calculated from the date of such request. The suspension may be continued until the Customer has paid all the fees due under the Contract.
11.4 The Customer understands that the Cloud Services are hosted by a subcontractor of the Company. Such subcontractors may reserve the right to terminate their hosting at any time. The Company will not be responsible in any way for the termination of such services provided by subcontractors.
12.1 The applicable fees for the Cloud Services can be reviewed by request to the service provider. Actual rates for Cloud Services vary depending on Customer's use of the Cloud Services.
12.2 The Company uses a credit card processing service provided by Stripe Payments Europe, Ltd. (https://stripe.com/) ("Stripe") to process payments. The Customer agrees to use the Stripe service and to transfer the data of his credit card (including any personal data contained therein) to Stripe. The Customer is familiar and agrees to be bound by the terms of third parties applicable to the Stripe service.
12.3 As an alternative to point 12.2, the Company may also make use of Bank Transfer services, provided by the Company’s bank. Bank Transfers payments are issued via invoice from the company and to be paid according to the payment terms set in the invoice.
12.4 Rates for the use of the Cloud Services will be billed monthly on the basis of the Customer's use of the Cloud Services. Unless agreed otherwise, no separate invoice is sent to the Customer, but all Rates are automatically debited to the Customer using the Stripe service described in Section 12.2.
12.5 The Company reserves the right to increase the rates applicable to the Cloud Services where this is justified by the general increase in costs and production expenses of the Company (such as, by way of example, the general increase in costs and labour costs), or in the event of an increase in the costs of third-party offers. The Company will inform the Customer of such change at least thirty (30) days before the effective date of the change. In this case, the Customer will have the right to terminate the Contract with thirty (30) days written notice. The notice of termination must be delivered to the Company in writing before the effective date of the change.
12.6 All rates are set without value added tax (VAT) or any other applicable sales tax, which will be added to the rates and rates in accordance with the applicable tax laws and regulations at that time.
13. Limitation of Liability
13.1 MClimate shall be liable for damages – regardless of the legal cause – solely:
a) in the event of intent;
b) in the event of gross negligence;
c) in the event of injury to life, body and health;
d) in the event that a defect was concealed in a fraudulent manner;
e) in case of an explicit guarantee;
f) in the event of a breach of an essential contractual duty.
13.2. In the event of negligent breach of an essential contractual duty pursuant to section 13.1 f), the liability for damages shall be limited to foreseeable losses typical for the agreement. This also applies to loss of profits and any other financial loss. An essential contractual duty is a duty the fulfillment of which is required for the due execution of the agreement, and on the observance of which a contract party principally relies, and may rely, as well as a duty the breach of which will put the achievement of the contractual purpose at risk.
13.3. Except as provided in Section 13.1 a) – f), MClimate is not liable for the loss of customer data to the extent the damage is based on the customer’s omission to create back-ups in accordance and thus to ensure that lost customer data can be recovered with reasonable effort.
13.4. The Company is not responsible for any indirect, incidental or consequential damages such as loss of profits, revenues or business, damages caused by the decrease in turnover or production or loss, alteration, destruction or corruption of data.
14. Term and Resolution
14.1 The Agreement will come into force after the Client has performed the actions indicated in Section 2.3.
14.2 The Agreement will remain in force until terminated by the Customer with immediate effect. For the avoidance of doubt, the Customer has the right to terminate the individual Cloud Services at any time with an appropriate notice.
14.3 Each party may terminate the contract for a just cause with immediate effect upon written notification to the other party if:
14.3.1 the other party becomes insolvent, requires or is found in bankruptcy or liquidation or corporate restructuring or ceases to continue to perform its business
14.3.2 the other Party substantially violates the terms and conditions of the Agreement and fails to remedy the breach within thirty (30) days from the date of receipt of a written notification by a non-defaulting party, such written notice detailing the violation and intention to terminate.
14.4 After termination of the Contract for any reason, the Company will retain Customer Data for thirty (30) days and make it available to Customer through the Cloud Services. After a period of thirty (30) days, the Company will have the right to destroy Customer data from the Cloud Services.
14.5. MClimate may terminate the agreement without observing a notice period if the customer (a) is in delay with the remuneration or with a not insignificant part of the remuneration which equals the remuneration for six months or (b) infringes these SaaS MClimate in any other way, unless the infringement is not attributable to the customer or unless the infringement and its consequences are only insignificant. In these cases, the customer is not entitled to a reimbursement of the remuneration paid for the use. MClimate is entitled to immediately claim an amount equaling 75% (seventy-five percent) of the remuneration for the remaining term, until the next possible regular termination date, of services offered by MClimate against remuneration and affected by the termination, unless the customer proves that MClimate has not suffered any damage or that the actual damage is significantly lower than this amount. MClimate may prove that the actual damage exceeds this amount.
14.6. Every termination must be made in writing or via other termination means made available by MClimate.
14.7. In the event of a full termination of the agreement, MClimate may, upon the expiry of 30 calendar days after the effective date of the termination and upon expiry of any statutory retention periods, irretrievably delete all data created during the term of the contract. Irrespective of any existing agreement, MClimate may be obliged to delete personal data at an earlier date in line with the provisions of the applicable privacy law.
15. Applicable Law and Disputes
15.1 The Contract will be regulated and interpreted in compliance with the Bulgarian substantive laws, with the exception of its provisions of law.
15.2 Any dispute, controversy or claim arising from or relating to this Agreement, or the violation, resolution or validity of the same, will be definitively settled by arbitration in accordance with the Arbitration Rules of the Chamber of Commerce, Bulgaria. The language of the arbitration will be English.
16.1. The customer shall hold in strict confidence all confidential information disclosed to it within the framework of an agreement and, regardless of the purpose, use such information only with the prior written approval of MClimate. Confidential information includes information expressly marked as confidential by MClimate and information the confidential nature of which is apparent from the circumstances of the disclosure.
16.2. The obligations set out in Section 16.1 do not apply to information or parts thereof for which the customer can prove (a) that they were known to the customer or were generally available prior to the date of receipt or were lawfully disclosed to the customer by a third party after the date of receipt hereunder without confidentiality obligations (b) were already known or available to the public prior to the date of receipt hereunder or (c) became known or available to the public after the date of receipt hereunder through no fault of the customer.
16.3. The obligations set out in Section 16.1 shall survive the termination of the agreement for an indefinite period, namely for as long as an exception as defined in Section 16.2 is not proven.
17. Force Majeure
17.1. MClimate shall be relieved from any performance obligation to the extent the non-performance is due to the occurrence of force majeure events after agreement conclusion.
17.2. Force majeure events include, for example, wars, strikes, riots, expropriation, storm, flood, epidemics, pandemics and other natural disasters as well as other circumstances not attributable to MClimate (in particular, water penetration, power outages and interruption or destruction of data cables and technical internet issues out of MClimate’s control).
18. Other Terms
18.1 The Company is free to use subcontractors in the performance of its obligations and exercise its rights under the Agreement.
18.2 The Company will have the right to use its relationship with the Customer in its marketing and sales promotion activities.
18.3 All formal communications and other formal communications between the Parties are carried out in English.
18.4 The Company will have the right to update the General Conditions in its sole discretion. Such changes shall be effective upon posting in the Service or on MClimates website. Please check these Terms periodically for changes. Your continued use of the Service constitutes your binding acceptance of these Terms, including any changes or modifications hereof. If the Customer does not accept the updated General Conditions, the Customer will have the right to immediately terminate the Agreement by cancelling the Services from the Website.
18.5 All the terms and conditions that, by their nature or otherwise reasonably, should survive cancellation or termination of the Contract are also considered to exist.
18.6. In the event that any provision of these GTCs is determined by a competent authority to be invalid, illegal or unenforceable, it will be severed from the remaining terms, conditions and provisions, which will continue in effect to the fullest extent permitted of applicable law.
Terms & Conditions (05.01.2019-19.01.2022)
These Terms of Service (these Terms) sets forth the terms and conditions that govern your (you or the End User) use of the Service. The Service is a solution which collects, analyses and presents several types of data, such as energy usage, climate and other sensor data. The Service is developed and provided by and Melissa Climate Jsc (MClimate), a Bulgarian corporation, org. no. 204664844. Please read these Terms carefully. These Terms constitutes a binding legal agreement between you and MClimate.
Please note that by registering for and/or using the Service you are indicating that you have read, understand and agree to be bound by these Terms. If you do not agree to be bound by these Terms, then you have no right to access or use the Service. To register an account for the Service you must be 18 years or older or have parental permission.
MClimate owns all intellectual property rights in and to the Service and permits you to use the Service only in accordance with these Terms.
You acknowledge and agree that you will provide true, accurate, current, and complete information as requested when registering an account, and maintain and update such information to keep it true, accurate, current, and complete. MClimate reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be false, inaccurate, not current or incomplete.
You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to any computer, smart phone, tablet etc. that you use for accessing the Service.
2. Use of the Service
You agree to act in conformity with any instructions given by MClimate regarding the use of the Service, and to not use the Service for any purpose that is not in compliance with applicable law or these Terms. You are solely responsible for all use of your account and any actions that take place through your account. Neither MClimate nor its subcontractors are responsible for any unauthorised access to the Service as a result of your negligence.
3. Links to other websites
Within the Service, you may find links to websites provided by third parties. MClimate has no control of or responsibility for such linked websites or its content and shall not be held liable for any damages arising in connection with the use of services available on linked websites. MClimate recommends that you read the respective terms of service and privacy policies of such third-party websites.
4. Personal Data
5. Warranties and limitation of liability
The Service is provided as is and use of the Service is at your own risk. MClimate is not responsible under any circumstances for any direct or indirect damage, cost, loss or liability which may arise as a result of the use of the Service.
MClimate make no warranties, implied or expressed, regarding the Service or features that are provided through the Service. MCLimate does not give any warranties in respect of the fitness for a particular purpose, availability, accuracy of, and/or any results that may be achieved by the Service.MClimate does not give any guarantees that the Service is without fault or work without interference.
6. Intellectual property rights
MClimate owns all intellectual property rights associated with the Service including, but not limited to, patents, copyright and design rights. All trademarks, logos, icons, images, design, interface, texts and other materials in the Service are owned by MClimate. Use, duplication or reproduction is prohibited without MClimates written approval. Comments and suggestions from you of possible improvements of the Service accrue to MClimate without MClimate having any obligation to compensate you or your business.
7. Entire agreement
These Terms constitutes the entire agreement between the parties with respect to the Service and supersedes all previous written or oral agreements between the parties with respect to the Service. MClimate may assign its rights under these Terms without notice to you.
8. Changes to these Terms or the Service
MClimate reserves the right, at its sole discretion, to update or revise these Terms at any time, e.g. by introducing the possibility of paid for Premium Accounts. Such changes shall be effective upon posting in the Service or on MClimates website. Please check these Terms periodically for changes. Your continued use of the Service constitutes your binding acceptance of these Terms, including any changes or modifications hereof.
MClimate reserves the right to at any time terminate, suspend, remove, change or modify any aspect of the Service, including but not limited to, features and functionality. Such changes and modifications introduced to the Service will be subject to what is stipulated in these Terms.
MClimate has the right, at its own sole discretion, to terminate these Terms and suspend you from using the Service with immediate effect, without any liability of MClimate, if you violate these Terms.
If for any reason any provision of these Terms shall be held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective only to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
11. Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of Bulgaria, excluding its choice of law principles. You agree that the District Court of Sofia shall be used as first instance for any cause of action arising out of or relating to Service or these Terms.