The following Terms of Service govern all products and services provided by BMIT Limited, its affiliates, successors and assigns ("Company") to its customers ("Customer") and contains the terms and conditions that govern your access to and use of the Services (as defined below). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. 1. Order, Acceptance and Service.
(a) Unless otherwise stated by an agreement signed in writing by Customer and Company, these Terms of Service shall apply to all Services provided by Company to Customer in line with the Customer’s specific requests and requirements. Customer may access and use the Service in accordance with this Agreement and the Service Level Agreements may apply to certain Services. Customer will adhere to all laws, rules, and regulations applicable to your use of the Service, including the Terms of Service and the Acceptable Use Policy.
(b) Customer is responsible for all activities that occur under his account on the Service, regardless of whether the activities are undertaken by him, employees or a third party (including contractors or agents) and, except to the extent caused by our breach of this Agreement, Company and its affiliates are not responsible for any action undertaken by Customer or on behalf of Customer.
(c) Company will provide, and Customer will purchase and pay for, the Services as may be specified in the Order for the service fees specified in the Order, any Invoices and/or the applicable Service Description (the "Service Fees"). Company may also provide Third Party Content, such as software applications provided by third parties, under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
(d) In connection with any Services, Customer will not use any product or service in excess of the applicable limits established for the Services in the Service Descriptions. If Customer uses additional resources in excess of such applicable limits, Company may, without limiting its other rights or remedies, assess Customer with additional fees or suspend or terminate the Services. Specifically for the Cloud Infrastructure service, Customer may use additional resources only within the limits defined by the Company, and agrees to pay any additional usage as invoiced by Customer in relation to such over usage. 2. Fees, Taxes and Payment.
Customer will pay to Company the Service Fees in the manner set forth in the Order. Company may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company's net income). All such taxes will be added to Company's invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be immediately due and payable within 5 days after the date of the invoice. If any invoice is not paid within 15 days after the date of the invoice, Company may charge Customer a late fee of Eur25 for such invoice; in addition any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. Delinquent accounts may be suspended at Company's sole discretion. In the event of a suspension of the Services, upon a reactivation request by Customer, Customer shall pay Company a reactivation fee in addition to full payment of the outstanding balance due. Reactivation of services will only be performed during Company's normal business hours (Monday through Friday, 8:00 am 5:00 p.m., Central European Time, excluding holidays.) If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company's reasonable attorneys' fees. If any Customer payment is returned for insufficient funds Company will impose a processing charge of Eur50. If two or more Customer payments are returned for insufficient funds in any 6-month period, Company in its sole discretion may require alternative payment methods for all future Customer payments including, without limitation, credit card, money order, or cashier's check.
All fees and charges payable are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide us any information we reasonably request to determine whether we are obligated to collect VAT from him, including your VAT identification number. 3. Term and Termination.
(a) The Services will commence on the Effective Date indicated in the Order irrespective of whether Customer has started using them or not and will continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one-month periods unless the Order is earlier terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
(b) Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.,(iv) in case of a force majeure event. Unless otherwise specified at Law or pursuant to a lawful order by any competent Authority, upon termination of the Agreement for whatever reason or deactivation all Customer Content will be removed, erased and destroyed after ninety (90) days from the said termination or deactivation.
(c) Company may suspend, deactivate or terminate this Agreement and in either case delete or remove the Customer Content without any liability, at any time and without applying the 90 days as referred to in (b) above (i) if the Services or anything related to such services is prohibited by the applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason or there is a risk that they might damage the reputation of the Company, (ii) if any third party or Authority claims that the Services provided to the Customer/and/or any activity directly or indirectly performed for, by or on behalf of Customer are breaching their rights or are illegal and following notice of such to Customer, Customer fails to provide adequate assurances to the contrary, (iii) if the Service has been deactivated, suspended or terminated for a period of more than sixty (60) days in any applicable Term, (iv) if ordered to do so by a competent Authority, if the Service and/or Content poses a security risk to the Service of other Customer or any third party, if there is a breach of this Agreement, including non-fulfillment of payment obligations for more than 15 days, if Customer ceases to operate and/or in the ordinary course, makes an assignment for the benefit of creditors or similar disposition of the assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. In all cases where it is reasonably and operationally possible Company will inform Customer with as much prior notice as reasonably practicable If the Service is suspended in part the right to access or use any portion or all of the Service, Customer:
(a) remains responsible for all fees and charges you have incurred through the date of suspension;
(b) remains responsible for any applicable fees and charges for any Service to which he will continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
(c) will not be entitled to any service credits under the Service Level Agreements for any period of suspension;
(d) Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. Customer shall also immediately destroy all copies of any software provided by Company as part of any Service and shall not make any further use of such Service and software. Any retention or use of such software and Service will be illegal. The provisions of Sections 3(d), 4, 5.1, 8, 10, 11, 12 and 14 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
(e) Within 30 days after the termination of this Agreement, Customer will pay the Company an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term ("Termination Charge") to Company unless (i) Company terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). The parties agree that the Termination Charge constitutes consideration for Company's time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 3(b) Company shall return to Customer, and Customer shall accept, as Customer's sole and exclusive remedy for Company's breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination. 4. Customer's Representations and Warranties.
Customer hereby represents and warrants to Company, and agrees that during the Term Customer will ensure that: (a) Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer's use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer website and will use the Customer website only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for business purposes and not for any family, household or personal use. (f) Customer will always be responsible for any Customer Content uploaded and to this end will also double check and be certain at all times that adequate internet connection is available and in case of any Service used including use of software to upload and/or to perform back on Customer Content, he routinely checks the accuracy, completeness, accessibility and retrievability of such uploaded Customer Content including any back up performed. 5. License to Company and Proprietary Rights
5.1 Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: in particular to (a) virtualise, digitize, convert, install, upload, share, install. select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, push, pull, publicly display, publicly perform and hyperlink the Customer Content either directly or through the Customer; and (b) make archival or back-up copies of the Customer Content and the Customer website as well as to destroy and delete the Customer Content during the Term and after expiration or termination of the Term as provided in this Agreement. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
5.2 Except as provided in this Section 5, Company has no rights under this Agreement from the Customer Content, including any related intellectual property rights and Customer consents to the use of the Content to provide the Service. Company may disclose the Content to provide the Service or to comply with any request of a governmental or regulatory body.
5.3 Customer represents and warrants to the Company that: (a) they or their licensors own all right, title, and interest in and to the Content; (b) have all rights in the Content necessary to grant the rights contemplated by this Agreement; and (c) none of the Content, or the Services will violate the Acceptable Use Policy.
5.4 Customer is granted by the Company a limited, revocable, non-exclusive, non-sub licensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the Content solely in connection with the permitted use of the Services. Customer will not directly or indirectly by any act or omission allow anyone or attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service (except to the extent software included in the Service Order are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service or (c) access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted under this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if there is a failure to comply with any term or condition of this Agreement. During and after the Term, Customer will not assert, nor will you authorize, assist, or encourage any third party to assert, against Company or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service used.
5.5 If Customer provides any suggestions to Company or affiliates, Company will own all right, title, and interest in and to the suggestions, even if you have designated the suggestions as confidential and will be entitled to use the suggestions without restriction. Customer hereby irrevocably assign to the Company all right, title, and interest in and to the suggestions and agrees to provide Company any assistance it may require to document, perfect, and maintain its rights in the suggestions. 6. Company's Acceptable Use Policy.
Customer will abide by, and utilize the Services and the Customer website only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") as such Acceptable Use Policy may be changed by Company from time to time. The Acceptable Use Policy is hereby incorporated herein and marked as Annex 1. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access Company's website to determine if Company has made any changes thereto. 7. Customer's Responsibilities.
(a) Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer website.
(b) Customer will cooperate fully with Company in connection with Company's performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Company's performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Company of any change in Customer's mailing address, telephone, e-mail or other contact information.
(c) Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer website and any goods or services described therein, as well as any rules, terms or conditions of use.
(d) Customer can, depending on service, provide Company with a registered domain name for the Customer website, or, upon Customer's request and subject to the Company’s terms and conditions in relation to domain name registrations, the provisions of which are incorporated herein by this reference, Company will register an Internet domain name on behalf of Customer.
(e) Customer is solely responsible for the development, content, operation, maintenance, and use of Service and in particular for:
i. the technical operations, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
ii. compliance with the Acceptable Use Policy, any other applicable Policies which may be issued from time to Time by Company, and all the applicable laws and regulations;
iii. any claims relating to the Service; and
iv. properly handling and processing notices sent to Customer (or any of the affiliates) by any person claiming that the Service violates such person’s rights.
Customer is also responsible for properly configuring and using the Service and taking steps to maintain appropriate security, protection and backup, which may include the use of encryption technology and routine archiving.
Customer is responsible for any end users’ use of the Service and has to ensure that all End Users comply with the obligations under this Agreement. 8. Company Intellectual Property.
(a) Company's Intellectual property rights including trademarks, tradenames, service marks, logos, domain names other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Company. Company shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Company to Customer. Company may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses. 9. Limited Warranty.
(a) Company represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Company generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company within 30 days after performance of any Services of any breach of the foregoing warranties. Company does not warrant that the use of the Service including any software will operate uninterrupted or error free and that the use of the Service including any use of software will identify or filter out all known spam, viruses or other programming routines. Company likewise does not warrant that the Service including the use of any software will operate with all combinations of hardware and software selected by Customer. Company will not be responsible for the accuracy and completeness of the results obtained from the use of the Service including use of any software and/or accuracy, completeness; accessibility and retrievability of all or any part any uploaded any Customer Data. Customer's sole and exclusive remedy, and Company's sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro-rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
(b) The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Company's reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer's equipment or any third-party equipment not within the sole control of Company.
(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. 10. Limitation of Liability.
THE COMPANY AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, AND/OR CUSTOMER CONTENT), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) ANY INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR THE USE OF ACCESS TO THE SERVICE , (II) DISCONTINUATION OF ANY OR ALL OF THE SERVICE ORDER, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CONTENT OR OTHER DATA. IN ANY CASE, THE AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAYS US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 3 MONTHS PRECEDING THE CLAIM. 11. Indemnification of Company.
Customer shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Company Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer's breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer website or any End User's use of the Customer Content or the Customer website, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer's domain names, the Customer website, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Customer's use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer website to be compatible with the hardware or software used by Company to provide the Services, including any damage to Company's servers or other hardware caused thereby. 12. Confidentiality; Non-Solicitation.
(a) Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
(b) Notwithstanding Section 12(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
(c) Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
(d) During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under this Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company. 13. Optional Services. In connection with any Optional Services:
(a) Customer must provide Company with any information, login identifications, passwords or other information or access to facilities that Company may reasonably require to provide the Optional Services Company will have no responsibility for any delays or increased costs or expenses associated with Customer's failure to provide any of such information. If Customer does not provide any such information or access requested by Company within fifteen (15) days of Company's request therefor, Company may terminate the Order and retain any Service Fees paid.
(b) If Customer requested that Company perform the Optional Services by a particular deadline or that Company achieve some particular result or outcome, Company will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Company's ability to perform the Services is subject to Customer's provision of information and access as provided above and (ii) Company has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.
(c) If Customer wishes to convey documents or files to Company, Customer should deliver to Company a copy or duplicate of such documents or files and not the original copy. Company will not return to Customer any documents or files conveyed to Company.
(d) Company will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Company's provision of Optional Services requested by Customer. 14. Miscellaneous.
(a) Independent Contractor. Company and Customer are independent contractors, and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
(b) Any litigation or other dispute resolution arising out of or relating to this Agreement or your use of the Service will take place in Malta, and both Parties hereby consent to the personal jurisdiction of and exclusive jurisdiction of Maltese Law and to the venue and courts in Malta. This Agreement will be governed by and construed in accordance with the laws of Malta without reference to the conflict of Law Rules. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Company reserves the right and the Customer accepts that it may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement.
(c) Each Party warrants to observe the Data Protection Legislation and undertakes in respect of any personal data that it may process on behalf of the Comptroller that at all times:
i. the processing carried out under or in connection with this Agreement shall solely be carried out in the context of the activities of this Agreement; and
ii. it will act solely on the instructions of the controller of the data; and
iii. it maintains and shall continue to maintain appropriate and sufficient technical and organisational security measures to protect such personal data or information against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and in addition shall comply with the particular security measures required by Controller; and
iv. Where applicable the expressions used in this clause 13 shall have the meanings given to them under the Data Protection Act (Chapter 440 of the Laws of Malta) and all ancillary subsidiary legislation,
The Parties in their role as data processor in terms of the provisions of this Agreement, for all such personal data which it will become aware of or which it shall collect in executing its rights and obligations under this Agreement, it shall bind itself to adhere to all the legal provisions relevant for the processing of personal data.
(d) Headings. The headings herein are for convenience only and are not part of this Agreement.
(e) Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site. Should any additional or modified provisions of this Agreement be found to be unenforceable or unconscionable, it is the express intent of the parties that the Agreement on the date of the Order shall be binding on both Company and the Customer.
(f) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(g) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via e-mail to the Customer's e-mail address as maintained in Company's billing records.
(h) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(i) Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(j) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
(k) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company's records of such execution shall be presumed accurate unless proven otherwise.
(l) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labour disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment, service or material required for such party to perform its obligations hereunder.
(m) This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
(n) Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
(o) Telephone Monitoring. To ensure Company's customers receive quality service, Company randomly selects phone calls for monitoring. These calls, between Company's customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner.
(p) Customer agrees to use Cloud products and services for business purposes only. 15. Definitions. For purposes of this Agreement, the following terms have the meanings specified below:
(a) "Agreement" means each contract created between Company and Customer for the provision of Services consisting of an Order, the applicable Service Description, these Terms of Service and any applicable Annexes.
(b) "Acceptable Use Policy" means the policy currently available in Annex 1 as may be amended from time to time.
(c) "Customer Content" includes all applications, data in whatever format including back up data, software, graphics, text, names, marks, logos, hypertext links to other websites and other information incorporated in, transmitted through or published or displayed on the Customer website or accessible through or present on or any other equipment, hardware, means or facilities used by Customer.
(d) "Customer website" means Customer's site on the World Wide Web portion of the Internet that Company hosts under this Agreement.
(e) "End User" means any Person who accesses or uses the Customer website or services via the Internet.
(f) "Company Technology" means Company's proprietary technology, including, without limitation, Company services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Company Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
(g) "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
(h) "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
i) "Order" means the Order submitted by the Customer to Company for Services, whether such Order is submitted online through Company's website, telephone or written order form as Customer will be directed by the Company to do.
(j) "Terms of Service" means these Terms of Service, as the same may be modified, altered or amended from time to time by Company.
(k) "Service" which shall for the purpose of this Agreement be construed to include hosting in general, Virtual Private Servers, Cloud Computing, back up services, hosted services, and any Licence or Right to use any hardware or software, the specified connectivity, storage space and bandwidth for providing the Service as more particularly described in the applicable Service Description. "Optional Service" means any additional Service Company may provide in response to an Order, as more particularly described in the applicable Service Description.
(l) "Service Description" means the applicable required service as chosen by Customer and if available any supporting documents made available by Company, including via publication on its website to describe the applicable Services at the time the Order is accepted by Company.
(m) "Term" means the duration of any Agreement between Company and Customer which shall be that defined in the ordering process or if not, of one calendar year or as may be agreed in writing between the Parties. Annex 1
Customer agrees that he will NOT use the Service to:
a. upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
b. stalk, harass, threaten or harm another;
c. pretend to be anyone, or any entity, he is not and may not impersonate or misrepresent as another person (including celebrities), entity, other Customer etc;
d. engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment or nondisclosure agreement;
e. post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;
f. forge any TCP-IP packet header or any part of the header information in an email or a posting, or otherwise putting information in a header designed to mislead recipients as to the origin of any Content transmitted through the Service (“spoofing");
g. upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
h. interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);
i. plan or engage in any illegal activity;
j. gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities; and/or
k. disclose or make available any security keys or pins or other information which Company granted to Customer to make use of the Service.
Additionally, Customer is prohibited from undertaking any of the following actions:
i. anything that may impair, disrupt, interfere, effect the Company's service or the Services of other Customers.
ii. anything which may cause a host, the service or the Network to slow down or crash
iii. making excessive use of, or placing unusual burdens on the network and the Service
iv. circumventing any applicable authentication or security processes or service metering applications. Annex 2A
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE
This document governs the use of Microsoft software, which may include associated media, printed materials, and “online” or electronic documentation (individually and collectively, “Licensed Products”) provided by BMIT Ltd (hereinafter referred to as “Company”). Company does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which Company must inform you. Your right to use the Licensed Products is subject to the terms of your agreement with Company, and to your understanding of, compliance with, and consent to the following terms and conditions, which Company does not have authority to vary, alter, or amend. 1. DEFINITIONS.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.2. OWNERSHIP OF LICENSED PRODUCTS.
The Licensed Products are licensed to Company from an affiliate of the Microsoft Corporation (collectively “Microsoft”). All title and intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Products does not transfer any ownership of the Licensed Products or any intellectual property rights to you.3. USE OF CLIENT SOFTWARE.
You may use the Client Software installed on your Devices by Company only in accordance with the instructions, and only in connection with the services, provided to you by Company. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.4. USE OF REDISTRIBUTION SOFTWARE.
In connection with the services provided to you by Company, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO COMPANY, WHICH TERMS MUST BE PROVIDED TO YOU BY COMPANY. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Company. 5. COPIES.
You may not make any copies of the Licensed Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Company; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Company, upon notice from Company or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Licensed Products.6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Licensed Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.7. NO RENTAL.
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Licensed Products except for the sole purpose of accessing the functionality of the Licensed Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Company.8. TERMINATION.
Without prejudice to any other rights, Company may terminate your rights to use the Licensed Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Company or Company’s agreement with Microsoft under which the Licensed Products are licensed, you must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of its component parts.9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY COMPANY AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT.
Any support for the Licensed Products is provided to you by Company and is not provided by Microsoft, its affiliates or subsidiaries. 11. NOT FAULT TOLERANT. THE LICENSED PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE LICENSED PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS.
The Licensed Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and U.S. laws that apply to the Licensed Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.13. LIABILITY FOR BREACH.
In addition to any liability you may have to Company, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
MICROSOFT SERVICES PROVIDER USE RIGHTS
You find the MICROSOFT SERVICES PROVIDER USE RIGHTS ("SPUR") under http://www.microsoft.com/serviceproviders/licensing/spla.aspxAnnex 2BTERMS AND CONDITIONS REGARDING USE OF MICROSOFT ONLINE SERVICES
This annex governs the use of services offered online by Microsoft, including but not limited to, Office 365, Microsoft 365 and Azure services, which may include associated media, printed materials, and online or electronic documentation (individually and collectively, “Licensed Products”) and provided by BMIT. BMIT does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which BMIT must inform you. Your right to use the Licensed Products is subject to the terms of your agreement with BMIT and to your understanding of, compliance with, and consent to the following terms and conditions, which BMIT does not have authority to vary, alter, or amend.
You hereby agree and accept in full the terms and conditions as specified in the Microsoft Cloud Agreement applicable to Malta, and available at https://docs.microsoft.com/en-us/partner-center/agreements
or at an alternate site that Microsoft may identifyAnnex 3A
BMIT CLOUD BACKUP TERMS AND CONDITIONS For customers using backup solution based on Acronis technology and software
BMIT Cloud Backup is a service provided by BMIT under a distributor license from Acronis GmbH (“Acronis”).
Users of BMIT Cloud Backup, BMIT Cloud Backup Software and BMIT Cloud Backup Services must read, understand and agree to the Acronis End User License Agreement provided on the Acronis website at http://www.acronis.com/en-eu/support/documentation/
. Annex 3B
BMIT BACKUP AS A SERVICE (BaaS) TERMS AND CONDITIONS
BMIT Backup as a Service (BaaS) offers a software solution that automates the backup of data stored on Customer’s IT systems to BMIT’s storage infrastructure. BMIT will provide the Customer with the required BaaS software (including licenses), as well as the appropriate quantity of data storage space according to the Customer’s subscription. The Customer is responsible for installing the software on Customer’s IT systems and for configuring the software to specify which data needs to be backed-up and at what frequency. The Customer is also responsible for managing any restoration of backed-up files.
BMIT will retain the Customer’s information for as long as its account is active or as needed to provide it with the required services. BMIT may retain and use the Customer’s information as necessary to comply with its legal obligations, resolve disputes, and enforce agreements. Consistent with these requirements, BMIT shall endeavour to delete information as speedily as possible, upon request. Latency in deleting information from servers and backed-up versions may subsist.
BMIT Backup as a Service uses software licensed from Veeam Software (www.veeam.com
Users of BMIT Backup as a Service must read, understand and agree to the Veeam terms and conditions as specified on www.veeam.com
, including but not limited to the EULA, as speciufied in https://www.veeam.com/eula.html
. Annex 4