STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions govern the Services that Becloudsmart (“Becloudsmart”) provides to its Customer. By accessing and utilizing the Services the Customer acknowledges and agrees to be bound by these Standard Terms and Conditions as set out hereunder.
- Agreement: shall mean these Standard Terms and Conditions that govern the relationship between the Becloudsmart and the Customer.
- Customer: shall mean the person or organization using the Services and to which the Services are provided.
- Customer Account: means the operating environment through which the Customer effects the system or application provided through the Services.
- Customer’s Data: means the information provided by the Customer to Becloudsmart to provide the Services as well as the data accumulated through the operation of the Services.
- Managed Services: means the services designed to help the Customer manage, monitor and maintain its technology environment on an ongoing basis.
- Professional Services: means the services related to the delivery of the Customer’s technology environment including consulting, advisory, training and project management.
- Services: means the Software and/or Professional Services and/or Managed Services or any combination of these.
- Software: means subscription-based software, which is usually based in the cloud.
- Vendor Partner: means the company owning or providing the Software, other than Becloudsmart.
- Users: means those authorized persons appointed by the Customer to use the Customer Account.
Scope of the Services:
Subject to Customer requirements, the Services are comprised of all or some of the following progressions:
- Software-as-a-Service. The Software delivered online via a browser which is hosted by the Vendor Partner (or another third party).
- Cloud Value Discovery Services. An assignment commissioned by the Customer detailing the Customer’s operating environment to determine the most effective cloud deployment strategy for the business.
- Cloud Delivery Services. Arranging for the Customer’s connection to the Software and customization to meet the particular needs of the Customer.
- Managed Services. Managing, supporting and maintaining the operations of the Customer’s business, including project management or management consulting.
- Professional Services. Delivery of the Customer’s technology environment including consulting, advising, training and project management.
- Infrastructure-as-a-Service. Becloudsmart or its Vendor Partner hosts server computers and other hardware infrastructure. The Customer installs both platform and application software on that infrastructure and uses them.
- Platform-as-a-Service. Becloudsmart or its Vendor Partner hosts the Software platform. The Customer then installs or creates applications on that platform and uses them.
- Devices-as-a-Service. Becloudsmart will lease hardware to the Customer as required. The devices will be maintained, updated, and replaced as necessary.
1. Duties of Becloudsmart when Providing the Services.
- Competence. Becloudsmart will endeavor to deliver the Services with the requisite level of skill, integrity and professional competence at all times.
- Duty of care. Becloudsmart owes the Customer the normal duties owed to Customers, including a duty of care and a duty of confidentiality. Becloudsmart’s duty of care is to the Customer and to no one else.
- Availability of the Services. Becloudsmart cannot guarantee the continuous availability of the Services and there may be temporary shutdowns or interruptions. If it is seen that this may occur, Becloudsmart will notify the Customer as soon as is reasonably possible.
- Lead times. All timings indicated to the Customer are for indicative purposes only. Becloudsmart will try to meet all timings conveyed, however, these are subject to change, and Becloudsmart will not be responsible for any delays in providing the Services.
- Modifications or Discontinuation of the Services. Becloudsmart reserves the right to modify or discontinue the features, functionality and other attributes of the Services at any time in its sole discretion. Reasonable notice will be given to the Customer should either occur. The Customer acknowledges and agrees that Becloudsmart will not be liable in connection with its modification or discontinuation of the Services.
- Additional Support for the Services. Becloudsmart may at its sole discretion subcontract the performance of any part of the Services or related services. At no time may the Customer appoint any other party to assist or fulfil any part of the Services without the written consent of Becloudsmart.
2. Duties of the Customer when Using the Services.
- Customer Account. The Customer Account will be for the Customer’s use only. The Customer will be responsible for all other Users that it has given access to and must ensure that they comply with these Standard Terms and Conditions. It is also the Customer’s responsibility to ensure that it, as well as its Users, abide by the terms associated to the Services and that it is used properly. Furthermore, it is the Customer’s duty to prevent unauthorized access to or use of the Services, alternatively, the Customer must notify Becloudsmart should there be any unauthorized use of the Services.
- The Customer will be responsible for any necessary hardware, software and connectivity required to access the World Wide Web and use the Services, including without limitation, any fees associated with establishing and maintaining such access.
- Notification. It is the Customer’s responsibility to notify Becloudsmart as soon as possible of any problems that occur in or from the Services. Becloudsmart will assist the Customer as far as possible in remedying any problems, however, the Customer understands and agrees that it has read Clause 12 and no warranties are made in relation to the Services.
- Providing Information. The Services or any portion thereof, are dependent on information supplied by the Customer. Becloudsmart shall be entitled to assume that all the data and information provided by the Customer is accurate and complete. Becloudsmart will not be liable to the Customer or to any third party for any damages suffered as a result of the Customer providing any information that is incorrect or incomplete or where the Customer fails to disclose any relevant information to Becloudsmart; and the Customer indemnifies Becloudsmart against any claims or expenses relating thereto. It is the Customer’s duty to update and notify Becloudsmart of any changes in its data applicable to the operation of the Services.
- Third-Party Services. Third-party Services (including data, information, applications and other services) may be provided to the Customer. The Customer acknowledges and agrees that Becloudsmart shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Becloudsmart does not assume and shall not have any liability or responsibility to the Customer or any other person or entity for any Third-Party Services. Third-Party Services and links thereto must be accessed and used entirely at the Customer’s own risk and subject to such third parties' terms and conditions. This includes, but is not limited to, any End User License Agreements which the Customer could be party to.
- Restrictions. The Customer agrees not to, and it will not permit others to:
- license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Services or make the Services available to any third party, other than to Authorized Parties as permitted herein.
- copy, modify or use the Services for any purpose other than as permitted in this Agreement.
- modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Services.
- remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Becloudsmart or its affiliates, partners, suppliers or the licensors of the Services.
- Injunctive Relief. The Parties acknowledge that, in the event of a breach of any of the provisions of this Clause 3, the non-breaching Party may not have an adequate remedy at law. The non-breaching Party shall, therefore, be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The non-breaching Party’s right to obtain injunctive relief shall not limit its right to seek further remedies.
- Security. Becloudsmart will use industry standard efforts to maintain and protect the confidentiality of the Customer Data it receives. Despite these efforts, the Customer acknowledges that Becloudsmart cannot guarantee unauthorized access to this information and it is therefore provided at the Customer’s own risk. Becloudsmart, however, will use strict procedures and security features to try to prevent unauthorized access as far as possible.
- Ownership. The Customer is the owner of all Customer Data. Upon termination of the Services the Customer may reclaim any data accumulated through the Services within 5 days of such termination or such other period of time mutually agreed by the parties. Becloudsmart will clear all data from their systems after this time period.
- Use of Data. Unless mutually agreed to by the Parties, the Customer Data shall not be used by Becloudsmart for any other reason other than the provision of the Services.
INTELLECTUAL PROPERTY RIGHTS.
- Services and Technology. The Customer acknowledges that Becloudsmart and/or its particular Vendor Partner retains all right, title and interest in and to the Services, as well as to any and all proprietary software, materials, formats, interfaces, information, data and content used by Becloudsmart or provided to the Customer in connection with the Services and that in certain circumstances the Services are protected by intellectual property rights owned by or licensed to Becloudsmart and/or the Vendor Partner. Other than as expressly set forth in this or subsequent agreements, no license or other rights in the Services are granted to the Customer, and all such rights are hereby expressly reserved by Becloudsmart.
- Customer Data. The Customer retains all right, title and interest in and to the Customer Data. The Customer will be solely responsible for providing and obtaining the rights to provide all Customer Data required for the proper operation of the Services.
FEES AND PAYMENT TERMS.
- Becloudsmart’s invoices are due for payment within 7 days from date of invoice. Payments are collected by direct debit as the primary collection method. Alternative payment methods must be agreed to by the Parties, including bank transfer and payment by credit card.
- Direct Debit Agreements, in line with the applicable local legislation, will be signed between the Parties when using the direct debit payment method. The Customer is responsible for adhering to the terms and conditions of the direct debit mandate.
- The Customer will be charged in addition for ad-hoc Services it requests. These Services will be charged at the prevailing hourly rate of the applicable Becloudsmart consultant and will be notified to the Customer before such costs are incurred.
- In addition to the rights afforded to Becloudsmart in clause 13.2.3 and 13.3.2 below, if an invoice remains unpaid for more than 30 days, Becloudsmart, at its discretion, may decline to act any further and suspend the Services provided.
- Becloudsmart may charge interest on amounts which are overdue for more than one month. Interest is calculated at an annual rate of 12% APR.
- All invoices are payable in the currency reflected on the invoice.
- All quotations or estimates which are provided by Becloudsmart exclude applicable taxes, which will be added to its charges where applicable.
- The Customer shall not at any time prior to the expiration of 12 months from finalization of the Services, without the prior written consent of Becloudsmart, which consent Becloudsmart may withhold in its sole discretion:
- attempt in any manner to deal directly or indirectly with any of the contact persons or other individuals or companies related to the Services in any way possible, including by having any part of or deriving any benefit from the Services or any aspect thereof, or
- by-pass, compete, avoid, circumvent, or attempt to circumvent Becloudsmart relative to the Services, including by utilizing any of the Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
- The Customer acknowledges that Becloudsmart provides a variety of other services to a large and diverse range of customers. The provision of the Services to the Customer will not prevent Becloudsmart from providing the same or similar services to other parties, some of whom could be competitors of the Customer or who may be in conflict with the Customer.
- The Customer also acknowledges that Becloudsmart may already have provided the same or similar services to other parties.
- Whilst Becloudsmart will be bound by the confidentiality clauses mentioned below, Becloudsmart shall have the right to use the name of the Customer and a description of the Services as a reference in seeking to provide services to other parties, unless the Customer expressly forbids this.
Subject to applicable law or regulation, the parties shall maintain the confidentiality of any Confidential Information and shall not, without the prior written consent of the Disclosing Party, disclose such confidential information to any third party (excluding affiliates). Confidential Information means any information that is designated as “Confidential” or that the Receiving Party should reasonably believe to be confidential given the circumstances. Confidential information excludes any information that: (i) is known by the Receiving Party prior to disclosure; (ii) becomes publicly available through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party with the legal right to make such disclosure; or (iv) is independently developed by Receiving Party without use or reference to the Discloser’s Confidential Information.
LIMITATION OF LIABILITY.
- Damages. Regarding special, punitive, indirect or consequential damages and except to the extent of indemnification obligations related to third party claims, neither Becloudsmart nor any of its affiliates or other companies belonging to Becloudsmart, nor its or their respective officers, directors, employees or professional advisors shall be liable to the Customer in any action for special, punitive, indirect or consequential damages arising out of the performance, non-performance of the present Agreement, interrupted communications, lost data, or the use of the confidential information, including (but not limited to) loss of profit or business interruptions howsoever caused.
- Limitation. To the extent permitted by law, Becloudsmart’s cumulative liability to the Customer in respect of this matter, whether in contract or delict/tort (including negligence) or on any other basis will not exceed the amounts actually paid to Becloudsmart by the Customer in the six (6) month period immediately preceding formal written notice of the claim for liability hereunder.
The Customer will indemnify, defend, hold harmless and/or settle, and pay damages of any kind (including reasonable attorney’s fees) arising from or related to any third party claim brought against Becloudsmart arising out of or related to the Customer’s use of the Services (this includes any party acting on behalf of the Customer), any breach of the Customer’s obligations set out in this Agreement or violation of any law, or infringement upon or misappropriation of any intellectual property right, publicity or privacy rights, or any other third party’s rights.
- DISCLAIMER OF WARRANTIES.
- No Warranties. The Services are provided to "as is" and "as available" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, Becloudsmart expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Becloudsmart does not warrant that the Services will be provided error-free, uninterrupted, completely secure, or virus- free. Furthermore, the Customer acknowledges that Becloudsmart shall not be responsible for and does not control any third-party services. The Customer confirms that all data, information or other material placed on these third-party services are solely the Customer’s responsibility. Becloudsmart is not responsible for any loss of data or harm done to the Customer’s computer, systems or other equipment arising out of or relating to the use of the Services. The Customer also expressly disclaims any warranty that the Services will meet the Customer’s requirements. The Customer assumes responsibility for selecting the Services to achieve the Customer’s intended results, and for the results obtained from the Customer’s use of the Services. The Customer shall bear the entire risk as to the quality and the performance of the Services. This disclaimer applies to any expenses, damages or injury, regardless of the cause, whether for breach of contract, strict liability, negligence, or for any other cause of action.
- No Third-Party Representations or Warranties. No third party is authorized by Becloudsmart to make any representation or warranty to a Customer regarding the Services.
TERM AND TERMINATION.
- Term. These Terms and Conditions shall govern the Services for the duration applicable to the particular products purchased by the Customer, unless mutually agreed in writing by the Parties or terminated in accordance with this Agreement.
- Automatic Renewal. Software subscriptions and the related Services will continue automatically at the end of the contract term unless either party refuses such renewal by written notice 90 or more days before the end of the current term.
- Termination. Becloudsmart may terminate this Agreement:
- In the event of the Customer being in breach of any of the terms as set out herein, Becloudsmart may, by written notice require the Customer to remedy such breach. If this has not been remedied within 14 calendar days of receipt of such notice, or if the breach is incapable of being remedied, Becloudsmart may terminate the Services.
- In the event the Customer becomes the subject to any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Becloudsmart may terminate this Agreement upon fifteen (15) days prior written notice to the Customer if the Customer fails to pay the fees for the Services and does not cure such failure within the 15-day notice period. Upon any termination by the Customer pursuant to this section, Becloudsmart shall refund Customer any prepaid fees for the affected Services that were to be provided after the effective date of termination.
- Effects of Termination.
- Upon date of termination, the Customer shall promptly discontinue use and access of the Services.
- Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
- Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
- Termination for any reason shall not relieve the Customer of its duty to pay any fees accrued or due and payable to Becloudsmart including interest prior to the effective date of termination and termination for any reason other than for uncured material breach by Becloudsmart shall not relieve the Customer of the obligation to pay all future amounts due.
- In the event of any dispute, controversy or claim as to the Parties respective rights and obligations or as to any matter arising from or that in any way is related to the Services, including any question as to its existence, validity or termination, both Parties shall attempt in good faith to resolve the dispute between themselves.
- If the Parties are unable to resolve the dispute by mutual agreement within 14 days after the dispute is notified in writing by either Party to the other, or within such further period as mutually agreed to, then the dispute shall be submitted to and finally resolved by the judgement of a competent court.
- Unless otherwise agreed by both of Parties in writing, all litigious matters shall be held in the jurisdiction of the particular Becloudsmart Company providing the Services. To the maximum extent permitted by law, the Customer hereby consents to this jurisdiction and venue of such courts and waives any objections it may have to this.
These terms of engagement and all disputes arising therefrom shall be determined exclusively in accordance with the laws appropriate to the particular Becloudsmart Company providing the Services.
- These terms are not intended by the Parties to constitute or create a joint venture, partnership or formal business organization of any kind, and the rights and obligations of the Parties shall be only those expressly set forth herein and as are agreed in writing between the Parties. Neither Party shall have authority to bind the other except to the extent authorized herein.
- These terms may not be assigned or otherwise transferred by the Customer in whole or in part without the prior written consent of Becloudsmart.
- If any provision of these terms and conditions shall be held invalid by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect.
- Force Majeure. Except for the Customer’s payment obligations, neither Party shall be liable to the other Party for any delay or non-performance of its obligations under these terms and conditions arising from force majeure. Subject to the Party so delayed promptly notifying the other Party in writing of the reason for the delay and the likely duration of the delay, the performance of the delayed Party’s obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists, provided that if performance is not resumed within 30 (thirty) days after that notice the non-delayed Party may by notice in writing
- Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under these terms and conditions shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies a Party may have in terms of the law.
- These governing terms may be modified or amended only by written agreement signed by the Parties, and neither Party may bind the other Party by unilateral submission of additional or different terms and conditions absent written consent to such terms and conditions by the other Party.