SERVICES AGREEMENT
This BPI On Demand Services Agreement (this “Agreement”) is between BPI On Demand Limited (“BPI”) and the individual or entity that has executed this Agreement (“You”). This Agreement sets forth the terms and conditions that govern orders placed by You for Services under this Agreement.
- AGREEMENT DEFINITIONS
1.1. “Ancillary Program” means any software agent or tool owned or licensed by BPI that BPI makes available to You for download as part of the Services for purposes of facilitating Your access to, operation of, and/or use with, the Services Environment. The term “Ancillary Program” does not include Separately Licensed Third Party Technology.
1.2. “Auto Renew” or “Auto Renewal” is the process by which the Services Period under an order is automatically extended for an additional Services Period of 12 months unless such Services are otherwise terminated in accordance with the terms of the order or this Agreement.
1.3. “Services” means, collectively, the BPI services (e.g., BPI Managed Service and service offerings and related BPI Applications of the third party vendor) listed in Your order and defined in the Service Specifications.
1.4. “Services Period” refers to the period of time for which You ordered Services as specified in Your order.
1.5. “Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of BPI and made available to You through, within, or in conjunction with Your use of, the Services. Examples of Third Party Content include data feeds from social network services, rss feeds from blog posts, and data libraries and dictionaries. Third Party Content does not include Separately Licensed
1.6. “Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Services in accordance with this Agreement and Your order.
1.7. “You” and “Your” refers to the individual or entity that has executed this Agreement.
1.8. “Your Content” means all text, files, images, graphics, illustrations, information, data (including Personal Data as that term is defined in the Data Processing Agreement for BPI Services described in Section 6 below), audio, video, photographs and other content and material (other than Your Applications), in any format, provided by You or Your Users that reside in, or run on or through, the Services Environment.2. TERM OF AGREEMENT
This Agreement is valid for the order which this Agreement accompanies. This Agreement may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., additional Users), for any Services options offered by BPI for the original Services ordered, and for any renewal or Auto Renewal of the Services Period of the original order.
Customers may not reduce the number of User subscriptions purchased hereunder, in whole or in part, during the Subscription Term. In the event of any conflict between the terms of this Ordering Document and the terms of the Service Agreement, the terms of this Ordering Document shall govern. The initial term of this agreement will be stated, and will automatically renew for the same period unless cancelled in writing 30 days prior to the end of the contracted term.
3. OWNERSHIP AN RESTRICTIONS
Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) be responsible for managing their own local IT infrastructure including desktop hardware and software, mobile devices, and networks, and ensuring they meet the relevant system requirements (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify BPI promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service.
4. SERVICES PERIOD; CHARGES, PAYMENT AND END OF SERVICES
4.1 If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If BPI terminates the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Except for nonpayment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Services ordered.
Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.
4.2.1 Charges and Payment. Charges for the Service are as detailed in the Order Form. BPI will send the bills to the address notified by the Customer to BPI. The Customer will be liable for charges for the Service from the date BPI makes the Service available to the Customer or the date the Customer uses the Service whichever is the earlier, unless otherwise agreed by BPI in writing. The Customer agrees to pay annually in advance for the Service charges unless otherwise stated in the Order Form. All charges are exclusive of VAT which is chargeable at the applicable rate.
4.2.2 As part of its credit management procedures, BPI may at any time:
(a) require the Customer to pay a deposit or
provide a guarantee as security for payment
of future bills by the means requested by
BPI; and/or (b) carry out a credit vet of the User. The User agrees to provide BPI with any information BPI may reasonably require for this.
4.2.3 Payment is due within 14 days of the date specified on the bill, unless otherwise stated in the Service Agreement.
4.2.4 The Customer must pay all charges by standing order or direct Debit, unless otherwise advised by BPI.
4.3.1 Disputed bills. If the Customer disputes any charge on a bill the Customer will notify BPI in writing within 14 days of the date of the bill with all relevant information. Where the disputed amount is:-
(a) less than 5% of the total bill, the Customer
will pay the full amount of the bill; or
(b) more than 5% of the total bill, the Customer
must pay the amount not in dispute. Also, if
requested by BPI, the Customer will place
funds equivalent to the disputed amount into
an account with a reputable bank as reasonably specified by BPI, established jointly by the Customer and BPI, accruing interest at a variable rate equal to that which the selected bank certifies it would normally pay a commercial customer depositing the amount credited to such an account (escrow account).
4.3.2 Any disputes will be resolved promptly and the resolved amount if any is payable immediately.
4.4 Late Payment. If BPI does not receive payment by the due date, BPI may charge the Customer:
(a) any late payment charge as referred to in the Service Agreement; and/or
(b) daily interest on late payments at a per annum rate equal to 5% above the base lending rate of the European Central Bank for the period beginning on the date on which payment is due and ending on the date on which payment is made.
5. NON DISCLOSURE
5.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Content and Your Applications residing in the Services Environment, and all information clearly identified as confidential at the time of disclosure.
5.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
5.3 We each agree not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, BPI will hold Your Confidential Information that resides within the Services Environment in confidence for as long as such information resides in the Services Environment. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. BPI will protect the confidentiality of Your Content or Your Applications residing in the Services Environment in accordance with the BPI security practices defined as part of the Service Specifications applicable to Your order. In addition, Your Personal Data will be treated in accordance with the terms of Section 6 below. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required bylaw.
6. DATA PROTECTION
6.1 The BPI Data Processing Policy is subject to change at BPI’s discretion; however, BPI policy changes will not result in a material reduction in the level of protection provided for Your Personal Data provided as part of Your Content during the Services Period of Your order.
6.2 BPI’s Data Processing Policy Services describes
the parties’ respective roles for the processing and control of Personal Data that You provide to BPI as part of the Services. BPI will act as a data processor, and will act on Your instruction concerning the treatment of Your Personal Data residing in the Services Environment, as specified in this Agreement, the Data Processing Agreement and the applicable order. You agree to provide any notices and obtain any consents related to Your use of the Services and BPI’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Data.
6.3 The Service Specifications applicable to Your order define the administrative, physical, technical and other safeguards applied to Your Content residing in the Services Environment, and describe other aspects of system management applicable to the Services. You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content and Your Applications, including any viruses, Trojan horses, worms or other programming routines contained in Your Content or Your Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
7. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
7.1 BPI warrants that it will perform (i) Services in all material respects as described in the Service Specifications, and (ii) Professional Services in a professional manner in accordance with the Service Specifications. If the Services provided to You were not performed as warranted, You must promptly provide written notice to BPI that describes the deficiency in the Services (including, as applicable, the service request number notifying BPI of the deficiency in the Services).
7.2 BPI DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BPI WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY BPI, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT BPI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BPI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. BPI IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. BPI DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
7.3 FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND BPI’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF BPI CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND BPI WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO BPI FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
7.4 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED, INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
NOTHING IN THIS AGREEMENT SHALL LIMIT BPI’S LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF BPI, OR BPI’S LIABILITY IN THE TORT OF DECEIT. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. BPI’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR
OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO BPI FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM BPI UNDER SUCH ORDER.
9. INDEMNIFICATION
9.1 Subject to the terms of this Section 9 (Indemnification), if a third party makes a claim against either You or BPI (“Recipient” which may refer to You or BPI depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either You or BPI (“Provider” which may refer to You or BPI depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations;and
- gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
9.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects BPI’s ability to meet its obligations under the relevant order, then BPI may, at its option and upon 30 days prior written notice, terminate theorder.
9.3 The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or (c) continues to use the applicable Material after the end of the license to use that Material. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. BPI will not indemnify You for any portion of an infringement claim that is based upon the combination of any Material with any products or Services not provided by BPI. BPI will not indemnify You to the extent that an infringement claim is based on Third Party Content or any Material from a third party portal or other external source that is accessible to You within or from the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, etc.). BPI will not indemnify You for infringement caused by Your actions against any third party if the Services as delivered to You and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. BPI will not indemnify You for any intellectual property infringement claim(s) known to You at the time Services rights areobtained.
9.4 The term “Material” defined above does not include Separately Licensed Third Party Technology. Solely with respect to Separately Licensed Third Party Technology that is part of or is required to use the Services and that is used: (a) in unmodified form; (b) as part of or as required to use the Services; and (c) in accordance with the usage grant for the relevant Services and all other terms and conditions of this Agreement, BPI will indemnify You for infringement claims for Separately Licensed Third Party Technology to the same extent as BPI is required to provide infringement indemnification for Materials under the terms of the Agreement.
9.5 This Section 9 provides the parties’ exclusive remedy for any infringement claims or damages.
10. THIRD PARTY WEBSITES, CONTENT, PRODUCTS AND SERVICES
10.1 The Services may enable You to link to, transmit Your Content to, or otherwise access, other Web sites, content, products, services, and information of third parties. BPI does not control and is not responsible for such Web sites or any such content , products, services and information accessible from or provided through the Services, and You bear all risks associated with access to and use of such Web sites and third party content, products, services and information.
10.2 Any Third Party Content made accessible by BPI in or through the Services Environment is provided on an “as-is” and “as available” basis without any warranty of any kind. Third Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and You acknowledge that BPI is not responsible for and under no obligation to control, monitor or correct Third Party Content;
10.3 You acknowledge that: (i) the nature, type, quality and availability of Third Party Content may change at any time during the Services Period, and (ii) features of the Services that interoperate with third parties such as Facebook, YouTube and Twitter, etc. (each, a “Third Party Service”), depend on the continuing availability of such third parties’ respective application programming interfaces (APIs) for use with the Services. BPI may update, change or modify the Services under this Agreement as a result of a change in, or unavailability of, such Third Party Content, Third Party Services or APIs. If any third party ceases to make its Third Party Content or APIs available on reasonable terms for the Services, as determined by BPI in its sole discretion, BPI may cease providing access to the affected Third Party Content or Third Party Services without any liability to you. Any changes to Third Party Content, Third Party Services or APIs, including their availability or unavailability, during the Services Period does not affect Your obligations under this Agreement or the applicable order, and You will not be entitled to any refund, credit or other compensation due to any such changes.
10.4 Any Third Party Content that You store in Your Services Environment will count towards any storage or other allotments applicable to the Services that You ordered.
FORCEMAJEURE
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.
GOVERNING LAW AND JURISDICTION
This Agreement is governed by English law and You and BPI agree to submit to the exclusive jurisdiction of, and venue in, the courts of England in any dispute arising out of or relating to this Agreement.
11. NOTICE
11.1 Any notice required under this Agreement shall be provided to the other party in writing. If You have a dispute with BPI or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: BPI On Demand Limited, 13 Vansittart Estate, Windsor, SL4 1SE, marked for the attention of the Managing Director.
11.2 To request the termination of Services in accordance with this Agreement, You must submit a service request to BPI at the address specified in Your order or the Service Specifications.
11.3 BPI may give notices applicable to BPI’s Services customer base by means of a general notice on the BPI portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in BPI’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in BPI’s account information.
12. ASSIGNMENT
You may not assign this Agreement or give or transfer the Services (including the BPI Programs) or an interest in them to another individual or entity. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables, and if You decide to finance Your acquisition of the Services, You will follow BPI’s assigned finance partner’s policies regarding financing which will be on an individual case by case basis. The foregoing shall not be construed to limit the rights You may otherwise have with respect to Separately Licensed Third Party Technology licensed under open source or similar license terms.
13. OTHER
13.1 BPI is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance. You shall defend and indemnify BPI against liability arising under any applicable laws, ordinances or regulations related to Your termination or modification of the employment of any of Your employees in connection with any Services under this Agreement. You understand that BPI’s business partners, including any third party firms retained by You to provide consulting services or applications that interact with the Services, are independent of BPI and are not BPI’s agents. BPI is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as an BPI subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as BPI would be responsible for BPI resources under this Agreement.
13.2 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
13.3 Except for actions for non-payment or breach of BPI’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
13.4 BPI Programs and Services are not designed for or specifically intended for use in nuclear facilities or other hazardous applications. You agree that it is Your responsibility to ensure safe use of BPI Programs and Services in such applications.
13.5 You shall obtain at Your sole expense any rights and consents from third parties necessary for Your Content, Your Applications, and Third Party Content, as well as other vendor’s products provided by You that You use with the Services, including such rights and consents as necessary for BPI to perform the Services under this Agreement.
13.6 You agree to provide BPI with all information, access and full good faith cooperation reasonably necessary to enable BPI to provide the Services and You will perform the actions identified in Your order as Your responsibilities.
13.7 You remain solely responsible for Your regulatory compliance in connection with Your use of the Services. You are responsible for making BPI aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this Agreement. BPI will cooperate with your efforts to determine whether use of the standard BPI Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by BPI or changes to the Services.
13.8 BPI may audit Your use of the Services (e.g., through use of software tools) to assess whether Your use of the Services is in accordance with Your order. You agree to cooperate with BPI’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, BPI can end Your Services and/or Your order. You agree that BPI shall not be responsible for any of Your costs incurred in cooperating with the audit.
13.9 The purchase of Services, Professional Services, or other service offerings, programs or products are all separate offers and separate from any other order. You understand that you may purchase Services, Professional Services, or other service offerings, programs or products independently of any other order. Your obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.
13.10 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
14. ENTIRE AGREEMENT
14.1 You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable order, is the complete agreement for the Services ordered by You and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. Nothing in this Agreement excludes or limits BPI’s liability for deceit or fraudulent misrepresentation
14.2 It is expressly agreed that the terms of this Agreement and any BPI order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-BPI document and no terms included in any such purchase order, portal, or other non-BPI document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Data Processing shall take precedence over any inconsistent terms in an order. Except as otherwise permitted in Section 6 (Data Protection) with respect to the Services, this Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the BPI website by authorized representatives of You and of BPI as available. No third-party beneficiary relationships are created by this Agreement.
