Terms & Conditions

BPI On Demand CLOUD SERVICES AGREEMENT

This BPI On Demand Cloud 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.

  1. 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 Cloud 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 of Cloud Services 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.  Cloud Services” means, collectively, the BPI cloud services (e.g., BPI Managed Service and software as a service offerings and related BPI Applications of the third party vendor) listed in Your order and defined in the Service Specifications. The term “Cloud Services” does not include Professional Services.

1.4.  Data Center Region” refers to the geographic region in which the Services Environment is physically located. The Data Center Region applicable to the Cloud Services is set forth in Your order.

1.5.  BPI Programs” refers to the software products owned or licensed by BPI to which BPI grants You access as part of the Cloud Services, including Program Documentation, and any program updates provided as part of the Cloud Services. The term “BPI Programs” does not include Separately Licensed Third Party Technology.

1.6.  Professional Services” means, collectively, the consulting, Managed Services and other professional Services which You have ordered. Professional Services include any deliverables described in your order and delivered by BPI to You under the order. The term “Professional Services” does not include Cloud Services.

 

 

1.7.  Separate Terms” refers to separate license terms that are specified in the Program Documentation, Service Specifications, readme

1.8.  Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement.

1.9.  Services” means, collectively, both the Cloud Services and Professional Services that You have ordered.

1.10.  Services Environment” refers to the combination of hardware and software components owned, licensed or managed by BPI to which BPI grants You and Your Users access as part of the Cloud Services which You have ordered. As applicable and subject to the terms of this Agreement and Your order, BPI Programs, Third Party Content, Your Content and Your Applications may be hosted in the Services Environment.

1.11.  Service Specifications” means the descriptions on the specifically named vendor websites or such other address specified by BPI, that are applicable to the Services under Your order, including any Program Documentation, BPI Cloud Hosting and Delivery Policies (e.g., support and security policies), and other descriptions referenced or incorporated in such descriptions.

1.12.  Services Period” refers to the period of time for which You ordered Cloud Services as specified in Your order.

1.13.  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 Cloud 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

1.14.  Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Cloud Services in accordance with this Agreement and Your order.

1.15.  You” and “Your” refers to the individual or entity that has executed this Agreement.

1.16.  Your Applications” means all software programs, including any source code for such programs, that You or Your Users provide and load onto, or create using, any BPI partner/ vendor “platform-as-a-service” or “infrastructure- as-a-service” Cloud Services. Services under this Agreement, including BPI Programs and Services Environments, BPI intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Your Applications.”

1.17.  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 Cloud Services described in Section 11.2 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.

  1. 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 Cloud 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.

  1. RIGHTS GRANTED

3.1 For the duration of the Services Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your order, You have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Services that You ordered, including anything developed by BPI and delivered to You as part of the Services, solely for Your internal business operations and subject to the terms of this Agreement and Your order, including the Service Specifications. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the order.

3.2 You do not acquire under this Agreement any right or license to use the Services, including the BPI Named Vendor Partner Programs and Services Environment, in excess of the scope and/or duration of the Services stated in Your order. Upon the end of the Services ordered, Your right to access and use the Services will terminate.

3.3 To enable BPI to provide You and Your Users with the Services, You grant BPI the right to use, process and transmit, in accordance with this Agreement and Your order, Your Content and Your Applications for the duration of the Services Period plus any additional post-termination period during which BPI provides You with access to retrieve an export file of You Content and Your Applications. If Your Applications include third party programs, You acknowledge that BPI may allow providers of those third party programs to access the Services Environment, including Your Content and Your Applications, as required for the interoperation of such third party programs with the Services. BPI will not be responsible for any use, disclosure, modification or deletion of Your Content or Your Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services.

3.4 Except as otherwise expressly set forth in Your order for certain Cloud Services offerings (e.g., a private cloud hosted at Your facility), you acknowledge that BPI has no delivery obligation for BPI Programs and will not ship copies of such programs to You as part of the Services.

3.5 The Services may contain or require the use of Separately Licensed Third Party Technology. You are responsible for complying with the Separate Terms specified by BPI that govern your use of Separately Licensed Third Party Technology. BPI may provide certain notices to You in the Service Specifications, Program Documentation, readme or notice files in connection with such Separately Licensed Third Party Technology. The third party owner, author or provider of such Separately Licensed Third Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third Party Technology.

3.6 As part of certain Cloud Services offerings, BPI may provide You with access to Third Party Content within the Services Environment. The type and scope of any Third Party Content is defined in the Service Specifications applicable to Your order. The third party owner, author or provider of such Third Party Content retains all ownership and intellectual property rights in and to that content, and Your rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.

  1. OWNERSHIP AND RESTRICTIONS

4.1 You retain all ownership and intellectual property rights in and to Your Content and Your Applications. BPI or its licensors retain all ownership and intellectual property rights to the Services, including BPI Partner/ Vendor Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of BPI under this Agreement.

4.2 You may not, or cause or permit others to:

  1. a)  remove or modify any program markings or any notice of BPI’s or its licensors’ proprietary rights;
  2. b)  make the programs or materials resulting from the Services (excluding Your Content and Your Applications) available in any manner to any third party for use in the third party’s business operations (unless such 
access is expressly permitted for the specific Services You haveacquired);
  3. c)  modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the 
foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs) unless required to be permitted by law for interoperability, or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to BPI;
  4. d)  perform or disclose any benchmark or performance tests of the Services, including the BPI Partner/ Vendor Programs, without BPI’s prior written consent;
  5. e)  perform or disclose any of the following security testing of the Services Environment or associated infrastructure without BPI’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
  6. f)  license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, BPI Programs, Ancillary Programs, Services Environments or materials available, to any third party, other than as expressly permitted under the terms of the applicable order.

4.3 The rights granted to You under this Agreement are also conditioned on the following:

  1. a)  except as expressly provided herein or in Your order, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
  2. b)  You make every reasonable effort to prevent unauthorized third parties from accessing the Services.
  3. SERVICE SPECIFICATIONS

5.1 The Services are subject to and governed by Service Specifications applicable to Your order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the BPI Partner/ Vendor Programs, as well as any Services deliverables. You acknowledge that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees. If the Services permit You to exceed the ordered quantity (e.g., soft limits on counts for Users, sessions, storage, etc.), then You are responsible for promptly purchasing additional quantity to account for Your excess usage. For any month that You do not promptly purchase such additional quantity, BPI may require You to pay, in addition to the fees for the additional quantity, an excess usage fee for those Services equivalent to 10% of the total fees for the month in which such excess usage occurred.

5.2 BPI and or it’s Partner/ Vendor(s) may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at BPI’s discretion; however, BPI changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to You for the duration of the Services Period.

5.3 Your order will specify the Data Center Region in which Your Services Environment will reside either with the vendor or hosting as provided by BPI’s nominated partners. As described in the Service Specifications and to the extent applicable to the Cloud Services that You have ordered, BPI will provide production, test, and backup environments in the Data Center Region stated in Your order. BPI and its affiliates may perform certain aspects of Cloud Services, such as service administration and support, as well as other Services (including Professional Services and disaster recovery), from locations and/or through use of subcontractors, worldwide.

  1. USE OF THE SERVICES

6.1 You are responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with BPI, You accept responsibility for the timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. BPI is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services, and agree to notify BPI immediately of any unauthorized use.

6.2 You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content, Your Applications and Third Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chainletters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to BPI under this Agreement, BPI reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. BPI shall have no liability to You in the event that BPI takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content and Your Applications. You agree to defend and indemnify BPI against any claim arising out of a violation of Your obligations under this section.

6.3 You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, including for the BPI Partner/ Vendor Programs, as such Patches are generally released by BPI as described in the Service Specifications. Except for emergency or security related maintenance activities, BPI Partner/ Vendor will coordinate with You the scheduling of application of Patches, where possible, based on BPI’s or their nominated Partner/ Vendor next available standard maintenance window.

  1. TRIAL USE AND PILOT CLOUD SERVICES

7.1 BPI may make available certain Cloud Services for trial, non-production purposes. Cloud Services for trial purposes must be ordered under a separate Agreement. Cloud Services acquired for trial purposes are provided on an “as is” and “as available” basis and may not be used with production data that has not been masked, anonymized or otherwise rendered unreadable. BPI does not provide technical or other support or offer any warranties for such Services.

7.2 BPI may make available “conference room pilots” for certain Cloud Services under this Agreement. Conference room pilots ordered by You are described in the Service Specifications applicable to Your order and are provided solely for You to evaluate and test the Cloud Services for Your internal business purposes. Conference room pilots are provided by BPI on an “as is” and “as available” basis, and BPI does not provide technical or other support or offer any warranties for such Services. You agree not to include any production data in Your conference room Services Environment. You may be required to order certain Professional Services as a prerequisite to an order for a conference room pilot.

7.3 BPI may make available “production pilots” for certain Cloud Services under this Agreement. Production pilots ordered by You are described in the Service Specifications applicable to Your order, and are provided solely for You to evaluate and test Cloud Services for Your internal business purposes. You may be required to order certain Professional Services as a prerequisite to an order for a production pilot.

  1. FEES AND TAXES

8.1 All fees payable to BPI are due within 30 days from the invoice date. Once placed, Your order is non-cancellable and the sums paid non-refundable, except as provided in this Agreement or Your order. You will pay any sales, value-added or other similar taxes imposed by applicable law that BPI must pay based on the Services You ordered, except for taxes based on BPI’s income. Also, You will reimburse BPI for reasonable expenses related to providing any Professional Services. Fees for Services listed in an order are exclusive of taxes and expenses.

8.2 You understand that You may receive multiple invoices for the Services You ordered. Invoices will be submitted to You pursuant to BPI’s Invoicing Standards Policy, which may be accessed at http://BPI.com/contracts.

8.3 You agree and acknowledge that You have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in Your order; however, the preceding does not relieve BPI of its obligation during the Services Period to deliver Services that You have ordered per the terms of this Agreement.

  1. SERVICES PERIOD; END OF SERVICES

9.1 ServicesprovidedunderthisAgreementshallbeprovidedfortheServicesPerioddefinedinYourorder, unless earlier suspended or terminated in accordance with this Agreement or the order. The Cloud Services that are ordered will Auto Renew for additional Services Periods unless (i) You provide BPI with written notice no later than thirty (30) days prior to the end of the applicable Services Period of your intention not to renew such Cloud Services, or (ii) BPI provides You with written notice no later than ninety (90) days prior to the end of the applicable Services Period of its intention not to renew such Cloud Services.

9.2 Upon the end of the Services, You no longer have rights to access or use the Services, including the associated BPI Programs and Services Environments; however, at Your request, and for a period of up to 60 days after the end of the applicable Services, BPI will make available to You Your Content and Your Applications as existing in the Services Environment on the date of termination. At the end of such 60 day period, and except as may be required by law, BPI will delete or otherwise render inaccessible any of Your Content and Your Applications that remain in the Services Environment. .

9.3 BPI may temporarily suspend Your password, account, and access to or use of the Services if You or Your Users violate any provision within the ‘Rights Granted’, ‘Ownership and Restrictions’, ‘Fees and Taxes’, ‘Use of the Services’, or ‘Export’ sections of this Agreement, or if in BPI’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. BPI will provide advance notice to You of any such suspension in BPI’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. BPI will use reasonable efforts to re-establish the affected Services promptly after BPI determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, BPI will make available to You Your Content and Your Applications as existing in the Services Environment on the date of suspension. BPI may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after BPI’s initial notice thereof. Any suspension or termination by BPI under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.

9.4 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.

9.5 If You have used an BPI Financing Division contract to pay for the fees due under an order and You are in default under that contract, You may not use the Services that are subject to suchcontract.

9.6 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.

  1. NON DISCLOSURE

10.1 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.

10.2 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.

10.3 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 11 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.

  1. DATA PROTECTION

11.1 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.

11.2 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 Cloud 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.

11.3 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.

  1. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

12.1 BPI warrants that it will perform (i) Cloud 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).

12.2 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.

12.3 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.

12.4 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.

  1. 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.

  1. INDEMNIFICATION

14.1 Subject to the terms of this Section 14 (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.

14.2 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.

14.3 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.

14.4 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 Cloud Services and that is used: (a) in unmodified form; (b) as part of or as required to use the Cloud Services; and (c) in accordance with the usage grant for the relevant Cloud 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.

14.5 This Section 14 provides the parties’ exclusive remedy for any infringement claims or damages.

  1. THIRD PARTY WEBSITES, CONTENT, PRODUCTS AND SERVICES

15.1 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.

15.2 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; however, BPI reserves the right to take remedial action if any such content violates applicable restrictions under Section 6.2 of this Agreement, including the removal of, or disablement of access to, such content.

15.3 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.

15.4 Any Third Party Content that You store in Your Services Environment will count towards any storage or other allotments applicable to the Cloud Services that You ordered.

  1. SERVICESTOOLS AND ANCILLARY PROGRAMS

16.1 BPI may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Your BPI service requests. The Tools will not collect or store any of Your Content or Your Applications residing in the Services Environment, except as necessary to provide the Services or troubleshoot service requests or other problems in the Services. Information collected by the Tools (excluding Your Content and Your Applications) may also be used to assist in managing BPI’s product and service portfolio, to help BPI address deficiencies in its product and service offerings, and for license and Services management.

16.2 As part of the Cloud Services, BPI may provide You with on-line access to download certain Ancillary Programs for use with the Services. If BPI does not specify Separate Terms for such Ancillary Programs, You shall have a non-transferable, non-exclusive, non-assignable, limited right to use such Ancillary Programs solely to facilitate Your access to, operation of, and/or use of the Services Environment, subject to the terms of this Agreement and Your order. Your right to use such Ancillary Programs will terminate upon the earlier of BPI’s notice (which may be through posting on https://bpiondemand.custhelp.com or such other URL designated by BPI), the end of the Cloud Services associated with the Ancillary Programs, or the date on which the license to use the Ancillary Programs ends under the Separate Terms specified for suchprograms.

  1. SERVICE ANALYSES

BPI may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). BPI may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute Personal Data. BPI retains all intellectual property rights in Service Analyses.

  1. 18. EXPORT

Export laws and regulations of the United Kingdom and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

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.

NOTICE

21.1 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.

21.2 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.

21.3 BPI may give notices applicable to BPI’s Cloud Services customer base by means of a general notice on the BPI portal for the Cloud 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.

  1. 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.

  1. OTHER

23.1 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 Cloud 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.

23.2 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.

23.3 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.

23.4 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.

23.5 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.

23.6 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.

23.7 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.

23.8 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.

23.9 The purchase of Cloud 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 Cloud 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.

23.10 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.

  1. ENTIRE AGREEMENT

24.1 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

24.2 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 5 (Service Specifications) and Section 11 (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.