BOXEVER TERMS OF SERVICE between Boxever Ltd. (“we” or “Boxever“) and the customer who orders Boxever services (“you” or “Purchaser“).
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreement: means these Terms of Service and the Order Form. In the event of conflict between the Terms of Service and the Order Form, the Terms of Service shall prevail.
Authorised Users: those employees, agents and independent contractors of Purchaser who are authorised by Purchaser to use the Services.
Business Day: any day which is not a Saturday, Sunday or public holiday in Ireland.
Confidential Information: means all documentation, technical information, software, business information, feedback, pricing of the Services, trade secrets or know how or other materials of a confidential nature and/or that are disclosed in confidence by either party to the other during the term of this contract.
Data Protection Legislation: to the extent applicable to the provision of any Services under this Agreement, the EU Data Protection Directive 95/46/EC, the EU Directive on Privacy and Electronic Communications 2002/58/EC, Commission decisions and guidance and all national implementing legislation, and all other applicable laws and regulations relating to data protection and privacy in any jurisdiction in which the Services are being provided or the Personal Data is being processed and any jurisdiction from which Boxever provides any of the Services.
Documentation: shall mean the documents made available to Purchaser including without limitation by Boxever online via www.boxever.com or such other web address notified by Boxever.
Effective Date: means the date appearing on the Order Form.
Force Majeure Event: means without limitation events which are unpredictable, unforeseeable, irresistible and beyond the parties’ reasonable control, such as any extremely severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, epidemic, sabotage, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, civil disturbance, sabotage, expropriation by governmental authorities or other act or any event that is outside the reasonable control of the concerned party.
Intellectual Property: shall mean intellectual property rights in or related to the Service or the Software of any nature anywhere in the world whether registered, registerable or otherwise, including patents, trade marks, registered designs and domain names, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how, feedback, and any other intellectual property rights which subsist in computer software, computer programs, websites, whether registrable or not.
Normal Business Hours: 9.00 am to 6.00 pm local Irish time, each Business Day. Order Form: the form signed by Purchaser confirming the order for the Services.
Personal Data: any and all personal data in respect of which Purchaser is a data controller and which will be processed by Boxever in the performance of its Services under this Agreement whether that data or information is in oral, visual or written form or is recorded in any other medium, where “personal data” and “data controller” have the meanings given to them by the EU Data Protection Directive 95/46/EC.
Purchaser Customers: means all customers and potential customers of Purchaser which Boxever stores on its system as part of the provision of Services.
Purchaser Data: all data and information originating from Purchaser, Purchaser’s contractors (including without limitation Third Party Channels) agents, Purchaser Customers, or Boxever on Purchaser’s behalf for the purpose of using the Services or facilitating Purchaser’s use of the Services.
Service Level Arrangements: the service levels provided by Boxever to Purchaser as described in clause 2.2.
Services: means the Software and services described in the Order Form and includes the Documentation provided under this Agreement.
Software: the online software applications provided by Boxever as part of the Services.
Third Party Channels: third party entities selected by Purchaser which are subject to Implementation Services. Such Third Party Channels shall be considered as contractors of Purchaser.
Third Party Providers: third party entities engaged by Boxever to provide services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re- arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes and e-mail.
2. BOXEVER’S OBLIGATIONS
2.1 Boxever shall, during the term, provide the Services to Purchaser on and subject to the terms of this Order Form and this Agreement and shall perform the Services with reasonable skill and care. Purchaser is granted a non-exclusive, non- transferable right and licence to use the Services and the Documentation during the term solely for Purchaser’s internal business operations. Notwithstanding the foregoing, Boxever:
2.1.1 does not warrant that Purchaser’s use of the Services will be uninterrupted or error- free; nor that the Services, Documentation and/or the information obtained by Purchaser through the Services will meet Purchaser’s requirements; and
2.1.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet,
2.1.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from causes which are attributable to Purchaser’s or its contractors and agents.
2.2 The Boxever Service Level Agreement is to provide the Services will be available 99.9 % of the time in any given monthly period, excluding scheduled maintenance. Purchaser will be entitled to a credit of 5% of the monthly fees for each 30 minutes of downtime, up to 100% of the fees for that monthly period. Purchaser is not entitled to a credit if Purchaser is in breach of this Agreement or if the downtime would not have occurred but for the breach by the Purchasers of this Agreement or Purchaser’s misuse of the Services. Should a downtime occur due to denial of service attacks, Virus, hacking attempts or any other circumstances outside the control of Boxever, the Purchaser shall not be entitled to a service credit.
2.3 Boxever reserves the right to introduce new or enhanced features and functionalities to the Services Should any enhanced feature and/or functionality be incompatible with the previously released version of the Software, then Boxever shall provide at least sixty (60) days written notice to Purchaser before it introduces any such feature or functionality.
3. PURCHASER’S OBLIGATIONS
3.1 Purchaser shall (i) provide Boxever with all necessary timely co-operation and access in relation to this Agreement including security access information and configuration services. In the event of any delays attributable to Purchaser, Boxever may adjust any agreed timetable or delivery schedule as reasonably necessary; (ii) comply with all applicable laws and regulations with respect to its activities under this Agreement including Data Protection Legislation; (iii) ensure that Services are used in accordance with the terms and conditions of this Agreement and shall be responsible for any breach by Purchaser and/or Authorised Users and hold Boxever harmless for its acts or omissions as well as those of Authorised Users and its contractors and agents; (iv) obtain and shall maintain all necessary licences, consents, and permissions necessary for Boxever, its contractors and agents to perform their obligations under this Agreement; (v) ensure that its network and systems comply with specifications provided by Boxever and will be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Boxever’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Purchaser’s network connections or telecommunications links or caused by the internet.
3.2 Purchaser undertakes that each Authorised User shall keep a secure password for his account which password shall be treated as confidential. Purchaser shall not and shall procure that its Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or injury to any person or property.
3.3 Purchaser shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; (iv) use the Services and/or Documentation to provide services to third parties; (v) modify its customer relationship managements system or any other system to include fields that are designed to capture, reflect, or contain intellectual property rights of Boxever, (vi) subject to clause 12.4, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, (vii) otherwise make the Services and/or Documentation available to any third party, or (viii) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
3.4 Boxever reserves the right, without liability to Purchaser, to disable Purchaser’s or any Authorised Users access to any material that breaches the provisions of this clause.
4. PURCHASER DATA
4.1 Purchaser shall own all rights, title and interest in and to all of Purchaser Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Purchaser Data. Purchaser hereby grants and represents and warrants that it has the right to grant Boxever (and its subcontractors) an irrevocable, perpetual, non exclusive royalty free and fully paid worldwide license to process Purchaser Data to the extent contemplated by this Agreement.
4.2 Purchaser shall have sole responsibility for obtaining specific permission from Purchaser Customers allowing Boxever to communicate with them on Purchaser’s behalf and to have information stored about them by Purchaser or Boxever on its behalf in accordance with the law applicable in the relevant State or any other body that may have jurisdiction over that State and Purchaser shall defend and hold harmless Boxever for its acts or omissions as well as those of its contractors or agents.
4.3 In the event of any loss or damage to Purchaser Data, Purchaser’s sole and exclusive remedy shall be for Boxever to use reasonable commercial endeavours to restore the lost or damaged Purchaser Data from the latest back-up of such Purchaser Data maintained by Boxever. Boxever shall not be responsible for any loss, destruction, alteration or disclosure of Purchaser Data caused by any third party.
5. FEES AND PAYMENT
5.1 Boxever will charge fees in accordance with the Order Form and Purchaser shall pay the fees in accordance with the payment terms set out in the Order Form.
5.2 If Boxever has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of Boxever, Boxever may, without liability to Purchaser, disable Purchaser’s and all Authorised Users password, account and access to all or part of the Services and Boxever shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Boxever’s bankers in Ireland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.3 All amounts and fees stated or referred to in this Agreement: (i) shall be payable in euros; (ii) are non-cancellable and non-refundable; and (iii) are exclusive of value added tax, which shall be added to Boxever’s invoice(s) at the appropriate rate.
6. INTELLECTUAL PROPERTY
6.1 Purchaser acknowledges and agrees that Boxever and/or its licensors own all Intellectual Property in the Services, Software and the Documentation. Except as expressly stated herein, this Agreement does not grant Purchaser any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation. To the extent that any modifications or improvements to the Services and/or the Documentation are carried out under or in connection with this Agreement, whether by Boxever alone or jointly with Purchaser, and whether based on ideas or suggestions from Purchaser, all intellectual property rights to such underlying ideas and in any resulting improvement or modifications shall be assigned to and shall vest with and be solely owned by Boxever.
7.1 Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information of the other Party (the “Disclosing Party”) The Receiving Party shall keep in confidence all Confidential Information and shall not use Confidential Information except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees and agents on a “need-to-know” basis, provided that such employees and agents execute a written agreement with materially the same terms and conditions as this clause 7 and the Receiving Party remains ultimately liable for any breaches thereof.
7.2 The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 7.3.
7.3 This clause 7 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
8.1 The Services provided by Boxever are provided “AS IS”, subject to the Service Level Agreement as described in clause 2.2.
8.2 Purchaser warrants that the Purchaser Data, material, content or links provided to Boxever by or on behalf of Purchaser including without limitation from Third Party Channels: (i) are owned by Purchaser or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity.
8.3 Other than with respect to the express warranties set forth herein, all implied warranties, including those of non-infringement, merchantability and fitness for a particular purpose, are hereby disclaimed and excluded by Boxever. Purchaser is solely responsible for determining the suitability of the Services for its use in light of any applicable regulations and in compliance with Data Protection Legislation.
8.4 The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Boxever is not responsible for any delays, delivery failures, or other damage resulting from such problems.
8.5 Boxever may use Third Party Providers to provide part of the Services. In the case of hosting, the Purchaser acknowledges and agrees that Amazon shall provide hosting services. Boxever makes no representation or warranty in respect of Third Party Providers software and services and Purchaser acknowledges that these are provided “AS IS” and at Purchasers sole risk and are expressly subject to clause 8.3. Furthermore, should Purchaser request non customary services from Boxever which are provided by Third Party Providers, such as services provided by Mailgun or Sendgrid, Boxever makes no representation or warranty whatsoever regarding any such non customary services, and Purchaser agrees that that Boxever will not be liable to purchaser for any loss or damage arising from the provision of such services. The Service Level Agreement will not apply to the non customary services or any other aspect of the Services that is affected by the non customary services. Purchaser acknowledges that the non customary services may not interoperate with Boxever’s other services.
8.6 Boxever and its licensors shall not be responsible or liable for (i) the use, deletion, correction, destruction, damage, loss or failure to store any data, or (ii) any unauthorised access to, or alteration of, transmissions or data, or any material, information or data sent or received, regardless of whether the data is actually received by Boxever.
8.7 Purchaser shall fully and effectually indemnify Boxever, its officers, Affiliates, employees, agents and subcontractors in respect of any and all damage, awards of damages, other awards, loss, losses, costs, expenses, fees (including the reasonable fees of professional advisors), fines and penalties to the fullest extent permissible under the laws of the place in which the indemnity is sought directly and to the extent arising out of claims by third parties, including Purchaser Customers, arising out of or in connection with the (i) use of the Services; (ii) breach of this Agreement including any warranties; and (iii) breach of applicable laws or regulations including Data Protection Legislation. Boxever will choose legal counsel to defend the claim provided these decisions must be reasonable and promptly communicated to Purchaser. Purchaser must comply with Boxever’s reasonable request for assistance and co-operation in the defence of the claim. Boxever may not settle the claim without Purchaser’s consent, although such consent must not be unreasonably withheld. Purchaser must pay the expenses incurred under this provision as they are incurred by Boxever.
9. LIMITATION OF LIABILITY
9.1 Neither party will have any liability to the other party or any Authorised Users for any lost profits, loss of data, loss of use, costs of procurement or substitute goods or services, or for any direct, indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not such party has been advised of the possibility of such.
9.2 Notwithstanding anything in this Agreement to the contrary, except for liability for death or personal injury resulting from Boxever’s negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation, Boxever’s total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty) shall not exceed the amount of the fees paid for the Services for the 12 months prior to the occurrence of the event giving rise to the claim.
10. TERM AND TERMINATION
10.1 This Agreement shall, unless otherwise terminated as provided hereunder, come into force on the Effective Date and shall continue as set out in the Order Form. This Agreement shall be automatically renewed as set out in the Order Form or as agreed by the parties.
10.2 Without prejudice to any other rights or remedies to which the parties may be entitled, this Agreement may be terminated by either party as follows: (i) on thirty (30) days written notice to the other if the other has committed an irremediable material breach of this Agreement, specifying the nature of such breach. In the case of any invoiced amount being overdue, Boxever may terminate where Purchaser fails to pay having been given 20 days written notice to pay; (ii) with immediate effect by notice in writing if the other has committed a remediable material breach or wilful and repeated non-material breaches and fails to remedy the same within thirty (30) days of receipt from the other of a notice clearly identifying the nature of the breach(es) and requiring such breach(es) to be rectified; (iii) with immediate effect by notice in writing if any Force Majeure Event prevents the performance of the whole or a substantial part of the other party’s obligations for a continuous period of thirty (30) days after the date on which it should have been performed; or (iv) with immediate effect by notice in writing if the other should become insolvent or otherwise unable to pay its debts as and when they fall due, should have appointed to it a liquidator, receiver or administrator, should enter into an arrangement with its creditors or have presented against it a petition for its winding up other than for the purposes of effecting a solvent reorganisation which it does not promptly apply to have set aside, or be ordered to be wound up or liquidated or for any other reason cease or threaten to cease trading or business.
10.3 On termination of this Agreement: (i) all licences granted under this Agreement and all right to access the Services shall immediately terminate; (ii) each party shall return and make no further use of any Documentation and other items (and all copies of them) belonging to the other party; (iii) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; (iv) Boxever may destroy or otherwise dispose of any of Purchaser’s Data in its possession unless Boxever receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Purchaser of the then most recent back-up of Purchaser Data. Boxever shall use reasonable commercial endeavours, at Purchaser’s cost, to deliver the back-up within 30 days of the request, provided that Purchaser has, at that time, is up to date with paid all fees and charges due.
11. FORCE MAJEURE
11.1 Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the party not affected may terminate this agreement by giving one calendar month written notice to the other party.
12.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
12.2 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
12.3 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
12.4 Purchaser shall not, without the prior written consent of Boxever, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Boxever may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.5 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.6 Any notice required to be given under this Agreement shall be in writing and sent to the other party by first-class registered and recorded delivery at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
12.7 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.
12.8 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Ireland. The parties irrevocably agree that the courts of Ireland have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).