TERMS AND CONDITIONS OF SERVICES Beezy INC
These terms and conditions of Services shall apply to all offers, legal relationships and agreements under which Beezy provides services.
Agreement: The agreement with respect to the Services between Beezy and Customer, including these Terms and Conditions and all other annexes or exhibits;
Beezy: Beezy Inc., with corporate headquarters, at 548 Market Street, San Francisco, California, USA 94104-5401.
Errors: a substantial failure to meet the functional specifications expressly agreed upon in the Agreement.
Maintenance Release: a periodic release of the Software provided by Beezy at its sole discretion, which incorporates problem resolutions and which will usually not contain functional enhancements;
Services: any and all services specified in the Agreement, including but not limited to development, installation, migration, consulting or maintenance and support services;
Software: the software of Beezy specified in the Agreement and provided to Customer pursuant to another agreement between Beezy and the Customer;
Upgrade: a new version of the Software by Beezy at its sole discretion, which may contain new features or functional changes to the Software.
2. Performance of the Services
2.1 Subject to the terms and conditions of the Agreement and in consideration of the payment of all applicable fees, Beezy will, to the best of its ability, do its utmost to perform the Services with due care and in accordance with the Agreement. The Services shall be performed on the basis of a best efforts obligation, unless and insofar as Beezy has expressly promised a result in the written Agreement and the result concerned has also been described with sufficient definiteness. Any agreements concerning a service level must always be expressly agreed in writing.
2.2 If the Services are provided in stages, Beezy shall be entitled to postpone the start of the Services which are part of a stage until Customer has approved the results of the preceding stage in writing.
2.3 In the event that employees of Beezy perform work on the premises of Customer, Customer shall provide appropriate working conditions, access to all necessary facilities including but not limited to computer and telecommunication facilities and qualified personnel as may be reasonably requested by Beezy. All facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. Customer shall notify the employees deployed by Beezy of any applicable company rules or security rules prior to the commencement of the activities. Customer shall indemnify Beezy against claims by third parties, including the Beezy’s employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by Customer or of unsafe situations in its organization.
2.4 All delivery and other terms stated in the Agreement only serve as guidelines. Beezy will use its best effort to observe the agreed delivery and other periods, however these (delivery) periods are never fatal, unless explicitly stated otherwise. Unless explicitly otherwise agreed upon in Agreement, the amount of Services and hours stated in the Agreement serve only as an estimation of the total amount of time needed for the project. Beezy will always charge the Customer for the actual Services provided.
2.5 Beezy is entitled to sub-contract any part of its obligations with respect to the Services to a third party, for example a local partner, without the prior written consent of Customer.
3. Additional work and modification of the Services
3.1 In performing the Services, Beezy shall only be obliged to follow timely, reasonable and sensible instructions of Customer if this has been expressly agreed in writing. Beezy shall not be required to follow instructions which change or supplement the substance or scope of the agreed Services. If such instructions are being followed, however, the work in question shall be compensated pursuant to article 3.2
3.2 If, at the request of or with prior consent from Customer, Beezy has performed work or rendered other performance which goes beyond the substance or scope of the Services, the Customer shall pay for that work or performance according to the Beezy’s usual rates. Expanding or modifying a system analysis, a design or specifications shall also constitute additional work. Beezy shall never be obliged to satisfy such a request, and it may require that a separate purchase order has to be concluded. Upon request, Beezy shall inform Customer in writing in advance about the financial consequences of the extra work or performance.
3.3 Customer accepts that work or performance as referred to in article 3.2 may affect the agreed or expected time of completion of the Services and the mutual responsibilities of Beezy and Customer. The fact that additional work (or the demand for it) arises during execution of the Agreement shall never be a ground for Customer to rescind or terminate the Agreement.
4.1 Beezy guarantees that all personnel engaged by it in the performance of the Services shall have the required level of skill and expertise as can reasonably be expected by Customer. Beezy may constitute or modify the team that carries out the Services in accordance with its own insights. Customer may not stipulate particular Beezy staff-members.
4.2 Beezy has the right to use third parties in the execution of the Agreement without prior consent of Customer. All personnel of third parties used in connection with the Agreement, will be considered personnel of Beezy in the context of the Agreement. Beezy will impose the terms of the Agreement to these third parties and will see to it that they will fulfill the obligation inserted herein.
5. Maintenance and Support
5.1 The maintenance and support services consist of the repair of Errors or taking such measures, including but not limited to the replacement of Software or installing temporarily solutions such as a work-around, bypass or problem preventing restrictions, that the Customer continue to use the functionality of the Software. Beezy does not guarantee that the Software will work without Errors or that Errors will be improved. Beezy will support only the current and previous release of the Software starting with the version agreed upon in writing.
5.2 After the receipt of a written notice of an Error, Beezy shall use its best effort to correct the Error or make corrections in any later Maintenance Release. Beezy will make the results available to Customer in a manner, place and at a time to be determined by Beezy. Beezy’s obligations with respect to the correction of Errors, are conditional upon the Error being reproducible. Customer therefore uses its best endeavours to provide a full description of the Error and any other such information or document which facilitates Beezy in reproducing the occurred error and solving the Software Problem. The Customer shall use best endeavours to analyse the cause of the Error.
5.3 Beezy maintenance and support obligations under the Agreement shall cease if the non-operation of the Software has been caused by any factor outside the control of Beezy, including but not limited to (i) any problems caused by reparation, modification, configuration, reinstallation or relocation of the Software not authorized and/or performed by Beezy; (ii) any problem with the functioning or the use of the external system or software or the hardware configuration, including without limitation the operating system and/or hardware upgrades; (iii) the operation or use of the Software in a way that is not accordance with the latest release of the relevant documentation; (iv) support related to third party software or hardware not supplied by Beezy; or (v) abuse, misuse or mishandling of the Software.
5.4 Change requests do not fall under the scope of the maintenance and support services.
5.5 If agreed upon in the Agreement, Customer will receive at no additional cost one copy of each Maintenance Release or Upgrade issued by Beezy during the term of the maintenance and support part of the Agreement. The Maintenance Release and Upgrade shall be delivered to Customer on the media and in the format to be decided by Beezy. Customer agrees to incorporate said Maintenance Release or Upgrade only into the installed Software provided it first passes Customer’s acceptance tests. The Maintenance Releases and Upgrade shall be considered part of the Software and, accordingly, covered by the scope of the EULA.
5.6 At all times, Customer is personally responsible for making and keeping back-ups of the configuration and the data. Reconfiguration existing sets of data or defining new sets of data is not part of the maintenance and support service, unless explicitly agreed upon in writing.
5.8 Should the Software or Product not be operable due to reasons outside the control of Beezy, Customer shall be liable to pay Beezy in accordance with then valid hourly rates. Beezy shall, however, be under no obligation to provide services when the Software is not operable due to reasons outside its control.
6. Cooperation of Customer
6.1 On request of Beezy, Customer shall furnish Beezy with all data, information, hardware, facilities, and materials that are reasonably necessary to execute the Agreement properly, provide access to the relevant software, system or other accounts and provide all other reasonable full cooperation. If Customer utilizes its own employees in cooperating in the execution of the Agreement, these employees shall possess the necessary know-how, experience, training and abilities.
6.2 If Customer does not provide Beezy with the requested data, equipment, software, materials or other cooperation necessary to execute the Agreement, or does not provide this in a timely manner or in accordance with the agreements made, or if Customer otherwise does not fulfil its obligations under the Agreement, Beezy shall be entitled to suspend execution of the Agreement in whole or in part, and it shall be entitled to charge the ensuing expenses in accordance with its usual rates, all of this without prejudice to Beezy’s right to exercise any other legal right.
6.3 If and in so far Customer provide Beezy with personal data, it guarantees that with regard to such personal data, all applicable regulations for the protection of privacy have been observed and that Beezy is entitled to process such personal data. Customer indemnifies Beezy against any third parties’ claims in this respect. Beezy will ensure that it on its own side will also strictly observe all applicable privacy regulations.
6.4 In the event that employees of Beezy perform work on the premises of Customer, Customer shall provide appropriate working conditions, access to all necessary facilities including but not limited to computer and telecommunication facilities and qualified personnel as may be reasonably requested by Beezy. All facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. The Customer shall indemnify Beezy against claims by third parties, including the Beezy’s employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by the Customer or of unsafe situations in its organization.
7. Orders, fees and payment
7.1 All fees are exclusive taxes (VAT) and other levies imposed by the government. The fees are exclusive travel or living expenses or other external costs made by Beezy in the course of carrying out the Services. These expenses and costs shall be charged separately.
7.2 Beezy is entitled to request Customer to make an advance payment. This advance payment will be set off against the actual invoice(s).
7.3 Payments are due thirty (30) days after receipt of invoice. If Customer fails to make any payment when due, Beezy may charge Customer interest in an amount of 1% per month on the unpaid balance from the due date. In addition, Beezy shall be entitled at its own discretion to withhold further deliveries to Customer. If Customer continues to be in default in its obligation to pay the outstanding invoice with accrued interest, Beezy can place the matter in the hands of a lawyer or debt-collector agency. All costs incurred by Beezy in respect of such collection, both in law (judicial costs) as well as out of law (extra judicial costs) will be borne by Customer. The extra judicial costs will be fixed at 15% of the outstanding invoice, with a minimum of $ 250 (two hundred and fifty USD).
8. Intellectual property rights
8.1 All Intellectual Property Rights with regard to the Software and/or Services, including all documentation, information and any other materials developed and provided by Beezy under the Agreement (such as analyses and designs), as well as preparatory materials in that regard shall be held solely by Beezy or its licensors. Customer shall only acquire the rights of use expressly granted in the Agreement and by law. Any other or more extensive right of Customer shall be excluded.
8.2 Customer will not be entitled to use the trademarks, brand names, logos, trade names, designs or know-how, or any other distinctive sign of Beezy, without its prior written consent.
9. Confidentiality and data protection
9.1 Parties warrant that all of the information received by them which is known to be or should be known to be confidential in nature shall remain secret and shall not be disclosed, unless a legal obligation mandates disclosure of that information. Information with a confidential nature includes, but is not limited to, information with respect to the object and source code, other technical information, errors, defects, methods and procedures necessary for the use of the Software, commercial information and the content of the Agreement. Parties shall only use the information for the purpose for which it has been provided. Information shall in any event be considered confidential if it is designated by a Party as such. The duty of confidentiality shall not apply to information which is already in the public domain at the time of disclosure.
9.2 Parties will give notice of the commitments deriving from this article to all employees that have access to any confidential information from the other Party, demanding full compliance with the obligation inserted in this Section. Parties will notify the other Party of any unauthorised use of the confidential information that it has had knowledge of by any means.
9.3 In the event that a party process personal data, it will process such data of a personal nature in a confidential manner, appropriately complying at all times with the applicable provisions concerning the protection of personal data.
10. Limitation of Liability
EXCEPT TO THE EXTENT PROHIBITED BY LAW, BEEZY AND ITS SUB-CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT IS BEEZY OR ITS SUB-CONTRACTORS LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THE USE OR PERFORMANCE OF SOFTWARE PROVIDED BY BEEZY TO CUSTOMER. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, THE ENTIRE LIABILITY OF BEEZY, ITS SUB-CONTRACTORS OR ITS AFFILIATES FOR ALL CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO THE ACTUAL DIRECT DAGAMES OF CUSTOMER AND SHALL NOT EXCEED, IN THE AGGREGATE, (A) THE AMOUNT OF FEES PAID IN THE ONE YEAR PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED; AND (B) USD 10,000.- (WHICHEVER IS THE LOWER).
11. Term and termination
11.1 The Agreement will be valid for the initial term agreed upon in the Agreement. Following the expiration of this initial term, the Agreement shall be automatically renewed for consecutive one-year periods, unless either party notifies the other in writing at least three months prior to the expiration of the initial term or then-current renewal term of its intent not to renew the Agreement.
11.1 Notwithstanding the term agreed upon in the Agreement, Beezy shall be entitled to terminate the Agreement at any time without liability to the Customer, if the Customer: (i) commits a breach of any of the terms of the Agreement (and if such breach is remediable) fails to remedy that breach within 15 (fifteen) days of the Customer being notified in writing of the breach; (ii) applies for a moratorium of payments, is declared bankrupt or otherwise ceases to meet its (financial) obligations; or (iii) suspends or discontinues its business activities.
11.3 Upon termination of the Agreement, all Services and any license granted under the Agreement shall automatically terminate. Beezy will cancel Customer’s access to the Software and/or Customer will terminate its use of the Software and destroy the Software any documentation associated with it, as soon as possible and under no circumstances any later than one (1) week after the termination of the Agreement. On request from Beezy, Customer will confirm in writing that it has complied with its obligations under this article.
11.3 The termination of the Agreement shall not relieve Customer of its obligations to pay all fees that have accrued or otherwise are owed by Customer under the Agreement. The stipulations in Section 8 – 10 survive the termination of the Agreement and will therefore remain in full force and effect.
12.1 The Agreement constitutes the full agreement between the parties with respect to the use and license of the Software and it replaces any prior agreements concerning the subject hereof. The Agreement can only be modified by means of a written agreement signed by the Parties.
12.2 Customer is not entitled to assign or otherwise transfer any rights or obligations under the Agreement, without the prior written consent of Beezy. Beezy shall be entitled to assign or otherwise transfer its rights and obligations under the Agreement without requiring the consent of Customer.
12.3 Beezy retains the right to disclose the identity of any Customer on its website or in any sales or funding efforts or processes of Beezy, however, always with due consideration to the interests of the Customer.
12.4 The Agreement will be governed and interpreted in accordance with Californian legislation. Expressly waiving their own places of venue or competence, the parties agree that all disagreements, disputes, arguments or claims related to the Agreement, will be settled before the Courts and Tribunals of the city of San Francisco.