DBS General Terms of Service for CUMULUS
ARTICLE 1: DEFINITIONS
1.1 "SBO" means "SAP Business One". SAP Business One is an ERP application developed by SAP AG. SAP Business One has sales, customer relationship management (CRM), purchasing, inventory, operations, financials, and human resources modules as standard.
1.2 "B1oD" means "SAP Business One on Demand". This is the hosted, on demand version of SBO.
1.3 "CUMULUS" is B1oD rebranded for marketing purposes.
1.4 "Affiliate" of a party means any legal entity in which a party, directly or indirectly, holds more than fifty per cent (50%) of the shares or voting rights or controls or is under common control with that legal entity. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise. Any such company shall be considered an Affiliate for only such time as such interest or control is maintained.
1.5 "Agreement" means these General Terms and Conditions and any Order Form in which these General Terms and Conditions are referred, and any other schedules, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.
1.6 "Business Day" shall mean Monday to Saturday, and shall exclude all public holidays in Zimbabwe;
1.7 "Confidential Information" means, with respect to Customer, the Customer Data, and with respect to DBS: (a) the Service, including, without limitation, all (i) computer software (both object and source codes) and related Service documentation or specifications; (ii) techniques, concepts, methods, processes and designs embodied in or relating to the Service; and (iii) all application program interfaces, system infrastructure, system security and system architecture design relating to the Service; (b) DBS research and development, product offerings, pricing and availability; and (c) any information about or concerning any third party which information was provided to DBS subject to an applicable confidentiality obligation to such third party. In addition to the foregoing, Confidential Information of either DBS or Customer (the party disclosing such information being the "Disclosing Party") may also include information which the Disclosing Party protects against unrestricted disclosure to others and which (i) if in tangible form, the Disclosing Party clearly identifies as confidential or proprietary at the time of disclosure; and (ii) if in intangible form (including disclosure made orally or visually), the Disclosing Party identifies as confidential or proprietary at the time of disclosure, summarizes the Confidential Information in writing and delivers such summary within thirty (30) calendar days of any such disclosure.
1.8 "Content" means visual, audio, numeric, graphical, text or other data or content supplied by third parties and made available by DBS for utilization with the Service.
1.9 "Customer" means the entity or individual that has consented to this Agreement by execution of an Order Form that references these General Terms and Conditions or by other legally binding method of acceptance of this Agreement, including, but not limited to, checking a box on a registration page.
1.10 "Customer Data" means any content, materials, data and information provided by Customer or its Named Users to DBS in the course of using the Service.
1.11 "Documentation”"means DBS' then-current technical and functional documentation for the Service which is delivered or made available to Customer with the Service.
1.12 "Named User" means Customer's and its Affiliates' employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the Service.
1.13 "Order Form" means the written order form or other ordering documentation (including a registration Webpage or Website) entered into by DBS and Customer containing the specific terms and conditions applicable to the Service and which references these General Terms and Conditions.
1.14 "DBS" means "Sparks Communications (Pvt) Ltd trading as DBS, a company duly registered under the laws of Zimbabwe and a wholly owned subsidiary of Twenty Third Century Systems (Pvt) Ltd. This is the entity identified by these General Terms and Conditions or the Order Form as providing the Service to Customer and that is a party to this Agreement. DBS is an agent of SAP.
1.15 "Service" is the provisioning of Customer access to CUMULUS by DBS as set out in the Order Form.
1.16 "Site" means a DBS established Internet site through which the Service is made available.
1.17 "System Availability" means the average percentage of total time during which the Service is available to Customer, excluding (i) any maintenance windows (as may be defined in a supplement to this Agreement); (ii) any emergency maintenance (as may be defined in a supplement to this Agreement); (iii) delays due to conditions beyond the reasonable control of DBS; (iv) delays caused by equipment provided by Customer (or its service providers); or (v) delays caused by systems outside of the Service, including, but not limited to, Customer’s network.
1.18 "Work Product" means any work product or tangible results produced by or with DBS pursuant to this Agreement, including in the course of providing support, training or configuration services to Customer. Work Product includes works created for or in cooperation with Customer, but does not include any Customer Data, Customer Confidential Information or the Service. For clarity, some services may be performed under a statement of work, which statement of work will be governed by the terms and conditions of this Agreement.
ARTICLE 2: USAGE
2.1 DBS shall make the Service available to Customer in accordance with and during the term stated in the Order Form to permit Named Users to remotely access and use the Service solely for Customer's own internal business purposes as permitted by and subject to the terms of this Agreement and the Documentation. The right to use the Service is worldwide, subject to restrictions listed on www.sap.com/company/legal/index.epx as may be updated from time to time and subject to Section 14.4, which Customer accepts.
2.2 Customer shall not sublicense, license, sell, lease, rent, outsource or otherwise make the Service available to third parties, other than Named Users who are using the Service in support of Customer's authorized use of the Service. Customer shall be responsible for the acts and omissions of its Named Users as if they were the acts and omissions of Customer. Rights of any Named User licensed to utilize the Service cannot be shared or used by more than one individual. In addition, rights accruing to a Named User may not be transferred from one individual to another unless (i) done in terms of this Agreement; and (ii) the original user no longer requires and is no longer permitted, access to the Service.
2.3 DBS or its licensors, as the case may be, own all right, title and interest in any and all copyrights, trademark rights, patent rights and other intellectual property or other rights in the Service, as well as any Work Product, and any improvements, design contributions or derivative works conceived or created by either party in or to the Service. Customer shall not remove notices and notations on the Site or in the Service that refer to copyrights, trademark rights, patent rights and other intellectual property rights. Except as otherwise agreed in writing, Customer is granted the nonexclusive right to use the Work Product in connection with its use of the Service and subject to the terms of this Agreement. Except for the limited rights expressly granted herein, this Agreement does not transfer from DBS any proprietary right or interest in the Service. All rights not expressly granted to Customer in this Agreement are reserved by DBS and its licensors.
2.4 When using the Service, Customer shall not, and shall ensure that its Named Users do not: (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Service (except as described and permitted in the Documentation); (b) transmit any content, data or information that is unlawful, harmful, threatening, malicious, abusive, harassing, delictual, defamatory, vulgar, obscene, invasive of another's privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt the SAP software or SAP systems used to host the Service, or other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service made known to Customer; (e) use the Service in the operation of a service bureau, outsourcing or time-sharing service; (f) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or other similar item (other than a “bookmark” from a Web browser), to the Site or Service, or any part thereof; (g) circumvent the user authentication or security of the Site or Service or any host, network, or account related thereto; (h) use any application programming interface to access the Service other than those made available by DBS; (i) make any use of the Service that violates any applicable local, state, national, international or foreign law or regulation; or
(j) except for rights provided to Named Users as permitted in this Agreement, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Customer for access to the Service.
2.5 Some content on the Site may come from government sources, is in the public domain, and is not subject to DBS's rights of copyright set out in clause 2.3 above.
2.6 The Site may contain links to external Web sites (including embedded widgets or other means of access) and information provided on such external websites by DBS partners and third-party service providers. DBS shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. Customer further agrees that DBS shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Customer's use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Site, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content. The Customer agrees to receive any advertisements of products and services that interest the Customer that DBS may place on the Site from time to time.
2.7 The Service may include Content. This Content is provided “as is”, and DBS makes no warranty as to the accuracy or completeness of such Content. Customer uses such Content at its own risk, and DBS shall have no liability to Customer or any third party based on Customer's use of or reliance on such Content.
2.8 SAP shall be entitled to monitor Customer's compliance with the terms of this Agreement, including but not limited the number of Named Users accessing the Service and, subject to Article 12 of this Agreement, DBS may utilize the information concerning Customer's use of the Service to improve DBS products and services and to provide Customer with reports on its use of the Service.
2.9 DBS may change or modify the Service at any time. DBS shall not materially diminish the Service during the term of the Order Form. Nothing in this Article 2.9 shall require DBS to continue to provide any portion of the Service if this would result in DBS violating the rights of any third party or any applicable law.
2.10 If Customer is granted access under this Agreement to a free (no fee) version of the Service, to the extent permitted by applicable law, Customer agrees that (i) DBS has no obligation to provide any particular service level or support services; and (ii) DBS may cease providing the Service at any time without notice. This Article 2.10 supersedes any conflicting term of this Agreement.
2.11 DBS may offer and Customer may choose to accept access to functionality that is not generally available and not validated and quality assured in accordance with SAP's standard processes ("Beta Functionality"). The purpose of such access is to allow Customer to test the functionality with its standard business operation and to provide feedback on such testing to DBS. Beta Functionality is described as such in the Documentation. SAP may require Customer to accept additional terms to use Beta Functionality. Any production use of the Beta Functionality is at Customer's sole risk. DBS does not warrant the correctness and completeness of the Beta Functionality, and DBS shall not be liable for errors or damages caused by the usage of the Beta Functionality.
ARTICLE 3: SUPPORT, SET UP AND SECURITY
3.1 DBS will provide support for the Service as described in the Order Form attached hereto.
3.2 DBS will use commercially reasonable security technologies (such as encryptison, password protection and firewall protection) in providing the Service, and Customer shall comply with the applicable DBS security guidelines and procedures made known to Customer through the Service or otherwise. Customer agrees that DBS does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and DBS does not warrant secure operation of the Service or that such security technologies will be able to prevent third party disruptions of the Service.
3.3 DBS warrants at least ninety-nine percent (99%) System Availability over any calendar month. Should DBS fail to achieve ninety-nine percent (99%) System Availability over a calendar month, Customer shall have the right to receive a credit equal to two percent (2%) of its subscription fees for the Service for that month, for each one percent (1%) (or portion thereof) by which DBS fails to achieve such level, up to one hundred percent (100%) of the fees for such month. Claims under this service level warranty must be made in good faith and by submitting a support case within ten (10) Business Days after the end of the relevant period. Faults, failures, defects and general non-performance of the Customer's internet connection and/or any other intermediate Internet Service Provider's (ISP) network in any form shall not count towards system non-availability and the Customer shall not receive any credit in this respect. DBS will make available to Customer a monthly report detailing system availability time for the month. This report will be accessible to Customer via the service portal.
ARTICLE 4: CUSTOMER RESPONSIBILITIES AND OBLIGATIONS
4.1 Subject to Article 12 below, Customer grants to DBS the non-exclusive right to use Customer Data for the sole purpose of and only to the extent necessary for DBS to provide the Service and other information deemed necessary for the Customer's business.
4.2 Customer shall be responsible for entering its Customer Data into the Service and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Customer hereby represents and warrants to DBS that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by DBS or its subcontractors to provide the Service. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations.
4.3 Customer shall change all passwords used to access the Service at regular intervals. Should Customer learn of an unauthorized third party having obtained knowledge of a password, Customer shall inform DBS thereof without undue delay and promptly change the password.
4.4 Customer is responsible for the connection to the Service, including the Internet connection. Any faults, defects, failures or non-performance of the Customer's internet connection in any form are the responsibility of the customer and will not be deemed as non-performance or failure on the part of DBS to deliver the Service and are not covered in the warranty provided by DBS.
4.5 DBS only supports the Service in those languages explicitly named in the Order Form. These are the only valid languages under which support is made available to the Customer.
ARTICLE 5: ADDITIONAL SERVICES
5.1 This Agreement does not include services other than those identified in the Order Form, the Documentation or a statement of work. Modifications of the Service or its configuration for Customer's needs are not included in the fees for the Service, but are set forth separately in the Order Form or a separate statement of work. If Customer elects to have any services provided by a third party, DBS shall have no liability for any defect or failure of the Service caused by such third-party services, and Customer shall not be entitled to any reduction in fees for the Service. DBS may deny access to the Service to any third party which DBS determines in its sole discretion poses a security risk or other risk to DBS systems, data or intellectual property.
ARTICLE 6: PRICES AND TERMS OF PAYMENT
6.1 Customer shall pay to DBS the fees for the Service provided hereunder, in the amount and schedule as set forth in the Order Form, within thirty (30) days of receipt of invoice.
6.2 The fees set forth in the Order Form will be fixed for the committed subscription term. Following the subscription term of an Order Form, the subscription shall automatically renew for subscription terms equal in length to Customer's immediately preceding subscription term (each, as applicable, a “Renewal Term”). Fees for automatic Renewal Terms will be invoiced as set forth in the Order Form. Any pricing changes, which will be fixed for the entirety of such automatic Renewal Terms, will be reflected on the initial invoice for the Renewal Term. Either party may give the other party written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the relevant subscription term.
6.3 Customer may add additional Named Users or other fee-based metrics during the term of the Order Form by executing an addendum or additional schedule to such Order Form, as applicable. The term of each addendum or schedule shall apply mutatis mutandis to the Order Form applicable at the time and all fees shall be adjusted and/or prorated accordingly. Upon renewal of the Order Form, the term for all Named Users or other fee-based metric added to the Order Form prior to renewal shall be the same as specified in the Order Form, unless the parties agree to extend the term in the addendum.
6.4 Customer is responsible for monitoring its use of the Service. Customer shall without undue delay report to DBS any actual use in excess of the number of Named Users or the amount of any fee-based metric authorized under the Order Form and any other information reasonably necessary to calculate the amount of fees payable under the Order Form. Customer agrees to execute an addendum and pay all requisite fees in accordance with the terms of this Agreement to reflect any excess. Such fees shall accrue from the date the excess use began. For the avoidance of doubt, Customer shall not be entitled to claim any reduction of the fees payable under the Order Form or reduce the Named Users or other fee-based metrics during the term of the Order Form.
6.5 Except as expressly set forth in this Agreement or the Order Form, all purchases of Named User subscriptions hereunder are non-cancellable and all fees are non-refundable. Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for alleged defects in the Service.
6.6 All fees not paid when due shall accrue interest at the lesser of 3% per annum over the base lending rate of prime lending rate as advertised by the central bank in each respective country but not to exceed the maximum rate allowed under applicable law of each respective country, and will result in suspension of Customer's ability to access the Service until payment is made.
6.7 Fees and other charges described in this Agreement do not include VAT, withholding, or any other tax ("Tax(es)") now or hereafter levied, all of which shall be for Customer's account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to DBS prior to the execution of this Agreement.
ARTICLE 7: TERM, TERMINATION AND TERMINATION SUPPORT
7.1 The term of this Agreement begins on the Effective Date set forth in the Order Form and shall continue in effect as described in the Order Form. Termination of individual Order Forms shall leave other Order Forms unaffected.
7.2 Notwithstanding the foregoing, this Agreement shall terminate (i) thirty (30) days after DBS gives Customer notice of Customer's material breach of any provision of the Agreement, including more than thirty (30) days delinquency in Customer's payment of any money due hereunder, unless Customer has cured such breach during such thirty (30) day period; or (ii) thirty (30) days after Customer gives DBS notice of DBS' material breach of any provision of the Agreement, unless DBS has cured such breach during such thirty (30) day period. In case of termination in accordance with Article 7.2 (ii), Customer shall be entitled to a pro-rata refund of prepaid fees for the applicable Service. Other than in respect of termination in accordance with Article 7.2(ii), termination will not relieve Customer from the obligation to pay any fees that remain due or unpaid.
7.3 Notwithstanding DBS' right to terminate as set forth in Article 7.2 above, in the event of (i) any material breach of this Agreement which is not cured within thirty (30) days after receipt of written notice from DBS; or (ii) a determination by DBS that continued use of the Service may result in harm to the Service (including the systems used to provide the Service) or other DBS customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another, in addition to any other remedies available at law or in equity, DBS will have the right immediately, in DBS' sole discretion, to remove any potentially offending Customer Data from the Service, deactivate Customer's user name(s) and password(s) and/or suspend access to the Service.
7.4 Upon the effective date of termination, Customer's access to the Service will be terminated. Customer shall have the ability to access its Customer Data at any time during a subscription term. Furthermore, upon reasonable request, Customer may export and retrieve its Customer Data during a subscription term, which request will be subject to technical limitations caused by factors such as (i) the size of Customer's instance of the Service; and (ii) the nature of Customer's request, e.g., the frequency and/or timing of the export and retrieval. Customer shall have the ability to export and retrieve its Customer Data within thirty (30) days after the effective date of termination. Thirty (30) days after the effective date of termination, DBS shall have no obligation to maintain or provide any Customer Data. Except when such Customer Data has been removed in accordance with Article 7.3, exported by Customer or Customer was granted a free (no fee) license to the Service, upon termination of the Agreement, DBS shall use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all data still remaining on the servers used to host the Service, including, but not limited to, Customer Data, unless and to the extent applicable laws and regulations require further retention of such data.
7.5 Articles 6 (other than 6.2), 9, 10, 11, 12 and 13 shall survive the expiration or termination of this Agreement.
ARTICLE 8: DBS WARRANTIES AND CONDITIONS
8.1 Subject to 8.2 and this 8.1, DBS warrants that the Service (excluding any third party products, content or services accessed through the Service) will substantially conform to the specifications stated in the Documentation during the term stated in the Order Form. The foregoing warranty shall not apply: (i) if the Service is not used in accordance with this Agreement and/or any Documentation; or (ii) if the non-conformity is caused by third party services, content or products or any modifications, configurations or customizations to the Service; or (iii) to free (no fee) or trial licenses of the Service.
8.2 Customer shall report any non-conformities with respect to Section 8.1 to DBS in writing without undue delay through a DBS approved support channel, submitting a detailed description of the problem and any information useful for rectification of the non-conformity.
8.3 Provided Customer complies with Section 8.2 such that existence of non-conformity is validated, DBS will, at its option: (i) repair the non-conforming Service; or (ii) return an appropriate portion of any payment made by Customer with respect to the affected portion of the applicable Service. This is Customer's sole and exclusive remedy under this warranty.
8.4 EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE 8.1, NEITHER DBS NOR ITS VENDORS MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE SERVICE, OR ANY INFORMATION TECHNOLOGY SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE UNINTERRUPTED OR ERROR FREE.
ARTICLE 9: INDEMNIFICATION BY DBS
9.1 DBS shall defend Customer and its Affiliates against claims brought against Customer by any third party alleging that Customer's use of the Service, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of a patent claim(s), copyright or trade secret rights, and DBS will pay damages finally awarded against Customer (or the amount of any settlement DBS enters into) with respect to such claims. This obligation of DBS shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service, or unlicensed activities or use of the Service in violation of this Agreement or to free (no fee) or trial licenses of the Service. This obligation of DBS also shall not apply if Customer fails to timely notify DBS in writing of any such claim, however Customer's failure to provide or delay in providing such notice shall not relieve DBS of its obligations under this Section except to the extent DBS is prejudiced by Customer's failure to provide or delay in providing such notice. DBS is permitted to fully control the defence and any settlement of any such claim as long as such settlement does not include a financial obligation on or admission of liability by Customer. In the event Customer declines DBS' proffered defence, or otherwise fails to cede full control of the defence to DBS' designated counsel, then Customer waives DBS' obligations under this Article 9.1. Customer shall reasonably cooperate in the defence of such claim and may appear, at its own expense, through counsel reasonably acceptable to DBS. DBS expressly reserves the right to cease such defence of any claim(s) in the event the Service is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party's rights. DBS may settle any claim on a basis requiring DBS to substitute for the Service alternative substantially equivalent non-infringing services. Customer shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Service that is prejudicial to DBS' rights.
9.2 In the event a Claim under Article 9.1 is made or in DBS' reasonable opinion is likely to be made, DBS may, at its sole option and expense:
(i) procure for Customer the right to continue using the Service under the terms of this Agreement; or (ii) replace or modify the Service to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably available, DBS may terminate this Agreement and refund to Customer all prepaid fees for the remainder of its term after the date of termination.
9.3 THE PROVISIONS OF THIS ARTICLE 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF DBS, SAP AND ITS LICENSORS TO CUSTOMER AND IS CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
ARTICLE 10: INDEMNIFICATION BY CUSTOMER
10.1 Customer shall defend DBS and its Affiliates against claims brought against DBS by any third party arising from or related to (i) any use of the Service in violation of any applicable law or regulation; or (ii) an allegation that the Customer Data or Customer's use of the Service in violation of this Agreement violates, infringes or misappropriates the rights of a third party. Customer will pay damages finally awarded against DBS (or the amount of any settlement Customer enters into) with respect to such claims. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its Named Users or by the conduct of a third party using Customer's access credentials. This obligation of Customer shall not apply if DBS fails to timely notify Customer in writing of any such claim, however DBS' failure to provide or delay in providing such notice shall not relieve Customer of its obligations under this Section except to the extent Customer is prejudiced by DBS' failure to provide or delay in providing such notice. Customer is permitted to fully control the defence and any settlement of any such claim as long as such settlement does not include a financial obligation on or admission of liability by DBS or otherwise obligates DBS to specific performance. In the event DBS declines Customer's proffered defence, or otherwise fails to cede full control of the defence to Customer's designated counsel, then DBS waives Customer's obligations under this Article 10. DBS shall reasonably cooperate in the defence of such claim and may appear, at its own expense, through counsel reasonably acceptable to Customer.
ARTICLE 11: LIMITATION OF LIABILITY
11.1 Subject to Article 11.3 below, under no circumstances, regardless of the nature of the claim shall either DBS (or its Affiliates or Licensors) or Customer (or its Affiliates) be liable to each other or any other person or entity, in any amount, for any of the following types of loss or damage arising under or in relation to this Agreement: loss of profits, loss of goodwill, loss of business or business opportunity, loss of revenue or anticipated savings, loss resulting from business disruption or work stoppage, loss of data, loss resulting from computer failure or malfunction, exemplary or punitive damages or for any special, incidental, consequential or indirect loss or damage howsoever arising, whether or not the other party has been advised of the possibility of such loss or damage.
11.2 Subject to Article 11.3 below, the aggregate liability of DBS (or its Affiliates or Licensors) or Customer (or its Affiliates) to each other or any other person or entity arising under or in connection with this Agreement, shall not exceed an amount of damages exceeding the fees paid for the applicable Service in the twelve (12) month period preceding the date of the incident giving rise to such liability.
11.3 Nothing in this Agreement shall exclude or limit either party's liability for (i) death or personal injury caused by negligence, (ii) breach of the obligations imposed by relevant applicable law, (iii) wilful misconduct (iv) fraud or fraudulent misrepresentation, (v) damages resulting from unauthorised use or disclosure of confidential information under Article 12 of this Agreement, (vi) DBS' right to collect unpaid fees hereunder or (vii) any other liability which cannot be excluded or limited by applicable law.
11.4 The provisions of this Agreement allocate the risks between DBS and Customer. The Service fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorized by DBS.
ARTICLE 12: CONFIDENTIALITY
12.1 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
12.2 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Disclosing Party's Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.
12.3 Customer shall not disclose the terms and conditions of this Agreement or the pricing contained herein to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Customer agrees that DBS may use Customer's name in customer listings or, at times mutually agreeable to the parties, as part of DBS' marketing efforts (including without limitation reference calls and stories, press testimonials, site visits). DBS will make reasonable efforts to avoid having the reference activities unreasonably interfere with Customer's business.
12.4 Customer may provide, or DBS may solicit, input regarding the Service, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Service or any other DBS site, service or product, or input as to whether Customer believes DBS' development direction is consistent with Customer's business and IT needs, the technology marketplace in general, and the like (collectively “Feedback”). Customer acknowledges and agrees that any information disclosed by DBS during discussions related to Feedback shall be considered DBS Confidential Information and shall be protected from disclosure in accordance with the terms of this Agreement. In order for DBS to utilize such Feedback, Customer hereby grants to DBS a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense to DBS' licensees and customers, under Customer's relevant intellectual property rights, to use, publish, and disclose such Feedback in any manner DBS chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of DBS' and its sub-licensee's products or services embodying Feedback in any manner and via any media DBS chooses, without reference to the source. DBS shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to Customer and/or Customer's representatives. Customer acknowledges that the information related to the Service disclosed by DBS under this Agreement is only intended as possible strategies, developments, and functionalities of the Service and is not intended to be binding upon DBS to any particular course of business, product strategy, and/or development.
ARTICLE 13:DATA PROTECTION
13.1 Customer has and accepts the full responsibility for all personal data under its national laws, accepting as it does, its role as the party to whom national laws in its jurisdiction regarding the processing of its personal data applies ("Controller") to the extent personal data is stored and/or processed under this Agreement, DBS will adhere to Customer's instructions as the entity that shall process such information on behalf of Customer. Customer's instructions exceeding the scope of services offered by DBS will be at Customer's expense and subject to technical and organizational feasibility by DBS. DBS and Customer will implement all technical and organizational measures necessary to meet the requirements of applicable data protection laws to protect personal data against misuse.
13.2 To the extent that personal data of Customer are being processed, DBS shall obligate its personnel entrusted with the processing of Customer's data to data protection and data secrecy in accordance with applicable law.
13.3 DBS is authorized to engage subcontractors for the processing of personal data to the extent necessary for fulfilling its contractual obligations under this Agreement. DBS shall obligate its subcontractors to obey all relevant data protection rules. In case that such subcontractor is located outside Zimbabwe, DBS shall provide for a level of data protection deemed adequate under Zimbabwean data protection regulations.
13.4 Customer ensures that no legal requirements of Customer prevent DBS from fulfilling its contractual obligations under this Agreement in compliance with applicable law. This includes, but is not limited to, ensuring that all concerned individuals have previously declared consent to a possible processing of personal data.
ARTICLE 14: MISCELLANEOUS
14.1 It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
14.2 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
14.3 The Order Form may be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order Form. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) shall be deemed original signatures.
14.4 The Service, Documentation and other DBS materials are subject to the export control laws of various countries, including without limitation the laws of Zimbabwe. Customer agrees that it will not submit the Service, Documentation or other DBS materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of DBS, and will not export the Service, Documentation and DBS materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service, Documentation or other DBS materials by Customer and its Named Users.
14.5 This Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed under the laws of Zimbabwe without reference to its conflicts of law principles, and the parties hereby agree to submit all disputes arising hereunder to the exclusive jurisdiction of the Zimbabwean Courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Customer must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when Customer knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
14.6 All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of DBS or Customer at the address first set forth in any Order Form. Where in this Article 14.6 or elsewhere in this Agreement, a written form is required, except for notification of any notice of termination or notice of a material breach, that requirement can be met by facsimile transmission, exchange of letters or other written form, including email.
14.7 Dates and timelines shall be non-binding and time will not be of the essence unless expressly agreed by the parties. Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
14.8 This Agreement constitutes the complete and exclusive statement of the agreement between DBS and Customer, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to DBS. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap or browsewrap end user agreement included in the Service (except for end user agreements governing third party products or services).
14.9 Customer may not, without DBS' prior written consent, assign, delegate, pledge or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or any DBS materials or DBS Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. DBS may assign this Agreement to any of its Affiliates. DBS may in its sole discretion sub-contract parts of the Service to third-parties.
14.10 The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the Order Form; (ii) the schedules, exhibits and appendices included with or referenced by the Order Form; (iii) and these General Terms and Conditions.
14.11 Customer understands and agrees that the Service may include communications such as service announcements and administrative messages from DBS or DBS' partners. Customer will not be able to opt out of receiving these service announcements and administrative messages while using the Site and/or the Service unless Customer sends DBS a specific written notice requesting the that Customer's details be eliminated from the Site and any mailing list.
14.12 Further, subject to any indispensable legal written form requirements, wherever the Agreement stipulates a written form requirement such written form requirement can be fulfilled by making use of a respective electronic process made available by DBS ("Electronic Process"). In particular, for execution of the Order Form, SAP – in its sole discretion – may make contract documents available electronically and ask Customer to submit an electronic offer by fulfilling the steps required in accordance with the Electronic Process.
14.13 Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall create or confer (whether express or by implication) any rights or other benefits or otherwise in favour of any person not a party hereto.