These General Terms of Service are part of the CMD Terms and Conditions entered by and between Cloud Managed Data (“CMD”), a public limited company incorporated under the laws of Luxemburg, and you, hereinafter referred to as “Client” and is made effective as of the date of your use of the Service.
BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING OR USING THE OFFERING, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE CMD TERMS AND CONDITIONS ANY ADDITIONAL POLICIES AND FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE OFFERING.
The terms “we”, “us” or “our” shall refer to CMD. The terms “you”, “your” or “Client” shall refer to any individual or entity who accepts the CMD Terms and Conditions, has access to your account or uses the Offering. Nothing in the CMD Terms and Conditions shall be deemed to confer any third-party rights or benefits.
CMD may, in its sole and absolute discretion, change or modify these General Terms of Service, at any time, and such changes or modifications shall be effective immediately upon posting to the Web Site. Your use of the Offering after such changes or modifications have been made shall constitute your acceptance of the General Terms of Service as last revised. If you do not agree to be bound by this General Terms of Service as last revised, do not use (or continue to use) the Offering.
Capitalized words and expressions in these General Terms of Service shall have the meanings as defined herein:
In the event of any inconsistency between the provisions therein, the following shall prevail from most to least controlling:
- the Provider Terms;
- the CMD Solution Terms;
- the Cloud Provider Agreement;
- these General Terms of Service;
- any other terms made available by any means to the Client.
CMD Solution Terms means the rules, terms and conditions of use of a particular CMD Solution and and/or CMD Service as amended from time to time and as made available by CMD via the Web Site or any other mean and accepted by the Client as a condition precedent before using the CMD Solutions and/or the CMD Service.
CMD Solutions means the Control Panel and/or more generally speaking IT solutions such as software applications, hardware, physical component of computers, video telecommunication devices or IT devices that may be ordered by the Client to CMD using a purchase order or as otherwise agreed.
CMD Infrastructure or the Infrastructure means the whole CMD technical infrastructure used to provide the CMD Solutions and on which amongst other, the Control Panel, the CMD Solutions, the Web Site and CMD Services are made available and/or hosted and/or managed.
CMD Service means professional services, such as IT consultancy services, migration services, software management services, trainings, support services provided by CMD to Client notably to acces and use the CMD Solutions.
Control Panel means any online interface made available by CMD to the Client using the domain name www.mylogin.lu through which (a) CMD Solutions may be managed and used using dedicated Credentials; (b) the Client and/or CMD and/or Providers may monitor the status of the orders, and (c) incidents can be reported and status of reported incidents can be accessed.
Credentials mean the Client’s authentication information on the Control Panel and are the user name and the password that shall enable the Client and/or any of the Client Staff to identify themselves and to carry out various operations required to access, operate and/or manage the CMD Solutions.
Credentials Owners or Credential Owner any person authorized to access ond/or to use:
- the CMD Services and/or
- the CMD Solutions ordered by the Client and/or
- the Client Account and/or
- the Control Panel.
Customized Order means an order placed by the Client that requires CMD’s specific intervention and acceptance to meet the order specifications.
Fees means the fees due by the Client to CMD in consideration for the order and use by the Client of an Offering ordered under this Cloud Provider Agreement. They include any one-time fees due by Client to CMD for CMD Service and CMD solutions including, but not limited to security deposits, setup fees, the renewal fees, upgrade fees, overuse fees or any special fees for which Client becomes responsible by submitting an order. Fees may be adapted from time to time.
General Terms of Service means these General Terms of Service as provided to the Client and available on the Web Site, as may be modified from time to time.
Intellectual Property means all patents, rights to inventions, utility models, copyright and neighbouring rights (including moral rights), trade marks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill, rights in clientele, trade name, company name and reputation, right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential and/or proprietary information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Loss or Damage means any direct, indirect, special, incidental or consequential losses, damages, liabilities, claims, costs and/or expenses of any kind whatsoever, including loss profits, loss of revenue, loss of chance, costs incurred to limit any of the foregoing, and reasonable legal fees and expenses.
Payment means definitive receipt of the sums due by the Client to CMD.
Provider means any software vendor and any third party contractor of CMD with whom CMD may contract with for the provision of the Offering in whole or in part from time to time at CMD’s sole discretion.
Recurring Fee means any recurring fees due by Customer for the provision of the CMD Solutions.
Offering or Offering means both the CMD Services and CMD Solutions.
Service Order means CMD Solutions order and/or a CMD Service placed by the Client to CMD in compliance with the requirements of CMD. A Service Order may result in additional Fees to be paid by the Client to CMD in accordance with the Fees list available on CMD’s web site or as otherwise agreed.
Staff means a Party’s employees, directors and officers as well as any affiliates, agents, sub-contractors, clients, advisors or consultants. CMD’s Staff comprises in addition the Providers and Providers’ Staff.
Web Site means CMD’s web site accessible at the URL www.cmd.solutions or any URL indicated by CMD from time to time through which Provider Terms, CMD Solution Terms, General Terms of Service can be viewed.
Working day means means a day (other than a Saturday or Sunday or a public holiday) on which banks are generally open in Luxembourg for normal business.
References to “writing” or “in writing” includes any method of reproducing words or text in a legible and non-transitory form and, for the avoidance of doubt, shall include e-mail.
Applicable to every service, product or software made available by CMD.
These general terms of service (the “General Terms of Service”) set forth the conditions under which CMD provides and delivers CMD Service and CMD Solutions (the “Offering”) to Client, and specifies the Parties’ respective rights and obligations stemming from their contractual relationship.
2.1 First Access Credential
The Client will receive First Access Credentials that enable the Credentials Owners to identify themselves to the Control Panel and to carry out various operations, such as using the CMD Solutions and placing support tickets.
The Credentials Owners shall change the first access Credentials after the first log-on.
2.2 Credential management
Client shall bear sole responsibility for the management and preservation of the Credentials.
CMD shall not be held liable for any Loss or Damage arising out of the fraudulent use of the Credentials.
The Client is fully responsible for the creation, distribution, security (including enabling of access) and use by the Credential Owners of the Credentials. In particular, the Client is liable for ensuring that the Credentials:
- remain strictly confidential to the relevant Credential Owner; and
- will not be disclosed to any third party.
Credentials must be kept, changed and used in accordance with the provisions of the Agreement.
The Client is liable for ensuring that the Credentials Owners:
- use passwords with a length of at least seven characters;
- use passwords that contain both letters and numbers (alphanumeric characters);
- are informed of, and follow, the rules and security recommendations included in the relevant CMD Solution Terms.
The Client may not sell, transfer or sublicense or authorize the creation of Credentials Owner (other than public use of any key that CMD expressly permits to the Client to use publicly) to any other party.
The Client is solely responsible, and CMD has no liability, for any activities that occur by use of the Credentials, regardless of whether such activities are undertaken by the Client or the Client Staff or any other third party.
2.3 Credential Suspension
CMD or CMD’s Staff, acting individually or jointly, in their sole discretion, may suspend any Credentials and/or access rights of the Client or a Credential Owner if they have reasons to believe that (i) the Client or a Credential Owner has or will not comply with their contractual obligations, (ii) the Client or a Credential Owner represents a threat for the security of the Offering, the Infrastructure or a third party’s infrastructure or data, or that (iii) the relevant Credentials have been compromised. In this case, CMD shall use all reasonable efforts to inform the Client within a reasonable time. CMD and CMD’s Staff will not be liable for any Loss or Damage arising out of or relating to the suspension of any Credentials and/or access rights pursuant to this Article 2.3.
2.4 Compromised Credentials
If the Client or a Credential Owner believes that any, several or all of the Credentials have been compromised, lost or stolen, the latter should repudiate said Credentials immediately by informing CMD and CMD’s Staff through the Control Panel. CMD and CMD’s Staff will then take as soon as reasonably possible the necessary steps to ensure that any access by means of the repudiated Credentials is blocked as soon as reasonably possible and will notify the Client thereof via any mean. The repudiation will be effective (and the concerned Credentials will be deemed to have been repudiated) as of the time when this notification is made available to the Client. New Credentials will be provided in a reasonable time to the concerned Credential Owner, subject to an administrative fee. Neither CMD nor CMD’s Staff shall be liable for any Loss or Damages arising from or relating to the unavailability of the Offering during any period of blocked access. CMD will not be liable for any Loss or Damage arising from or relating to the use of the repudiated Credentials prior to the effective repudiation.
The Client shall be solely liable for any action on the Client Account made with unrepudiated Credentials. CMD will not be liable for any account disputes that may arise between various Credential Owners, nor for any changes made to any account or any information pertaining to that account by any Credential Owner or third party using Credentials.
3.1 Order placement
Orders shall be placed by the Client to CMD by submitting a purchase order and/or by any mean described in the relevant service description and/or by any mean deemed reasonable by the parties.
By submitting an order, Client implicitly accepts without reservation the legal, administrative and technical rules and regulations that are applicable to the CMD Solution and/or CMD Service ordered by Client, as these may be modified from time to time.
Notwithstanding the foregoing, if Client receives and uses the CMD Solution and/or CMD Service without a duly executed order, Client nevertheless shall be deemed to have accepted, and therefore will be bound by the Terms and Conditions.
3.2 Order acceptance
Any placed Service Order shall upon its receipt by CMD be an irrevocable order in accordance with the specifications stated therein. CMD shall within one (1) Working day from receipt of a Service Order accept such order by sending to the Client an order confirmation or in exceptional cases refuse such Service Order.
CMD reserves the right to charge the client with upfront security deposits prior to giving access to the CMD Solutions. Invoiced security deposits are considered as Fees subjected to the entire terms of the CMD Terms and Conditions.
A Customized Order placed by the Client may be withdrawn by the Client at any time prior to its acceptance by CMD. Upon receipt of a Customized Order, CMD shall review such order and within five (5) Working days of receipt of the Customized Order send, in its sole discretion and without the need to specify any reason, either a preliminary or conditional confirmation receipt or a refusal notice to the Client.
CMD can decide in its sole discretion not to accept Orders until all Client’s obligations have been met and shall inform the Client accordingly. For example without limitation, CMD can refuse or delay the execution of any Order if any outstanding Fees due have not been paid by the Client. In cases where CMD delays or refuses any Order, it shall have no obligation to specify, explain or justify such decision, nor be liable to the Client for any Loss or Damage relating to or arising therefrom.
3.3 Service Start Date
Where applicable, CMD may provide Client with an estimated installation date and lead-time. Unless expressly agreed by the Parties and confirmed in writing by CMD, both the installation date and lead-time shall be estimates only. Under no circumstances shall CMD be responsible or liable for any delay in, or modification of the installation date and lead-time. CMD shall immediately notify Client when the Services are available for Client’s use (the “Service Start Date”).
3.4 Order cancelation
If Client cancels an order prior to the Service Start Date, Client shall pay a cancellation fee amounting to one (1) Monthly Fee, plus any applicable service ordering and installation fees. Client will not in any event be entitled to cancel or vary an order after having started to use the relevant Service.
4. Prohibited use
4.1 Network Distributed Denial-of-Service (DDoS)
Clients may not utilize the CMD Solutions and/or CMD Services to cause denial of service or similar attacks against CMD, the Infrastructure, the Providers or third parties’ infrastructure or to otherwise degrade or impair the operation thereof.
Any account that is the initiator or target of a denial of service or similar attack and that adversely affects the Infrastructure or a Provider’s or third party’s infrastructure, will be, at the discretion of CMD, suspended or terminated without warning. The Client and/or relevant Credential Owner will be held responsible for any Loss or Damage that may arise from or relate to such action without prejudice to any further legal proceedings.
Any violation of the CMD Terms and Conditions may result in responsive action by CMD, including assessment of additional charges, disconnection or discontinuance of the CMD Solutions and/or CMD Services, without prejudice to any further legal proceedings, which actions may be taken in CMD’s sole and absolute discretion. In such event, Client shall not be entitled to a refund of any fees paid prior to such action.
CMD will not monitor the data and content that is connected, submitted to, stored on, distributed or disseminated by Client or Credential Owner via the Offering (the “Client Content”). Clients may not utilize the Offering for any activity or content related to gambling, obscene materials or content, harassment, defamation, libel and hate speech or other offensive speech or content, or generally for any unlawful purpose under CMD’s, Client’s law or any applicable law, including without limitation, fraud, money laundering, child pornography, terrorist-related activities, trafficking in illegal drugs, racism or any products or services that are prohibited under any applicable law, or activities in violation of applicable export or import laws.
Client may not use the Offering to infringe any Intellectual Property right of any third party.
CMD has no liability or responsibility for the actions of any Client or Credential Owner, nor on any Client Content nor User Content.
Clients may not, directly or indirectly, or assist third parties to:
- Utilize the Offering to distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt services, destroy or damage data, destroy or damage equipment, or disrupt the operation of the Infrastructure, the CMD Solutions or any third party network, infrastructure, equipment, software, configuration or data; or
- Utilize the Offering to conduct port scans or other invasive procedures against the Infrastructure or any third party equipment or infrastructure (except where Client is an authorized system administrator thereof).
Clients may not, directly or indirectly, or assist third parties to:
- Utilize the CMD Solutions and/or CMD Services to gain unauthorized access to the Infrastructure or any third party’s network, infrastructure, equipment, software, configuration or data; or
- Provide Credentials to third parties not authorized to receive access to the Infrastructure and/or the CMD Solutions; or
- Utilize the CMD Solutions and/or CMD Services to (a) forge the signature or other identifying mark or code of any third party, (b) impersonate or assume the identity of any third party, or (c) engage in any other activity (including “spoofing”) to attempt to deceive or mislead any third party regarding the true identity of Client (excluding the use of anonymous re-mailers or Internet nicknames); or
- Resell or allow access to or use of any of the CMD Solutions except as and only to the extent permitted in writing by CMD under the Cloud Provider Agreement or otherwise. Clients may not store files or other data in the name or on behalf of third parties on the Infrastructure, except as and only to the extent permitted in writing by CMD under the Cloud Provider Agreement or otherwise; or
- Utilize the CMD Solutions and/or CMD Services to subvert the security or integrity of the Infrastructure or any third party’s network, infrastructure, equipment, software, configuration or data; or
- Attempt to attack, disrupt, or abuse the support- and contact-related mechanisms of CMD, including, but not limited to, telephone lines, e-mail addresses, fax lines, bulletin boards or contact/signup forms; or
- Utilize the CMD Solutions and/or CMD Services in any other manner to interrupt or interfere with the Internet usage of any other person, including without limitation other partners and third parties.
Client may not, directly or indirectly, or assist third parties to utilize the CMD Solutions and/or CMD Services:
- To send unsolicited bulk and/or commercial messages over the Internet (known as “Spam” or “Spamming”). It is not only harmful because of its negative impact on consumer attitudes toward CMD, but also because it can overload CMD’s network and disrupt service to its other partners or third parties;
- To distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or Spam; or;
- To solicit or collect, or distribute, advertise or promote, e-mail address lists for the purpose of encouraging or facilitating unsolicited commercial e-mail or Spam; or
- In any manner that might subject CMD to unfavourable regulatory, law enforcement or other legal, governmental, regulatory, administrative or other public action, subject CMD to any liability for any reason, or adversely affect CMD’s public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by CMD in its sole discretion.
4.6 SMTP relay/outbound e-mail traffic
Client may not, directly or indirectly, or assist third parties to:
- Maintain an open SMTP relay. Any direct action, configuration, or setting that causes excessive outbound e-mail traffic is subject to review and possible action. When a complaint is received, CMD has the absolute and sole discretion to determine from all of the evidence whether the e-mail recipients were from an “opt-in” e-mail list, or whether the outbound e-mail traffic generated from an account is suitable for a shared hosting environment; or
- Utilize the CMD Solutions and/or CMD Services in connection with any other disruptive, controversial or abusive activity, as determined by CMD in its sole discretion.
4.7 Excessive mail
Client may not utilize the CMD Solutions and/or CMD Services to offer mail services, mail forwarding capabilities, POP accounts or auto responders other than for Client’s own account.
5. Support service
Unless otherwise agreed between the Parties in writing, CMD shall provide first level support during Working days and business hours or as defined in the applicable Sevice Level Agreement (if existing). Response times will vary according to the severity level of the reported issues. While providing support services, CMD shall use all reasonable efforts but shall not guarantee any result.
Any request from Client for technical second level support shall be communicated to CMD in writing using the CMD Trouble Ticket System (if available).
6. Services suspension
6.1 Causes for suspension
CMD shall be entitled to suspend all or any CMD Service and/or CMD Solution, in whole or in part, immediately after notifying the Client by any means as CMD will deem appropriate:
- in order to comply with any legal or regulatory obligation, or request or order from law enforcement or a competent judicial, governmental, supervisory or regulatory body;
- if CMD has reasonable grounds to suspect that the Client or a Client Staff has acted fraudulently, unlawfully, in a criminal way or in a way which could prejudice CMD, CMD’s Staff or any third party;
- if the Client fails to cooperate with any reasonable investigation by CMD of a suspected breach of this Agreement;
- in case of violation by the Client of any contractual, legal, regulatory, statutory or administrative obligation;
- in case of force majeure, as defined in Article 15 hereafter;
- at any time in CMD’s sole discretion, if the Client has not paid any due invoice or Fee;
- if CMD is informed by the Client that Credentials have been compromised, or has reason to believe that Credentials are used fraudulently;
- for specific Client Staff or Credentials Owners at the Client’s request, to the extent technically possible;
- if CMD establishes or has reasonable doubts that (i) the Client impairs or endangers the operational availability of the Control Panel, the Infrastructure or the CMD Solutions, (ii) such action is necessary to prevent or protect against fraud, tricks, tampering, schemes, false or invalid numbers, false credit devices, electronic devices, or any other fraudulent means or devices, (iii) such action is necessary to protect CMD or CMD’s Staff against actual or potential adverse financial effects;
- if CMD reasonably determines that suspension is necessary to prevent or mitigate damage, disruption, degradation or impairment of the Infrastructure, the Control Panel, or the CMD Solutions in any way;
- where necessary for the Control Panel’s, the Infrastructure’s or the CMD Solutions’ maintenance. If such maintenance is reasonably foreseeable, the Client will be informed in advance by any means CMD will deem appropriate.
If reasonably possible before the suspension, the Client will be informed about the suspension and its reasons.
CMD will make all reasonable efforts to limit the suspension period in cases where the Client is not responsible for this suspension.
6.2 Consequences of suspension
In case of suspension for any of the causes mentioned in this Article 6, Client Content stored on the CMD Solutions may be unavailable during the suspension and neither CMD nor CMD’s Staff will have no liability for any Loss or Damage arising from or relating to such suspension.
The suspension pursuant to Article 6 does not relieve the Client of its obligation to pay CMD for the services provided, or orders passed, before or after the suspension or any amount due under the Agreement.
7. Service termination
If a CMD Service and/or a CMD Solution is terminated by CMD after the Service Start Date due to Client’s default, including non-payment, or upon Client’s request for early termination, Client shall be required to pay, in addition to all other amounts due and owing to CMD, an applicable early termination fee equal to: (a) one hundred percent (100%) of the Fee due for the service during the remainder of the Term, plus (b) all charges associated with the service ordering and installation.
Client agrees that CMD’s Loss or Damage in the event of cancellation or early termination are difficult or impossible to ascertain and, therefore, the provisions set forth above are intended to establish liquidated damages and are not intended as a penalty.
CMD shall be entitled to delete any and all data belonging or relating to the Client after a two (2) calendar months period following the date of effective termination of a service, unless the Client has within such period subscribed to a payable data migration service (to the extent such data migration service is available for the corresponding CMD Solution) as available through the Control Panel, subject to the payment of the applicable Fees.
8. Intellectual property
8.1 CMD’s and Providers’ Intellectual Property rights
Subject to the payment by the Client of the applicable Fees, the Client will be licensed to use the Control Panel and the relevant CMD Solution for the duration and according to the terms detailed in the applicable CMD Solutions Terms and/or any legal document of the Agreement. Such license is personal to the Client, non-exclusive, non-transferable and strictly limited to the Client’s internal/personal use. No term of the Agreement shall constitute or be deemed to constitute an assignment of any Intellectual Property owned by CMD or CMD’s Staff or a Provider to the Client.
The Client will not, unless specifically provided for in the Agreement or required by applicable law, directly or indirectly (a) register, reproduce, sublicense, distribute or dispose of any of CMD’s or CMD’s Staff’s and/or of any of Provider’s or Provider’s Staff’s Intellectual Property; (b) alter, create derivative works of, edit, modify or revise such Intellectual Property; (c) reverse engineer (unless required by law for interoperability), reverse compile, decompile or disassemble such Intellectual Property in whole or in part (including by reviewing data structures or similar materials produced by CMD or CMD Staff); (d) rent, lease, loan, electronically transfer or otherwise make available such Intellectual Property to a third party; nor (e) permit any other person or entity, including Client Staff to do any of the foregoing. Where the Client becomes aware of any other party infringing such Intellectual Property rights, the Client shall promptly inform CMD of the same and take such steps as may be reasonably required by CMD in relation thereto.
8.2 Client’s Intellectual Property rights
Any Intellectual Property right of the Client made available to CMD and/or CMD’s Staff whilst using the Control Panel, the CMD Solutions or otherwise in the context of the Agreement will remain the exclusive property and responsibility of the Client.
For the sole purpose of the performance of the Agreement, the Client hereby grants to CMD and CMD’s Staff a non-exclusive and non-transferable (except in relation to CMD’s and/or CMD’s Staff’s sub-contractors) free-of-charge license to do the following to the extent necessary in the performance of Services under the Service Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any data, User Content or any other content belonging to the Client that the Client makes available to CMD (“Client Content”); and (b) make archival or back-up copies of Client Content, for the entire world and for the term of the Agreement, and if applicable increased by the delay necessary to return the Client’s data pursuant to Article 7 (Service Termination) or as necessary to perform data migration operations requested by the Client.
The Client will defend, indemnify and hold CMD and CMD’s Staff harmless against any Loss or Damage arising from or relating to any claims, proceedings or actions based on an alleged infringement of a third party’s Intellectual Property or other rights.
9. Service modification
9.1 Service continuity
CMD reserves the right, in its sole discretion, subject to notification to Client to the extent possible or permissible, (i) to deny, cancel, suspend, transfer, alter, modify, correct, amend or change the CMD Solutions and or the CMD Services, or take any other action to protect the integrity and stability of the Infrastructure, the CMD Solutions and/or CMD Services (including taking any such action against any malicious code, software or related abusive activity, user data, and/or (ii) to comply with any applicable laws, regulations, government rules, or requirements, requests or orders from law enforcement or a competent judicial, governmental, supervisory or regulatory body or to avoid any liability, civil or criminal. CMD shall not be liable to Client for any Loss or Damage that may arise from or relate to such action.
9.2 Evolution of the Offering
CMD retains the right to make changes to the selection of CMD Services and CMD Solutions offered without prior notice according to the applicable General Terms of Service. Said changes shall apply only to Service Orders placed after the notification of the change.
In its sole discretion, without liability to Client, CMD may: (a) change the methods, processes, or Providers by or through which it provides the Services; (b) change the Infrastructure; or (c) substitute comparable CMD Service and/or CMD Solutions for that being offered or provided to Client. If, in CMD’s reasonable opinion, it is necessary due to the potential impact on affected Clients, CMD will use all reasonable efforts to provide prior notice of any alterations, changes or substitutions.
Up-to-date information pertaining to the CMD Service and/or CMD Solutions will be made available from time to time in writing or through the Web Site.
Neither CMD nor CMD’s Staff will in any event be liable in any way for such changes, whether due to legal obligations, modifications, delays, interruptions or cessations of any Provider service, or otherwise. CMD cannot be held liable for any Loss or Damage arising out of such changes.
10. Fees, Invoicing, Payment
The Client agrees to pay all Fees applicable to its use of the Offering and the Service Orders in accordance with the Terms and Conditions.
Unless otherwise specified, all tariffs are indicated in euro (EUR), and are exclusive of any taxes. VAT, applicable taxes and all money transfer costs shall be paid by the Client.
CMD reserves the right to adapt the Fees from time to time, subject to prior notice to the Client. The new Fees shall apply from the date mentioned in the notification of the change without prejudice to the right for the Client to terminate the service pursuant to Article 7 (Service Termination). Changes in the Fees will not affect Service Orders placed prior to the date on which the change becomes effective. Any new Service Order placed after the effective date of the change will be deemed acceptance of the new Fees or tarifs by the Client.
Unless otherwise specified the relevant CMD Solutions Terms and/or the purchase order, CMD will invoice the Client on a monthly basis, on the last working day of each month in CMD’s local jurisdiction (the Invoicing Day).
On the Invoicing Day, the Client will be invoiced for the CMD Solutions and/or the CMD Service the Client ordered and/or activitated and/or used during the calendar month of the Invoicing Day.
CMD’s obligation with respect to any invoicing errors resulting in overpayments by the Client for the services received is limited to granting invoice credits equal to the amounts erroneously billed. Under no circumstance will any invoicing error affect the Client’s obligation to pay for the services ordered and/or activitated and/or used.
Invoices issued by CMD must be paid by the Client within ten (10) calendar days following the Invoicing Day.
Payment of CMD invoices shall be made by wire transfer, or any payment method offered by CMD.
Each payment shall be first applied to settle the oldest outstanding, undisputed invoice and/or amount and avoid therefore the application of any accrued interest and charges for late payment.
Any invoice or amount not paid upon falling due shall be subject, without formal notice, to interest charges amounting to (5%) five precent or three times the Euribor reference rate applicable on the date of the invoice, whichever is greater, until the outstanding amounts are paid in full.
Additionally CMD shall be entitled without formal notice to (a) invoice administrative costs amounting to seventy-five euro (75 EUR) per overdue invoice and (b) suspend the relevant Services and/or (c) terminate the relevant Service(s), without reimbursement of all sums already paid, even in advance.
10.4 Invoice Disputes
If the Client has reasonable grounds to dispute any matter relating to an invoice including any amount therein, the Client may invoke the dispute procedure set out in this article.
As soon as reasonably practicable but no later than one (1) calendar month after the receipt of the disputed invoice, the Client shall notify the dispute to CMD by sending a written notice containing all relevant details pertaining to the disputed invoice. Undisputed amounts of a disuted invoice have to be paid according to the terms set forth in Article 10.3.
Following such notification, the parties shall consult in good faith to try to resolve the dispute.
11. Confidentiality and Personal Data
Either Party acknowledges that in connection with the Agreement it will have access to certain confidential and proprietary information of the other Party (“Confidential Information”). Confidential Information includes but is not confined to information either marked as confidential or information known by the receiving party as being treated by the disclosing party as confidential. The receiving party agrees to keep Confidential Information confidential and not to use such information except as authorized by the Agreement or otherwise authorized by the disclosing party, and to accord to such information the same standards and protections that it uses to protect its own confidential business information. The receiving party shall limit dissemination of Confidential Information to its Staff who strictly need access in order to carry out the terms of the Agreement, and shall procure that such Staff will enter into a similar confidentiality undertaking. Except for Confidential Information necessary to performance of obligations or exercise of rights under the Agreement, materials or documents containing Confidential Information will be returned to the disclosing party promptly following written requests thereof or otherwise in accordance with the Agreement. Confidential Information will not include information: (i) that is now or becomes generally available to the public through no fault or breach by the receiving party; (ii) that the receiving party can document was already known to it prior to disclosure by disclosing party; (iii) that was independently developed by the receiving party without use of any of disclosing party’s Confidential Information; and (iv) that the receiving party rightly obtained from a third-party who had the right to transfer or disclose it. If the receiving party is subpoenaed or ordered by any court of governmental agency to disclose Confidential Information, it will provide where permissible prompt written notice to the disclosing party so as to allow disclosing party to seek a protective order to protect the confidentiality of such information. Either Party procures to the other that its Staff will enter into a confidentiality undertaking substantially in the terms of this Article 11.1.
11.2 Personal Data
The Client hereby expressly represents and warrants to be and remain compliant with any and all data protection legislation applicable to the use of the Services.
During the term of the Agreement and whilst providing the CMD Services and/or CMD Solutions or otherwise performing its obligations under the Agreement, CMD may act as a processor to the Client within the meaning of the Luxembourgish Law of 2 August 2002 on the protection of persons with regard to the processing of personal data, as amended (the “Data Protection Law”), as it may be restated or replaced) in the context of the processing of personal data belonging to the Client (acting in a capacity as controller or processor to a third party, within the meaning of the same text). To this extent, CMD hereby undertakes to:
- process such personal data only insofar as required for the performance of the Agreement (including legitimate rights granted to CMD hereunder), or as required for the performance of any order placed by the Client pursuant to the Agreement, or otherwise in accordance with instructions given by the Client from time to time; and
- implement and maintain appropriate technical and organizational measures so as to ensure the protection of such personal data against accidental or unlawful destruction or accidental loss, falsification, destruction, unauthorized dissemination or access and against all other unlawful forms of processing.
During the Term of the Agreement, CMD shall take all reasonable security measures in respect of any personal data of the Client or Client’s Staff (Personal Data) and the Client acknowledges that such security measures are sufficient in this respect, taking into account the degree of sensitivity of the relevant Personal Data.
The Client hereby expressly instructs and allows CMD to subcontract to CMD’s Staff, acknowledges and agrees that CMD subcontracts in whole or in part the abovementioned acts of processing of personal data to third parties, in particular the Providers.
The Client hereby expressly represents and warrants to be and remain compliant with any and all relevant laws in relation to any Personal Data that it provides, collects, handles, stores or discloses pursuant to the use of the Services and will defend, indemnify and hold CMD and CMD’s Staff harmless against any Loss or Damage arising from or relating to any claims, proceedings or actions based on an alleged infringement of the Data Protection Law or of a third party’s or other rights.
11.3 Security Mesaures
The Client agrees to defend, indemnify and hold CMD and CMD’s Staff harmless from any Loss or Damage related to or arising out of acts or omissions of the Client or Client Staff and/or breach of any of the terms of the Agreement.
13. Relationship between the Parties
CMD and the Client are independent contractors. Nothing in the Agreement and no action taken by the Parties pursuant to the Agreement shall create or be construed as creating any agency, resellership, association, joint venture or other form of joint enterprise between CMD and the Client.
The Client expressly authorizes CMD to sub-contract all or part of its duties under the Agreement as and if it deems it necessary.
The Client will not be entitled to take any action in the name and/or on behalf of CMD and more generally any action that may bind CMD without CMD’s prior and express written consent.
The Client acknowledges that CMD will contract with CMD’s Staff for the provision of the Infrastructure, the CMD Solutions and/or other services to the Client. The Client hereby expressly accepts and warrants that its only co-contractor in relation to the Infrastructure, the CMD Solutions and/or other services under the Agreement is CMD and that the Client will only be entitled to claim any remedy from CMD and not from CMD’s Staff.
14. Non-exclusive character
This Agreement is concluded on a non-exclusive basis. CMD shall therefore be entitled to sell the Offering to any third party including but not limited to customers which may be competitors of the Client.
15. Force Majeure
Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to unforeseeable, irresistible occurrence without the fault or negligence of the invoking party, and notably but not exclusively earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, breakdown of communications, labour strike, lockout, boycott, or any cause beyond the reasonable control of such Party provided that the Party relying upon this section, (i) shall have given the other Party written notice thereof promptly and, in any event, within ten (10) calendar days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this article results in delay or failure in performance under the Agreement for a period in excess of one (1) calendar month, either Party may immediately terminate for cause the Agreement upon the expiry of the said one (1) calendar month.
16. Limited Warranty
CMD represents and warrants to Client that the CMD Services and/or the CMD Solutions will be performed (i) in a manner consistent with industry standards generally applicable to the performance thereof; (ii) at least at the same level of service as provided by CMD generally to its other Clients for the same services; and (iii) in compliance in all material respects with the applicable service descriptions.
Except for the representations and warranties expressly set out above, any service and more particlularly the CMD Solutions, the Control Panel and any other information, technology, content and material are provided to the Client on an “as is” and “as available” basis, that is, (i) with the technical or legal limitations detailed in or resulting from the Agreement, the CMD Solution Terms, the General Terms of Service and any other terms as may be available from time to time in writing or the Web Site, as may be amended from time to time, and (ii) without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose, non-infringement and title. Without limitation of the foregoing, CMD does not represent or warrant that access to the CMD Solutions will meet Client’s requirements or will be uninterrupted, error-free, or secure. No advice, results or information obtained by Client from CMD or through any services, any documentation, or the community forum, will create any warranty not expressly made in the Agreement.
Any material and/or data downloaded or otherwise obtained through the use of the CMD Solutions is done at the discretion and risk of the Client and the Client will be solely responsible for any damage to the Infrastrucutre, to their computer system or loss of data that results from such use, the download or upload of such material and/or data. No advice or information, whether oral or written, obtained by the Client from CMD or CMD’s Staff will create any warranty not expressly made herein.
17. LIMITATION OF LIABILITY
CMD OR CMD’S STAFF WILL NOT BE LIABLE FOR ANY (a) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S), THE CONTROL PANEL OR THE CMD SOLUTIONS; (b) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR ALTERATION; OR (c) EVENTS BEYOND THEIR REASONABLE CONTROL.
THE CLIENT IS SOLELY RESPONSIBLE FOR MAINTAINING BACK-UP COPIES OF THE DATA IT POSTS ON, IT HAS PROCESSED OR OBTAINED THROUGH THE CONTROL PANEL OR THE CMD SOLUTIONS. CMD AND CMD’S STAFF BEAR NO RESPONSIBILITY FOR ANY LOSS OR ALTERATION OF SUCH DATA NOR ANY LOSS OR DAMAGE ARISING THEREFROM OR RELATING THERETO.
WITHOUT PREJUDICE TO THE FOREGOING, CMD OR CMD’S STAFF WILL NOT IN ANY EVENT BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER REGARDLESS OF THE THEORY OF LIABILITY IN QUESTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, OR OTHERWISE. WHERE CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSION OR LIMITATION OF LIABILITY, CMD’S LIABILITY WILL BE AFFECTED ONLY TO THE EXTENT EXPRESSLY REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY HEREUNDER EXCEED AMOUNTS PAID BY THE CLIENT OVER THE TWELVE (12) MONTHS PRIOR TO FORMAL COMMENCEMENT OF ACTION IN RESPECT OF ANY CLAIM.
THE CLIENT EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT IT WILL ONLY BE ENTITLED TO CLAIM ANY REMEDY FROM CMD ONLY AND NOT FROM CMD’S STAFF OR ANY OTHER PROVIDER OF CMD. ONLY CMD WILL BE ENTITLED TO ACT, AND MAY DECIDE TO DO SO IN ITS SOLE DISCRETION, AGAINST CMD’S STAFF OR ANY OTHER PROVIDER IN RELATION TO ANY SUCH CLAIM.
THE CLIENT AGREES AND ACKNOWLEDGES THAT THE PROVISIONS OF THIS ARTICLE ARE REASONABLE IN THE LIGHT OF ALL THE CIRCUMSTANCES OF THIS AGREEMENT.