Cloud Services Agreement
Beyond Infinity Data (Pty) Terms and Conditions
BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
KEONN DIGITAL CLOUD SERVICES RESELLING AGREEMENT
This Cloud Services Agreement (this “Agreement”) is between Beyond Infinity Data (Pty) Ltd (“Beyond”) as a reseller of Keonn Digital Cloud Services and the individual or entity that has executed this Agreement (“You”). This Agreement sets forth the terms and conditions that govern orders placed by You for Services under this Agreement.
1. AGREEMENT DEFINITIONS
1.1. “Ancillary Software” means any software agent or tool that Keonn through its reseller Beyond makes available to You for download for purposes of facilitating Your access to, operation of, and/or use with, the Services Environment.
1.2. “Auto Renew” or “Auto Renewal” is the process by which the Services Period of certain Cloud Services under an order is automatically extended for an additional Services Period unless such Services are otherwise terminated in accordance with the terms of the order or this Agreement. The Service Specifications incorporated into Your order define which Cloud Services are eligible for Auto Renewal as well as any terms applicable to any such renewal.
1.3. “Cloud Services” means, collectively, the Keonn cloud services (e.g., Keonn software as a service offerings and related Keonn Programs) listed in Your order and defined in the Service Specifications. The term “Cloud Services” does not include Professional Services.
1.4. “Keonn Programs” refers to the software products owned or licensed by Keonn to which Keonn grants You access as part of the Cloud Services, including Program Documentation, and any program updates provided as part of the Cloud Services.
1.5. “Professional Services” means, collectively, the consulting and other professional services which You have ordered. Professional Services include any deliverables described in Your order and delivered by Beyond to You under the order. The term “Professional Services” does not include Cloud Services.
1.6. “Program Documentation” refers to the user manuals referenced within the Service Specifications for Cloud Services, as well as any help windows and readme files for the Keonn Programs that are accessible from within the Services. The Program documentation describes technical and functional aspects of the Keonn
1.7. “Services” means, collectively, both the Cloud Services and Professional Services that You have ordered.
1.8. “Services Environment” refers to the combination of hardware and software components owned, licensed or managed by Keonn to which Keonn grants You and Your Users access as part of the Cloud Services which You have ordered. As applicable and subject to the terms of this Agreement and Your order, Keonn Programs, Third Party Content, Your Content and Your Applications may be hosted in the Services Environment.
1.9. “Service Specifications” means the descriptions on https://www.dropbox.com/s/3o7w4k3pkut57wj/Keonn%20Hardware%20and%20Systems%20Support%20Policies%20v2.0.pdf?dl=0, or such other address specified by Keonn, that are applicable to the Services under Your order, including any Program Documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions or Your order.
1.10. “Services Period” refers to the period of time for which You ordered Cloud Services as specified in Your order.
1.11. “Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Cloud Services in accordance with this Agreement and Your order. For Cloud Services that are specifically designed to allow Your clients, agents, customers, suppliers or other third parties to access the Cloud Services to interact with You, such third parties will be considered “Users” subject to the terms of this Agreement and Your order.
1.12. “You” and “Your” refers to the individual or entity that has executed this Agreement.
1.13. “Your Applications” means all software programs, including any source code for such programs, that You or Your Users provide and load onto. Services under this Agreement, including Keonn Programs and Services Environments, Keonn intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Your Applications.”
1.14. “Your Content” means all text, files, images, graphics, illustrations, information, data (including Personal Data as that term is defined in the Data Processing Agreement for Keonn cloud services described in Section 11.2 below), audio, video, photographs and other content and material (other than Your Applications), in any format, provided by You or on behalf of Your Users that reside in, or run on or through, the Services Environment.
2. TERM OF AGREEMENT
2.1. This Agreement is principally between the end user and the reseller Keonn has it own terms of service and support. Beyond acts as an intermediary for all service disruption issues and payments and is responsible for those terms but doesn’t take responsibility or liability for Keonn.
2.2. This Agreement is valid for the order which this Agreement accompanies. This Agreement may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., additional Users), for any Cloud Services options offered by Keonn for the original Services ordered, and for any renewal or Auto Renewal of the Services Period of the original order.
3. RIGHTS GRANTED
3.1. For the duration of the Services Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your order, You have the non-exclusive, non-assignable, worldwide limited right to access and use the Services that You ordered, including anything developed by Keonn and delivered to You as part of the Services, solely for Your internal business operations and subject to the terms of this Agreement and Your order.. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the order. As limited by Keonn Terms and conditions and User licences which supersedes this agreement.
3.2. You do not acquire under this Agreement any right or license to use the Services, including the Keonn Programs and Services Environment, in excess of the scope and/or duration of the Services stated in Your order. Upon the end of the Services ordered, Your right to access and use the Services will terminate.
4. SERVICE SPECIFICATIONS
4.1. The Services are subject to and governed by Service Specifications applicable to Your order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of Keonn Digital, as well as any Services deliverables. You acknowledge that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees.
4.2. Keonn may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at Keonn discretion.
4.3. Beyond may provide 3rd party support as per separate agreements and at separate cost. Without in anyway affecting the service relation between Keonn and yourself.
5. USE OF THE SERVICES
5.1. You are responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with Keonn, You accept responsibility for the confidentiality and timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. Beyond is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services, and agree to notify Beyond immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
5.2. You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, including for the Keonn Programs, as such Patches are generally released by Keonn or its affiliates as described in the Service Specifications. Beyond is not responsible for performance or security issues encountered with the Cloud Services that result from Your failure to accept the application of Patches that are necessary for the proper function and security of the Services.
6. FEES
6.1. All fees payable to Beyond are due from the invoice date. Once placed, your order is non-cancellable and the sums paid non-refundable, except as provided in this Agreement or Your order.
6.2. All Fees are for a period of 12 months unless explicitly stated in a separate sales agreement.
6.3. You will reimburse Beyond for reasonable expenses related to providing any Professional Services. Fees for Services listed in an order are exclusive of taxes and expenses.
6.4. You understand that You receive an invoice for the Services You ordered for automatic renewal sixty (60) days before service period ends. Invoice amount will be in rands but subject to change due to exchange rate secured by Beyond with its banking partners.
6.5. You agree and acknowledge that You have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in Your order; however, the preceding does not relieve Beyond of its obligation during the Services Period to deliver Services that You have ordered per the terms of this Agreement.
7. SERVICES PERIOD AND END OF SERVICES
7.1. Services provided under this Agreement shall be provided for the Services Period defined in Your order, unless earlier suspended or terminated in accordance with this Agreement or the order. If stated in the Service Specifications, certain Cloud Services that are ordered will Auto Renew for additional Services Periods unless (i) You provide Beyond with written notice no later than thirty (30) days prior to the end of the applicable Services Period of Your intention not to renew such Cloud Services, or (ii) Beyond or Keonn provides You with written notice no later than ninety (90) days prior to the end of the applicable Services Period of its intention not to renew such Cloud Services.
7.2. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If Beyond terminates the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under such order plus related taxes and expenses. Except for non-payment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Services ordered.
7.3. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
8. NONDISCLOSURE
8.1. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Content and Your Applications residing in the Services Environment, and all information clearly identified as confidential at the time of disclosure.
8.2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
9. DATA PROTECTION
9.1. Your Content may be accessed and used to perform services under your order for support, consulting, Cloud or other services and to confirm your compliance with the terms of your order. This may include testing and applying new product or system versions, patches, updates and upgrades; monitoring and testing system use and performance; and resolving bugs and other issues you have reported to Paradigm Digital. Any copies of services data created for these purposes are only maintained for time periods relevant to those purposes.
9.2. As a result of legal requirements, Beyond may be required to retain or provide access to services data to comply with legally mandated reporting, disclosure or other legal process requirements.
9.3. Beyond may transfer your data globally as required for the purposes specified above. If Beyond hires subcontractors to assist in providing services, their access to services data will be consistent with the terms of your order for services and this services privacy policy.
9.4. The Service Specifications applicable to Your order define the administrative, physical, technical and other safeguards applied to Your Content residing in the Services Environment, and describe other aspects of system management applicable to the Services. You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content and Your Applications, including any viruses, Trojan horses, worms or other programming routines contained in Your Content or Your Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data. You may disclose or transfer, or request Beyond to disclose or transfer, Your Content or Your Applications to a third party, and upon such disclosure or transfer Beyond is no longer responsible for the security or confidentiality of such content and applications outside of Beyond.
10. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
10.1. Beyond offers not warranties. All Warranties are provided by Keonn as per their end user agreements.
10.2. BEYOND DOES NOT GUARANTEE THAT
10.2.1. THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BEYOND WILL CORRECT ALL SERVICES ERRORS.
10.2.2. THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY KEONN,
10.2.3. THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT BEYOND DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BEYOND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. BEYOND IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD-PARTY CONTENT.
11. SERVICES TOOLS AND ANCILLARY SOFTWARE
11.1. Beyond may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Your service requests. The Tools will not collect or store any of Your Content or Your Applications residing in the Services Environment, except as necessary to provide the Services or troubleshoot service requests or other problems in the Services. Information collected by the Tools (excluding Your Content and Your Applications) may also be used to assist in managing Paradigm Digital’s product and service portfolio, to help Beyond address deficiencies in its product and service offerings, and for license and Services management.
11.2. Beyond may provide You with on-line access to download certain Ancillary Software for use with the Services. If Beyond licenses Ancillary Software to You and does not specify separate terms for such Ancillary Software, then, subject to Your payment obligations, (i) You have the non-exclusive, non-assignable, worldwide limited right to use such Ancillary Software solely to facilitate Your access to, operation of, and/or use of the Services Environment, subject to the terms of this Agreement and Your order, including the Services Specifications, (ii) Beyond will maintain such Ancillary Software as part of the Cloud Services, and (iii) Your right to use such Ancillary Software will terminate upon the earlier of Beyond’s notice or the end of the Cloud Services associated with the Ancillary Software. If Ancillary Software is licensed to You under separate third party license terms, then Your use of such software is subject solely to such separate terms.
12. SERVICE ANALYSES
12.1. Beyond may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Beyond may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute Personal Data. Beyond retains all intellectual property rights in Service Analyses.
13. EXPORT
13.1. Export laws and regulations of South Africa and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
13.2. You acknowledge that the Cloud Services are designed with capabilities for You and Your Users to access the Services Environment without regard to geographic location and to transfer or otherwise move Your Content and Your Applications between the Services Environment and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Your Content and Your Applications.
14. FORCE MAJEURE
14.1. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.
15. GOVERNING LAW AND JURISDICTION
15.1. This Agreement is governed by the substantive and procedural laws of the Republic of South Africa and you and Paradigm Digital agree to submit to the exclusive jurisdiction of, and venue in, the high courts of the Republic of South Africa in any dispute arising out of or relating to this Agreement.
16. NOTICE
16.1. Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with Beyond or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: Beyond Infinity Data (Pty) Ltd, Hughes Industrial Park Unit 40, 422 Oscar Street, Hughes, Boksburg, Gauteng, 1459
16.2. To request a termination of Services in accordance with this Agreement, You must submit a service request to Beyond at the address specified in Your order or the Service Specifications.
17. ASSIGNMENT
17.1. You may not assign this Agreement or give or transfer the Services (including the Beyond Programs) or an interest in them to another individual or entity. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.
18. OTHER
18.1. Beyond is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We are each responsible for paying our own employees, including employment related taxes and insurance. You understand that Paradigm Digital’s business partners and other third parties, including any third parties with which Beyond has an integration or that are retained by You to provide consulting or implementation services or applications that interact with the Cloud Services, are independent of Beyond and are not Paradigm Digital’s agents. Beyond is not liable for, bound by, or responsible for any problems with the Services, Your Content or Your Applications arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as a Beyond subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as Beyond would be responsible for Beyond resources under this Agreement.
18.2. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
18.3. Except for actions for non-payment or breach of Beyond or Keonn’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than three years after the cause of action has accrued.
18.4. Beyond or Keonn Programs and Services are not designed for or specifically intended for use in nuclear facilities or other hazardous applications. You agree that it is Your responsibility to ensure safe use of Beyond Programs and Services in such applications.
18.5. You shall obtain at Your sole expense any rights and consents from third parties necessary for Your Content, Your Applications, and Third Party Content, as well as other vendor’s products provided by You that You use with the Services, including such rights and consents as necessary for Beyond to perform the Services under this Agreement.
18.6. You agree to provide Beyond with all information, access and full good faith cooperation reasonably necessary to enable Beyond to provide the Services and You will perform the actions identified in Your order as Your responsibilities.
18.7. You remain solely responsible for Your regulatory compliance in connection with Your use of the Services. You are responsible for making Beyond aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this Agreement. Beyond will cooperate with Your efforts to determine whether use of the standard Beyond Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by Beyond or its partners for changes to the Services.
18.8. The purchase of Cloud Services, Professional Services, or other service offerings, programs or products are all separate offers and separate from any other order. You understand that You may purchase Cloud Services, Professional Services, or other service offerings, programs or products independently of any other order. Your obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.
19. ENTIRE AGREEMENT
19.1. You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable order, is the complete agreement for the Services ordered by You and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.
19.2. It is expressly agreed that the terms of this Agreement and any Beyond order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-Keonn document and no terms included in any such purchase order, portal, or other non-Keonn document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence.