1. THE HOSTING SERVICES AGREEMENT
The Hosting Services Agreement incorporates the following documents by reference: (i) the Services Description that describes the Services you are buying and related fees; (ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services, (iii) the specific Product Terms and Conditions containing the additional terms for the particular Hosting Services you are buying, (iv) the Acceptable Use Policy, and (v) if your Hosted System will be provided from data centers located both in the United States and one or more non-U.S. jurisdictions, the Country Specific Terms that may be applicable in those jurisdictions. When we use the term "Hosting Services Agreement" or "Agreement" in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the form of Agreement prepared by BAKARI DIGITAL LABS LIMITED, or accept the Agreement as part of BAKARI DIGITAL LABS LIMITED’S online order process.
2. DEFINED TERMS
- Some words used in the Agreement have particular meanings:
- “Acceptable Use Policy” or “AUP” means the BAKARI DIGITAL LABS LIMITED Acceptable Use Policy posted at as of the date you sign the Agreement.
- “Affiliate” means any and all legal entities which now or hereafter the ultimate parent of BAKARI DIGITAL LABS LIMITED controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
- “Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in the Jamaica.
- “Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
- “Country Specific Terms” means the addendum or addenda that may be incorporated into your Hosting Services Agreement if a portion of your Services are to be provided from a non-United States jurisdiction for which we have special legal terms.
- “Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Hosted System.
- “Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system. The Hosted System may consist of a dedicated system for your use only, or the right to use certain parts of a shared system that BAKARI DIGITAL LABS LIMITED maintains for many customers, or a combination of some dedicated elements and some shared elements.
- “Hosting Services” means: (i) BAKARI DIGITAL LABS LIMITED’s provision for your use of the Hosted System described in the Services Description, and (ii) Support.
- “Product Terms and Conditions” means the terms and conditions for the particular Hosting Services you are buying.
- “Services Description” means: (i) the online order that you submit or accept for the Services, or (ii) any other written order (either in electronic or paper form) provided to you by BAKARI DIGITAL LABS LIMITED for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically.
- “Service Level Guarantee” or “Service Level Guarantees” means a guarantee or guarantees identified as a “Service Level Guarantee” or “Service Level Guarantees” in the applicable Product Terms and Conditions.
- “Services” means Hosting Services and Supplementary Services, collectively.
- “Supplementary Services” means those services you purchase from BAKARI DIGITAL LABS LIMITED other than the Hosting Services, such as database administration or “DBA” services, and assistance or support for the application that you operate on your Hosted System.
- “Support” has the meaning stated in the applicable Product Terms and Conditions.
3. OUR OBLIGATIONS
BAKARI DIGITAL LABS LIMITED’s obligation to begin providing Services is contingent on your satisfaction of BAKARI DIGITAL LABS LIMITED’s credit approval criteria. BAKARI DIGITAL LABS LIMITED will provide the Hosting Services in accordance with the Service Description, the Service Level Guarantees, and other specifications in this Agreement. BAKARI DIGITAL LABS LIMITED will perform any Supplementary Services in a good and professional manner. BAKARI DIGITAL LABS LIMITED will maintain security practices that are at least as stringent as the minimum security practices described at , and will provide the specific security services described in your Services Description. BAKARI DIGITAL LABS LIMITED will perform all Services in accordance with applicable law.
4. YOUR OBLIGATIONS
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with BAKARI DIGITAL LABS LIMITED's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using your Site Settings access. You must pay when due the fees for the Services stated in the Services Description or other agreement between us.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. BAKARI DIGITAL LABS LIMITED's security obligations with respect to Customer Data are limited to those obligations described in Section 3 above. BAKARI DIGITAL LABS LIMITED makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
5. PROMISES WE DO NOT MAKE
- 5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information and property.
- 5.2 We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the services chosen, including the suitability as it relates to your Customer Data. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
- 5.3 We do not promise to backup your data unless you have purchased backup services. If you purchase backup services, we do not promise to retain the data backup for longer than the agreed data retention period.
- 5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
- 5.5 Certain BAKARI DIGITAL LABS LIMITED Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.
6. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES
- BAKARI DIGITAL LABS LIMITED is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from BAKARI DIGITAL LABS LIMITED’s failure to meet its security obligations stated in Section 3 (Our Obligations) of these General Terms and Conditions or the Services Description. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
- BAKARI DIGITAL LABS LIMITED agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
7. TAXES ON SERVICES
- If BAKARI DIGITAL LABS LIMITED is required by law to collect taxes on the provision of the Service, you must pay BAKARI DIGITAL LABS LIMITED the amount of the tax that is due or provide BAKARI DIGITAL LABS LIMITED with satisfactory evidence of your exemption from the tax. You must provide BAKARI DIGITAL LABS LIMITED with accurate factual information to help BAKARI DIGITAL LABS LIMITED determine if any tax is due with respect to the provision of the Services.
8. EXPORT MATTERS
- You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom BAKARI DIGITAL LABS LIMITED is legally prohibited to provide the Services. You may not provide administrative access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.
9. SUSPENSION OF SERVICES
We may suspend Services without liability if:
We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect BAKARI DIGITAL LABS LIMITED or its other customers from imminent and significant operational, legal, or security risk. If your Hosted System is compromised, then you must address the vulnerability prior to AKARI DIGITAL LABS LIMITED placing the Hosted System back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
- (i) we reasonably believe that the Services are being used in violation of the Agreement;
- (ii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement;
- (iii) there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent,
- (iv) we are required by law, or a regulatory or government body to suspend your Services, or
- (v) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the BAKARI DIGITAL LABS LIMITED network or our other customers.
10. TERMINATION FOR BREACH
10.1 You may terminate the Agreement for breach if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
10.2 We may terminate the Agreement for breach if: (i) we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete, (ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice, (iv) without notice if you have made payment arrangements via credit card or other third party, and the third party refuses to honor our charges, or (v) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure. We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation, or if your agreement for any other BAKARI DIGITAL LABS LIMITED service is terminated for breach of the acceptable use policy applicable to that service.
10.3 Either of us may terminate the Agreement if the other party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under relevant laws.
11. CONFIDENTIAL INFORMATION
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
(i)  to each of our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this General Terms and Conditions;
(ii)  to a law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
(iii)  as required by law; or
(iv)  in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
12. LIMITATION ON DAMAGES
12.1 We are not liable to you for failing to provide the Services unless such failure results from a breach of a Service Level Guarantee, or results from our gross negligence, wilful misconduct, or intentional breach of the Agreement.
12.2 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
12.3 We are not liable to you for lost data unless and to the extent you purchase data backup services from BAKARI DIGITAL LABS LIMITED and we fail to provide the backup services as agreed. If you purchase backup services, you release BAKARI DIGITAL LABS LIMITED from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
12.4 Notwithstanding anything in the Agreement to the contrary, except for liability based on wilful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from BAKARI DIGITAL LABS LIMITED’s negligence, the maximum aggregate monetary liability of BAKARI DIGITAL LABS LIMITED and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed: (i) for Hosting Services an amount that is three (3) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and (ii) for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.
13.1 If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Indemnitees") is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, wilful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or end users, or violation of Section 15 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
13.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
15.1 General. You may not copy any software we provide for your use unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by: (i) Microsoft's license terms that appear at http://www.BAKARI DIGITAL LABS LIMITED.com/information/legal/microsoftlicenseclient.php , for client or redistributable software, (ii) Microsoft’s license terms at www.BAKARI DIGITAL LABS LIMITED.com/information/microsoftlicensemobility.php  for use of Microsoft software on the BAKARI DIGITAL LABS LIMITED Cloud under the license mobility program, and (iii) any use restrictions on your use of the Microsoft software as indicated in your Services Description, such as a limitation on the number of users (a "SAL" license).
If you use any non-BAKARI DIGITAL LABS LIMITED provided software on your Hosted System you represent and warrant to BAKARI DIGITAL LABS LIMITED that you have the legal right to use the software in that manner. On BAKARI DIGITAL LABS LIMITED's request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request.
15.2 Customer Provided Licenses. If BAKARI DIGITAL LABS LIMITED has agreed to install, patch or otherwise manage software in reliance on your license with a software vendor (rather than BAKARI DIGITAL LABS LIMITED’s license with the software vendor), then you represent and warrant that you have a written license agreement with the vendor that permits BAKARI DIGITAL LABS LIMITED to perform these activities. You agree that you will provide BAKARI DIGITAL LABS LIMITED with evidence of licensing as BAKARI DIGITAL LABS LIMITED may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the license. If you fail to provide the required evidence of licensing BAKARI DIGITAL LABS LIMITED may, at its option, either (i) delay the deployment date for the Hosted System that was to include such software until the evidence is provided, (ii) deploy the Hosted System in reliance on BAKARI DIGITAL LABS LIMITED’s licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate the Agreement. Please Note: Your licensed software may not be compatible with BAKARI DIGITAL LABS LIMITED’s standard process for deploying and repairing Hosted Systems. In addition, in order to install the software BAKARI DIGITAL LABS LIMITED may require you to send the physical or electronic media provided to you by the vendor, both for deployment and again in the event of a failure of your Hosted System. You agree that BAKARI DIGITAL LABS LIMITED will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for a delay resulting from our agreement to use your licensed software.
BAKARI DIGITAL LABS LIMITED personnel may from time to time recommend third party software or other products and services for your consideration. BAKARI DIGITAL LABS LIMITED MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM BAKARI DIGITAL LABS LIMITED. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
17. WHO MAY USE THE SERVICE
You may permit your subsidiaries and affiliated companies to use the Services if you wish, however you are responsible for the acts or omissions of your permitted users. BAKARI DIGITAL LABS LIMITED will provide support only to you, not to your customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates and other third parties do not have any rights against either of us under this Agreement.
Your routine communications to BAKARI DIGITAL LABS LIMITED regarding the Services, including any notice of non-renewal, should be sent to your BAKARI DIGITAL LABS LIMITED support team by emailing firstname.lastname@example.org. If you want to give a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail or by registered mail to:
BAKARI DIGITAL LABS LIMITED
SUITES 23-24, TECHNOLOGY INNOVATION CENTRE
237 OLD HOPE ROAD
BAKARI DIGITAL LABS LIMITED's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account by electronic mail. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
21. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by BAKARI DIGITAL LABS LIMITED during the performance of the Services shall belong to BAKARI DIGITAL LABS LIMITED unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
22. OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the Hosted System, and you have no right of physical access to the Hosted System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your BAKARI DIGITAL LABS LIMITED servers or other devices or media.
23. INTELLECTUAL PROPERTY INFRINGEMENT
If BAKARI DIGITAL LABS LIMITED or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and BAKARI DIGITAL LABS LIMITED is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then BAKARI DIGITAL LABS LIMITED may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
Neither party may assign the Agreement without the prior written consent of the other party except that BAKARI DIGITAL LABS LIMITED may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganization or a sale of its business. BAKARI DIGITAL LABS LIMITED may use third party service providers to perform all or any part of the Services, but BAKARI DIGITAL LABS LIMITED remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if BAKARI DIGITAL LABS LIMITED performed the Services itself.
25. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
26. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of Jamaica, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Any dispute arising under this Agreement shall be settled by arbitration. The parties shall decide the venue of such arbitration and where they are unable to do so within seven (7) days one shall be appointed by the Court or a Judge may do so on an application by either party. The arbitration shall be in accordance with the Arbitration Act 1900 or any laws or regulations in force in Jamaica are deemed to be incorporated. The number of arbitrators shall be three. Each party to the proceedings shall be permitted to appoint its own arbitrator within seven (7) days and both arbitrators may appoint a third arbitrator or referee. If the appointment of the third arbitrator or referee is not made by the parties or the arbitrators, so appointed by the parties; any party or arbitrator may serve written notice on the parties to the proceedings, or the arbitrators. If the appointment is not made within seven (7) days after service of the notice, the Court or a Judge may on application by a party or an arbitrator who gave the notice, appoint a third arbitrator or referee, who shall have the like powers to act and make an award as if he had been appointed by the consent of the parties. The arbitration and any subsequent award shall take place in Jamaica. All submissions and awards in relation to the arbitration proceedings shall be made in English. The arbitrators shall resolve all dispute referred to them in accordance with the substantive laws of Jamaica.
© 2014 BAKARI DIGITAL LABS LIMITED