This GMX TEC Customer Agreement (this“Agreement”) contains the terms and conditions that govern your access to and use of the GMX TEC Cloud Service Offerings (as defined below) and is an agreement between GMX TEC Ltd ("GMX TEC", "GMX", “we”, “us”, or “our”) and you or the entity you represent ( “you”or“your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented during the quotation offer stage for applicable Service offerings or, (the“Effective Date”) detailed in the customer agreement particulars (CAP) when appropriate. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
If a CAP is in place, this takes precedence over the general Customer Agreement.
This Agreement has incorporated the Data Processing Agreement (DPA) and is in compliance with the General Data Protection Regulation (GDPR).
GMX TEC Confidential and Proprietary
“Account Information” means information about you that you provide to us in connection with the creation or administration of your GMX TEC account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your GMX TEC account.
“Acceptable Use Policy” means the policy located at https://www.gmxtec.com/legal/gmx-acceptable-usage (and any successor or related locations designated by us), as it may be updated by us from time to time.
“API” means an application program interface.
"Business Day" means any day other than Saturday, Sunday or English Bank Holidays.
"Business Hours" means any time between 08:00 to 18:00 on each Business Day.
“CAP" means the customer agreement particulars page unique to each customer which, together with the GMX Customer Agreement and the GMX Service Terms, forms the Agreement.
“Content” means software (including machine images), data, text, audio, video or images.
“Customer Personal Data” means Personal Data (i) that Customer uploads or otherwise provides GMX TEC in connection with its use of GMX TEC’s services or (ii) for which Customer is otherwise a data controller.
“Data Controller” means Customer.
“Data Protection Requirements” means the Directive, the General Data Protection Regulation, Local Data Protection Laws, any subordinate legislation and regulation implementing the General Data Protection Regulation, and all Privacy Laws.
“Directive” means the EU Data Protection Directive 95/46/EC (as amended).
“Documentation” means the user guides
and admin guides (in each case exclusive of content
referenced via hyperlink) for the Services located at
https://www.gmxtec.com/documentation (and any successor
or related locations designated by us), as such user
guides and admin guides may be updated by GMX TEC from
time to time.
“End User”
means any individual or entity that
directly or indirectly through another user: (a)
accesses or uses Your Content; or (b) otherwise
accesses or uses the Service Offerings under your
account. The term “End User” does not include
individuals or entities when they are accessing or
using the Services or any Content under their own
GMX TEC account, rather than under your account.
“Force Majeure” as defined in clause
14.12.
“GMX TEC Confidential Information” means
all nonpublic information disclosed by us, our
affiliates, business partners or our or their respective
employees, contractors or agents that is designated as
confidential or that, given the nature of the
information or circumstances surrounding its disclosure,
reasonably should be understood to be confidential. GMX
TEC Confidential Information includes: (a) nonpublic
information relating to our or our affiliates or
business partners’ technology, customers, business
plans, promotional and marketing activities, finances
and other business affairs; (b) third-party information
that we are obligated to keep confidential; and (c) the
nature, content and existence of any discussions or
negotiations between you and us or our affiliates. GMX
TEC Confidential Information does not include any
information that: (i) is or becomes publicly available
without breach of this Agreement; (ii) can be shown by
documentation to have been known to you at the time of
your receipt from us; (iii) is received from a third
party who did not acquire or disclose the same by a
wrongful or tortious act; or (iv) can be shown by
documentation to have been independently developed by
you without reference to the GMX TEC Confidential
Information.
“GMX TEC Content” means Content GMX TEC
or any of our affiliates make available in connection
with the Services or on the GMX TEC Site to allow access
to and use of the Services, including APIs; WSDLs;
Documentation; sample code; software libraries; command
line tools; proofs of concept; templates; and other
related technology (including any of the foregoing that
are provided by our personnel). GMX TEC Content does not
include the Services or Third-Party Content.
“GMX TEC Site”
means
https://www.gmxtec.com
(and any successor or related site designated by
us), which may be updated by us from time to time.
“GMX TEC Trade Marks” means any
trademarks, service marks, service or trade names,
logos, and other designations of GMX TEC and its
affiliates that we may make available to you in
connection with this Agreement.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, sales and transactions taxes.
“Losses” means any claims, damages,
losses, liabilities, costs, and expenses (including
reasonable attorneys’ fees).
“Policies” means the Acceptable Use
Policy, Privacy Policy, the Site Terms, the Service
Terms, the Trademark Use Guidelines, all restrictions
described in the GMX TEC Content and on the GMX TEC
Site, and any other policy or terms referenced in or
incorporated into this Agreement, but does not include
white papers or other marketing materials referenced on
the GMX TEC Site.
“Privacy Policy” means the privacy policy located at https://www.gmxtec.com/legal/privacy-policy (and any successor or related locations designated by us), as it may be updated by us from time to time.
“Privacy Laws” means all applicable laws, regulations, and other legal requirements relating to (a) privacy, data security, consumer protection, marketing, promotion, and text messaging, email, and other communications; and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personal Data.
"Process"
and its cognates mean any operation or set of
operations which is performed on Personal Data or on
sets of Personal Data, whether or not by automated
means, such as collection, recording, organisation,
structuring, storage, adaptation or alteration,
retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making
available, alignment or combination, restriction,
erasure or destruction.
“Service” means each of the services made
available by us or our affiliates, including those web
services described in the Service Terms. Services do not
include Third-Party Content.
“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
“Service Level Agreement” means all
service level agreements that we offer with respect to
the offered cloud products and services and posted on
the GMX TEC Site, as they may be updated by us from time
to time. The service level agreements we offer with
respect to the Services are located at
https://www.gmxtec.com/legal/service-level-agreements
(and any successor or related locations designated
by GMX TEC), as may be updated by GMX TEC from time to
time.
“Service Offerings” means the Services
(including associated APIs), the GMX TEC Content, the
GMX TEC Marks, and any other product or service provided
by us under this Agreement. Service Offerings do not
include Third-Party Content.
“Service Terms” means the rights and
restrictions for particular Services located at
https://www.gmxtec.com/legal/gmx-services-terms(and
any successor or related locations designated by us), as
may be updated by us from time to time.
“Suggestions” means all suggested
improvements to the Service Offerings that you provide
to us.
“Term” means the term of this Agreement
described in Section 8.
“Termination Date” means the effective
date of termination provided in accordance with Section
8, in a notice from one party to the other.
“Third-Party Content” means Content made available to you by any third party on the GMX TEC Site or in conjunction with the Services.
“Your Content” means Content that you or
any End User transfers to us for processing, storage or
hosting by the Services in connection with your GMX TEC
account and any computational results that you or any
End User derive from the foregoing through their use of
the Services. For example, Your Content includes Content
that you or any end user stores in GMX Store Service.
Your Content does not include Account Information.
2.1 Generally.
You may access and use the Service Offerings in accordance with this
Agreement. Service Level Agreements and Service Terms apply to
certain Service Offerings. You will comply with the terms of this
Agreement and all GMX TEC rules and regulations applicable to your
use of the Service Offerings.
2.2 Your Account.
To access the Services, you must have an GMX TEC account associated
with a valid email address and a valid form of payment. Unless
explicitly permitted by the Service Terms, you will only create one
account per email address.
2.3 Third-Party Content.
Third-Party Content may be used by you at your choice. Third-Party
Content is governed by this Agreement and, if applicable, separate
terms and conditions accompanying such Third-Party Content which may
include separate fees and charges.
3.1 To the Service Offerings.
We may change or discontinue any or all of the Service Offerings or
change or remove functionality of any or all of the Service
Offerings from time to time. We will notify you of any material
change to or discontinuation of the Service Offerings.
3.2 To the APIs.
We may change or discontinue any APIs for the Services from time to
time. For any discontinuation of or material change to an API for a
Service, we will use commercially reasonable efforts to continue
supporting the previous version of such API for 12 months after the
change or discontinuation (except if doing so (a) would pose a
security or intellectual property issue, (b) is economically or
technically burdensome, or (c) would cause us to violate the law or
requests of governmental entities).
3.3 To the Service Level Agreements.We may change, discontinue
or add Service Level Agreements from time to time in accordance with
Section 13.
4.1 Data Privacy.You may specify the GMX TEC regions in which
Your Content will be stored. You consent to the storage of Your
Content in, and transfer of Your Content into, the GMX TEC regions
you select. We will not access or use Your Content except as
necessary to maintain or provide the Service Offerings, or as
necessary to comply with the law or a binding order of a
governmental body. We will not (a) disclose Your Content to any
government or third party or (b) move Your Content from the GMX TEC
regions selected by you; except in each case as necessary to comply
with the law or a binding order of a governmental body. Unless it
would violate the law or a binding order of a governmental body, we
will give you notice of any legal requirement or order referred to
in this Section. We will only use your Account Information in
accordance with the Privacy Policy, and you consent to such usage.
The Privacy Policy does not apply to Your Content.
4.2 GMX TEC Security. Without limiting Section 9 or your obligations under Section 5, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
These measures include, but are not limited to:
a) Maintan appropriate organisational and technical security measures (incl. with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption of Customer Personal Data while in transit and at rest) to protect against unauthorised or accidental access, loss, alteration, disclosure or destruction of Customer Personal Data;
b) Be responsible for the sufficiency of the security, privacy, and confidentiality safeguards of all GMX TEC personnel with respect to Customer Personal Data and liable for any failure by such GMX TEC personnel to meet the terms of this Agreement;
c) Take reasonable steps to confirm that all GMX TEC personnel are protecting the security, privacy and confidentiality of Customer Personal Data consistent with the requirements of this Agreement; and
d) Notify Customer of any Personal Data Breach by GMX TEC, its Subprocessors, or any other third-parties acting on GMX TEC’s behalf without undue delay and in any event within 48 hours of becoming aware of a Personal Data Breach.
4.3 Service Attributes.To provide billing and administration services, we may process Service Attributes in the GMX TEC region(s) where you use the Service Offerings and the GMX TEC regions in the United States. To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel.
4.4 Data processing
4.4.1 NATURE OF DATA PROCESSING
Each party agrees to process Personal Data received under the Agreement only for the purposes set forth in the Agreement.
4.4.2 REQUIRED PROCESSING
If GMX TEC is required by Data Protection Requirements to process any Customer Personal Data for a reason other than providing the services described in the Agreement, GMX TEC will inform Customer of this requirement in advance of any processing, unless GMX TEC is legally prohibited from informing Customer of such processing (e.g. as a result of secrecy requirements that may exist under applicable EU member state laws).
4.5 Data transfer
If GMX TEC is unable or becomes unable to comply with these requirements, then EU Personal Data will be processed and used exclusively within the territory of a member state of the European Union and any movement of EU Personal Data to a non-EU country requires the prior written consent of Customer. GMX TEC shall promptly notify Customer of any inability by GMX TEC to comply with those provisions.
4.6 Data return and deletion
The parties agree that on the termination of the data processing services or upon Customer’s reasonable request, GMX TEC shall, and shall cause any Sub processors to, at the choice of Customer, return all the Customer Personal Data and copies of such data to Customer or securely destroy them and demonstrate to the satisfaction of Customer that it has taken such measures, unless Data Protection Requirements prevent GMX TEC from returning or destroying all or part of the Customer Personal Data disclosed. In such case, GMX TEC agrees to preserve the confidentiality of the Customer Personal Data retained by it and that it will only actively process such Customer Personal Data after such date in order to comply with applicable laws.
4.7 Audit, certification
If a Supervisory Authority requires an audit of the data processing facilities from which GMX TEC processes Customer Personal Data in order to ascertain or monitor Customer's compliance with Data Protection Requirements, GMX TEC will cooperate with such audit. Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time GMX TEC expends for any such audit, in addition to the rates for services performed by GMX TEC.
5.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
5.2 Your Content.
You will ensure that Your Content and your and End Users’ use of
Your Content or the Service Offerings will not violate any of the
Policies or any applicable law. You are solely responsible for the
development, content, operation, maintenance, and use of Your
Content.
5.3 Your Security and Backup.
You are responsible for properly configuring and using the Service
Offerings and otherwise taking appropriate action to secure, protect
and backup your accounts and Your Content in a manner that will
provide appropriate security and protection, which might include use
of encryption to protect Your Content from unauthorised access and
routinely archiving Your Content.
5.4 Log-In Credentials and Account Keys.
GMX TEC log-in credentials and private keys generated by the
Services are for your internal use only and you will not sell,
transfer or sublicense them to any other entity or person, except
that you may disclose your private key to your agents and
subcontractors performing work on your behalf.
5.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
6. Temporary Suspension of Service.
6.1 Generally. We may suspend your or any End User's right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:
a) you or an End User's use of the Service Offerings:
(b) you are, or any End User is, in breach of this Agreement;
(c) you are in breach of your payment obligations under Section 7; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:
(a) you remain responsible for all fees and charges you incur during the period of suspension; and
(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
7. Fees and Payment.
7.1 Service Fees.We calculate and bill fees and charges
monthly. We may bill you more frequently for fees accrued if we
suspect that your account is fraudulent or at risk of non-payment.
You will pay us the applicable fees and charges for use of the
Service Offerings as described on the GMX TEC Site using one of the
payment methods we support. All amounts payable by you under this
Agreement will be paid to us without setoff or counterclaim, and
without any deduction or withholding. Fees and charges for any new
Service or new feature of a Service will be effective when we post
updated fees and charges on the GMX TEC Site, unless we expressly
state otherwise in a notice. We may increase or add new fees and
charges for any existing Services you are using by giving you at
least 30 days’ prior notice. We may elect to charge you interest at
the rate of 1.5% per month (or the highest rate permitted by law, if
less) on all late payments.
7.2 Taxes.
Each party will be responsible, as required under applicable law,
for identifying and paying all taxes and other governmental fees and
charges (and any penalties, interest, and other additions thereto)
that are imposed on that party upon or with respect to the
transactions and payments under this Agreement. All fees payable by
you are exclusive of Indirect Taxes. We may charge and you will pay
applicable Indirect Taxes that we are legally obligated or
authorised to collect from you. You will provide such information to
us as reasonably required to determine whether we are obligated to
collect Indirect Taxes from you. We will not collect, and you will
not pay, any Indirect Tax for which you furnish us a properly
completed exemption certificate or a direct payment permit
certificate for which we may claim an available exemption from such
Indirect Tax. All payments made by you to us under this Agreement
will be made free and clear of any deduction or withholding, as may
be required by law. If any such deduction or withholding (including
but not limited to cross-border withholding taxes) is required on
any payment, you will pay such additional amounts as are necessary
so that the net amount received by us is equal to the amount then
due and payable under this Agreement. We will provide you with such
tax forms as are reasonably requested in order to reduce or
eliminate the amount of any withholding or deduction for taxes in
respect of payments made under this Agreement.
8.1 Term.
The term of this Agreement will commence on the Effective Date and
will remain in effect until terminated under this Section 8. Any
notice of termination of this Agreement by either party to the other
must include a Termination Date that complies with the notice
periods in Section 8.2.
8.2 Termination.
(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may
terminate this Agreement for cause if the other party is in material
breach of this Agreement and the material breach remains unresolved
for a period of 30 days from receipt of notice by the other party.
No later than the Termination Date, you will close your account.
(ii) By Us. We may also terminate this
Agreement immediately upon notice to you (a) for cause if we have
the right to suspend under Section 6, (b) if our
relationship with a third-party partner who provides software or
other technology we use to provide the Service Offerings expires,
terminates or requires us to change the way we provide the software
or other technology as part of the Services, or (c) in order to
comply with the law or requests of governmental entities.
8.3 Effect of Termination.
(a) Generally. Upon the Termination Date:
(i) except as provided in Section 8.3(b), all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 8.3(b);
(iii) all your Personal Data has been returned or deleted in accordance with the terms of this policy and the rules set out by the GDPR
(iv) you will immediately return or, if instructed by us, destroy all GMX TEC Content in your possession; and
(v) Sections 4.1, 5, 8.3, 9 (except the license granted to you in Section 9.3), 10, 11, 13 and 14 will continue to apply in accordance with their terms.
(b) Post-Termination. Unless we terminate your use of the Service Offerings pursuant to Section 8.2(b), during the 30 days following the Termination Date:
(i) we will not take action to remove from the GMX TEC systems any of Your Content as a result of the termination; and
(ii) we will allow you to retrieve Your
Content from the Services only if you have paid all amounts due
under this Agreement.
For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 7.
9.1 Your Content.Except as provided in this Section 4 we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Service Offerings to you and any End Users.
9.2 Adequate Rights.
You represent and warrant to us that: (a) you or your licensors own
all right, title, and interest in and to Your Content and
Suggestions; (b) you have all rights in Your Content and Suggestions
necessary to grant the rights contemplated by this Agreement; and
(c) none of Your Content or End Users’ use of Your Content or the
Service Offerings will violate the Acceptable Use Policy.
9.3 Service Offerings License. We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the GMX TEC Content solely in connection with your permitted use of the Services. Except as provided in this Section 9.3, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Service Offerings, including any related intellectual property rights. Some GMX TEC Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the GMX TEC Content or Third-Party Content that is the subject of such separate license.
9.4 License Restrictions. Neither you nor any End User will use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. You may only use the GMX TEC Marks in accordance with the Trademark Use Guidelines. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
9.5 Third Party Data Processors.
Customer acknowledges that in the provision of some services, on
receipt of instructions from Customer, may transfer Customer
Personal Data to and otherwise interact with third party data
processors. Customer agrees that if and to the extent such transfers
occur, Customer is responsible for entering into separate
contractual arrangements with such third party data processors
binding them to comply with obligations in accordance with Data
Protection Requirements. For avoidance of doubt, such third party
data processors are not Subprocessors.
9.6 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
10. Indemnification.
10.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your GMX TEC account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.
10.2 Intellectual Property.
(a) Subject to the limitations in this Section 10, GMX TEC will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section 10, you will defend GMX TEC, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) Neither party will have obligations or liability under this Section 10.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, GMX TEC will have no obligations or liability arising from your or any End User’s use of the Services after GMX TEC has notified you to discontinue such use. The remedies provided in this Section 10.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.
(d) For any claim covered by Section 10.2(a), GMX TEC will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
10.3 Process. The obligations under this Section 10 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
The
service offerings are provided
“
as
is.
”
Except to the extent prohibited by law, or to the extent any
statutory rights apply that cannot be excluded, limited or
waived, we and our affiliates and licensors (a) make no
representations or warranties of any kind, whether express,
implied, statutory or otherwise regarding the service offerings
or the third-party content, and (b) disclaim all warranties,
including any implied or express warranties (i) of
merchantability, satisfactory quality, fitness for a particular
purpose, non-infringement, or quiet enjoyment, (ii) arising out
of any course of dealing or usage of trade, (iii) that the
service offerings or third-party content will be uninterrupted,
error free or free of harmful components, and (iv) that any
content will be secure or not otherwise lost or altered.
We
and our affiliates and licensors will not be liable to you for
any direct, indirect, incidental, special, consequential or
exemplary damages (including damages for loss of profits,
revenues, customers, opportunities, goodwill, use, or data),
even if a party has been advised of the possibility of such
damages. Further, neither we nor any of our affiliates or
licensors will be responsible for any compensation,
reimbursement, or damages arising in connection with: (a) your
inability to use the services, including as a result of any (i)
termination or suspension of this agreement or your use of or
access to the service offerings, (ii) our discontinuation of any
or all of the service offerings, or, (iii) without limiting any
obligations under the service level agreements, any
unanticipated or unscheduled downtime of all or a portion of the
services for any reason; (b) the cost of procurement of
substitute goods or services; (c) any investments, expenditures,
or commitments by you in connection with this agreement or your
use of or access to the service offerings; or (d) any
unauthorized access to, alteration of, or the deletion,
destruction, damage, loss or failure to store any of your
content or other data. In any case, except for payment
obligations under section 10.2, our and our affiliates
’
and licensors
’
aggregate liability under this agreement will not exceed the
amount you actually pay us under this agreement for the service
that gave rise to the claim during the 12 months before the
liability arose.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the GMX TEC Site or by otherwise notifying you in accordance with Section 14.8; provided, however, that we will provide at least 90 days’ advance notice for adverse changes to any Service Level Agreement. Subject to the 90 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the GMX TEC Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
14. Miscellaneous.
14.1 Assignment.
You will not assign or otherwise transfer this Agreement or any of
your rights and obligations under this Agreement, without our prior
written consent. Any assignment or transfer in violation of this
Section 14.1 will be void. Subject to the foregoing, this Agreement
will be binding upon, and inure to the benefit of the parties and
their respective permitted successors and assigns.
14.2 Entire Agreement.
This Agreement incorporates the Policies by reference and is the
entire agreement between you and us regarding the subject matter of
this Agreement. This Agreement supersedes all prior or
contemporaneous representations, understandings, agreements, or
communications between you and us, whether written or verbal,
regarding the subject matter of this Agreement (but does not
supersede prior commitments to purchase Services such as GMX Compute
Reserved Instances). We will not be bound by, and specifically
object to, any term, condition or other provision that is different
from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) including for example,
any term, condition or other provision (a) submitted by you in any
order, receipt, acceptance, confirmation, correspondence or other
document, (b) related to any online registration, response to any
Request for Bid, Request for Proposal, Request for Information, or
other questionnaire, or (c) related to any invoicing process that
you submit or require us to complete. If the terms of this document
are inconsistent with the terms contained in any Policy, the terms
contained in this document will control, except that the Service
Terms will control over this document.
14.3 Governing Law.This agreement is governed by English Law
and you submit to the jurisdiction of the english courts.
14.4 Disputes. Any dispute or claim relating in any way to your use of the Service Offerings within t his Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
14.5 Independent Contractors; Non-Exclusive Rights.
We and you are independent contractors, and this Agreement will not
be construed to create a partnership, joint venture, agency, or
employment relationship. Neither party, nor any of their respective
affiliates, is an agent of the other for any purpose or has the
authority to bind the other. Both parties reserve the right (a) to
develop or have developed for it products, services, concepts,
systems, or techniques that are similar to or compete with the
products, services, concepts, systems, or techniques developed or
contemplated by the other party, and (b) to assist third party
developers or systems integrators who may offer products or services
which compete with the other party’s products or services.
14.6 Language.
All communications and notices made or given pursuant to this
Agreement must be in the English language. If we provide a
translation of the English language version of this Agreement, the
English language version of the Agreement will control if there is
any conflict.
14.7 Confidentiality and Publicity.
You may use GMX TEC Confidential Information only in connection with
your use of the Service Offerings as permitted under this Agreement.
You will not disclose GMX TEC Confidential Information during the
Term or at any time during the 5-year period following the end of
the Term. You will take all reasonable measures to avoid disclosure,
dissemination or unauthorized use of GMX TEC Confidential
Information, including, at a minimum, those measures you take to
protect your own confidential information of a similar nature. You
will not issue any press release or make any other public
communication with respect to this Agreement or your use of the
Service Offerings.
14.8 Notice.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the GMX TEC Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the GMX TEC Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact GMX TEC as follows: (i) by post to: GMX TEC Ltd, International House, 24 Holborn Viaduct, EC1A 2BN or (ii) by personal delivery, overnight courier or registered or certified mail to GMX TEC Cloud. We may update our address for notices to us by posting a notice on the GMX TEC Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
14.9 No Third-Party Beneficiaries.
Except as set forth in Section 9, this Agreement does not create any
third-party beneficiary rights in any individual or entity that is
not a party to this Agreement.
14.10 No Waivers.
The failure by us to enforce any provision of this Agreement will
not constitute a present or future waiver of such provision nor
limit our right to enforce such provision at a later time. All
waivers by us must be in writing to be effective.
14.11 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
GMX TEC shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of GMX TEC Solutions or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”). In such circumstances GMX TEC shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 30 days, the Client may terminate this Agreement by giving 30 days' written notice.
Last Updated: 25th of August nbsp;2021