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T&Cs - ZeroBubble Subscription Plans
ZEROBUBBLE SUBSCRIPTION PLANS TERMS AND CONDITIONS
1. APPLICATION AND DEFINITIONS
1.1 - Upon acceptance of the Letter of Engagement by you (hereinafter the ‘Client’), the Letter of Engagement shall constitute a binding agreement by and between the Client and ZeroBubble (hereinafter each a ‘Party’ and collectively referred to as the ‘Parties’) for the provision of Products and/or Services to the Client, as the case may be.
1.2 - The relationship between the Parties in terms of the Letter of Engagement shall, subject to the provisions contained therein, be regulated by the terms and conditions set out herein (hereinafter the ‘T&Cs’) which shall be binding on the Parties and shall form an integral part of the Letter of Engagement.
1.3 - The acceptance of the Letter of Engagement shall constitute an acceptance of all of the T&Cs contained herein and such T&Cs shall apply in respect of all the Products and/or Services provided by ZeroBubble to the Client.
1.4 - In the case of any conflict or inconsistency between the provisions of the Letter of Engagement and these T&Cs, the provisions of the Letter of Engagement shall prevail.
1.5 - The Letter of Engagement including any annexes or appendices attached thereto, together with these T&Cs, shall collectively be referred to as the ‘Agreement’.
1.6 The following terms which are being used in these T&Cs will have the following meanings unless the context otherwise requires:
‘Client Data’ means all data, information, text, drawings and other material which are embodied in any electronic, optical, magnetic or any tangible medium and which are supplied to ZeroBubble by the Client and/or which ZeroBubble is required to generate, collect, store, transmit or otherwise process, in connection with the Agreement.
‘Client Site’ means and includes any physical premises of the Client wherefrom the Services are to be provided.
‘Confidential Information’ means any and all data and information, in written, verbal or other medium, whether or not marked as confidential but which is reasonably expected or understood to constitute confidential information, including data and information relating to the business, processes, operations, management, know-how, market opportunities, transactions or affairs of either of the Parties, and/or a Party’s customers, clients, suppliers or associated companies or entities, or any matter arising under and/or in connection with the Agreement, that has been disclosed or imparted by one of the Parties (hereinafter the “disclosing Party”) to the other one (hereinafter the “recipient Party”), including without limitation, information, documents, reports, financial or other data, marketing plans, technology, the negotiations to and terms and subject-matter of the Agreement, and other.
‘Effective Date’ means the date of acceptance and coming into force of the Letter of Engagement, and consequently also of these T&Cs.
‘Fees & Charges’ means the fees payable by the Client for the provision of the Products and/or Services, exclusive of VAT and any other duties or taxes, as may be applicable.
‘Force Majeure’ means any cause affecting the performance by a Party of its obligations under the Agreement arising from acts, events, omissions, circumstances, happenings or non-happenings beyond its reasonable control, including acts of God, pandemics or epidemics, riots, civil commotion or unrest, labour disputes, acts of war or terrorism, acts of government, fire, flood, storm or earthquake, or disaster.
‘GDPR’ means the General Data Protection Regulation (the ‘GDPR’), namely, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC.
‘Hardware’ means the point of sale terminals, cash registers, and any other physical equipment and its operating software, if any, being sold, leased, procured for the benefit of or otherwise provided or made available, as the case may be, by ZeroBubble to the Client in its quality as end-user for use strictly related to and in pursuit of its business activity, which Hardware is being used in conjunction with the Services or in relation to which the Services are being provided, as further described in the Letter of Engagement or any annex or appendix attached thereto.
‘Incident’ means any event which is not part of the standard provision and operation of the Services and which causes, or may cause, an interruption to, or a reduction in, the quality of the Services.
‘Intellectual Property Rights’ includes, without limitation, all copyright and rights in the nature of copyright, design rights, patents, trademarks, tradenames, data base rights, moral rights, know-how, trade secrets, domain names, and any other intellectual or industrial property rights and any licences in connection with any of the same, whether or not registered or capable of registration, or pending registration, and whether subsisting in Malta or in any part of the world.
‘Letter of Engagement’ means the letter of engagement entered into by and between and binding on the Client and ZeroBubble for the provision of Products and/or Services to the Client, and to which these T&Cs form an integral part.
'Permitted User/s’ means personnel of the Client who are recipient/s of and users of the Services.
‘Problem’ means an unknown underlying cause of one or more Incidents. An Incident becomes a Problem when a Workaround is provided to the Client but the underlying cause of the Incident still exists or the Client is otherwise still operating but a correction and Resolution of the Incident is still required.
‘Product/s’ means the Software and/or Hardware being sold, leased, procured for the benefit of or otherwise provided or made available, as the case may be, by ZeroBubble to the Client in its quality as end-user for use strictly related to and in pursuit of its business activity, as further described in the Letter of Engagement or any annex or appendix attached thereto.
‘Resolution’ means an action that will definitely resolve an Incident or Problem resulting in the Incident or Problem being closed.
‘Resolution Time’ means the time that elapses between the initiation of a communication by the Client notifying an Incident to ZeroBubble and the notification of the Resolution of the Incident to the Client by ZeroBubble.
‘Response Time’ means the time that elapses between the initiation of a communication by the Client notifying an Incident to ZeroBubble and the acknowledgement of the Incident through the issue of a log number to the Client.
‘Service/s’ means the services which are to be provided to the Client, as further described in the Letter of Engagement or any annex or appendix attached thereto.
‘Service Level/s’ means the level of service/s provided by ZeroBubble to the Client as defined by the Response Time and Resolution Time indicated in the Letter of Engagement or any annex or appendix attached thereto.
‘Software’ means the software, platform, application or solution, comprising pay-per-use or subscription-based cloud-based software of Third-Party providers/vendors, and all its constituents, integration points and operating software, including any updates and upgrades thereto, that is being provided or procured by ZeroBubble for the benefit of the Client in its quality as end-user for use strictly related to and in pursuit of its business activity, and is being supported by ZeroBubble, and in relation to which the Services are being provided, as further described in the Letter of Engagement or any annex or appendix attached thereto.
‘Sub-contractor’ means any Third-Party supplier of services and/or material or other resources, as may be engaged by ZeroBubble to assist in the provision of the Services.
‘Third-Party/Parties’ means any person other than ZeroBubble or the Client.
‘Workaround’ means a temporary solution to the Incident:
i. which is not unreasonably difficult to put into operation;
ii. which has no adverse effect on the security of the Hardware or Software and/or which does not otherwise breach security requirements and controls;
iii. which enables the Permitted User to continue to use the Software in such a manner as to avoid the Incident having any materially adverse effect on the operation of the Client’s activities; and
iv. the implementation of which is agreed between the Parties (each party acting reasonably) before it takes place.
1.7 - In these T&Cs, unless the contrary intention appears:
i. - words denoting the singular include the plural and vice versa;
ii. - words denoting the masculine gender include the female and the neutral genders and the neutral gender shall include the masculine and female genders;
iii. - words denoting persons include physical persons, companies, corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities;
iv. - references to ‘Clause/s’ are references to clause/s of these T&Cs;
v. - references to ‘any document’ (including, without limitation, to any annexes or appendices thereto) are references to that document as amended, supplemented, novated or replaced, from time to time;
vi. - references to ‘law’ includes any instrument having the force of law, as amended, replaced or re-enacted, from time to time, and any unwritten rule of law, and the expressions ‘lawful’ and ‘lawfully’ shall be construed accordingly;
vii. - references to the ‘Parties’ includes their respective successors (particular or universal) in title, transferees and assignees, where applicable; and
viii. - headings to the Clauses herein contained are for ease of reference and shall not affect the interpretation or construction hereof.
2. BACKGROUND & SCOPE
2.1 - ZeroBubble shall provide the Client, on a non-exclusive basis, with the Products and/or Services against payment of applicable Fees & Charges, as per the terms outlined in the Letter of Engagement or any annex or appendix attached thereto.
2.2 - In the course of providing the Services to the Client, ZeroBubble undertakes to comply with the Service Levels as per the terms outlined in the Letter of Engagement or any annex or appendix attached thereto.
2.3 - ZeroBubble’s responsibilities will be limited to the responsibilities set out in the Agreement. Any responsibility not expressly mentioned in the Agreement will be deemed to be the responsibility of the Client.
2.4 - The Parties hereby acknowledge and agree that ZeroBubble may delegate, sub-contract or outsource any or all of its obligations arising under/from the Agreement, including the provision of part or all of the Services contemplated hereunder, to trusted commercial partners (the ‘sub-contractor’), without giving prior notice to the Client, in which case the relevant sub-contractor shall be permitted to contact and communicate directly with the Client pursuant to and pending the provision of the Services under the Letter of Engagement in so far as this is deemed necessary or beneficial for the proper performance of the Services, including without limitation, to provide updates regarding work progress and complexities, obtain clarifications re deliverables if/where required, and the like.
3. TERMINATION FOR BREACH OR ACT OF DEFAULT
3.1 - During the term of the Letter of Engagement, the Parties may, from time to time, sign and execute as many annexes or appendices covering changes to or the provision of new Products and/or Services, any and all of which annexes and appendices shall constitute an integral part of and be governed by and be subject to the provisions of the Letter of Engagement and these T&Cs.
3.2 - The Letter of Engagement, and consequently these T&Cs, shall be dissolved and shall automatically terminate with immediate effect, at the discretion of ZeroBubble and without need for any further formality, in the event that the Client is in default in the following circumstances:
i. - is in the course of winding up or otherwise undergoing bankruptcy or insolvency proceedings, or upon the occurrence or manifestation of similar circumstances; or
ii. - is otherwise in material breach of its undertakings and obligations under the Agreement and fails to remedy the breach without reasonable justification within thirty (30) days from receipt of a written notice by ZeroBubble requesting it to remedy the said breach.
3.3 - For the sake of clarity it is agreed that where ZeroBubble is acting toward procuring access or use of Software to/for the benefit of the Client, the Letter of Engagement and consequently these T&Cs shall be dissolved and shall automatically terminate with immediate effect and without need for any further formality, upon expiration or termination of the SaaS subscription or service provided by the relevant Third-Party provider/vendor.
3.4 - The expiration or termination of the Letter of Engagement shall automatically terminate the provision of Services contracted thereunder, provided that:
i. - expiration or termination shall not prejudice any other rights or remedies a Party may be entitled to under the Agreement or at law;
ii. - expiration or termination shall not affect the coming into or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such expiration or termination; and
iii. - expiration or termination shall not affect any accrued rights or liabilities of either Party, including the obligation of the Client to effect payment and settlement of any outstanding Fees & Charges due to ZeroBubble in respect of the Products and/or Services already provided or rendered during the term of the Letter of Engagement up to the date of expiration or termination.
4. FEES, CHARGES AND TERMS OF PAYMENT
4.1 - By way of consideration for the provision of the Products and/or Services to the Client, the Client shall pay ZeroBubble the Fees & Charges, in the manner and in accordance with the terms defined in this Clause and in the Letter of Engagement.
4.2 - The Client shall settle invoices within fourteen (14) days from the date of issue of the relevant invoice by ZeroBubble. ZeroBubble may automatically withdraw funds from the Client’s designated bank account by way of settlement of the said invoice where the Client has agreed to execute a direct debit mandate in favour of ZeroBubble. Interest may be charged for late payment at the maximum rate permitted by law. Any late payment will also be subject to the reimbursement of any costs of/associated with collection (including reasonable legal fees).
4.3 - The Client hereby acknowledges and understands that the non-payment or any delay in settling relevant invoices issued by ZeroBubble may impact the timely provision and delivery of the Services, including, where applicable, the procurement of or enabling access to and use of the Software.
4.4 - ZeroBubble reserves the right to increase the Fees & Charges applied under the Letter of Engagement on an annual basis or as frequently as may be necessary if dictated by changing market conditions or realities, including in the event of an increase in the underlying base price for price-per-use or subscription-based Software being used by the Client in which case ZeroBubble undertakes to notify the Client by providing a sixty (60) days’ notice during which period the Client may decide to terminate the Letter of Engagement notwithstanding other clauses established in the Agreement.
5. CLIENT UNDERTAKINGS
5.1 - The Client undertakes to inform and advise ZeroBubble, within reasonable time, of any changes of a legal, logistical, procedural or technical nature which are known or become known to the Client in the course of the provision of the Services by ZeroBubble and which may impact the performance of the Services under the Letter of Engagement.
5.2 - The Client agrees to abide by or otherwise undertakes to carry out any such act as may be required to demonstrate its agreement to abide by, all current and future Terms, Policies and Procedures, relating to its access to or use of the relevant Products and/or Services, as may be established, required, implemented, provided or made available by ZeroBubble, from time to time, hereby also authorising ZeroBubble to carry out or perform any such act as may be necessary pursuant to or that is conductive to the same, in the name for and on it's behalf. The Client acknowledges that access or use of the Products and/or Services may be denied or suspended unless it agrees to abide by, endorse or execute such document or carry out or perform such act, or otherwise demonstrate compliance with, any and all such Terms, Policies and Procedures.
5.3 - In the event that an amendment in the Terms, Policies and Procedures conflicts with the obligations of ZeroBubble or the Client under the Agreement, the Terms, Policies and Procedures shall prevail.
5.4 - If the Client does not follow the Terms, Policies and Procedures as defined herein and this creates or will create or is likely to create conditions which will materially or substantially impair ZeroBubble’s ability to perform the Services or otherwise comply with its undertakings, obligations or responsibilities under the Agreement, the Service Levels for the affected Services will not apply and Services will be provided on a best effort basis. ZeroBubble further reserves the right to suspend, for such time as it considers appropriate, the provision of Services to the Client if the Client is in breach of the Agreement and/or the Terms, Policies and Procedures. The Terms, Policies and Procedures shall in no event be interpreted so as to relieve the Client from its undertakings, responsibilities and obligations under the Agreement.
5.5 - The Client shall provide ZeroBubble including any of its sub-contractors, full, safe and unrestricted access to any Client Data, the Client Site and any other necessary sites, the Products including the Hardware and other equipment and/or Software of the Client, Permitted Users and other personnel, and any other information or documentation, as may be reasonably necessary, to enable ZeroBubble to define, perform and render the Services or to otherwise comply with its undertakings, obligations or responsibilities under the Agreement.
5.6 - In the event that the Client fails to provide the requested access to ZeroBubble as per the provisions of the above sub-Clause, the Service Levels for the affected Services will not apply and Services will be provided on a best effort basis.
5.7 - The Client undertakes to perform Product testing when/as specifically requested to do so by ZeroBubble. The Products and/or Services will be deemed to have been accepted by and successfully delivered to the Client when the Client has confirmed its acceptance in the form and manner required by ZeroBubble, provided that, if the Client fails for some reason to provide such acceptance within five (5) days from receipt of ZeroBubble’s instructions to this effect and has not provided a written notice of rejection, the Client shall be deemed to have tacitly provided its acceptance.
5.8 - ZeroBubble shall use its commercially reasonable efforts to complete any and all deliverables in the most expeditious time possible, in accordance with the time-frames agreed to with the Client in the relevant statement of works, provided that, it is hereby agreed and understood that, the Client shall co-operate and collaborate with ZeroBubble, to the fullest extent possible, towards meeting agreed time-lines.
5.9 - ZeroBubble shall use its best endeavours to undertake any scheduled maintenance, updates and upgrades in such a manner as to cause the least disruption possible to the functionality of the Product, and the Client hereby acknowledges and agrees that it shall refrain from holding ZeroBubble liable for any damages or loss of profits caused as a result of any temporary disruption/system downtime.
6. WARRANTIES AND REPRESENTATIONS
6.1 - Without prejudice to any other undertakings, representations, and warranties of the Parties otherwise contained in the Agreement, the Parties undertake, represent and warrant as follows:
i. - it has full capacity and authority to enter into the Letter of Engagement and to perform its obligations under the Agreement;
ii. - the Letter of Engagement is executed by a duly authorised representative of the Party; and
iii. - once duly executed, the Letter of Engagement will constitute legal, valid and binding obligations on the Party.
6.2 - The Client further represents and warrants that:
i. - it shall transmit, settle and effect timely payment of any and all Fees & Charges falling due as per the Letter of Engagement;
ii. - it shall, at all times, comply with all Terms, Policies and Procedures as defined herein;
iii. - it shall only use the Product in the manner permitted by and under the Agreement in its quality as end-user for use strictly related to and in pursuit of its business activity; and
iv. - there is no material fact or information, individually or in the aggregate, relating to its business, prospects, condition (financial or otherwise), affairs, operations, or assets, that has not been disclosed to ZeroBubble prior to the execution of this Agreement and which if it were disclosed would reasonably be expected to have had a bearing on the execution or otherwise of the Letter of Engagement.
6.3 - To the extent permitted by law and without prejudice to any other warranties provided by ZeroBubble under the Agreement, ZeroBubble disclaims all other warranties, either expressed or implied, including without limitation: warranties on merchantability; non-infringement (other than infringement of Intellectual Property Rights); fitness for a particular purpose; that there will be no damage, loss or corruption of data, nor any disruption or disturbance when used in conjunction with other hardware or software; or that the operation and functionality of the Product will be uninterrupted and/or error-free at all times.
6.5 - ZeroBubble assumes responsibility for all actions of/taken by its own employees, agents and/or sub-contractors.
7. OWNERSHIP AND INTELLECTUAL PROPERTY
7.1 - The Parties shall retain rights to all data and Intellectual Property Rights arising from materials and documentation owned by the respective Party prior to the signing of the Letter of Engagement.
7.2 - Each Party undertakes to perform its obligations under the Agreement in a manner that does not infringe or misappropriate any Intellectual Property Rights or other proprietary right of the other Party or any Third-Party.
7.4 - Any software, tool, platform and any of the extensions and elements thereof, developed or acquired by ZeroBubble in the course of, to assist or otherwise facilitate the provision of the Services contemplated herein, shall be the exclusive property of ZeroBubble (or its licensors).
7.5 - All Client Data and other data provided by the Client to ZeroBubble related to or in conjunction with the provision of Services, shall remain the sole property of the Client (or its licensors) and ZeroBubble undertakes not to make use of this data except for and pursuant to the provision of the Services in the manner contemplated in this Agreement.
7.6 - It is hereby agreed and understood that any and all Intellectual Property Rights and other rights obtained or acquired by the Client from Third-Parties, will, for the duration of the Letter of Engagement and pursuant to the provision of the Services by ZeroBubble, be granted to ZeroBubble, at no cost, in so far as this is required or necessary or otherwise deemed beneficial to enable it to provide the Services and perform its obligations under the Agreement.
7.7 - The Client shall indemnify ZeroBubble against any and all damages, loss, costs, charges and expenses, actions and claims, arising from or incurred or sustained by reason of any infringement or alleged infringement of any Intellectual Property Rights of a Third-Party pending the provision of Services contemplated under the Letter of Engagement where such infringement is attributable to the Client.
7.8 - If/where a claim, demand or action for infringement or alleged infringement of any Intellectual Property Rights is made or is likely to be made, the defaulting Party shall:
i. - either modify or replace the infringing material in so far as this is necessary and possible so as to avoid the infringement or alleged infringement of any Intellectual Property Rights and permit the smooth continuation of provision of Services in terms of the Agreement; or
ii. - seek or procure authorisation to use the Intellectual Property Rights in accordance with the provisions of the Agreement.
8. LEASE OF HARDWARE
8.1 - The provisions of this Clause apply to the provision of Hardware (the ‘Leased Products’) on lease/loan (the ‘Lease’) by ZeroBubble to the Client, and govern and regulate the respective rights and obligations of the Parties towards each other relating to the said Lease.
8.2 - The Client shall receive Products from ZeroBubble, on lease/loan, for a limited period of time as agreed to in the Letter of Engagement (the ‘Lease Period’), for use by the Client in its quality as end-user and strictly related to and in pursuit of its business activity (the ‘Purpose’).
8.3 - Where different Hardware offerings are provided on lease/loan at different intervals, each Lease shall constitute a separate, distinct, and independent lease and contractual obligation of the Client towards ZeroBubble.
8.4 - The Client shall use the Leased Products only for the intended Purpose and in no case shall it be permitted to use the Leased Products for any unlawful activity or in any improper manner, and further undertakes to always use the Leased Products in accordance with the instructions received from ZeroBubble.
8.5 - The Client undertakes to take reasonable care and exercise proper diligence in using and storing the Leased Products during the Lease Period and to treat and maintain the Leased Products with the same degree of care as the Client uses/would use with respect to its own property and in no event less than a reasonable degree of care for products of a similar kind and importance. To this end, ZeroBubble reserves the right to carry out spot checks and/or make inquiries with regard to the proper use and storage of the Leased Products by the Client.
8.6 - The Client shall not make any additions, alterations, improvements or the like to the Leased Products without the prior written consent of ZeroBubble.
8.7 - The Leased Products shall remain the property of ZeroBubble for the duration of the Lease Period and the Client shall not be deemed to be the owner or have any title or interest therein save the right of use for the Purpose in accordance with the provisions of this Clause, provided that, the Client shall be given the option to acquire and purchase the Leased Products for a marginal price to be determined by and agreed with ZeroBubble at the end of the Lease Period.
8.8 - Should the Client opt to acquire and purchase the Leased Products at the end of the Lease Period, it shall be required to submit an official purchase order to ZeroBubble, who shall in turn accept to sell and transfer the same Leased Products to the Client. In such eventuality, ZeroBubble will subsequently invoice the Client for the balance due by way of consideration for the sale and transfer of the Leased Products, in which case invoicing and relevant payment terms shall be the same as those applicable under the prevailing Letter of Engagement in force between and binding the Parties.
8.9 - The Client is responsible for and shall bear the risk of any loss, theft or damage to the Leased Products from the time they are delivered to his premises, as the case may be, until the time that that they are returned to ZeroBubble, where applicable. To this end, the Client shall be responsible for and undertakes to reimburse and indemnify ZeroBubble, without delay, for any loss, theft or damage due to misuse, abuse or negligence, to the Leased Products, sustained during the period in which the Leased Products are in the possession of and/or under the control of the Client for the duration of the Lease Period.
8.10 - ZeroBubble may, at its sole discretion, allow or grant an extension of the Lease beyond the Lease Period for such additional period/s as it deems fit. Requests for extensions must be submitted to ZeroBubble for approval at least fifteen (15) days prior to the expiry of the relevant Lease Period, in which case the Parties shall sign and execute a lease extension addendum prior to the end of the original Lease Period, provided that, it is hereby acknowledged and understood that, where the Leased Products are provided to the Client for a very short period of time on a singular or event-basis, it shall not be possible to extend the Lease Period save as otherwise may be expressly permitted by ZeroBubble.
8.11 - ZeroBubble shall terminate the Lease, with immediate effect, upon giving notice to the Client, where:
i. - the Client fails to cure a material breach within fifteen (15) days of receipt of notice of such breach by ZeroBubble calling upon it to remedy the breach;
ii. - the Client is, in the opinion of ZeroBubble, not making proper use or storage of the Leased Products thereby failing to take reasonable care and exercise proper diligence in using and storing the Leased Products; or
iii. - the Letter of Engagement in force between and binding the Parties expires or is otherwise terminated for whatever reason.
8.12 - Upon and with effect from expiration or termination of the Lease, the Client’s right of use of the Leased Products will be immediately terminated and the Client shall immediately return the Leased Products (which were not acquired/purchased by the Client) to ZeroBubble, without further delay and in no event later than four (4) days from the expiration or termination of the Lease, in a good state of repair, condition and working order with the exception of ordinary wear and tear resulting from proper use thereof alone, as they were originally provided to the Client and the beginning of the Lease.
8.13 - In the event that the Client does not return the Leased Products within the time period set out herein, ZeroBubble may, at its option, charge the Client and recover a late fee equivalent to five percent (5%) of the Fees & Charges payable for the Leased Products for the Lease Period for each fifteen (15) day period of delay.
8.14 - ZeroBubble shall lease the Leased Products ‘as is’ and disclaims any and all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, except that ZeroBubble shall lease the Leased Products as provided herein subject to any and all other warranties subsisting herein, as may be applicable.
8.15 - ZeroBubble shall not be responsible for any loss or damage resulting from the installation, operation or other use of the Leased Products, including direct, indirect, incidental or consequential loss or damage.
8.16 - Any applicable supplier/manufacturer warranties or guarantees are, to the extent that such rights have been transferred to ZeroBubble, hereby assigned without representation or warranty by ZeroBubble to the Client for the duration of the Lease Period.
8.17 - For the duration of the Lease Period, ZeroBubble shall provide maintenance and support services to the Client in accordance with the service levels agreed to between the Parties such as to keep and maintain the Leased Products in a good state of repair, condition and working order, and thereby undertakes to furnish any and all parts, mechanisms and devices required to keep the Leased Products in good mechanical working order.
8.18 - If, during the Lease Period, the Leased Products are defective, faulty or otherwise not functioning properly, ZeroBubble shall, at its option, place the same products in a good state of repair, condition and working order, or otherwise provide a replacement product with like equipment and functionality and in a good state of repair, condition and working order, provided that, if it results that the Client has itself damaged due to misuse, abuse or negligence or otherwise contributed to the fault, ZeroBubble shall not be obliged to provide such service or replacement product.
8.19 - ZeroBubble reserves the right to request the Client to obtain and maintain for the Lease Period, at its own expense, property damage and liability insurance and insurance against such other risks of loss as are normally maintained on products and equipment of the type leased hereunder by persons carrying on the business in which the Client is engaged, naming ZeroBubble as an additional insured under the policy.
8.20 - Any matter which does not strictly relate to the subject-matter of this Clause shall be governed by the other applicable provisions prevailing under the Agreement.
8.21 - The Client shall not be entitled to assign the Lease or its interest herein, nor to sub-lease the Leased Products, nor create or incur any security interest, lien or other encumbrance over the Leased Products, and further undertakes not to place the Leased Products in the possession of, at the disposal of or under the control of any Third-Party, save as otherwise may be expressly authorized by ZeroBubble.
9. DATA PROTECTION
9.1 - For the purpose of this Clause ‘personal data’, ‘sensitive data’ and ‘processing’ shall have the same meaning as set out in the GDPR as herein defined.
9.2 - Each Party shall process personal data in accordance with applicable data protection legislation, namely, the GDPR and the Data Protection Act, Cap 586 of the Laws of Malta.
9.3 - ZeroBubble may process personal data in its quality as ‘data controller’ with regard to data of the Client, and/or in its quality as ‘data sub/processor’ with regard to data of the Client’s clients, customers, suppliers, sub-contractors, employees, and the like.
9.4 - The Client represents and warrants that it has the relevant authority to process and disclose personal data as afore-described unto ZeroBubble pursuant to the performance of the Agreement.
i. - for operational and administrative purposes such as to enable it to administer and manage the relationship with the Client;
ii. - to see to the proper performance of the Letter of Engagement, including the provision or procurement of the Software and/or the provision of Services in the manner contemplated herein;
iii. - to enable it to perform any other obligations or fulfil any other responsibilities arising under/resulting from the Agreement;
iv. - to protect any legitimate interest to the extent that such legitimate interest does not undermine or jeopardize the legitimate interest of data-subjects;
v. - to comply with any obligations subsisting under applicable law including tax law and employment law, as may be in force from time to time; or
vi. - for any other specific purpose where ZeroBubble has relied on the Client’s express consent for processing, provided that, the Client has the right to retract any consent previously given and to request that its personal data be deleted where its consent has been withdrawn and no other lawful ground for processing subsists.
9.6 - In the course of providing or procuring the Software for the benefit of the Client and/or providing Services to the same, ZeroBubble may process personal data by using tracking technologies for the purpose of enabling functionality of the Software or to ensure the proper or better provision of the Services, as well as to optimize user experience and provide targeted advertising.
9.7 - ZeroBubble may disclose personal data which may come into its possession to: (a) cloud services providers/vendors up/along the supply chain to enable functionality of the Software or to ensure the proper provision of Services in the manner contemplated herein; (b) associated companies, sub-contractors or other selected commercial partners who assist it in the provision of the Services or the performance of its obligations under or pursuant to the Agreement; (c) payment processing entities assisting it in the processing of and collection of relevant payments from the Client; and (d) to credit reference agencies for the purpose of assessing the credit status of the Client.
9.8 - Where ZeroBubble transfers personal data to third countries outside of the European Union/European Economic Area, it shall ensure that appropriate safeguards are put in place in accordance with applicable legislation to ensure the adequate protection of personal data.
9.9 - In so far as ZeroBubble may, in certain circumstances, be deemed to constitute a ‘data sub/processor’ under and in terms of the GDPR, it undertakes the following:
i. - in the course of carrying out its processing activities, it shall be bound by the provisions of the Agreement including any data processing addendum signed off or endorsed by the Parties, from time to time;
ii. - it shall process personal data on the basis of the documented instructions received from the Client in its quality as ‘data controller’ or otherwise passed on to it in its quality as ‘data processor’. It is hereby understood that the provisions and instructions contained herein constitute documented instructions for the purpose of this sub-Clause;
iii. - it shall ensure that its employees, agents or other persons authorised to process relevant personal data on its behalf are also bound by duties of confidentiality;
iv. - it shall implement appropriate technical and organisational measures to ensure an adequate level of security to prevent the unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, and shall endeavour to notify the Client without delay of any security breach;
v. - it shall refrain from engaging sub-processors unless authorised by the Client and provided that they are bound by the same provisions binding ZeroBubble herein. It is hereby understood that the provisions and instructions contained herein constitute a general authorisation by the Client permitting ZeroBubble to appoint other processors for carrying out specific processing activities on behalf of the controller;
vi. - it shall co-operate with the Client to assist it in complying with its own obligations under applicable data protection legislation including its obligation to respond to data subjects’ requests when the latter exercise their respective rights at law;
vii. - it shall co-operate with the Client and make all such information available as may be necessary for the latter to demonstrate compliance with its own obligations under applicable data protection legislation; and
viii.- it shall delete or return, as the context permits, such personal data after expiration or termination of the Letter of Engagement, save as and to the extent that applicable law permits otherwise.
9.10 - ZeroBubble shall retain and process personal data for the duration of the Letter of Engagement and otherwise in accordance with its company policies for record retention. ZeroBubble shall take all reasonable steps to destroy or permanently erase data from its systems when such data is no longer required.
9.12 - The provisions of this Clause shall survive the expiration or termination of the Letter of Engagement.
10. CONFIDENTIALITY OF DATA
10.1 - The Parties shall keep strictly confidential all information received in connection with the Letter of Engagement, as well as other information which qualifies as Confidential Information in the manner defined herein, provided that, the Parties may disclose such information only to its legal representatives or consultants, employees, agents or sub-contractors who require the information in furtherance of or pursuant to the performance of the Letter of Engagement, under a corresponding duty of confidentiality.
10.2 - The Parties further undertake as follows:
i. - to keep all Confidential Information and to store any information entrusted with the recipient Party’s possession, custody or control in connection with the Agreement, securely and in such a way so as to prevent unauthorised access;
ii. - the recipient Party shall immediately notify the disclosing Party if it becomes aware that any Confidential Information entrusted within its possession, custody or control has been communicated or disclosed to, or accessed by, any unauthorised Third-Party; and
iii. - the recipient Party shall, upon expiration or termination of the Letter of Engagement, return, delete or destroy all information received from the disclosing Party during the term thereof, without keeping any copies, and, if requested to do so by the disclosing Party, shall immediately provide a certificate confirming that the requirements of this Clause have been complied with in full.
10.3 - No breach of the obligations of confidentiality shall be deemed to have occurred in the following circumstances:
i. - the Confidential Information is already known to the recipient Party or is in its possession before undertaking the obligation to keep it confidential, or is otherwise independently developed by the recipient Party;
ii. - the Confidential Information is or becomes publicly known other than through the unauthorised disclosure by the recipient Party;
iii. - the Confidential Information is received from a Third-Party without similar obligations of confidence and without breach of this Clause;
iv - the Confidential Information is required to be disclosed by operation of law or by a court of competent jurisdiction or any other statutory, fiscal, regulatory or other lawful authority or body; or
v. - the Confidential Information is approved for release or disclosure with the prior written authorisation of the disclosing Party.
10.4 - The provisions of this Clause shall survive the expiration or termination of the Letter of Engagement for a period of two (2) years therefrom.
11. LIABILITY AND INDEMNITY
11.1 - Nothing in the Agreement shall limit or exclude the liability of either Party for:
i. - death or personal injury;
ii. - fraud or fraudulent misrepresentation; or
iii - any other liability which cannot be excluded or limited under applicable law.
11.2 - In the event that the Client fails to inform ZeroBubble, in a timely manner, of changes of a legal, logistical, operational, procedural or technical nature which are known or become known to the Client in the course of the provision of the Services and which may impact the performance of the Services and/or the obligations of ZeroBubble under the Agreement, ZeroBubble shall not be held responsible for any delays or failure in the performance of the Services and the Client shall indemnify ZeroBubble from and/or against all damages, loss, costs, charges and expenses, actions and claims, arising from or incurred or sustained, as result of a failure by the Client to advise ZeroBubble of such changes in a timely manner.
11.3 - ZeroBubble shall have no liability whatsoever for any damages, loss, actions or claims, and the Client shall indemnify ZeroBubble from and/or against all damages, loss, costs, charges and expenses, actions and claims, attributable to or occasioned by:
i. - the Client omitting to act on a recommendation of ZeroBubble;
ii. - the Client overriding any act or decision of ZeroBubble or requiring ZeroBubble to implement a decision with which ZeroBubble disagrees or on which it has expressed a reservation; or
iii. - the improper or negligent execution by the Client of instructions provided by ZeroBubble.
11.4 - ZeroBubble shall in no event be held responsible for any delays or failures in the performance of the Services as a result of telecommunication failures and/or the inefficiency and/or unreliability of internet connectivity at the Client Site or other sites where the Services are being provided in so far as it is the sole responsibility of the Client to ensure adequate internet connectivity at all locations.
11.5 - ZeroBubble shall not be liable, whether for breach of contract, in tort (including negligence), breach of statutory duty, or otherwise, for financial loss, including loss of profits, revenues, business, anticipated savings or profits, use of goodwill, or any loss of use or value of any Products, or for any loss or damage to data, programs or electronic records, corruption of files or data, or for any indirect, special or consequential loss whatsoever, howsoever arising under or in connection with the Agreement, save as otherwise provided herein.
11.6 - In any case, save where liability cannot be limited under applicable law, ZeroBubble's liability for breach of contract, tort or otherwise, including any liability for negligence howsoever arising out of or in connection with the performance of the Services and/or ZeroBubble's obligations under the Agreement, shall not exceed and shall be limited to one hundred per cent (100%) of the annual Fees & Charges applied for the particular Service giving rise to the claim or cause of action.
11.7 - This Clause shall survive the expiration or termination of the Letter of Engagement.
12. FORCE MAJEURE
12.1 - Neither of the Parties shall be liable for any delay or failure to perform any of its obligations under the Agreement insofar as the performance of such obligation is delayed or prevented by any unforeseeable event or circumstances beyond its reasonable control. Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to perform its obligations hereunder for the duration of such Force Majeure event.
12.2 - If any of the Parties is prevented from fulfilling its obligations under the Agreement by reason of a Force Majeure event, it shall be obliged, as soon as reasonably practicable, to notify the other Party concerned, immediately giving details of the nature, the probable duration and the likely effect of the circumstances giving rise to the Force Majeure event.
12.3 - If a Force Majeure event has occurred that has an impact on the ability to perform the Services contemplated under the Letter of Engagement, and such circumstances persist for a period of sixty (60) days or more, then any one of the Parties shall be entitled to terminate.
13.1 - Any notice or other document to be served under the Agreement may (except as otherwise provided) be delivered by hand or sent by post or by email to the relevant address provided in the Letter of Engagement or as otherwise may be notified by one Party to the other, in writing, from time to time.
13.2 - Any communications sent by regular mail shall be deemed to be delivered three (3) business days after posting, if sent by registered mail shall be deemed to be delivered upon acceptance, and, if sent by email or other electronic means, shall be deemed to have been delivered at the time of transmission provided that such time is not beyond normal working hours, in which case the time of delivery shall be deemed to be 08.00 am of the next business day and provided further that no delivery failure message has been received by the sender.
13.3 - In the event that ZeroBubble requires the approval or authorisation of the Client in order to perform any action as specified in the Agreement, the Client undertakes not to unreasonably withhold any such approvals or authorisations.
14. GOVERNING LAW AND DISPUTE RESOLUTION
14.1 - The Agreement and any dispute or claim arising under, out of or in connection with the Agreement, shall be governed by and shall be construed and interpreted in accordance with Maltese law.
14.2 - In case of a dispute or breach arising under, out of or in connection with the interpretation and/or execution of the Agreement, the Parties will endeavour, in the first instance, to resolve the dispute amicably within a reasonable time-frame, upon the failure of which, the Parties shall refer the matter to arbitration under the rules of the Arbitration Act, Cap 387 of the Laws of Malta, and this without prejudice to any other rights and remedies that the Parties have at law. The Parties agree that the arbitral award shall be binding on both Parties.
15.1 - Each Party hereto acknowledges that the Letter of Engagement, including any annexes or appendices attached thereto, and these T&Cs, contain the whole agreement and understanding between the Parties and supersede all prior oral or written communications. Neither Party has relied upon any other oral or written representations made to it by the other or by the other’s officers or employees or agents and has made its own independent investigations into all matters relevant to it.
15.2 - Whereas the Letter of Engagement may be amended only by the written mutual agreement of the Parties thereto, these T&Cs may be amended unilaterally by ZeroBubble, from time to time, provided that ZeroBubble shall advise the Client of such amendments in writing without delay.
15.3 - No term shall survive the expiration or termination of the Letter of Engagement unless expressly provided herein or in the Letter of Engagement.
15.4 - In the eventuality that any term or provision in the Agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision, or part thereof, shall, to that extent, be deemed not to form part of the Agreement so that the validity and enforceability of the remainder of the Agreement shall not be affected.
15.5 - The Letter of Engagement shall be binding in its entirety upon and inure to the benefit of the Client and its successors and assignees, where applicable.
15.6 - The failure by any one of the Parties to exercise or enforce any rights available to either Party shall not amount to a waiver of any other provisions or rights available to either of the Parties under the Agreement.
15.7 - A waiver shall not have the effect of waiving any other provision or of waiving any subsequent breach or default of the same provision of the Agreement.
15.8 - The Client shall not, without the prior written consent of ZeroBubble, assign, transfer or otherwise charge any of its rights and interests under the Agreement.