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No.1 Business Communication Ltd. (No.1 BC) performs its services solely and exclusively in compliance with the below terms and conditions which are fully accepted by Customer upon reception of these terms and conditions.
1. Subject of contract
- No.1 BC provides (exclusively) business (end) customers a technical opportunity of communicating via encrypted Internet lines by means of mobile devices. The system uses encryption algorithms for the purpose of company-internal business communication. To this end, No.1 BC provides the contractual product of the same name “No.1 BC”, consisting of a hardware /software component as well as providing access to proprietary online infrastructure necessary for communication (hereinafter referred to as the “Contractual Product”).
- The contractual product to be delivered to the end customer comprises supply of the hardware and (or) software component (without mobile device) as well as the pertaining service for a period of six (6) months. The hardware component, together with packaging, documentation as well as contract records will be hereinafter referred to as “No.1 BC Hardware”. The necessary wireless Internet access is not included in the contractual product and has to be separately purchased by customer.
- All supplies by No.1 BC are made under explicit reservation of ownership. This means that delivered No.1 BC Hardware remains in the ownership of No.1 BC until full payment of the respective final price due.
- In order to utilise the contractual product, customer has to have a mobile device as indicated in the respective up-to-date device list issued by No.1 BC. There is explicitly no claim derivable that the contractual product is compatible with every available mobile device.
- The exact scope of services is detailed in the respective performance descriptions.
2. Area of applicability
- All business transactions between the parties shall be exclusively governed by the General Business Conditions of No.1 BC (hereinafter referred to as “GBC”). GBC of customer that deviate wholly or partially from these GBC will not be recognised. The GBC of No.1 BC shall also apply exclusively when the services of No.1 BC are unconditionally performed despite awareness of contradictory GBC of customer.
- These GBC shall also apply to all future services, even if their applicability is not explicitly agreed.
3. Conclusion of contract/general
- Customer assures to conclude the contract in the course of executing its trade or self-employed business.
- Upon ordering the contractual product in the course of remote sales (via phone,Internet etc.), customer places an offer for conclusion of a contract. The contract is formed when the offers is accepted by No.1 BC. Acceptance is declared by a separate acceptance declaration or shipment of the contractual product. Supply of No.1 BC Hardware is exclusively made after complete advance payment of the total price.
- Outside of remote sales, a contract between the parties is formed by handover of No.1 BC Hardware (offer) and receipt (acceptance) by customer.
- The contract is made up of two components. Regarding the benefit of use there is a service contract between the parties, regarding the hardware/software component a purchasing contract. The parties are agreed that these are no so-called joint contracts. Nevertheless, both contracts are treated as one contract in the following, unless explicitly provided for otherwise.
4. Duration of contract and termination of service contract
- The contract is concluded for duration of six (6) months from contract signature. The contract is extended by another six (6) months when customer pays the subscription fee to No.1 BC for the following year in advance according to the price list valid for this period by the end of the ongoing contract year. No.1 BC will finish the benefit of use by customer with a transition period of ten (10) days from contract end without a duty to notify/announce such by No.1 BC.
- In the event that customer pays the biennial subscription fee only after contract end and lapse of the ten-day (10 day) transition period, the contract is renewed with the proviso that it is extended for another six (6) months from the end of the previous contract period. In this case, the activation fee according to the respective valid price list for activation of utilisation shall be paid. Activation will be made after receipt of payment.
- Termination for just cause shall remain unaffected by the aforesaid. A just cause is in particular given when there are facts, on account of which the terminating party under consideration of all circumstances of an individual case and by weighing the interests of both parties thereto, cannot be expected to continue the contract until the end of the regular contract period. A just cause is in particular given in case of a violation of Clauses 6 and 8 of these GBC, without being restricted thereto.
5. Rights and duties of the parties
- No.1 BC grants customer a time-limited benefit of use for the supplied hardware and software for exclusive use within the contractually agreed scope. The hardware and software provided by No.1 BC enables encrypted communication between mobile devices via Internet. Utilisation is made through online access by customer to No.1 BC online server infrastructure. Customer neither possesses rights in rem of the respective server nor the right to access the respective rooms. A right to acquire contents of the software is not granted. The granted benefit of use is neither divisible nor transferable.
- No.1 BC provides a customer hotline for any occurring questions, technical faults, etc. The hotline is available from Monday to Friday, 08:00–18:00 hrs, CET, excepting public holidays in Malta. Use of the hotline is chargeable.
- Customer will receive an individual identification to access the contractual product for use; customer is responsible for its secrecy and prevention of its improper use. The identification consists of a user name, a code and customer’s answer (control answer) to a control question pre-worded by No.1 BC. In the event that customer becomes aware of any improper use, customer shall promptly inform No.1 BC via the established hotline; No.1 BC will immediately block the concerned No.1 BC Hardware after receiving the user name and control answer. Improper use entitles No.1 BC to block utilisation of the product. Customer is liable for any improper use that is attributable to itself or its vicarious agent(s).
- In the event of defect or loss of the hardware component, No.1 BC undertakes to deliver a replacement as soon as customer has made the payment de for the delivery according to the respective valid price list. The activation fee according to the respective valid price list is payable to No.1 BC prior to activation of the No.1 BC Hardware by No.1 BC.
- The online connection for utilisation of the contractual product is made at request and at cost of customer. Customer shall bear the incurred end device costs and telecommunication fees.
- No.1 BC does not warrant that the telecommunication provider/tariff preferred by customer offers the online access or data transfer necessary for utilisation of the contractual product.
- According to the present state-of-the-art it is not possible to develop complex software products in such a manner that such are completely free from technical error. Hence, the agreed property is not the total freedom from error of the product but that the product does not have such errors that impair its usability more than only slightly.
- No.1 BC is only responsible for accessibility of the servers and thus the benefit of use of the program to the extent that a non-access is exclusively attributable to the part of the network it operates.
- Benefit of use of the contractual product is essentially granted continuously, No.1 BC assures 90% availability as a mean monthly rate.
- Excepted from the latter are period during which the server is not accessible due to technical or other problems that are beyond the control of No.1 BC (force majeure, third-party default, etc.), as well as during announced maintenance work. Maintenance work must not be carried out during standard business hours, unless such are indispensable to retain functionality of the program.
- Availability may be temporary restricted for technical reasons, e.g. routine or unscheduled maintenance work. Customer is entitled to a price reduction in case of a program failure for more than twelve (12) hours during standard business hours.
- Standard business hours for the purposes of this contract mean Monday to Friday, 08:00–18:00 hrs, CET, excepting public holidays in Malta.
- Customer undertakes to use the contractual product exclusively for civilian applications. In addition, customer confirms that contractual products will not be used to endanger international peace or to commit or prepare criminal offences.
6. Rights and duties of the parties
- All software pre-installed in the hardware is in the ownership of No.1 BC and customer is granted access to its usage for time-limited only. Any further transfer of rights is explicitly excluded.
- The software is protected by copyright and may be used only within the scope defined in these terms and conditions.
- Storage, making copies and/or duplication of any kind to any kind of data media outside of the contractual agreement or any other transmission of the software or access data to third parties is explicitly prohibited without the explicit and written approval by No.1 BC.
- Customer must not modify the software.
- De-compilation or any other analyses of the surrendered software are inadmissible.
7. Product acceptance/duties for examination and complaint
- Purchaser shall examine the goods immediately after handover to the extent possible during appropriate business activities and promptly notify of any identified defect.
- In the event that customer fails to make the said notification, the goods shall be deemed accepted unless the defect could not be identified during examination. In the event that such defect is discovered later, the said notification shall be made immediately after its discovery; otherwise the goods are deemed approved, albeit defective.
- Timely forwarding of the said notification is sufficient to retain the rights of customer.
8. Transfer to third parties
- Customer must not transfer to third parties product parts, components or accessories which were packaged with the products or can otherwise be assigned to them.
- No.1 BC is in particular entitled to reject orders placed by customer if customer violates the present terms and conditions (regarding all products) or if it is suspected that customer has violated and/or will violate the present terms and conditions.
9. Prices/terms of payment
- Contractual prices and compensations are set forth in the respective valid No.1 BC price lists.
- Warranty claims of customers for any occurring defects shall initially be restricted to rectification of software or any affected hardware components.
- It may happen that proper service performance require some maintenance works, which may result in some downtime, service operational interruptions and/or service unavailability. Such effects of required maintenance works cannot be considered as defect and should be accepted as normal operational condition considering constantly changing digital environment which is native for online services and functions.
- Should the rectification of a defect fail or be rejected two times within reasonable periods, customer shall have the right to demand a reduction of compensation or – at its discretion – the reversed transaction of the respective purchase or service contract.
- Complete freedom from defects of the product and data loss cannot be assured due to the multitudinous variety of potential hardware, data and operating constellations as well as operator errors. The parties are agreed that such complete freedom from defects is not owed.
- The Internet is a public network the access to which is made available by local providers. Hence, there are different response times. The available Internet connection may result on service performance delay of several seconds. This is explicitly not a defect of the contractual product. Also, the quality of the voice communication depends particularly on the response times of the Internet connection. Poor voice quality as a consequence of an insufficiently fast Internet connection is also not a defect of the contractual product.
- No.1 BC is not liable for the functionality of the Internet connection during power failures or failures of servers or other components beyond its control.
- No.1 BC does not warrant that the contractual product may be used at the respective place of business of the customer under the valid statutory regulations. No.1 BC explicitly advises customer that usage of encryption and/or encrypted communication is prohibited in some countries. Customer shall be responsible to review the respective legal situation.
- Defects must be notified in writing and described so accurately that the faulty program sequence can be reproduced. Error descriptions shall be forwarded in English language. Warranty claims are only granted in cases of appropriate use.
- Warranty claims will become statute-barred within six (6) months after contract conclusion.
11. Limitation of liability
- No.1 BC excludes a liability for slightly negligent violation of duties, as far as such do not relate to material contractual duties, damages to life and limb or health or guarantees, or if claims under the Product Liability Act are affected.
- A liability of No.1 BC is explicitly excluded in cases where a third party uses the contractual product with or without knowledge of customer or acquires access to the former.
- The same shall apply to violation of duties by vicarious agents and legal representatives of No.1 BC. To the extent that No.1 BC negligently violated a material contractual duty, its duty of replacement is restricted to the contract typical, foreseeable damage.
- No.1 BC shall not be liable for damages that were caused by a disturbance in operations, in particular due to force majeure (e.g. fires and acts of god, etc.) as well as due to other events beyond its control (e.g. strike, lock-out, traffic delays, etc.).
- No.1 BC is may not be made responsible for customer data loss if customer lost their hardware, lost access to software and/or lost data as a result of incorrect login attempting.
- The liability applies only within the scope of these GBC.
- All other claims against No.1 BC for damages or compensation for futile expenditure in cases of contractual and non-contractual liability (excepting cases of intention or personal injury) shall be statute-barred after a period of one (1) year. The deviating period of limitation for claims over defects in title and quality shall remain unaffected by the provisions in this paragraph.
12. Data protection
- Customer agrees that No.1 BC and its affiliated companies may store and use the data acquired from customers in all counties where No.1 BC and its affiliated companies are conducting business activities.
- Such information may be processed and used within the scope of existing business relations, and passed on to subcontractors and distribution partners of No.1 BC as well as authorised persons of No.1 BC and its affiliated companies for the purpose of joint business activities, including communication with customer. This relates exclusively to communication between the parties regarding the contractual product. Any usage for purpose outside of this present contract will explicitly not be made.
- No.1 BC undertakes to keep strict secrecy of all circumstances it has become aware of during preparation, execution and performance of this contract, and not to disclose or otherwise exploit any received information. This shall apply towards any unauthorised third parties, i.e. also towards unauthorised staff of both No.1 BC and customer, unless forwarding of such information is absolutely necessary for the appropriate fulfilment of contractual obligations by No.1 BC. In cased of doubt, No.1 BC shall be obliged to request customer for approval prior to passing on such information.
- No.1 BC undertakes to agree a provision with the same content as Paragraph 1 above with all its staff members assigned to preparation, execution and performance of this contract.
14. Applicable law, venue of jurisdiction
- Venue of jurisdiction for any disputes in connection with the coming into force and termination of this contract as well as with all rights and duties under this contract shall be Valletta, Malta.
- Maltese law shall be deemed as exclusively agreed.
15. Other arrangements
- Verbal side agreements as well as deviating terms and conditions of customer require the written form to be effective. This shall also apply to a waiver of the written form requirement.
- Verbal side agreements outside of this present contract have not been made. Terms and conditions of customer are not binding on No.1 BC.
- Should any of the provisions of this agreement be or become invalid, then the validity of the other provisions of this agreement shall remain unaffected. Any such provision shall be replaced by a valid provision that comes as close as legally possible to what was intended to achieve considering the economic purposes pursued by the parties.
Last update: May 2018