About this Site and its Terms
Registration, Set up of Account, Charges and Account Security
Copyright, Trademarks and other Intellectual Property Rights
Links to Our Site
Links to Third Party Sites
Accuracy and Currency Disclaimer
No Representations or Warranties
Limitation of Liability
No Additional Warranty
Extension of Defenses
Access to the Site
Applicable Law, Disputes & General Provisions
2. ABOUT THIS SITE AND THESE TERMS
3. REGISTRATION, SET UP OF ACCOUNT AND ACCOUNT SECURITY
3.1 Access to your account on our secure site
If you wish to use any part of our services located on our secure Site (“Services”), you must first set up an account by registering with us. You must provide us with accurate, complete and up-to-date registration information. The registration information needed to allow you access to our secure Site to activate the Services includes the following:
a. A “Username” which is a confidential word or number or a combination of words and numbers created by you at time of registration to be used by you as a code to confirm your identity when accessing the Services.
b. A “Password” which is a confidential word or number or a combination of words and numbers used as a code to confirm your identity when accessing the Services. This code must be between [ ] & [ ] characters in length, contain at least [ ] number & may not contain any symbols or spaces. [This description of the password be confirmed by IT].
c. A valid credit/debit number from a card issuer that we accept (“Card”).
d. Any other information that we may request from time to time.
We reserve the right to reject or terminate any user name that, in our judgment, we deem offensive. You are responsible for preserving the privacy and confidentiality of this password and assume responsibility for the use of the services and all activities that occur under your login. You agree to immediately notify us of any known or suspected unauthorized use on your account.
3.2 Once you have successfully registered, your account will be established and you will be able to access your account in order to access our secure Services. Your Username and Password must be used and changed in accordance with our requirements from time to time. We are entitled to rely on instructions received under your Username and Password so long as they remain valid. You agree and acknowledge that it is your responsibility to keep your Username and Password confidential at all times. If your Username and Password have, or you believe that they have, been stolen or liable for any other reason to be misused, you shall, as soon as possible, give notice to us. Until such time as such notice has been given to and accepted by us, you will remain liable for any and all transactions, including any resulting losses, made using your account. You may access your account to make a secure payment using the debit/credit card that we have on file for you, view your current balance, view your account summary, and view your services provided to you by us and account histories, and such other actions as may be permitted by us from time to time. To access your account you must have a valid Username and Password and such hardware and software as may be required. You also agree to provide such information as is required by us from time to time to provide the Services.
3.3 Fees and Charges; Changes; Late payment fees
a. You agree to pay, within 30 days from the date of the invoice (“Payment Due Date”), the following:
(i) One time set-up fee in accordance with the Services selected at registration (if any);
(ii) a monthly charge in accordance with our rates for the Services selected at registration.
b. Charges for the Services shall be invoiced in advance.
c. If applicable, monthly invoices may be sent to you at the e-mail address designated by you on the Service signup form. It is your responsibility to keep us up to date with your most current contact information.
d. You shall be responsible for all charges incurred on and billed to your account, whether with or without your knowledge and consent, therefore you are advised to take all such steps necessary to safeguard access to the Services to prevent unauthorized use.
e. Should you dispute any amount set forth in the invoice, you shall be required to send written notice to us within 10 days of the date of the invoice; otherwise, the invoice will be deemed accepted by you as correct and you will waive your right to dispute that invoice. In the event of a dispute, we will investigate the matter and notify you of our findings, which shall be conclusive. Should you wish to dispute the invoice after 10 days, we may charge a reasonable fee for carrying out such an investigation. If, following such an investigation, we find that your account was in fact incorrect, that fee will be returned to you.
f. You hereby authorize us to charge and place a hold on your Card with respect to any unpaid charges for Service or any related equipment (if applicable). You authorize the issuer of the Card to pay any and all amounts described herein without requiring a signed receipt. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your Card, until such amounts are paid in full. You agree to provide us with updated Card information upon our request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither us nor any of our affiliated company’s will have any liability whatsoever for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on your Card.
g. When payment is made by your Card, payment will also be subject to the terms and conditions established by your Card issuer. Invoices not paid within 30 days of the Payment Due Date shall be subject to a late payment charge of US$5. Further, a processing fee of US$25.00 shall be charged to your account if your payment is rejected for any reason.
h. Late Payment & Failure to Pay. In the event that you have not made a payment to us within 30 days past the Payment Due Date, you shall pay to us a late payment charge and/or an interest charge of 1.5% monthly, or the highest amount allowed by law, on all charges due and unpaid. Our acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of our rights to collect the full amount due. We may suspend or terminate your Service if your payment is past due. If we suspend your service for non-payment, you must pay all past due amounts in order to have service restored, and you may also, at our sole discretion, be required to pay a service restoral fee. In the event you fail to pay us or we are unable to bill charges to your credit/debit card, we may assign unpaid late balances to a collection agency. In the event legal action is required to recover unpaid amounts, you agree to reimburse us for all expenses incurred to recover sums due, including attorneys fees and other legal and/or professional expenses.
3.4 We may at any time
and without notice, withdraw, suspend or amend the Services in part or in its entirety, or restrict or prevent you from accessing the Services, if we have reasonable grounds for doing so. Your continued use of the Services will be considered acceptance of any change or amendment of any part or all of the Services. In particular, but without limitation to the foregoing, we in our sole discretion may terminate or suspend a part or all of the Services in the event of any apparent security breach or misuse.
3.5 The privacy of your personal information
3.6 Your Account Security
We endeavour to maintain a high level of internet security. To maintain your own high level of security we recommend:
a. if you have set up your registration for the Services on a computer that is not your own, you change your Password the first time that you log in independently;
b. you ensure that both your Username and Password are kept secure at all times;
c. in choosing a Password you take care to ensure that it is one that is not likely to be anticipated by anyone attempting to access the Service pretending to be you;
d. you do not disclose your Username or Password to anyone, and do not allow anybody to access your account;
e. you do not record your Username or Password in any form that identifies it as being a password to access our Services;
f. you contact us immediately upon discovering or suspecting that your Username or Password is being used by or is known by any other person;
g. you take care to ensure that nobody can see, copy or access information, or obtain your Username and/or Password when you are using the Service;
h. you do not, whilst accessing our Services, leave your computer or any similar device used for accessing the Services unattended; and
i. prior to accessing our Services from any computer connected to a local area network or LAN you take steps to ensure that no other person will be able to see, copy or access information and/or obtain your Username and/or Password.
3.7 When using the Services, you agree:
a. to change your Username and Password immediately if we request that you do so.
b. to take all reasonable steps to ensure that the computer or any similar device that you are accessing the Services from is free from computer viruses. You should take precautions, including scanning for viruses and having a complete and current back up of files on your computer system.
c. to take reasonable measures to ensure that the computer or other device you are using is itself adequately protected against the receipt of computer viruses.
d. that our records with respect to all transactions made on your account will be deemed to be conclusive proof of the correct authenticity of those records and may be relied upon by us.
4. SERVICE INTERRUPTION
We reserve the right to do any of the following, at any time, without notice: to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes. You hereby acknowledge that interruptions in our Services and your access to your account, may occur and that we shall have no liability whatsoever with respect to any such interruption. You acknowledge and agree that transmission instructions using the Services may vary in its reliability, and that provided we take reasonable steps to prevent a compromise or breach of security procedures, we will not be liable for any compromise or breach in security procedures or for any loss that you may suffer arising from any failure whether such a failure arises with us, an internet service provider or another party.
5. COPYRIGHT, TRADEMARKS & OTHER INTELLECTUAL PROPERTY RIGHTS
Content" includes what you may see, read, hear, upload, download or access on or from the Site in any form (including HTML and Java code). All Content is protected by copyright and/or other intellectual property laws under Bermuda and foreign laws. Certain names, words, brands or devices on the Site may be the exclusive trademarks of Yabsta in Bermuda or of their respective owners, protected at common law or registered in Bermuda or other countries. The symbols ™ and ® designate Bermudian unregistered and registered trade mark status respectively. Using the Site will not give you a license to exercise any intellectual property rights, unless expressly stated.
You may display, copy, print and download any Content from the Site for your personal, non-public and non-commercial use only, provided you do not, directly or indirectly:
a. change or delete any copyright or proprietary notices from the Content;
b. adapt, alter, translate, reproduce, store, perform, show, play, broadcast, publish, repost, transmit, distribute or otherwise use Content from the Site without written consent from Yabsta or the relevant owner;
c. decompile, reverse engineer or create derivative works from any downloadable software; d. transfer the Content to another person or web site or computer network, including any personal web site or network; and pass off or otherwise infringe the intellectual property rights of Yabsta or others; and use any trade mark displayed on the Site without the written consent of Yabsta or the relevant owner.
Parts of the Site may contain other proprietary notices and copyright information, which must be observed and complied with. We do not claim ownership to your posting or submission to the Site for posting of your Content on the site. However, for this information that is publicly displayed on the Site, you grant Yabsta a world-wide, royalty free, non-exclusive, irrevocable, perpetual license to use, modify, distribute, reproduce, publish, and publicly display such information in whole or in part, and to incorporate said information into other works on current or future formats and mediums. This license shall exist until the removal of the Content from the Site by either party.
If you use a hypertext reference (HREF) link to our Site, you do so at your sole risk and you agree to link to our home page only and not to frame our Site. Your link to us or any comment, material or services associated with the link must not: infringe our intellectual property rights; defame or disparage us, our services or goods; diminish our goodwill; be false, misleading, obscene or unlawful; negatively affect us; or imply that we endorse your web site, services or goods. If you wish to link our Site from your web site, please provide us the exact URL address of the web site page where the link is to appear, the legal name of the owner and operator of the web site, and your name and e-mail address. We may remove the link without notice to you or require you to remove the link and reference to our Site at any time. You must not use a deep link or an image (IMG) link, or use the Yabsta logo or any of our trademarks as a "hot" link, to our home page or any other part of the Site, without entering a written linking agreement with us. For notices and queries about links, please Contact Us at email@example.com .
7. LINKS TO THIRD PARTY WEB SITES
The Site may contain informational or advertising links or references to external web sites that are owned, operated, developed and controlled by others and not by us. We do not endorse or authorize access to those external web sites or any content, services and goods on or through them. You use those links at your own risk and are urged to review their legal and privacy notices, terms and conditions. We will not be responsible for or liable to you for any losses or damages resulting from your use of links to or from external web sites or from any dealings you have with such third parties.
We cannot and do not represent or warrant that Content available for use or downloading through the Site will be free of viruses, worms, Trojan horses, or other code with contaminating or destructive properties. You should take precautions, including scanning for viruses and having a complete and current back up of files on your computer system.
9. ACCURACY AND CURRENCY DISCLAIMER
You use the Site, including the Content available on and from it, at your sole risk. Although we try to ensure the accuracy and currency of the Content we post on the Site, we do not represent or warrant that the Content on the Site is accurate, complete or up-to-date, or free of technical or typographical errors. We are not under any obligation, and to the fullest extent permitted by law, expressly disclaims any obligation, to update or alter any Content on the Site, whether as a result of new information, future events or otherwise. The Content may contain forward-looking statements, which speak only as of the date they were made. Words such as "anticipate," "estimate," "expects," "projects," "intends," "plans," "believes," "will" and words and terms of similar substance indicate forward-looking statements. All forward-looking statements are management's present expectations of future events and are subject to a number of factors and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. You are cautioned not to place reliance on the Content, which is not provided as legal or accounting advice. We and our affiliates operate in highly competitive, consumer driven industries and are dependent on a variety of factors including government regulation, customer demand, technological developments, third-party relationships and protection of their intellectual property rights. Our actual results could differ materially from management's expectations because of changes in such factors. Any statements in the Content attributable to us, our affiliates or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements referred to in this section.
10. NO REPRESENTATIONS OR WARRANTIES
WE DO NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN AS-IS AND AS-AVAILABLE BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. WE CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, COURSE OF DEALING, INTEROPERABILITY, MERCHANTABILITY, SERVICE AVAILABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE STATEMENTS, ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR ECONOMIC OR COMMERCIAL LOSS, LOSS OF PROFITS OR REVENUE OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS, ALTERATION OR CORRUPTION OF DATA OF YOUR TRANSMISSIONS OR PROGRAMS THROUGH DOWNLOADING CONTENT OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, LOSS OF USE, ARISING OUT OF YOUR ACCESS, USE OR INABILITY TO USE THE SITE OR ANY LINKED OR REFERENCED WEB SITE, OR ANY ERRORS OR OMISSIONS OR OTHER DEFECTS IN THE CONTENT, IN CONTRACT, TORT, STATUTE OR OTHER THEORY OF LIABILITY, EVEN IF WE KNOW OR HAVE BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. NO ADDITIONAL WARRANTY
Nothing on the Site shall add to or change any contract for services or goods you may have with Yabsta or its affiliates, which are subject to the terms of applicable agreements. Nothing on the Site shall be construed as a further or additional representation or warranty.
13. EXTENSION OF DEFENCES
Every right, including right to be indemnified, exemption from liability and defence of whatsoever nature applicable to Yabsta or to which Yabsta is entitled hereunder extends to and for the benefit of the directors, officers, employees, agents, shareholders, affiliates, suppliers (including any party involved in creating, producing or delivering the Site or the Content), successors and assigns of Yabsta.
15. ACCEPTABLE USE
You understand and agree that you are solely responsible for your own Content, data, graphics, messages transmitted, or other materials and/or services used on this Site. You are entirely responsible for all information whether publicly posted or privately transmitted using our services and assume all responsibility for any consequences thereof related to your actions using our services. We do not control the information posted or transmitted by users of our services and thus cannot guarantee the quality or accuracy of such information. You understand and agree that by using the service you may be exposed to objectionable or indecent information. We under no circumstances assumes any responsibility or will be liable in any way for any information that was posted or transmitted by third parties. You agree to use this Site only to post materials that are legal, proper, somehow related to the purposes of this portal. By way of example, and not as a limitation, you agree that when using this Site, you will not: Harm children is any way; Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; Publish, post, upload, make available, distribute or disseminate or offer to do the same (hereinafter "Post") any vulgar, hateful, malicious, racially or ethnically slanderous, harmful, inappropriate, defamatory, infringing, abusive, libelous, threatening, obscene, false, or unlawful material or information; Post any material that infringes any patent, trademark, copyright, trade secret, intellectual property or other proprietary right of any party (the "Rights"), unless you are the owner of the Rights or have the permission of the owner to post or transmit such material; Post any material that contain viruses, corrupted files, or any other similar software or programs that may damage, interrupt, or functionally limit the operation of another's computer software, hardware or telecommunications equipment; Post or transmit spam, "chain letters," "junk mail," promotional materials or any form of solicitation, advertise or offer to sell any goods or services for any commercial purpose, other than in areas of the Site intended for such uses; Impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is posted or transmitted; Restrict or inhibit any other user from using and enjoying the use of the site and its services; Collect or store personal data about other users; Hack into any part of the Site, operate computer programs of any sort that willfully extract copyrighted information for illegal purposes, or jeopardize the performance / disrupt / interfere with the delivery of the services, servers, or network infrastructure; Encourage, glorify or commit conduct which is likely to give rise to criminal or civil liability; Provide material support or resources to any organization designated as a foreign terrorist organization in any manner whatsoever; and Engage in conduct that is in contempt of any legal proceedings.
You must also not use the Site:
in a manner or for a purpose prohibited by law (including without limitation, to send or communicate messages or to conduct activities in contravention of the Telecommunications Act 1986, the Obscene Publications Act 1973, the Criminal Code Act 1907, the Proceeds of Crime Act 1997, the Human Rights Act 1981, or the Tenth Schedule to the Companies Act 1981, as amended from time to time; or to send or communicate bulk, unsolicited Electronic Records (as defined in the Electronic Transactions Act 1999, as amended) to persons with whom or which you have no relationship (either contractual or personal) or to persons that have not otherwise consented to receive such Electronic Records to access, or enable others to access, parts of the Site or Content to which you are not authorized to access, including the personal information of other users of the Site.
Registered users of the Site agree to maintain an active email account to receive communications from us regarding Site updates, administrative messages, other registered user related messages, and Site announcements.
16. SECURITY ISSUES
Please note that communications sent over the internet, particularly unencrypted e-mails, are subject to possible interception, loss, change or forging. We will not be responsible for any damages you may suffer from the transmission of confidential information that you make to us or any third party, or request us or any third party to make to you through the Site. We are not responsible for any errors or changes made to, or loss or interception of, any transmitted information. Such transmission is at your own risk.
17. ACCESS TO THE SITE
18. APPLICABLE LAW & GENERAL PROVISIONS
Copyright © 2010 Yabsta (BVI) Limited. All rights reserved.
When you provide us with Personal Information, you are authorizing us to use that information in accordance with the terms of this Policy and other applicable terms of our Site. If we obtain Personal Information from a third party, such as a business partner, our use of that information is also governed by this Policy. We may share your Personal Information with companies that are affiliated with us, provided you have given us permission. We may also provide your Personal Information to a third party in those instances where you have chosen to receive certain information and have been notified that the fulfillment of such a request requires the sharing of your Personal Information.
We may aggregate Personal Information and use it anonymously. Anonymous click stream, number of page views, calculated web beacons, and aggregated demographic information may also be shared with our advertisers, affiliates and business partners. Except as set out in this Policy, we will not sell or pass any Personal Information to third parties. When you supply Personal Information about yourself to us for a specified purpose, we use that information for that purpose only. We will not share your credit/debit card information with third parties except those we use to perform tasks required to complete online payment to us or purchases you make through the Site.
Please note that we will release your Personal Information if required to do so by law, or by search warrant, subpoena or court order or in order to fulfill our obligations to you. Any Personal Information, such as your name or e-mail address, that you provide to us through the Site, will not be shared with third parties other than companies affiliated with us and our service providers unless you specifically authorize it or unless required by law. We may share non-personally identifiable information that we collect through the Site with third parties in order to enhance your online experience.
ACCESS TO PERSONAL INFORMATION
LINKING & FRAMING
If you have any questions regarding this Policy or this Site please Contact Us at firstname.lastname@example.org
Bermuda Yellow Pages Limited Terms and Conditions of Business
1. Our Advertising Services
Our Terms and Conditions of Business (“Terms”) apply when we provide Advertising Services (as defined below). In these terms, we have used "we" or “our” for Bermuda Yellow Pages Limited, "you" for our advertising customer, “Directory” or “Directories” for any printed and electronic compilation of listings and advertisements including but not limited to the Bermuda Telephone Directory®, 411 Directory Assistance, “Electronic Directory” for the Internet, CD-ROM or other electronic versions of our Directories, “Printed Directory” for the printed versions of our Directories, "Advertising Services" for everything we do in connection with publishing our Directories including but not limited to Buttons, and “Advertising” for advertising you submit to us (whether or not we have assisted in producing or produced the advertising) for publication, “Button” or “Buttons” for any interactive web buttons allowing, but not limited to, redirection, audio, video, on-line shopping, e-mail and push-to-talk toll free call services and “Listing” for any text listing of your name, address and contact details.
2. Listings and Advertising
In consideration of your payment of our fees, we will publish the Listing and/or Advertising once in the annual publication of the Printed Directory that follows your submission of information for the Listing and/or Advertising. We may also, at our sole discretion, publish the Listing and/or Advertising in any other of the Directories in addition to the Printed Directory. In the event that we publish the Listing and/or Advertising in the Electronic Directory, the Listing and/or Advertising shall be published for an initial period of one calendar year from the date it is uploaded into the Internet directory.
3. Ordering Advertising Services
We will require a signed, written order from you (“Advertising Contract Order”) and 50% deposit payment, to be received immediately upon signing the Advertising Contract Order before we will provide any Advertising Services. We will assume the person signing an order has your authority to place the order. We reserve the right not to accept any order. We need to receive your Advertising Contract Order before the publication deadline for our Printed Directory which is 26 March of each year (“Publication Deadline” also known as the “Rate Card Close Date”) but your Advertising Contract Orders for our Electronic Directory can be made at any time.
We may send you a schedule indicating acceptance of your Advertising Contract Order (“Advertising Schedule”). The Advertising Schedule may contain an artwork proof for you to check whether you want any minor adjustments made. You must advise us in writing (so we know the request is authorised) of any requested adjustments within 7 working days after we send you the proof and we will make the adjustments if practicable. Our rights under clause 8 still apply. Any changes to the artwork must reach us by the Publication Deadline. If you do not contact us within the said 7 working days we shall be entitled to assume that the proofs are correct, that you have no changes and you authorize us to publish the artwork as is.
If you provide us with material to reproduce in an advertisement, the quality of the reproduction will always be determined by the quality of the material provided. Generally a copy is inferior to an original, so we recommend that you provide a professionally created original to our specifications. We can help by creating advertising material for you. When we do this, you agree that we will own the copyright in whatever is produced.
4. Our General Rights And Responsibilities
We agree to:
- I understand that my display advertisement may have color shift. Meaning the finished ad in the print directory could look darker or lighter due to variance in the computer monitor settings, printing proof variations, printer inks, printing paper and any other manufacturing variables in the finished printed phone directory product.
- respond promptly to your enquiries;
- provide our Advertising Services as set out in the Advertising Schedule we send you;
- do our best to keep you informed about the features of our Advertising Services as we introduce or improve them;
- provide clear explanations of our charges and billing procedures;
- continue to promote our Directories to encourage people to use them.
5. Your General Responsibilities
5.1 So that we can meet our responsibilities, you in turn agree to:
- provide all Advertising, listings and any other material we require from you promptly, and always by the last date we nominate;
- make sure all Advertising, listings and any other material you provide to us is complete and accurate and meets any other quality or procedural requirements we notify you about from time to time;
- comply with the Copyright Act 2004 as amended and all other applicable laws and any relevant Advertising Codes of Practice;
- never make inappropriate use of information provided to you by Directory users (e.g. for unauthorized direct marketing) or breach anyone's legal rights (e.g. intellectual property rights, contractual rights or rights to privacy).
5.2 You must compensate us for any loss we suffer, and indemnify us against any liability we incur, resulting from the provision of Advertising Services for you, or you not meeting your legal responsibilities to any of us or to anyone else.
6. Automatic Renewal
The Advertising and/or Listing as ordered by you will continue indefinitely in both our Electronic Directory and Printed Directory (as updated periodically), unless you cancel it in accordance with clause 7 below. Our charge for any Advertising Services in the subsequent years following the initial period may be different at our sole discretion from the previous year's charge and until you cancel your Advertising and/or Listing, we will bill you annually at our then current rate.
7. Canceling Your Advertising Contract Order, Or Our Advertising Services
You may cancel any Advertising Contract Order, or any existing printed Listing and/or Advertising, so long as you do so in writing within 30 days from the date that the specific Advertising Contract Order is signed (“Cancellation Date”). We may charge you for any creative work we have already done at your request up to the date we receive your written notice of cancellation. However if the advertiser has signed a contract in the 30 days before the close date of the current sales campaign the cancellation policy is Null and Void.
Any cancellation notice we receive after the Cancellation Date for a Printed Directory or in the current sales campaign (even if we receive it before the publishing deadline) will not take effect for the next Directory but will take effect for the subsequent Directory.
We will normally send you a new Advertising Contract Order form with your existing details already set out, as a reminder.
You may cancel an existing Electronic Directory listing and/or advertisement by giving us written cancellation notice at any time. We will delete it as soon as is reasonably practicable. Any separate charge for the Electronic Directory listing and/or advertisement will stop from the end of the billing month in which we receive the written cancellation notice.
8. Paying For Our Advertising Services
You must pay our charges for the Advertising Services we provide for you, regardless of whether your business has been sold or closed before we provide them. The charges for our Advertising Services are due and payable within 30 days of the date of our invoice. Charges for Advertising Services provided in any Printed Directory may be billed annually or in periodic installments. Our charges for Advertising Services only provided in any Electronic Directory are calculated and billed monthly. If you have booked your Advertising through an agent you will be liable to us for those advertising charges if the agent does not pay for any reason (even if you have already paid the agent).
If you do not pay our charges by the due date shown on the account:
- we reserve the right to remove all of your listings from our Directories without any compensation to you and without in any way affecting your debt to us;
- we may charge you interest on the unpaid amount from that date until you pay it at the interest rate 1.5% per month;
- if our charges remain unpaid after 60 days of the invoice date we may place your debt in the hands of a debt collection agency; and
- you agree to pay for all costs associated with the recovery of any outstanding payments owed to us that are incurred by anyone (including but not limited to legal, agents and/or debt collectors) in exercising any of our rights under these Terms.
9. Long Term Agreements
We may allow you a reduction for Advertising Services we provide for you in consideration of you purchasing those services over a term greater than one year (“Long Term Agreement”). If you cancel any Long Term Agreement with us then the full amount of the Advertising Services without any reduction becomes payable immediately.
10. Our Right To Withhold, Suspend, Restrict Or Terminate Services
We reserve the right to withdraw or terminate any Advertising Services at any time, including but not limited to us withdrawing any of our Directories or redefining the distribution area covered by our Printed Directory. Some types of Advertising Services such as web site banners and headlines are suitable only for our Electronic Directory. We may also withhold, suspend, restrict or terminate any Advertising Services at any time if you do not meet a responsibility of yours under these Terms or we consider your Advertising Contract Order is unauthorised.
We may edit or refuse to publish any Advertising, Listings or any other material at any time if we consider it to be unauthorised, in breach of our advertising policy, misleading, offensive, defamatory, illegal or detrimental to the standing of our Directories in the community. We will try to contact you before doing any of these things but we are under no obligation to do so.
We do not guarantee any particular placement of advertisements on any page in any Directory. We place all advertisements randomly under each classified heading, or as close as possible to the heading you have requested. In the event that an advertisement is placed on a page of any Printed Directory, an anchor listing will be placed beneath your business listing indicating the location of the advertisement.
We do not agree that any service we provide will be continuous or fault-free and we may suspend or restrict any electronic Advertising Services at any time if we think it reasonable or necessary. Normal charges continue to apply during any suspension or restriction.
11. Your Dealings With Other Directory Users
We may include our trade marks and copyright notices in all Directories in which we publish your listings and advertisements. This does not mean we endorse you or your products or services. We are not your agent and are not involved, on behalf of either you or Directory users, in any dealings resulting from use of our Directories. You must communicate and deal with users directly to complete transactions or resolve any problems arising from them. You have sole responsibility for any risks associated with your dealings with users.
12. Accidental Errors
We do not accept responsibility for accidental errors, omissions, misplacements or other irregularities in listings or the Directories’ contents, or for any loss incurred thereby.
13. Resolving Disputes
If you think that we have not met a responsibility we have to you, you must give us notice in writing. You must give us this notice within 60 days after publication (first distribution of the Directory in question to the public) containing your listing and/or advertisement (“Credit Period”). After the expiration of the Credit Period, we will not accept any claim or claim for credit from you.
If we find that we have not met any responsibility we have to you, we will discuss with you the various ways we can help you. We may give you either a credit to your account with us for an amount we think is appropriate in our sole discretion or, at our option, non-monetary assistance. The credit or alternative non-monetary assistance is available only once for mistakes relating to a particular listing or advertisement and its value is limited to a maximum of our charge to you for providing the particular Advertising Services and is in full satisfaction of any claim you may have against us.
If an error should occur in any display advertising in our Printed Directory, we will consider giving you a credit at our discretion, according to the following schedule:
- Wrong main telephone number - 100%
- Wrong alternate telephone number - 15%
- Wrong address - up to 25%
- Incorrect spelling of a business name - up to 25%
- Incorrect spelling of a word - NONE
No credit is available for any free listing or advertisement as you did not pay for them.
No credit is available for Electronic Directory mistakes, as we can fix those promptly.
If, after discussing the issue with you, we consider that we have met our responsibilities, we will explain in writing why we consider this is so. You must still pay any outstanding charges by the due date.
14. Exclusion of Liability
We have already set out your rights to compensation if we do not meet our responsibilities to you. We now exclude all other liability we may have to you.
SAVE AS EXPRESSLY PROVIDED HEREIN, IN NO CASE WILL WE, OR OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND AFFILIATES BE LIABLE TO YOU OR ANY THIRD-PARTIES:
- (1) FOR DAMAGES CAUSED BY ANY ONLINE SERVICE, INTERNET OR COMPUTER SYSTEM FAILURE, OR BY ANY TRANSMISSION, ACCESS OR COMMUNICATION PROBLEMS.
- (2) FOR THE QUALITY OF YOUR ADVERTISING TO THE EXTENT IT MAY BE AFFECTED BY ANY USER'S OPERATING SYSTEMS, INDEPENDENT DISPLAY MECHANISMS OR ACCESS TO ONLINE SERVICES.
- (3) FOR CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE OR OTHER DAMAGES INCLUDING, BUT NOT LIMITED TO; LOSS OF PROFITS, BUSINESS OPPORTUNITY, REVENUES OR THE COST OF OTHER FORMS OF ADVERTISING IN EXCESS OF AMOUNTS PAID BY YOU FOR THE ADVERTISING SERVICES.
- (4) FOR DELAYS, DOWNTIME, ERRORS OR OMISSIONS IN PRODUCTION OR ELECTRONIC PUBLICATION OF ADVERTISING RESULTING FROM AN ACT OF GOD, GOVERNMENTAL ACT, LABOR DISPUTE VENDOR BANKRUPCY OR OTHER ACT OR CIRCUMSTANCE BEYOND OUR REASONABLE CONTROL, OR FOR ANY COMPUTER SYSTEM FAILURES OR UNAUTHORIZED USE OR ACTIONS BY A THIRD PARTY INCLUDING COMPUTER HACKERS
- (5) FOR ANYTHING ELSE CAUSED BY OR RESULTING FROM ANYTHING DONE OR NOT DONE OR DELAYED IN BEING DONE, WHETHER OR NOT IT IS CONTEMPLATED OR AUTHORISED BY ANY OTHER AGREEMENT
TO THE MAXIMUM EXTEND PERMITTED BY LAW, ANY EXPRESS WARRANTY AND ANY WARRANTY OR REMEDY WHICH MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW IS HEREBY EXCLUDED AND DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
THIS LIMITATION OF LIABILITY APPLIES WHATEVER YOU ARE CLAIMING FOR INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, LOSS OF PROFITS OR LOSS OF BUSINESS.
15. Information About You And Your Business
You agree that we may collect information about you and your business. The information may be obtained from you and others, or generated from equipment used to provide our services when you and anyone else uses our services. You may decide whether to provide any information we seek from you. However, if you do not provide it, we may not be able to provide Advertising Services for you.
You may ask to see information we hold about you, so long as we can readily retrieve it, and ask for any details that are wrong to be corrected. We may hold the information and share it with other affiliated companies, with our directors, officers, employees, contractors, agents and customers, with collection agencies and with credit reference agencies, so as to provide services or information to you and others, send you bills, recover money you owe and keep you informed of services available to you.
You are responsible for keeping confidential any PIN number or password used by or allocated to you. We may assume that any request or instruction we receive is authorised by you if it is accompanied by suitable verification (for example, your billing account number, PIN number or password).
16. Entire Terms
These Terms supersedes all prior communications, transactions, and understandings, whether oral or written, with respect to the subject matter hereof and constitutes the sole and entire Terms between you and us pertaining to the subject matter hereof. There shall be no covenants, conditions, warranties, representations, terms or provisions, express or implied, relating thereto except as herein set forth.
17. Transfer Of Rights And Responsibilities
You may transfer all (but not part of) your rights and responsibilities under these Terms to someone else so long as we have received the transferee's written acceptance of responsibility and given you our written consent.
18. Each Term Separately Binding
If any part of these Terms or of any other agreement, document or writing given pursuant to or in connection with these Terms shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of these Terms or other agreement, document or writing and the parties hereby agree to negotiate in good faith with respect to any such invalid or unenforceable part to render such part valid and enforceable to the fullest extent legally possible.
19. No Waiver
No delay or failure to exercise a right under these Terms prevents the exercise of that or any other right on that or any other occasion. A waiver can only be in writing and applies only to the right and on the occasion specified in the waiver.
The terms and provisions contained in these Terms that by their sense and context are intended to survive the performance thereof by the parties hereto shall so survive the completion of performance and termination of the Bermuda Yellow Pages Advertising Order agreement, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.
21. Bermuda Law
All our Advertising Services are provided in Bermuda and under Bermuda law. You and we agree that the courts of Bermuda will have exclusive jurisdiction to determine any matter related to these Terms.
22. Sending Notices
We may send notices to you at the last postal address, last fax number or last email address you have given us. You acknowledge that it is your responsibility to inform us of any changes to your contact details. Notices or when advising us of a change to your contact details, should be sent to us as follows:
by mail to:
Bermuda Yellow Pages Limited
Suite 607, 12 Church Street
Hamilton, HM 11
26 Victoria Street
Hamilton HM 11 Bermuda
or by fax to:
+1 441 296 0216
or by email to
Both you and we can assume that any notice sent by mail has been delivered 5 days after it is posted. Any notice given by fax or email is delivered when transmission is successfully completed if that is before 5 p.m. on a weekday or, if not, then on the next weekday.
23. Changing Our Terms and Conditions Of Business
Our Terms and Conditions of Business are on our web site at www.bermudayp.com . We may change Our Terms and Conditions of Business by changing or removing existing terms or adding new ones, at any time. Any change we make applies from the date one month after we publish it on our web site atwww.bermudayp.com in relation to any printed or electronic Advertising Services you ask us to provide after that date, any electronic Advertising Services we have already agreed to provide by that date and any republication after that date of an existing printed listing or advertisement.
Any other change to our Terms in a particular agreement is effective only if signed by the General Manager of Bermuda Yellow Pages Limited.
THESE TERMS AND CONDITIONS (the “Terms”) REFER TO THE VIRTUAL HOSTING AND WEB SERVICES AGREEMENT (the “Agreement”) made on the effective date, and between Yabsta and the Customer, as detailed therein.
Yabsta and the Customer are sometimes collectively referred to herein as the “Parties” and individually as a “Party”.
(A) Yabsta is a technology company that operates a software infrastructure platform (the “Platform”) and will allow the Customer access to Yabsta’s Web Site (defined below) through the Platform. Yabsta offers to the Customer i) advertising placement on the Platform, ii) virtual hosting services, iii) internet search engine optimization and iv) search engine marketing services and website building for the Customer and its customers and End Users.
(B) the Customer desires to obtain i) rights to access and use the Service in order to participate and allow its customers and End Users to participate and be included in the Platform ii) to submit its data, graphics, photographs, internet files, video, messages or any other media, material or relevant associated software that it owns or controls for inclusion in the Platform and to host its services on the Web Site subject to the terms and conditions set forth herein and Yabsta agrees to provide a license to allow the Customer access to its Service in accordance with the terms and conditions herein set forth.
NOW IT IS HEREBY AGREED as follows:
The following terms shall have the following meanings for purposes of this Agreement:
“Affiliate” means, with respect to any Person, any other Person, who directly or indirectly controls, is controlled by, or is under common control with that Person. As used in this definition, “control” means the possession, directly or indirectly, of at least fifty percent (50%) of the securities entitled to vote on the affairs or management or the power to direct or cause the direction of the management or policies of a Person by contract or otherwise.
Date” means the date that Yabsta informs the Customer in writing that the Service is available for use.
“Content” means Customer owned, or controlled electronic data, software, programs, applications, displays, communications, proprietary technology and information, and other information, whether confidential or not and in whatever form, that is placed on the Web Site(s).
“End User” means any visitor to the Web Site(s).
“Equipment” means the computer, networking, and data communications hardware and software owned, located and/or maintained by Yabsta that provide the Services.
“Fees” means those fees charged by Yabsta as detailed in Schedule 1 and Schedule 2.
“Firewalled” means the firewall further detailed in Schedule 1.
“Service” means advertising placement on the Platform, virtual hosting service, internet search engine optimization and search engine marketing service and website building and any other service as requested by the Customer from time to time and set out in Schedule 1.
“Network” means the TCP/IP-based data communications network through which End Users may access Customer’s Content via the Internet.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Remote Access” means a connection to the Equipment or Content from outside Yabsta’s facilities.
“Schedules” means Schedule 1 (Service), Schedule 2 (Additional Service) and Schedule 3 (Acceptable Use Policy).
“Term” means the term of this Agreement commencing on the Effective Date and continuing thereafter until terminated in accordance with the terms of this Agreement.
“Web Site” means the Customer’s web site hosted by Yabsta.
2. GRANT OF LICENSE
2.1 During the Term of this Agreement, Yabsta hereby grants to the Customer, subject to the terms and conditions herein, a non-exclusive non-transferable license to access Yabsta’s Platform to use the Service.
2.2 Yabsta agrees to provide the Service as commercially reasonable as possible. Yabsta reserves the right to disrupt the Service, with prior notice, for the purpose of remedial or preventative maintenance.
2.3 This license expressly excludes any right to sell, license or otherwise transfer Yabsta owned data to any third party.
2.4 Yabsta shall also provide other additional service which shall be agreed from time to time and set out in Schedule 2 of this Agreement.
2.5 The Service shall only be used for lawful purposes. Transmission of any material or information arising from the use of the Service in violation of any Bermuda law or regulation is prohibited.
2.6 In consideration of Yabsta’s agreement to supply the Service, the Customer agrees to pay Yabsta the Fees.
Yabsta shall take commercially reasonable steps to ensure unauthorized persons do not gain access to the Web Site(s). However, Yabsta bears no responsibility for unauthorized or fraudulent access to the Web Site(s) or the Content as a result of Remote Access to the Equipment that is due to Customer, or its customers and End Users’, acts or omissions. Customer shall be solely responsible for Remote Access security relating to its login(s) and password(s).
4. DOMAIN NAME AND NETWORK NUMBER
Customer shall arrange for the provision of Domain Name Service for any Web Site(s) it desires to be accessible by hostname to End Users over the Internet, or, at its option, Customer may request that Yabsta provide Domain Name Service (“DNS”) only to the extent necessary to provide such access to the Web Site(s). Customer may use a domain name or subdomain already registered under its business name, or Yabsta shall apply for and maintain DNS for one (1) new domain name per Web Site for this purpose, at Customer’s option. Customer shall be solely responsible for the InterNIC registration and maintenance taxes incurred in connection with each new domain name. Yabsta shall supply to the Customer and route host IP addresses to support Network access to the Web Site(s). IP addresses are and shall remain the sole and exclusive property of Yabsta and shall immediately be relinquished by Customer at the termination of this Agreement to allow for reassignment and reuse by Yabsta. Yabsta shall not supply or route non-Yabsta IP addresses under this Agreement.
5. CUSTOMER USE OF CONTENT AND NETWORK
5.1 Ownership of Web Site(s) and Content
All interest in, control of and/or ownership of the Web Site(s) and/or Content including, but not limited to, those portions of the Content that are Customer's trade names, trademarks or service marks, are and shall remain the property of Customer or its applicable Affiliates, subsidiaries, custodians, third-party service providers, clients, End Users or licensors.
5.2 Network Usage Restrictions
Customer covenants that the Web Site(s) and the Content will not violate or be used to violate:
a) the terms of Yabsta’s Acceptable Use Policy (AUP) as set out in Schedule 3;
b) the Standard for Electronic Transactions appointed under s. 29 of the Electronic Transactions Act 1999;
c) any applicable law, statute or regulations; or
d) any applicable International Treaties, Conventions or Protocols to which Bermuda is signatory.
Customer further covenants that the material used on the Web Site(s) does not libel any person or breach any third parties intellectual property rights and Customer hereby indemnifies Yabsta against any such claim.
Any such breach by Customer of its covenants given herein shall, at Yabsta’s sole discretion, be grounds for immediate termination of this Agreement upon receipt of written notice to Customer by Yabsta specifying such breach. Yabsta may, alternatively, in its sole discretion and upon receipt of written notice to Customer by Yabsta, suspend, for such period of time as necessary for Customer to cure the breach or comply with its statutory obligations, the provision of the Services to Customer if Customer, in Yabsta’s opinion, breaches its warranties given herein.
5.3 Backup by Yabsta
Yabsta is responsible for data backup. A full backup of each web server is completed on a daily basis, unless otherwise agreed by Yabsta and the Customer. Restoration of data, if required, will be completed within twenty-four (24) hours. Customer is solely responsible for providing, or for any costs or expenses associated with providing, any administrative, or support personnel or services necessary for restoring Web Site(s), and Content should this service be required due to fault or negligence of the Customer.
5.4 Customer’s Responsibility for Its End Users
Customer shall be solely responsible for providing any services to End Users and Yabsta shall have no obligations or liability whatsoever to End Users under this Agreement.
5.5 Customer Charges
Customer is solely responsible for establishing and collecting the fees or charges, if any, for Content and related services it offers to its End Users through the Web Site(s), and for preparing and mailing invoices to its End Users. Customer remains responsible for all amounts due to Yabsta regardless of whether Customer collects fees or charges from its End Users.
6. TERM OF THE AGREEMENT
Upon expiration of the Initial Term (as identified in Schedule 1), this Agreement shall automatically renew and continue on a month to month basis, unless terminated in accordance with the terms herein.
7.1 Initial fees, installation fees (if applicable), requested by the Customer pursuant to Schedule 1 or Schedule 2 are payable upon execution of this Agreement. Additional Fees are payable thirty (30) days from invoice date. All other Fees are payable in accordance with Schedule 1 and such Fees shall commence on the Service Commencement date.
7.2 Fees for the Services shall be payable whether or not the Services are actually used during the month in question.
7.3 Yabsta shall be entitled, upon thirty (30) days’ written notice to the Customer, to change Schedule 1 of the Agreement to accord with any change of Yabsta’s standard scale of Fees.
7.4 If applicable, the Customer shall pay the following early termination fees to Yabsta, unless provided otherwise in Schedule 1 (a) if such early termination occurs during the installation of a Service and prior to the Service Commencement Date, Customer shall pay the actual costs assessed on Yabsta by a third party, if any, or (b) if such early termination occurs during the initial Term, (as defined in Schedule 1), Customer shall pay Yabsta the aggregate total of all monthly recurring fees for the terminated Service(s) for the unexpired portion of the initial Term.
8 BILLING, PAYMENT AND DISPUTES
8.1 Payments for Service shall be made by credit card or bank standing order. Customers are required to provide and maintain current credit/debit card (“Card”) information. Payments made to Yabsta by a Card will be subject to the terms and conditions established by the Card issuer.
8.2 Invoices for Fees for Service provided by Yabsta shall be issued monthly in advance in BD$. Payment is required to be made within 30 days of the invoice pursuant to Schedule 1 hereto (“Due Date”). A late payment fee of 1.5% of the outstanding monthly balance will be levied against the Customer where invoices are not paid within the Due Date and the account shall be considered by Yabsta to be in default.
8.3 In the event Customer shall fail to pay Yabsta any amount due under this Agreement for a period of sixty (60) days after the Due Date, Yabsta, in addition to charging applicable interest Fees, may, at its option, suspend the license and access to any or all Web Site(s) by Customer and its End Users upon forty-eight (48) hours prior written notice to Customer. In the event that Web Site access is suspended by Yabsta, Yabsta shall resume providing access to such Web Site(s) immediately upon receipt of payment of all Fees, including interest on all Fees and Collection Fees (as defined below) owing to Yabsta, and in such event Customer shall also, prior to Yabsta resuming to provide access to the Web Site, pay Yabsta a Reconnection Fee of $250.00 per Web Site.
8.4 Customers are responsible and shall be charged accordingly, if payment to Yabsta by a Card (defined below) or by any other non-cash method, is rejected for any reason. Customers are advised that payments made at an ATM or online, following receipt by Yabsta, will take at least two (2) clear business days to register on the Customer’s account. A business day for these purposes is defined as Monday to Friday between 9.00am and 5.00pm. To avoid late fees or a possible interruption of Service, Customers should ensure that they pay their Fees in accordance with the rules and regulations of their bank if paying their Fees online or using an ATM, and in accordance with this Agreement for all payments. Customers will receive their monthly invoice at the address as notified to Yabsta by the Customer.
8.5 Customers are required to inform Yabsta as soon as possible with any changes to their mailing address (including e-mail address). This is to ensure the correct presentation of monthly invoices and continuation of Service. Failure of the Customer to receive invoices does not constitute a valid reason for non-payment of such invoices.
8.6 Any dispute to a charge or fee for a service on a Customers’ invoice must be made by writing to Yabsta within forty five (45) days of the date of that invoice otherwise Customer will be deemed to have accepted such fee. Customers accept all fees and charges not properly disputed within the stated time frame and are expected to pay all undisputed charges or fees in accordance with this Agreement. All invoice enquiries, including any disputes regarding an invoice, should be directed to Yabsta at ‘Swan Building’, 26 Victoria Street, Hamilton, HM 12, Bermuda.
8.7 Accounts in default are subject to interruption of Service. Such interruption will not relieve the Customer of its obligations to pay any outstanding Fees. In the event of default, the Customer agrees to pay Yabsta its reasonable expenses, including attorneys and collection agency fees incurred in enforcing its rights under this Agreement (“Collection Fees”).
8.8 The Customer shall pay all Fees due under this Agreement without deduction or set-off.
8.9 Invoicing for the Service will commence on the Commencement Date as stated in Schedule 1 or when the Customer begins to use the Service.
9.1 Customer shall be responsible and liable for all direct and indirect taxes, fees, penalties and related charges (“Taxes”) imposed upon Customer in connection with this Agreement. All amounts paid by Customer under this Agreement shall be made without any deduction or withholding for or on account of any Taxes, with Customer being solely responsible to pay all such Taxes and hold Yabsta harmless for the payment of such Taxes. If Customer is required by law to make any deduction or withholding from any such amount paid, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer to Yabsta shall be increased so that after any such deduction or withholding or any additional deduction or withholding caused by such additional gross-up payment, the net amount received by Yabsta will not be less than what Yabsta would have received had no deduction or withholding been required.
9.2 Governmental Charges. Yabsta may adjust its Fees or impose additional fees and charges in order to recover amounts it is required or permitted by governmental or regulatory authorities to collect from, or pay to, others in support of statutory or regulatory programs (“Governmental Charges”).
10.1 Either Party may terminate this Agreement or a Schedule hereto, after the initial term, by giving at least thirty (30) days’ written notice to the other Party.
10.2 Customer may choose to terminate a Service, Schedule or this Agreement during the Initial Term subject to Section 7.4 of this Agreement.
10.3 If the Customer fails to pay any outstanding Fees within ten (10) days after receipt of written notice from Yabsta of delinquency, or if the Customer fails to perform or observe any other material term or condition of this Agreement within thirty (30) days after receipt of written notice from Yabsta of such failure, Yabsta may terminate this Agreement.
10.4 Either Party may terminate this Agreement immediately and at any time by giving notice in writing to the other:
10.4.1 if the other Party passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
10.4.2 if the other Party becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
10.4.3 if the other Party has a liquidator, receiver, manager or similar officer appointed over any of its assets; or
10.4.4 if the other Party ceases, or threatens to cease, to carry on business.
10.5 Either Party may terminate this Agreement immediately by giving notice in writing to the other Party if Yabsta ceases to provide the Service.
10.6 In the event of termination of this Agreement or a Schedule hereto by either the Customer, pursuant to Section 10.1, or Yabsta, pursuant to Sections 10.3 or 10.4, the Customer shall be liable for all Fees that would have been payable pursuant to any Schedule(s) had such Schedule continued in force for the full service period.
10.7 Neither expiration nor termination of this Agreement shall affect any obligations or rights of the Parties accrued up to the date of such expiration or termination.
10.8 Upon expiry or termination of this Agreement, the Parties shall provide each other with all such assistance as may be reasonably necessary in order to terminate their relationship in a manner which causes the least inconvenience to each other.
11 CUSTOMER RESPONSIBILITIES
11.1 The Customer shall be responsible for:
11.1.1 the selection of the Service that it requires for its purposes;
11.1.2 the accuracy of the Content;
11.1.3 compliance with all applicable laws in relation to the nature of the Content; and
11.1.4 any information, programs, software, data and other related material (“Software”) including without limitation, the entire responsibility for any losses of Software, breaches of security (except as otherwise detailed in this Agreement), viruses and disabling or harmful devices that may be experienced as a result of the provision of the Services that are due to Customer’s act or omission.
11.2 The Customer shall:
(a) provide Yabsta and its employees designated to provide the Service with all necessary information, support and co-operation that may be reasonably required to enable Yabsta to carry out its obligations to the Customer under this Agreement.
(b) ensure that its employees co-operate fully with Yabsta in relation to the provision of the Service.
(c) furnish Yabsta promptly with such information and documents as Yabsta may reasonably request for the proper performance of its obligations under this Agreement.
(d) allow Yabsta, its employees or other Yabsta authorized personnel, supervised access to the Customer’s premises for the purposes of installing, configuring, and testing the Equipment and Service.
(e) ensure that all Customer Equipment used to connect to the Services will perform according to published technical specifications for such Equipment and Yabsta’s interface specifications for such Equipment and otherwise comply with Yabsta’s specifications for the Service.
(f) during the Term, comply with all laws (whether Bermuda, international or foreign) applicable to its Equipment, use and location and its performance of this Agreement. Customer is solely responsible for identifying, procuring and maintaining, at its own expense, any permits, licenses, registrations, notifications, approvals or consents needed with respect to its Equipment, its use and location of Equipment, its business or its performance of this Agreement. Upon request, Customer must give Yabsta satisfactory confirmation or proof of such compliance
(g) designate Yabsta as the agent to initiate third-party services (e.g. local telecommunications) required for the provisioning of the Service.
(h) make no changes, alterations or perform any testing on the Service, without prior written notification to Yabsta.
(i) notify Yabsta immediately if the Customer becomes aware of any unauthorized or fraudulent use of the Service. For purposes of this Agreement, “Fraud” means the illegal or unauthorized use of any Service. The risk of Fraud shall be borne entirely by Customer. Customer shall pay Yabsta for all fees or charges for the Service regardless of whether the purchase or use of the Service was fraudulent. Yabsta shall have the right at any time to immediately suspend or terminate a Service to protect against Fraud or to protect the integrity of Yabsta’s network.
(j) establish designated points of contact to interface with Yabsta.
(k) at any time and from time to time, upon the request of Yabsta, do execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, all such further acts, documents and instruments as may be required in order to enable Yabsta to perform it obligations under this Agreement.
12 YABSTA’S RESPONSIBILITES
12.1 Yabsta shall:
12.1.1 provide the Service with reasonable care and skill and substantially in accordance with the Schedules.
12.1.2 The warranty in Section 12.1.1 shall not apply to the extent that the non-conformance or non-availability which is caused by use of the Service contrary to Yabsta’s instructions.
12.1.3 If the Service does not conform with the warranty in Section 12.1.1, Yabsta shall, at its expense, use all reasonably commercial efforts to correct any such non-conformance or non-availability promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customers sole and exclusive remedy for any breach of warranty in this Section.
12.1.4 repair or replace Customer’s equipment where such equipment is damaged as a result of Yabsta’s negligence in providing the Service.
12.1.5 co-operate, and ensure that its employees co-operate, with the Customer’s employees where this is necessary to effectively carry out its obligations under this Agreement.
12.1.6 establish designated points of contact to interface with the Customer.
13.1 The Customer acknowledges that the Service is not being made available to the Customer to meet the Customer’s individual requirements and that it is therefore the responsibility of the Customer to ensure that the Services meet its requirements. Yabsta shall not be liable for any failure of the Services to provide any function not specified by the Customer.
13.2 The Customer acknowledges that Yabsta’s obligations and liabilities in respect of the Service provided are exhaustively defined in this Agreement. The Customer agrees that no warranty, condition, undertaking or term expressed or implied, statutory or otherwise, as to the condition, quality, performance, merchantability, durability or fitness for purpose of the Service is given or assumed by Yabsta and all such warranties, conditions, undertakings and terms are hereby excluded.
13.3 Customer warrants that it has full power and authority to enter into this Agreement and permits Yabsta to deliver the Service and any additional services.
14. LIMITATION OF LIABILITY AND INDEMNITY
14.1 To the maximum extent permitted by law, Yabsta, its affiliates, shareholders, directors, officers, employees, agents and subcontractors shall not be liable to the Customer for any, direct, special, exemplary, indirect, incidental, reliance, punitive, consequential or any other damages, or for any loss, cost or expense of any kind or nature whatsoever, whether arising under contract, tort or otherwise, regardless of the forseeability thereof and even if the Customer has been advised of the possibility thereof, including, but not limited to, loss of profits, loss of business opportunity, loss of goodwill, loss of revenue, loss of data, loss or damage resulting from fraudulent use or intrusion of Yabsta’s services or other economic loss.
14.2 Without limiting the provisions of this Section 14, Yabsta’s maximum for all claims or actions in connection with this Agreement or the performance thereof arising during it’s the Term shall be limited to the Fees paid to Yabsta under this Agreement for the three (3) month period immediately preceding the date the on which the latest claim(s) or action(s) first arose.
14.3 Nothing in this Section 14 limits either Party’s liability for death or bodily injury caused by their negligence, or for fraudulent misrepresentation or any other liability that cannot be excluded or limited as a matter of applicable law.
15.1 Both Parties agree to retain in confidence all information which is either i) designated as proprietary and/or confidential; or ii) by the nature of the circumstances surrounding disclosure; or iii) by the nature of the information itself, that should reasonably be understood by the receiver to be confidential to the discloser (“Confidential Information”). Each Party agrees to: i) preserve and protect the confidentiality of the other Party’s Confidential Information during the Term and for two (2) years after any termination or expiration of this Agreement; ii) refrain from using the other Party’s Confidential Information except as contemplated herein; and iii) not disclose such Confidential Information to any third party except to employees, agents, representatives or contractors as is reasonably required in connection with the exercise of its rights and performance of its obligations under this Agreement (and only subject to binding use and disclosure restrictions which are at least as protective as those set forth herein and which are agreed to in writing by such employees, agents, representatives or contractors). Notwithstanding the foregoing, either Party may disclose Confidential Information of the other Party which is: (i) already publicly known; (ii) independently developed by the receiving Party without reference to the Confidential Information of the disclosing Party; (iii) otherwise known to the receiving Party through no wrongful conduct of the receiving Party, or (iv) required to be disclosed by law or court order. Neither Party shall disclose any of the terms of this Agreement to any third party without the prior written consent of the other Party.
15.2 The Fees, terms and conditions of this Agreement are Confidential Information and shall be treated in confidence in accordance with this Section 15.
15.3 Upon request, the Party in receipt of Confidential Information will promptly return all Confidential Information (or any designated portion thereof), including all copies thereof, to the disclosing Party or, if so directed by the disclosing Party, destroy such Confidential Information. The recipient will also, within seven (7) days of a written request by the disclosing Party, certify in writing that it has satisfied its obligations under this Section.
16. EQUITABLE REMEDIES
In the event of a breach or anticipated breach of Section 15 of this Agreement, both Parties agree that monetary damages alone may not be an adequate remedy and, accordingly, that Yabsta will, without prejudice to any other rights or remedies that it may have, be entitled, without proof of special damages and without the necessity of giving an undertaking in damages, to seek an injunction or specific performance.
17. PUBLIC ANNOUNCEMENTS
The Parties agree to maintain in strict confidence and not to disclose publicly or disclose to any third party, subject to Section 15, the subject matter or substance of any discussions or negotiations between the Parties, the terms of any proposed arrangements or agreements between the Parties, or any other information relating thereto. The Parties agree that each shall not, and shall not permit any of its shareholders, directors, affiliates, subsidiaries, representatives or other entities or their professional advisors to make any public announcements about the discussions regarding such arrangements or agreements and any other business and operating plans being discussed or negotiated, whether in the form of a press release or otherwise, without first consulting with the other Party and obtaining its written consent.
18 FORCE MAJEURE
If Yabsta is delayed in the performance of or is unable to perform or performs contrary to any part of its obligations under this Agreement due to an act of God, public enemy, warlike operations, terrorism, civil commotion, riot, sabotage, labour difficulties (such as work stoppage, strike, lock-out, walk-out, slow-down and similar labour disrupting events), earthquakes, accidental current being carried over or through the facilities and equipment, power failure, embargo, unavoidable catastrophe, explosion, act of a Governmental Agency or military authorities or courts, unusual delay by other service providers, inability to secure product of manufacturers or vendors, inability to obtain international transportation service, or circumstances of any kind beyond the control of Yabsta, and Yabsta has used all commercially reasonable efforts to prevent and minimize the impact of all of the events identified herein, then Yabsta shall be excused from the performance of such obligations to the extent that the performance is prevented, hindered or delayed by such causes and shall not be liable under this Agreement during the period and to the extent of the inability to perform.
19 DISPUTE RESOLUTION
19.1 Both Parties agree to use commercially reasonable efforts to resolve any dispute or claim relating to this Agreement in accordance with this Section in good faith. If a dispute or claim arises between the Parties that cannot be resolved promptly between the Parties at an operational level, either Party may notify the other Party of a formal dispute. Each Party must nominate a senior executive to meet within seven (7) days of the date of the notice (or another agreed period) to resolve the dispute or claim.
19.2 Where the Parties are unable to resolve a dispute in accordance with Section 19.1 either Party may submit such dispute for resolution by arbitration. The tribunal shall consist of a sole arbitrator appointed by agreement between the Parties or failing such agreement by the Appointments Committee of the Chartered Institute of Arbitrators, Bermuda Branch. The procedure to be followed shall be that as laid down in the Bermuda International Conciliation and Arbitration Act 1993 and the UNCITRAL Arbitration Rules presently in force. The place of arbitration shall be Bermuda and Bermuda law shall apply. The language of the arbitration shall be English. The decision and award of the arbitrator shall be delivered within three (3) months of his or her appointment, unless otherwise agreed between the Parties, and shall be final and binding on the Parties and enforceable in any court of competent jurisdiction. Nothing in this Section 19.2 prevents or in any way restricts either Party from seeking specific performance, injunctive relief or any other form of equitable remedy. The Parties shall continue to perform their respective obligations during the dispute resolution process set out in this Section 19.2, unless and until this Agreement is terminated in accordance with its terms.
19.3 The costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the Parties and each Party shall bear its own costs and attorneys’ and witness’ fees incurred in connection with the arbitration unless the arbitrator determines that it is equitable to allocate such costs and fees differently and so orders in rendering judgment.
19.4 In rendering judgment, the arbitrators may not provide for punitive or similar exemplary damages.
19.5 The arbitration proceedings and the decision shall not be made public without the joint consent of the Parties and each Party shall maintain the confidentiality of such proceedings and decision unless otherwise permitted by the other Party, except as otherwise required by applicable law or statutes.
20.1 Any notice or other communication required to be given or served under the Agreement shall be duly given or served if it is (i) in writing (for the purposes of this Section 20, a notice shall be deemed to be in writing if it is in the form of a printed or hand-written letter or other document, or in the form of a facsimile or e-mail message); (ii) signed by an authorized officer of the Party giving or serving the notice; and (iii) either (a) delivered by hand or sent by prepaid recorded post to the address of the Party as set out in the Agreement (or such other address as is notified in writing to the other Party from time to time); or (b) sent by facsimile transmission to the facsimile number of the Party as set out in the Agreement (or such other facsimile number as is notified in writing to the other Party from time to time); or (c) sent by e-mail to the e-mail address of the Party as set out in the Agreement (or such other e-mail address as is notified in writing to the other Party from time to time):
20.2 20.2 A notice sent by post shall be deemed to have been served five (5) business days after it is posted.
20.3 A notice sent by facsimile shall be deemed to have been served at the time of transmission to the relevant facsimile number above provided the transmitting facsimile machine has received and printed out a report confirming receipt and the transmission has taken place without error.
20.4 A notice sent by e-mail shall be deemed to have been served at the time that it is transmitted to the relevant e-mail address set out above.
20.5 In proving service of a notice in accordance with this Section 20 it shall be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post and in the case of a facsimile or e-mail that such facsimile or e-mail was duly dispatched to a current facsimile number or e-mail address of the addressee respectively.
This Agreement cannot be amended unless in writing signed by both Parties.
Customer shall not transfer or assign all or any part of its interest under this Agreement without the written consent of Yabsta. Any attempt to assign or transfer this Agreement by the Customer without the written consent of Yabsta shall be void. Yabsta may assign this Agreement in whole or in part to any affiliate of Yabsta, any person that purchases all or substantially all of the assets of Yabsta, or any other person formed by or surviving the merger or consolidation of Yabsta and any other person. This Agreement shall be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns.
21.3 Entire Agreement
This Agreement supersedes all prior communications, transactions, and understandings, whether oral or written, with respect to the subject matter hereof and constitutes the sole and entire agreement between the Parties pertaining to the subject matter hereof. There shall be no covenants, conditions, warranties, representations, terms or provisions, express or implied, relating thereto except as herein set forth.
Neither Party is bound by any exclusivity to the other under this Agreement.
21.5 Exclusion of third party rights
Notwithstanding any other provision of this Agreement, nothing in this Agreement shall confer, nor is it intended to confer, a benefit on any third party for the purposes of this Agreement.
21.6 Further Assurances
At the request of either Party, the other Party shall execute and perform all such documents, acts and things as may reasonably be required subsequent to the signing of this Agreement for assuring to or vesting in the requesting Party the full benefit of the terms hereof.
21.7 Independent Contractor
Nothing contained in this Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party without the prior written consent of the other Party. This Agreement shall not constitute a partnership, joint venture, or any other form of legal entity or business enterprise.
21.8 No Effect on Other Agreements/Conflict
No provision of this Agreement shall be construed so as to negate, modify or affect in any way the provisions of any other agreement between the Parties unless specifically referred to, and solely to the extent provided herein.
21.9 No Reliance
Both Parties hereby acknowledge that in entering into this Agreement it has not relied on any representation or warranty save as expressly set out herein or in any document referred to herein, provided that nothing in this Section or elsewhere in this Agreement excludes or limits a Party’s liability for fraudulent misrepresentation.
If any part of this Agreement or of any other agreement, document or writing given pursuant to or in connection with this Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of this Agreement or other agreement, document or writing and the Parties hereby agree to negotiate in good faith with respect to any such invalid or unenforceable part to render such part valid and enforceable to the fullest extent legally possible.
The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the Parties hereto shall so survive the completion of performance and termination of this Agreement, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.
A failure or delay of either Party to enforce any provision of this Agreement will not be construed as a waiver of such provision or any other rights under this Agreement, unless in writing and signed by the Party granting such waiver.
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.
21.14 Governing law
This Agreement shall be governed by and construed in accordance with the laws of Bermuda.
Acceptable Use Policy
This Acceptable Use Policy specifies the actions prohibited by Yabsta to users of the Platform or Web Site. Yabsta reserves the right to modify the policy at any time.
Yabsta’s Acceptable Use Policy (“Policy”) is set forth below. The Policy applies to all users of the Platform or Web Site, including Customers and their End Users. Yabsta may suspend or terminate service, and remove Customer’s Content from the Platform or Web Site, for any violation of this Policy, including violations involving single or repeat violations of the prohibition on copyright infringement set forth in the paragraph titled “Illegal Use”.
The Service may be used only for lawful purposes. Transmission, distribution, or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, pornographic, defamatory, related to gambling, constitutes an illegal threat, or violates export control laws.
The Customer agrees that it is solely responsible for its, and its End Users, Content, data, graphics, messages transmitted, or other materials and/or services used on the Web Site. The Customer is entirely responsible for all information whether publicly posted or privately transmitted using Yabsta’s services and the Customer assume all responsibility for any consequences thereof related to it, or its End Users, actions using Yabsta’s services. Yabsta does not control the information posted or transmitted by users of its services and thus cannot guarantee the quality or accuracy of such information. Yabsta under no circumstances assumes any responsibility or will be liable in any way for any information that was posted or transmitted by third parties. The Customer agrees to use the Platform or Web Site only to post materials that are legal. By way of example, and not as a limitation, the Customer agrees that when using Yabsta’s Platform or Web Site, the Customer, nor its End Users, will not:
- Harm children in any way;
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Publish, post, upload, make available, distribute or disseminate or offer to do the same (hereinafter "Post") any vulgar, hateful, malicious, racially or ethnically slanderous, harmful, inappropriate, defamatory, infringing, abusive, libelous, threatening, obscene, false, or unlawful material or information;
- Post any material that infringes any patent, trademark, copyright, trade secret, intellectual property or other proprietary right of any party (the "Rights"), unless you are the owner of the Rights or have the permission of the owner to post or transmit such material;
- Post any material that contain viruses, corrupted files, or any other similar software or programs that may damage, interrupt, or functionally limit the operation of another's computer software, hardware or telecommunications equipment;
- Post or transmit spam, "chain letters," "junk mail," promotional materials or any form of solicitation, advertise or offer to sell any goods or services for any commercial purpose, other than in areas of the Web Site intended for such uses;
- Impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is posted or transmitted;
- Restrict or inhibit any other user from using and enjoying the use of the Web Site and its services;
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Collect or store personal data about other users;
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
- Interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- Forging of any TCP/IP packet header or any part of the header information in an e-mail or a newsgroup posting;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop hidden pages or images;
- Hack into any part of the Web Site, operate computer programs of any sort that willfully extract copyrighted information for illegal purposes, or jeopardize the performance/disrupt/interfere with the delivery of the services, servers, or network infrastructure;
- Encourage, glorify or commit conduct which is likely to give rise to criminal or civil liability;
- Provide material support or resources to any organization designated as a foreign terrorist organization in any manner whatsoever; and
- Engage in conduct that is in contempt of any legal proceedings.
SYSTEM AND NETWORK SECURITY
Violations of system or network security are prohibited, and may result in criminal and civil liability. Yabsta will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
- Interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks.
- Forging of any TCP/IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A user shall not use another site’s mail server to relay mail without the express written permission of the site owner.
(a) You may cancel any or all of the Services within the first 30 days after the purchase date , either
by telephoning us, emailing us or writing to tell us. Cancellation will take effect as soon as possible
after we receive your request to cancel. For some Services (but not all) we may offer you a pro-rated
refund or credit where cancellation takes effect part way through a Service Month. The Service Terms
include details of the refunds and credits that we offer. You agree that we have the right to decide: (i)
the amount of any pro-rated refund or credit; and (ii) whether this amount is given as a refund or credit
against your account.
(b) If you place an order for Services with the help of our jurisdiction-based sales team then you will
have a period of seven (7) days from the date of the Confirmation of Order (the “Review Period”) to
review the full terms and conditions and details of this Agreement. If you decide that you no longer
want to receive the Services, you must notify us during the Review Period either by telephoning
us, emailing us or writing to tell us. If you have paid any moneys, but you have not yet activated
the Services, you will be entitled to receive a full refund. If you have activated the Services, you
acknowledge that we will offer you a pro-rated refund or credit. After expiration of the seven (7) day
Review Period, you may cancel the Services up to 30 days of the initial purchase date.
( c ) Refund and Cancellation policy covers all digital services sold by Yabsta and Bermuda yp.com.