GENERAL TERMS & CONDITIONS OF SERVICE 2.0a

All Bluefort agreements for the provisions of services (including the provision of licenses where applicable) are subject to the following general terms and conditions of service (“T&Cs“), and the Customer agrees to be bound by these T&Cs upon entering into a principal agreement with Bluefort (hereinafter “the Principal Agreement”) which shall stipulate the type of services which Bluefort shall provide to the Customer and which shall also incorporate, by reference, the provisions of other agreements of Bluefort. The Principal Agreement and these T&Cs shall thus be read, understood and interpreted as one document.

1. INTERPRETATION
The following definitions and rules of interpretation apply in these T&Cs:
1.1. Definitions
Applicable Law: Unless otherwise provided, this shall refer to the laws of the Republic of Malta.
Business Day: Any day other than a Saturday, Sunday, public holiday or national holiday in Malta.
Bluefort Employee: The employee(s), agent(s) or subcontractor(s) used by Bluefort for the provision of the Services.
Bluefort Representative: Means the person identified by Bluefort in the Principal Agreement.
Customer Representative: Means the person identified by the Customer in the Principal Agreement.
Confidential Information: Information that is proprietary or confidential and is either clearly labelled or identified as such, or otherwise clearly acknowledged by any Party as being Confidential Information. For the avoidance of doubt, Confidential Information shall include, but is not limited to, the contents of the Principal Agreement and of the Services, the business affairs and/or business operations, business plans, contracts, customers (including customer lists), drawings (technical or otherwise), inventions (irrespective of whether the foregoing are patented), know-how, machinery, presentations of information, methods of doing business, methods of manufacturing, organisation, suppliers, trade secrets of either of the Parties.
Commencement Date: means the date of the Principal Agreement.
Intellectual Property Rights: Shall mean all vested, contingent and future intellectual property rights including but not limited to patents, utility models, rights to inventions, mathematical methods, mathematical formulas, mathematical algorithms, copyright and neighbouring and related rights, aesthetic creations, moral rights, sui generis rights (as recognised and protected by the provisions of the Copyright Act – Chapter 415 of the Laws of Malta), trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, design rights (whether registered or unregistered), rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services: shall be interpreted broadly as to cover any and all types of services which Bluefort shall provide to the Customer, a more detailed reference to which shall be provided by means of the Principal Agreement.
1.2. Clauses, schedules and paragraph headings shall not affect the interpretation of these T&Cs.
1.3. A ‘person’ shall include an individual, corporate or unincorporated body (whether or not having separate legal personality), and that person’s legal and personal representatives, successors or permitted assignees.
1.4. A reference to a ‘company’ shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Principal Agreement.
1.8. A reference to ‘in writing’ and/or ‘written’ shall include registered mail and/or electronic mail (e-mail).
1.9. References to ‘clauses’ and ‘schedules’ are to the clauses and schedules of these T&Cs.
1.10. Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. BLUEFORT’S OBLIGATIONS
2.1 In providing the Services, Bluefort shall:
(a) Perform the Services diligently in accordance with the standard practices in Bluefort’s industry, profession or trade.
(b) Manage the Services, and the various parts thereof within the time scales and costs indicated in the Services subject to any reviews and adjustments which may be necessitated by instructions issued by the Customer Representative or circumstances outside the reasonable direct control of Bluefort. The Parties agree that Bluefort shall not be held responsible in the event of departures from the Services caused as a direct result of the acts and/or omissions of third parties engaged by the Customer.
(c) Ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it comply with its obligations under the Principal Agreement.
(d) Observe all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.
2.2 Bluefort is hereby granted full authority to act on behalf of the Customer, for the purpose of carrying out the Services, provided that Bluefort shall not, without the approval of the Customer:-
(a) appoint or determine the appointment of any third-party consultant or contractor of the Customer;
(b) execute a document on behalf of the Customer;
(d) knowingly, and without good cause, do anything which would unreasonably delay the execution of the Services;
(e) except in an emergency, and without good cause, knowingly do anything which would unreasonably increase the costs of the Services.

3. THE CUSTOMER’S OBLIGATIONS
3.1 The Customer shall:
(a) Co-operate fully with Bluefort in all matters relating to the Services in order to enable Bluefort to perform its obligations in terms of the Principal Agreement.
(b) Generally remain responsible for all of the decisions, instructions and directions taken during the performance of the Services.
(c) Supply to Bluefort, within a reasonable time, any request, any approvals, responses, instructions or directions required by the Principal Agreement and any relevant data and information in the possession of the Customer or which may only be obtained by the Customer and which is necessary for the performance of the Services.
(d) Ensure such access to premises, servers and data, and such office accommodation and other facilities as may reasonably be requested by Bluefort for the purposes of providing the Services.
(e) Ensure that Bluefort is provided with such information (including but not limited to documentation, manuals, forms or guides) as Bluefort may reasonably request the Customer in order to carry out the Services in a timely manner.
(f) Without prejudice to the foregoing, provide Bluefort with copies of all contracts between the Customer and any third party where these are relevant or may have a bearing on the provision of the Services. Bluefort shall become familiar with these contracts and shall use the skill, care and diligence required by Clause 3.1(a) to avoid committing or causing the Customer to commit a breach of any such contract. Furthermore, Bluefort shall review these contracts and advise the Customer if in the opinion of Bluefort any of these contracts should be amended. In the event that the Customer agrees to amendments, Bluefort shall provide reasonable support to the Customer in negotiating these amendments which support shall be considered to be part of the Services.
(g) Inform Bluefort of all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.

4. COMMENCEMENT AND TERM
4.1 These T&Cs shall come into force between the Parties as from the Commencement Date and shall continue to be valid and in force as between the Parties for the duration and period of validity of the Principal Agreement.
5. LIMITATION OF LIABILITY
5.1 Nothing in the Principal Agreement shall limit or exclude a Party’s liability for:
(a) death or personal injury caused by its gross negligence or wilful misconduct, or that of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation;
5.2 Subject to Clause 5.1, neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Services and or the Principal Agreement.
5.3 Subject to Clause 5.1 and Clause 5.2, Bluefort’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Services and/or the Principal Agreement shall be limited to and shall not exceed an amount equivalent to five percent (5%) of the total fees invoiced and paid by the Customer for the Services over either the period of twelve (12) months preceding the claim, or over the whole duration of the Principal Agreement where this is less than twelve (12) months.
5.4 Furthermore, to the extent limited by the Applicable Law, the Customer hereto agrees to indemnify and hold harmless Bluefort in respect to any and all claims, liabilities, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court expenses and reasonable legal fees) arising out of or in connection with the Services and/or the Principal Agreement, and any ensuing obligations entered into pursuant thereto, except to the extent that such claims, liabilities, actions, proceedings, losses, damages, expenses and costs arise from the gross negligence or wilful misconduct of Bluefort.
5.5 In addition, the Customer shall at all times indemnify Bluefort, its officers, directors, agents, employees or authorised representatives, and hold them harmless against any and all claims, liabilities, damages and costs that Bluefort may incur by virtue of the Customer’s negligence, whether gross or otherwise, wilful misconduct, or the non-performance of any of its obligations under or in connection with the Services and/or the Principal Agreement whether in contract, tort (including negligence) or breach of statutory duty in respect of each and every claim for which the Customer has a legal liability.

6. FORCE MAJEURE
Neither Party shall be in breach of the Principal Agreement, nor shall they be liable for delay in performing, or failure to perform, any of their obligations entered into pursuant to the same, if such delay or failure results from acts, events, omissions or accidents beyond its control, or are reasonably considered to be an irresistible force, fortuitous event or unforeseen circumstance, provided that the other Party is notified of the above and its expected duration. However, if the period of delay or non-performance continues for one (1) month, the Party against which the force majeure event is invoked may terminate the Principal Agreement by giving fourteen (14) days’ written notice to the other Party.

7. CONFIDENTIALITY
7.1 Each Party to the Principal Agreement may be given access to Confidential Information from the other Party in order to perform its obligations arising under or in connection with the Principal Agreement. A Party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving Party;
(b) is lawfully disclosed to the receiving Party by a third party without restrictions on disclosure;
(c) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
(d) is required to be disclosed by law, or by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 In line with the definition given in Clause 1.1 of these T&Cs to the term “Confidential Information”, each Party shall hold the other Party’s Confidential Information in confidence and shall keep secret all information marked “confidential” or which may reasonably be supposed to be confidential and, unless required by law, not make the other Party’s Confidential Information available to any third party, or make use thereof for any purpose other than the implementation of the Principal Agreement.
7.3 Each Party shall hold the other Party’s Confidential Information with the same degree of care as it employs with regards to its own Confidential Information of a like nature and in any event in accordance with the best current commercial and industry security practices.
7.4 Notwithstanding this, each Party may disclose the other Party’s Confidential Information to its employees, officers, representatives or advisers who strictly need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations arising under or in connection with the Principal Agreement. Each Party shall ensure that its employees (which includes, where applicable, the Bluefort Employee concerned), officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with Clause 7.2 above.
7.5 Should the Customer need to disclose any Confidential Information pertaining to Bluefort to any of the Customer’s clients in the execution of the Services, then the Customer undertakes to obtain from its client/s, in advance of any disclosure, a written undertaking which protects Bluefort’s Confidential Information which is no less onerous than the confidentiality obligations contained in these T&Cs. Any such disclosure shall be limited to that specific information which is necessary and required for the Services in question to be performed in line with the provisions of the Principal Agreement.

8. TERMINATION
8.1 Without affecting any other right or remedy available to it under the Principal Agreement, or at law, either Party may terminate the Principal Agreement, in full or in part, with immediate effect by giving written notice to the other Party if:
(a) the other Party fails to pay any amount due arising under the Principal Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other Party commits a material breach of any other term contained in the entirety of the Principal Agreement, which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 15 days after being notified in writing to do so;
(c) the other Party repeatedly breaches any of the terms found in the entirety of the Principal Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to fulfil its obligations entered into pursuant to the Principal Agreement;
(d) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts under the Applicable Law or by any Court with competent jurisdiction;
(e) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 15 days;
(f) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(g) the other Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

9. CONSEQUENCES OF TERMINATION
9.1 On termination of the Principal Agreement:
(a) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim and receive payment and the right to claim and receive damages in respect of any breach of the Principal Agreement which existed at or before the date of termination shall not be affected;
(b) the Customer shall, within the payment periods stipulated in the Principal Agreement, after submission of Bluefort’s invoice, pay Bluefort any sums which have accrued and which are due to Bluefort up to the date of termination of the Principal Agreement; and
(c) the following clauses shall continue to remain in force between the Parties: Clause 1 (Interpretation), Clause 5 (Limitation of Liability), Clause 6 (Force Majeure), Clause 7 (Confidentiality), Clause 9 (Consequences of Termination), Clause 11 (Non-Solicitation), Clause 20 (Governing law), Clause 21 (Jurisdiction).

10. DATA PROTECTION

The Parties undertake to comply with the provisions of the General Data Protection Regulation (EU) 2016/679 and any related legislation under Maltese and EU law in so far as the same relates to the provisions and obligations of the Principal Agreement. In this regard the Customer hereby undertakes to sign and execute any data protection agreement which Bluefort will provide to the Customer and which is required to be put in place by the above-indicated legislation.

11. NON-SOLICITATION
11.1 The Customer undertakes that during (i) the entire term of the Principal Agreement and (ii) for the period of two (2) years after the expiration, termination or conclusion of the Principal Agreement or of the Services (for whatever reason) whichever is the later, it shall not, without the prior written and explicit consent of Bluefort, attempt to solicit or entice away from Bluefort or engage or employ, or procure the engagement or employment of, any Bluefort Employee, the Bluefort Representative or of any person who at the date of expiration, termination or conclusion of the Principal Agreement or of the Services was an employee or consultant of Bluefort.
11.2 Should the Customer be in breach of this Clause 11, then it shall pay Bluefort, by way of pre-liquidated damages, the amount of 104,000 Euros [One Hundred and Four Thousand Euros]. Merely for the sake of information, the said amount is equivalent to the ordinary hourly rate of 100 Euros [One Hundred Euros] of the Supplier Employee in the technical grade of Managing Consultant multiplied by forty (40) hours and multiplied further by twenty six (26) weeks.
11.3 The Customer also agrees that in the event of any breach under this Clause 11, the pre-liquidated damages stipulated above in Clause 11.2 shall become immediately due and payable by the Customer to Bluefort without the need for Bluefort to obtain a Court order to such effect, and the Customer agrees that the mentioned amount in pre-liquidated damages so payable under this Clause 11 will not be subject to any reduction or abatement.

12. VARIATION
No variation of the Principal Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

13. WAIVER
13.1 A waiver of any right or remedy under the Principal Agreement or by law is only effective if given in writing and it only applies to the Party to whom the waiver to whom it is addressed and to the circumstances for which it is given.
13.2 A failure or delay by a Party to exercise any right or remedy provided under the Principal Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Principal Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.3 Unless specifically provided otherwise, rights arising under the Principal Agreement are cumulative and do not exclude rights arising at law.

14. SEVERANCE
14.1 If any provision or part-provision of the Principal Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

15. ENTIRE AGREEMENT
15.1 The Principal Agreement shall constitute the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each of the Parties agrees and acknowledges that in entering into the Principal Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warrant or understanding (whether in writing or verbal) of any person (whether a Party to the Principal Agreement or not) relating to the subject matter of the Principal Agreement, other than as expressly set out in the Principal Agreement.

16. ASSIGNMENT AND OTHER DEALINGS
16.1 The Customer shall not, without the prior written consent of Bluefort, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement.
16.2 Bluefort may, at any time, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement, provided that it gives prior written notice of such dealing to the Customer.

17. NO PARTNERSHIP OR AGENCY
Nothing in the Principal Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).

18. THIRD PARTY RIGHTS
Except as may otherwise be provided in the Principal Agreement, the Principal Agreement does not confer any rights to any person or party (other than the Parties to the Principal Agreement and, where applicable, their successors and permitted assignees).

19. NOTICES
19.1 Any notice required to be given to a Party under or in connection with the Principal Agreement shall be in writing and shall be:
(a) delivered by hand or sent by registered email to the other party at its address set out in the Principal Agreement, or such other address that may, by notice, be designated from time to time. Delivery of notice in this manner shall be deemed to have occurred within two (2) Business Days from date of postage;
(b) sent by electronic email (e-mail) to the relevant e-mail address designated in the Principal Agreement;
Provided that notification to the other Party must be effected when the e-mail addresses indicated in the Principal Agreement are to be changed by Bluefort/the Customer.
Delivery of notice shall be deemed to have occurred immediately and in any case, within one day.
19.2 This Clause 19 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20. GOVERNING LAW
The Principal Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Applicable Law.

21. JURISDICTION
21.1 Each of the Parties irrevocably agrees that the Courts of Malta shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the principal agreement or its subject matter or formation (including non-contractual disputes or claims).
21.2 The existence of a dispute, even if referred to court, will not relieve any Party to the Principal Agreement from honouring its contractual obligations under the Principal Agreement.

ANNEX I

SPECIAL TERMS AND CONDITIONSUNDER THE MICROSOFT SPA PARTNERSHIP PROGRAM

1. DEFINITIONS OF CERTAIN TERMS FOR THE PURPOSES OF THESE SPECIAL PROVISIONS

Authorised Software: Shall mean the customisations, localisations, translations or any form of adaptation of the Microsoft Licensed Software as may be effected by Bluefort to the Customer in terms of the Services outlined or referred to in the Principal Agreement.
Authorised Users: Shall refer to all the individuals who shall be authorised to use the Authorised Software, as designated by the Customer, to the exclusion of any other individual person.
Authorised Devices: Shall refer to all the devices which shall be authorised for use of the Authorised Software, as designated by the Customer, to the exclusion of every other device.
Enhancement Plan: Shall refer to the Microsoft Services which shall include maintenance and/or support services relating to the Microsoft Licensed Software under the Microsoft SPA Partnership Program.
Microsoft: Shall mean Microsoft Corporation, a company organised under the laws of the State of Washington, and any affiliated entity (including Microsoft Ireland Operations Limited) authorised to act or to contract on behalf of Microsoft Corporation anywhere in the world.
Microsoft Services: Shall mean services provided by Microsoft under an Enhancement Plan.
Microsoft Licensed Software: Shall mean all software licensed by Microsoft as a result of the Microsoft SPA Partnership Program entered into by Bluefort with Microsoft, for the purposes of developing Authorised Software for the benefit of the Customer.
Other Microsoft Software Licenses: Shall refer to any software other than Microsoft Licensed Software or Authorised Software, the Intellectual Property Rights in which belong to Microsoft.
Microsoft SPA Partnership Program: Shall refer to the agreement between Bluefort and Microsoft, under whose terms and conditions Bluefort is licensed to use, customize and adapt Microsoft software for the purposes of carrying out, among other things, the Services specified in the Principal Agreement.

2. GENERAL
2.1. In addition to the provisions contained in the T&Cs, the Customer agrees to the following Special Provisions which arise as a result of Bluefort’s obligations to Microsoft under the terms and conditions of the Microsoft SPA Partnership Program.
2.2. Should a conflict, including but not limited to a conflicting interpretation, arise between the Special Provisions and any other provision of the Principal Agreement, the Special Provisions shall take precedence and shall prevail.

3. DISCLOSURE OF INFORMATION
3.1. Notwithstanding any other provision of the Principal Agreement, the Customer understands and accepts that Bluefort may be required by Microsoft to provide a copy of the Principal Agreement and any information pursuant to the said Principal Agreement to Microsoft, and that the disclosure thereof or any information pursuant to it, including the details of the Authorised Users and of the Authorised Devices will be made under the terms of applicable and available data protection legislation. In this regard the Customer is hereby providing consent fully in line with applicable and available data protection legislation.
3.2. The Customer hereby agrees and authorises Bluefort to share information with Microsoft that will be necessary for Bluefort to collaborate with Microsoft for the purposes of the Microsoft SPA Partnership Program, for Microsoft to be able to provide the Microsoft Services (if and where applicable), for Microsoft to be able to communicate directly with the Customer, and for Microsoft to be able to verify Customer’s compliance with the terms of the agreement regulating the Microsoft Licensed Software.

4. USE OF AUTHORISED WORK
4.1. The Customer understands and accepts that the terms and conditions regulating the Microsoft Licensed Software do not govern in any manner whatsoever the use of the Authorised Software. The Customer’s use of the Authorised Software is subject to the Principal Agreement and not to the terms and conditions regulating the Microsoft Licensed Software.
4.2. The Customer undertakes and agrees that access to the Authorised Software shall be limited to the Authorised Users and the Authorised Devices.
4.3. The Customer hereby undertakes that it shall have all the required Other Microsoft Software Licenses in order to support the maximum number of Authorised Users and Authorised Devices that may access or use the Authorised Software.
4.4. Bluefort hereby confirms that it shall be solely responsible for the Authorised Software and that Microsoft shall have no responsibility over the said Authorised Software or any effect this may have on the Microsoft Licensed Software or the Customer’s own system, business or operations.
WHERE APPLICABLE, BLUEFORT HEREBY AGREES THAT IT SHALL PROVIDE THE CUSTOMER WITH DIRECTIONS ON HOW TO ACCESS MICROSOFT’S CUSTOMERSOURCE PLATFORM (CURRENTLY AT: HTTPS://MBS.MICROSOFT.COM/CUSTOMERSOURCE) SUBJECT THAT THE CUSTOMER HAS AN ACTIVE ENHANCEMENT PLAN IN PLACE.

Version TAC2.0a

Revision date: 1 October 2021