GS4ED
Standard Terms and
Conditions
Version 1.1
1 | P a g e
Table of Contents
1. Definitions and Interpretation .....................................................................................................2
2. Acceptance of terms and conditions ............................................................................................2
3. Modification of terms and conditions ..........................................................................................2
4. Provision of the Services .............................................................................................................3
5. Title in the Products ....................................................................................................................3
6. Third Party Software ...................................................................................................................3
7. Intellectual Property Rights .........................................................................................................4
8. Term and Termination.................................................................................................................4
9. End-of-Life ..................................................................................................................................5
10. Service Level ...........................................................................................................................5
11. Maintenance ...........................................................................................................................5
12. Technology Management ........................................................................................................5
13. Service Level Target Exclusions ................................................................................................5
14. Your Obligations ......................................................................................................................6
15. Your Equipment ......................................................................................................................6
16. Service Charges and Payment Terms .......................................................................................7
17. Taxes .......................................................................................................................................7
18. Use of Services and Acceptable Use .........................................................................................7
19. Confidentiality .........................................................................................................................8
20. Data Privacy ............................................................................................................................9
21. Warranties ..............................................................................................................................9
22. Anti-Bribery and Corruption .................................................................................................. 10
23. Limitations on Liability........................................................................................................... 10
24. Soliciting Employees or Contractors ...................................................................................... 10
25. Dispute Resolution ................................................................................................................ 11
26. Arbitration ............................................................................................................................ 11
27. Suspension ............................................................................................................................ 11
28. Notices .................................................................................................................................. 12
29. Relationship of Parties ........................................................................................................... 12
30. Illegality ................................................................................................................................ 12
31. Waiver .................................................................................................................................. 12
32. Assignment ........................................................................................................................... 12
33. Force Majeure and Excused Performance .............................................................................. 12
2 | P a g e
1. Definitions and Interpretation
1.1. In this Agreement the following terms shall have the following meanings:
“Authorized User"”
means your designated user;
“GS4ED”
means Global solutions for education LTD of High Rock
Grand Bahama;
“Service”
means the services to be provided by GS4ED to you in
accordance with the terms and conditions of this Agreement;
and
“Authorized Website”
means the Globalsis instance that is owned and supported by
GS4ED and the Global Planbook instance that is setup for the
customer, which is owned and supported by GS4ED.; and
“Technology”
means web-based student information system that is hosted
and supported by GS4ED to facilitate orderly administration
of student records in a school and the Global Planbook that is
designed, hosted and supported by GS4ED to facilitate the
creation of teacher's daily lesson plans and may include the
software, other software tools, user interface designs and
documentation and any deliverables, improvements,
enhancements, or extensions thereof.
"User Access"
means a license that permits a single Authorized user to
access and use the Service.
1.2. Unless the context otherwise requires, each reference in this Agreement to:
1.2.1. “writing”, and any cognate expression, includes a reference to any communication
effected by electronic transmission or similar means;
1.2.2. “this Agreement” is a reference to this Agreement and each of the Schedules as
amended or supplemented at the relevant time;
1.2.3. a Clause or paragraph is a reference to a Clause of this Agreement.
1.2.4. a "Party" or the "Parties" refer to the parties to this Agreement.
1.3. The headings used in this Agreement are for convenience only and shall have no effect upon
the interpretation of this Agreement.
1.4. Words imparting the singular number shall include the plural and vice versa.
1.5. References to persons shall include corporations.
2. Acceptance of terms and conditions
GS4ED provides its service to you subject to the terms and conditions. This agreement applies as
between you, the User of our Services and GS4ED. Your agreement to comply with and be bound by
these terms and conditions is deemed to occur upon your first use of our services. If you do not
agree to be bound by these terms and conditions, you should not use our Services.
3. Modification of terms and conditions
GS4ED may at any time in its sole and absolute discretion modify the terms and conditions without
notice to you. Accordingly, you should review the terms and conditions periodically as your
3 | P a g e
continued access or use of our Services shall be deemed to be your acceptance of the amended
terms and conditions.
4. Provision of the Services
4.1. With effect from the Commencement Date, GS4ED shall, throughout the Term of this
Agreement, provide the Services to you.
4.2. GS4ED shall provide the Services with reasonable skill and care, commensurate with
prevailing standards in the IT sector in the Bahamas.
4.3. GS4ED shall act in accordance with all reasonable instructions given by you provided such
instructions are compatible with the specification of Services provided.
4.4. GS4ED shall be responsible for ensuring that it complies with all statutes, regulations,
bylaws, standards, codes of conduct and any other rules relevant to the provision of the
Services.
4.5. GS4ED may, in relation to certain specified matters related to the Services, act on your
behalf. Such matters shall not be set out in this Agreement but shall be agreed between the
Parties as they arise from time to time.
4.6. GS4ED shall use all reasonable endeavours to accommodate any reasonable changes in the
Services that you may request, subject to your acceptance of any related reasonable
changes to the Fees that may be due as a result of such changes.
5. Title in the Products
5.1. Notwithstanding the provisions of this Agreement, the ownership of the Technology (where
such ownership originally rests with GS4ED) shall remain with GS4ED, (which reserves the
right to dispose of them) usage rights do not establish until payment in full for all Products
or Services under the relevant contract between the Customer and GS4ED has been
received by it in accordance with the relevant terms.
5.2. If payment for our Services is overdue in whole or in part and/or immediately upon the
commencement of any act or proceeding in which solvency is involved, GS4ED may (without
prejudice to any of its other rights and remedies) recover its Technology. If the Technology is
incorporated in or used as materials for other services, before such payment the ownership
in the whole of such other services shall be and remain with GS4ED until such payment has
been made for the Technology and all GS4ED’s rights hereunder in the manner shall extend
to those other goods.
5.3. 5.3. You acknowledge and agree that (i) no title in the relevant Software will pass to you
from GS4ED under this Agreement and (ii) it is your sole responsibility to ensure that it is
and will remain properly and legally licensed to use the Technology and any other software
used with the Technology by the relevant owner of the rights in and to the Technology
and/or such other software.
5.4. No intellectual property rights of any kind will pass to you under any Order.
6. Third Party Software
6.1. GS4ED may use or make available to you certain Third-Party Software in connection with
our Services. Notwithstanding anything to the contrary in the Agreement, your use of and
access to such Third-Party Software is subject to and conditioned on your compliance with
other licensing terms and terms and conditions as set out by the respective Third-Party.
6.2. All Third-Party Software license terms are established directly between you and the owner
of the software. Any software delivered hereunder is subject to the license terms provided
with it. Unless otherwise specified, GS4ED is not a party to any such software license and
makes no warranties or representations related to Third-Party Software.
4 | P a g e
7. Intellectual Property Rights
7.1. All GS4ED Intellectual Property Rights including but not limited to such rights in the GS4ED
Technology shall remain the sole and exclusive property of GS4ED. To the extent it may
become necessary to do so, you agree to execute all documents which GS4ED may
reasonably require to secure and maintain the Intellectual Property Rights in the GS4ED
Technology.
7.2. All Intellectual Property Rights in your Material shall remain the sole and exclusive property
of You. Solely for the Term of this Agreement, each Party hereby grants to the other a
worldwide, non-exclusive, and non-transferable licence to use the GS4ED Technology or
your Material (whichever applicable), and only to the extent necessary for GS4ED to
provide, and you to use, our Services and Technology.
7.3. You agree not to copy, modify, decompile, reverse assemble, disassemble or make any
adaptation or derivative of, sell, resell, transfer, license, sublicense or distribute the GS4ED
Technology.
8. Term and Termination
8.1. The provision of the Services will commence on the Service Commencement Date and,
unless terminated earlier in accordance with this Agreement, shall endure for the Initial
Term.
8.2. After the Initial Term (or any renewed Term), this Agreement continues for a further Term
of 12 months, unless either Party gives the other Party written notice not to renew this
Agreement at least 90 days prior to the end of the Initial Term (or the renewed Term), as the
case may be.
8.3. The Service Charges payable for a renewed Term must be the same amount as was payable
immediately before expiry of the prior Term, unless varied pursuant to this Agreement. For
the avoidance of doubt, the terms that shall apply following any extension may differ from
those terms which applied immediately prior to the extension and may be subject to an
additional Service Charge.
8.4. If a Party breaches any provision of this Agreement, the other Party may: a) suspend
provision of the Services or payment of any amounts otherwise due (as the case may be)
until the breach is remedied by the Party in breach; and b). terminate this Agreement, if the
Party in breach remains in breach of any such provision after receiving at least 30 days’
notice in writing from the other Party identifying the breach and requesting its remedy.
8.5. Either Party may terminate this Agreement immediately if the other Party: a). enters into
any arrangement between itself and its (or any class of its) creditors; b). ceases to be able to
pay its debts as they become due; c). ceases to carry on business; d). has a mortgagee enter
into possession or disposes of the whole or any part of its assets or business; e). enters into
liquidation or any form of insolvency administration; or f). has a receiver, a receiver and
manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or
other like person appointed to the whole or any part of its assets or business.
8.6. If GS4ED terminates this Agreement, you must immediately pay to GS4ED the total of all
amounts then due to GS4ED pursuant to this Agreement.
8.7. If GS4ED terminates this Agreement on any of the grounds set out in clauses 8.5 or 8.6 you
are not entitled to a refund or adjustment of any applicable Transition Fee or of any Service
Charges paid to GS4ED.
8.8. If you terminate this Agreement on any of the grounds set out in clauses 8.5 or 8.6, you are
entitled to a pro-rata refund of any part of the Service Charges it has paid for Services to be
supplied after the date of termination.
8.9. If You terminates this Agreement before the end of the initial Term (or any renewed Term),
you may at our discretion become subject to a termination payment of the minimum
monthly Service Charges for the remaining months of the Agreement.
5 | P a g e
8.10. Termination of this Agreement (for whatever cause) does not affect any right or
cause of action which has accrued to the Party which terminates this Agreement at or prior
to the date of termination.
9. End-of-Life
If GS4ED is, in its reasonable opinion, unable to continue to effectively provide the Service for an
End-of-Life Configuration Item, GS4ED may, by giving you at least 90 days’ prior written notice,
remove the End-of-Life Configuration Item from the Record of Entitlement. Upon removal, GS4ED
must make a pro rata adjustment of the Service Charges.
10. Service Level
GS4ED will use commercially reasonable efforts to cause the Service to be performed in a manner
consistent with applicable industry standards including, but not limited to: a) Service availability 24
hours a day, 7 days a week. b) Daily backups of all customer information c) Automatic application and
database upgrades d) Respond to Customer requests for support during the hours of 9:00 AM to 5:00
PM EST, Monday through Friday, excluding government holidays.
11. Maintenance
11.1. GS4ED may need to perform scheduled maintenance on the Technology, including
maintenance related to the Software and other equipment and materials used for providing
the Services.
11.2. GS4ED will notify you in writing at least 3 (three) Business Days’ in advance of any
scheduled maintenance, any related Service interruptions and their anticipated durations.
11.3. In the case of Emergency Maintenance, GS4ED: a). will endeavour to provide you
with at least 20 minutes’ prior written notice; b). notwithstanding subclause 11.3 a), will
provide you with as much written notice as is reasonably practicable in the circumstances;
and c). use its best efforts to minimise the duration of any interruption or disruption to the
Service.
11.4. GS4ED will be relieved of its obligations under the applicable Service Level
Agreement for the duration of the Emergency Maintenance and you agree to exclude GS4ED
for any liability, loss and or damage suffered during an Emergency Maintenance period.
12. Technology Management
12.1. Due to changes in technology and GS4ED’s desire to maintain the highest possible
quality of the Services, it may be necessary to make adjustments or add enhancements to
the GS4ED Management System during the Term. GS4ED will provide advance notice of any
such changes, if possible.
12.2. If the Scope of Service is necessarily improved or extended as a result of the
enhancements, they will be offered to you for the remainder of the then current Term at no
additional cost, provided that GS4ED will expect that no claim is made for a reduction in the
Service Charges for minor reductions in scope as a result of the enhancements.
13. Service Level Target Exclusions
GS4ED will not be liable for Service Level Target defaults resulting from one or more of the following
events: a). any of the events specified in the Terms of Service in this Agreement; b). absence of a
patch, repair, policy, configuration or maintenance change recommended by GS4ED but not
approved by you; c). scheduled downtime in respect of GS4ED Equipment (including upgrades, repair
or component replacement, or scheduled backups) or any other mutually agreed-to downtime; d).
changes made by you to covered Configuration Item or protected server configurations where you
6 | P a g e
have not notified GS4ED; e). damage or delay arising from you if you fail to carry out an action or
contractual obligation required by GS4ED in order for us to render the Services in a timely manner
and/or in accordance with the agreed Service Level Targets; f). time taken for Hardware maintenance
vendor to respond, where applicable; g). damage to equipment used to render the Services and
which are within your environment by abnormal operating conditions such as high or low
temperatures or humidity or dust levels or fluctuations of electrical power, which are beyond the
published environmental specifications of the Manufacturer; h). modifications or replacements or
attempted modifications or replacements not performed by GS4ED or not approved by GS4ED in
writing prior to such modifications or replacements being performed or attempted by any other
Party, including; i). the restoration of any lost data connected to GS4ED’s Technology, without
GS4ED’s knowledge; j). products where you have failed to licence such products and such licence is a
prerequisite of the Manufacturer or where such licence is no longer current or valid or when such
products have been purchased outside of acceptable purchasing norms (commonly referred to as
‘grey-market’ products); k). failure of Software tools that are used in conjunction with GS4ED’s
Technology; l). data provided by You is inaccurate or not up to date; or n. a virus, worm, distributed
denial of Services, or any other malicious activity.
14. Your Obligations
14.1. You agree to use all reasonable endeavours to provide all pertinent information to
GS4ED that is necessary for GS4ED’s provision of the Services.
14.2. You may, from time to time, issue reasonable instructions to GS4ED in relation to
GS4ED’s provision of the Services. Any such instructions should be compatible with the
specification of the Services provided.
14.3. In the event that GS4ED requires the decision, approval, consent or any other
communication from you in order to continue with the provision of the Services or any part
thereof at any time, you must provide the same in a reasonable and timely manner.
14.4. If any consents, licences or other permissions are needed from any third parties it
shall be your responsibility to obtain the same in advance of the provision of the Services (or
the relevant part thereof.
14.5. If the nature of the Services requires that GS4ED has access to your premises or any
other location, access to which is lawfully controlled by you, you agree to ensure that GS4ED
has access to the same at the times to be agreed between GS4ED and you.
14.6. Any delay in the provision of the Services resulting from your failure or delay in
complying with any of the provisions of this Clause 14 shall not be the responsibility or fault
of GS4ED.
14.7. You agree to a). maintain the Authorized Website identified in Schedule 1; b).
procure and maintains all hardware, software and telecommunications equipment
necessary to access the Service via the internet. c) provide GS4ED with all information
reasonably necessary to setup or establish Service on your behalf.
15. Your Equipment
15.1. You agree to ensure that any of your equipment, network or systems connected to
any GS4ED’s Technology, network or systems and/or used in receiving the Services is
technically compatible, connected and used in accordance with any instructions and/or
safety and security procedures applicable to the use of your equipment or as directed by us.
15.2. If any of your equipment, network or systems do not comply with the requirements
of this clause 15, you must advise us and upon notice from us, disconnect such equipment,
network or systems and where applicable, the cost of which will be borne by you.
15.3. GS4ED will not be liable for any failure to meet any Service Level Target or other
obligations set out in this Agreement if the failure is caused by your breach of its obligations
under this clause 15 or otherwise.
7 | P a g e
16. Service Charges and Payment Terms
All Fees are due in advance and should be paid by PayPal, credit card, wire transfer or
check written out to Global Solutions for Education LTD. The Fee structure based on which package
the user selected is outlined below and the features included in each package are listed on the
website of GS4ED and are subject to change at the discretion of GS4ED.
Item
Description
Fees
Amount
Basic Support
Basic support package and
features as provided by GS4ED
$1,500/year
$1,500.00
Premium Support
Premium support package and
features as provided by GS4ED
$2,000/Year
$2,000.00
Platinum Support
Platinum support package and
features as provided by GS4ED
$2,500/Year
$2,500.00
Anything Out of the scope of services performed will attract an Additional Charge.
17. Taxes
The Service Charges are exclusive of taxes, duties and charges imposed or levied in the
Commonwealth of The Bahamas in connection with the supply of the Services, and VAT. You are
liable for any new or altered taxes, duties or charges imposed after the Service Commencement Date
in respect of the supply of the Services.
18. Use of Services and Acceptable Use
The Services are based on or leverage a Managed Cloud Platform (“MCP”) which comprises
computing hardware and software, including automation and orchestration tools. You are solely
responsible for: (a) the content, materials and data that you create outside an MCP and upload to
and process on an MCP; (b) the content, materials and data that you create through your use of the
Services; and (c) applications and other software that you install on an MCP (together “You
Content”).
Usage Limits
We reserve the right to impose limits on the bandwidth or capacity available to you. If we do so, you
agree that you will comply with these limits. If you exceed these limits or use a disproportionate
share of the available bandwidth, we may limit or “throttle” your bandwidth or capacity usage or
impose traffic management procedures. You may not circumvent any limits that we place on your
use of the Services.
Email and Spam
You may not use the Services to distribute email, instant messages, text messages or other
communications in an unacceptable or illegal manner. For example, you may not: a) create or send
hoax emails or chain emails; b) send unsolicited commercial email or bulk email (“spam” or
“spamming”); c) harvest email addresses; d) use open proxies or relays to allow spamming; or
e) impersonate someone else (“spoofing”) or falsify message header information.
Security
You may not use the Services or allow the Services to be used to: a) gain unauthorized access to
computer systems or engage in security attacks of any kind including:(i) against trust (such as email
spoofing, password cracking, IP spoofing and DNS poisoning); (ii) against confidentiality and integrity
(by using malware such as computer viruses, worms, trojan horses, rootkits, keyloggers, spyware or
8 | P a g e
other malicious programs and code); (iii) against availability (such as denial of service and email
bombs); b) corrupt, modify or intercept electronic communications intended for any other person or
entity; or c) interfere with or disrupt the operation of or the Services. You may not avoid any
limitations we place on your use of the Services.
Abuse and Illegal Behaviour
You may not use the Services to: conduct or engage in any illegal business or activity; b) infringe any
third-party intellectual property right (for example copyright, patents, trademark, trade secret or
know-how); c) collect, copy or process information in a way that breaches data protection laws or
leads to a wrongful breach of privacy; d) create, distribute, process or view any: (i) defamatory; (ii)
obscene, indecent or pornographic; (ii) racist, sexist or otherwise discriminatory; (iv) misleading,
deceptive or fraudulent; or (v) otherwise objectionable, offensive or illegal material.
Suspension or Termination
If you breach this Clause 18 or misuse the Services or allow others to do so, we may suspend or
terminate your use of the Services. If we decide that the breach can be remedied without suspending
your access to the Services, we will request you to remedy the breach within the time period that we
specify. If the breach is not remedied within that time period, we reserve the right to suspend your
access to the Service. If we suspend your access to the Service we may terminate your access to the
Service if you do not correct the reason for suspension within seven days of the suspension.
19. Confidentiality
19.1. The Receiving Party acknowledges that the Confidential Information is confidential to
the Disclosing Party and is not in the public domain. The Receiving Party agrees to: a).
protect the Confidential Information and not reveal or disclose it to any other Party; b). only
use the Disclosing Party’s Confidential Information for the performance of its obligations
and responsibilities under this Agreement; c). only disclose the Confidential Information to
its personnel on a need-to-know basis; and d. obtain promises of confidentiality from those
personnel who are granted access to the Confidential Information.
19.2. These confidentiality obligations will remain valid for a period of 5 (five) years after
the expiry or termination of this Agreement. These obligations do not apply to any
Confidential Information that: a). was lawfully in the public domain at the time of disclosure
or lawfully becomes available to the general public afterwards; b). was lawfully known by
the Receiving Party at the time it was received; c). was independently developed by the
Receiving Party before the time it was received; d). was lawfully given to the Receiving Party
by a Third Party; or e). was disclosed in order to comply with a court order or other legal
duty, provided that the Receiving Party must only disclose the minimum Confidential
Information: (i). required to comply with the court order or other legal duty; and (ii). after
having provided as much notice to the other Party as is reasonably practical in the
circumstances.
19.3. Each Party must use the same degree of care that it uses to protect its own
Confidential Information of a similar nature and value, but in no event less than a
reasonable standard of care. In the event of a breach by the Receiving Party of any
confidentiality obligation, the Receiving Party acknowledges that damages may be
inadequate compensation and, subject to the court’s discretion, the Disclosing Party may
restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or
will constitute such a breach.
9 | P a g e
20. Data Privacy
20.1. In order to use the Services, you may need to grant GS4ED access to information
that, directly or indirectly, either alone or in combination with other data, identifies or
uniquely relates to an individual employed or otherwise retained by you or your agents or
subcontractors or contractors.
20.2. You are responsible for compliance with all municipal, provincial, and federal laws or
regulations in the area of protection of privacy and personal data including where you
provide GS4ED with or put at GS4ED’s disposal Personal Data.
20.3. GS4ED Services are provided on the basis that you have obtained any required
consents under applicable municipal, provincial and federal laws or regulations relating to
data privacy legislation for collection, use, disclosure and processing to GS4ED of Personal
Data.
20.4. If you give GS4ED access to any Personal Data, GS4ED shall be allowed to process
Personal Data to perform the Services, and such processing shall adhere to the data privacy
legislation applicable to the Services in the jurisdiction where the processing occurs.
20.5. You warrant that the transfer of Personal Data to GS4ED complies with all applicable
laws and regulations on protection of Personal Data. If the processing of Personal Data by
GS4ED is conducted in accordance with your instructions as agreed with GS4ED, you shall
indemnify, defend and hold GS4ED harmless from and against any and all claims, liabilities,
losses and reasonable expenses incurred by or asserted against GS4ED in connection with
any third-party claim related to the processing of the Personal Data. You understand and
accept that you bear the sole and full responsibility for the backup and redundancy of any
Personal Data.
20.6. Insofar as we obtain the consent of the data subject for the processing of personal
data, art. 6 para. 1 lit. a EU Data Protection Ordinance (GDPR) serves as the legal basis for
the processing of personal data.
20.7. In the processing of personal data required for the performance of a contract to
which the data subject is a party, art. 6 para. 1 lit. b GDPR serves as the legal basis. This also
applies to processing operations that are necessary to carry out pre-contractual measures.
Insofar as the processing of personal data is required to fulfil a legal obligation to which our
company is subject, art. 6 para. 1 lit. c GDPR serves as the legal basis.
20.8. In the event of the vital interests of the data subject or another natural person
requiring the processing of personal data, article 6(1)(d) GDPR serves as the legal basis. If
processing is necessary to safeguard a legitimate interest of GS4ED and if the interests,
fundamental rights and freedoms of the data subject do not outweigh the first-mentioned
interest, art. 6 para. 1 lit. f GDPR serves as the legal basis for processing.
21. Warranties
21.1. GS4ED warrants that it will provide the Services in a proper and professional manner
and will ensure that the Services are performed by personnel who are suitably qualified to
perform the Services. The You warrants that it has the appropriate licenses, rights and/or
title to the Configuration Items that are the subject of this Agreement.
21.2. Each Party warrants that: a). it has the full capacity and authority to enter into this
Agreement; and b. it has the authority to grant any rights, licences and authorisations to be
granted to the other Party, and provide any permits or consents, under this Agreement.
21.3. Other than as stated in this clause 21, GS4ED disclaims all representations and
warranties (whether express, implied, arising under statute or otherwise) with respect to
the Services provided under this Agreement.
10 | P a g e
21.4. This disclaimer includes any express or implied warranties of merchantability and
fitness for a particular purpose and noninfringement of title or any Third-Party rights, to the
extent permitted by Law. This clause 21 will survive termination or expiry of this Agreement.
22. Anti-Bribery and Corruption
22.1. Each Party shall comply with the Anti-Bribery Laws including: a). ensuring that it has
in place adequate procedures to prevent bribery; b). ensuring compliance with the Anti-
Bribery Laws; c). using all reasonable endeavours to ensure that it complies with the other
Party’s applicable policies relating to prevention of bribery and corruption (as notified to the
other Party and as may be updated from time to time); and d). using all reasonable
endeavours to procure that all of that Party’s employees, agents, subcontractors and
Affiliates involved in performing the Services or with this Agreement so comply.
22.2. Without limitation to the above, neither Party shall make or receive any bribe as
defined in the Anti-Bribery Laws, or other improper payment, or allow any such to be made
or received on its behalf and will implement and maintain adequate procedures to ensure
that such bribes or payments are not made or received directly or indirectly on its behalf.
23. Limitations on Liability
23.1. Other than in respect of its liability for death, personal injury, damage to tangible
property, or claims for breach of Third Party Intellectual Property Rights, GS4ED's aggregate
liability, whether arising from breach of agreement, negligence or any other tort, breach of
warranty under and indemnity or statute, in equity or otherwise is limited to an amount
equal to the annual Service Charges paid by You at the date such liability is proven to have
arisen.
23.2. If GS4ED admits a liability to You for a claim for a breach of this Agreement and you
elected not to, (or has no right to) terminate this Agreement on the grounds of the breach,
GS4ED may, at its option, elect to apply the whole or part of any amount agreed to be paid
to you as the result of such breach as a credit to future Service Charges payable by you.
23.3. GS4ED has no liability to you for any incidental, indirect, special or consequential loss
or damage, or for loss of or corruption of data, loss of use, revenues, profits, goodwill,
bargain, opportunities or anticipated savings, whether arising from breach of agreement,
negligence or any other tort, in equity or under an indemnity, warranty or otherwise,
whether or not GS4ED was aware of the possibility of such loss or damage.
23.4. To the fullest extent permitted by Law, the Parties agree to exclude all express or
implied warranties, representations, statements, terms and conditions relating to GS4ED or
the provision of the Services under these terms, not expressly set out in these terms, are
excluded from the agreement between the Parties.
23.5. GS4ED will not be liable for any failure or delay in providing the Services where such
failure or delay is the direct or indirect result of any action by or the failure of you to comply
with this Agreement.
24. Soliciting Employees or Contractors
24.1. During the term of this Agreement and for 12 (twelve) months after termination by
either Party of this Agreement, a Party must not employ or solicit for employment any
person who is an employee of or contractor to the other Party who was involved during the
most recent 6 (six) month period of this Agreement in the matters covered by this
Agreement.
11 | P a g e
24.2. This clause 24 does not apply where: a. a person responds to an advertisement for
employment by a Party; or b. the employment is agreed to by the Parties. Each Party
acknowledges that the restriction specified in this clause 24 is in the circumstances
reasonable and necessary to protect each Party’s legitimate interests.
25. Dispute Resolution
25.1. Each of the Parties shall use their reasonable endeavours to co-operatively resolve a
dispute.
25.2. If a dispute arises, the dispute shall be referred to GS4ED's project manager and your
representative for resolution. If the dispute is not resolved by GS4ED’s project manager and
your liaison within 5 (five) Business Days of such a referral, the dispute shall be referred to a
panel (“Panel”) for resolution.
25.3. Each Party shall nominate a representative for the Panel within 5 (five) Business Days
of the referral to the Panel. If the dispute is not resolved by the Panel within 10 Business
Days of such referral, the Panel shall within 3 (three) Business Days refer the dispute for
resolution to a Panel comprising the chief executive officer of each Party (or his or her
nominee) and the members of the Panel (“Executive Panel”). If the dispute is not resolved
by the Executive Panel within 10 Business Days of such Referral shall apply.
25.4. The Panel and the Executive Panel shall determine their own procedures for the
resolution of the dispute. Decisions of the Panel or the Executive Panel may only be made by
unanimous agreement of the members of the Panel or the Executive Panel, as the case may
be. Any decision of the Panel or the Executive Panel shall be binding on the Parties.
25.5. Neither Party shall commence legal proceedings unless the Parties have undertaken
the process set out in clauses 25.2, 25.3 and 25.4, and those processes have failed to resolve
the dispute.
25.6. Prior to the resolution of a dispute, the Parties shall continue to perform their
respective obligations to the extent that those obligations are not the subject matter of the
dispute.
25.7. Nothing in this clause 25 shall prevent a Party from choosing to perform an
obligation which is the subject matter of the dispute.
25.8. Nothing in this clause 25 prevents either Party from seeking urgent injunctive relief
against the other Party at any time.
26. Arbitration
All disputes arising out of or in connection with this Agreement shall be finally settled by arbitration
by one arbitrator agreed upon by the Parties. If such appointment is not agreed to within 7 (seven)
days after receipt of written notice from a Party requesting such agreement, either Party may
request that the order issued first shall prevail. This clause 26 shall survive termination of this
Agreement.
27. Suspension
27.1. Without prejudice to any other rights or remedies it might have available at Law, or
under this Agreement, GS4ED may suspend the provision of Services: a). where You commit
a material breach of this Agreement (and for so long as that breach continues); b). where an
undisputed Service Charge owing remains unpaid at the expiry of 30 (thirty) days after the
due date for payment; c). in the event of an emergency with respect to the GS4ED system or
network, or if GS4ED reasonably believes that the integrity and security of the GS4ED
12 | P a g e
system or network is at risk or has been compromised or to maintain, repair or enhance the
performance of the GS4ED system or network; and/or d). where it is required to do so by
any applicable Law.
27.2. All applicable Service Charges in relation to the Services will continue to apply during
any period of suspension in terms of clauses 27.1a) and/or .
27.3. GS4ED will not be liable for any loss or inconvenience suffered by You as a result of
any suspension in terms of this clause 27.
28. Notices
Notices to or by a Party delivered in person are deemed to be given by the sender and received by
the addressee when delivered to the addressee: if by post, 3 (three) Business Days from and
including the date of postage; or if by facsimile, when successfully transmitted to the addressee
provided that if transmission is on a day which is not a Business Day or is after 5.00 PM (addressee's
time), on the Next Business Day.
29. Relationship of Parties
GS4ED and you are independent contractors and this Agreement will not establish any relationship of
partnership, joint ventures, employment, franchise or agency between GS4ED and you. Neither
GS4ED nor you will have the power to bind the other or incur obligations on the other's behalf
without the other's prior written consent, except as otherwise expressly provided herein
30. Illegality
Any provision or the application of any provision of this Agreement, which is void, illegal or
unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that
provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
31. Waiver
A waiver of a breach of this Agreement or of any right, power, authority, discretion or remedy arising
upon a breach of or default under this Agreement must be in writing and signed by the Party granting
the waiver.
32. Assignment
A Party may only assign this Agreement and any rights under this Agreement with the prior written
consent of the other Party, provided that GS4ED may assign any of its rights or obligations under this
Agreement to any GS4ED affiliate, without the prior written consent of You.
33. Force Majeure and Excused Performance
33.1. Neither Party is liable to the other for the consequences of any delays or failures of
its performance which are caused by a Force Majeure Event. If any Force Majeure Event
occurs in relation to either Party that affects or may affect the performance of any of its
obligations under this Agreement, it shall forthwith notify the other Party as to the nature
and extent of the circumstances in question. Neither Party shall be deemed to be in breach
of this Agreement, or shall otherwise be liable to the other, by reason of any delay in
performance, or the non-performance of any of its obligations under this Agreement to the
extent that the delay or non-performance of that obligation is due to any Force Majeure
13 | P a g e
Event of which it has notified the other Party and the time for performance shall be
extended accordingly.
33.2. If the performance by either Party of any of its obligations under this Agreement is
prevented or delayed by a Force Majeure Event for a continuous period in excess of 30
(thirty) days, the other Party shall be entitled to terminate this Agreement by giving written
notice to the Party so affected, whereupon all money due up to the point of termination
under this Agreement shall be paid immediately, and in particular You shall pay to GS4ED all
arrears of payment.
33.3. GS4ED will not be liable for any failure or delay in providing the Services, or any non-
achievement of Service Level Targets, to the extent such failure or delay or nonachievement
is the direct or indirect result of any act or omission by You or the failure of
33.4. You to comply with any of its responsibilities and obligations under this Agreement.
GS4ED will not be liable for Service Level Target failures resulting from: a. power outages; b.
a failure of Third Party supplied equipment and/or services; and/or maintenance of such
equipment or services; c. errors caused by You or its end users; and d. a Force Majeure
Event.
Closing Terms
Terms or conditions attached to or forming a part of a purchase order that you issued do not form
part of this Agreement.
This Agreement is governed by the laws of the Commonwealth of the Bahamas.
This Agreement supersedes all prior agreements, arrangements and undertakings between the
Parties and constitutes the entire agreement between the Parties relating to its subject matter.
No variation of this Agreement, including this clause, is binding upon the Parties unless made in
writing signed by an authorised representative of each of the Parties, unless provided otherwise in
this Agreement. GS4ED’s written acceptance of a written request (including a request made by e-
mail) by you for a variation to the Record of Entitlements is binding on both Parties. Following an
agreed variation, GS4ED must issue a revised Record of Entitlements.
