General Terms and Conditions of Business
Excellence International (August 2nd, 2019)
These General Terms and Conditions are provided in English for your convenience. Please note that in case of a dispute or discrepancy between the Kuwaiti Terms and Conditions and the English translation, the Arabic version shall prevail.
Art. 1 Validity of these General Terms and Conditions of Business
Excellence International (hereinafter referred to as "Service Provider") shall provide services to its contractual partners (hereinafter referred to as "Client") solely on the basis of these General Terms and Conditions of Business (hereinafter referred to as "GTC"). These GTC shall be deemed to have been accepted by the Client upon it making use of the Service Provider's services for the first time. The acceptance of contrary stipulations made by the Client on the basis of its own terms and conditions of business is herewith excluded, even if the Service Provider does not reject them excplicitly.
Deviations from these GTC shall only be valid if these have been explicitly notified in writing to the Client.
The Service Provider only accepts business customers (§14 Kuwait Civil law). Service Provider reserves the right to request confirming evidence.
Art. 2 Scope of services
The Service Provider reserves the right to extend and modify its services, and to make improvements, insofar as no contractual main obligation is affected. He shall specifically be entitled to modify its services if such modifications are made in accord with standard industry practice or technical progress, or if he is obliged to make such modifications as a result of amendments to legal frameworks or relevant jurisdiction. Appropriate consideration will always be given to the interests of the Client.
The alteration of norms, addresses or other technical standards shall have no influence on the corresponding contract.
Where the Client has been provided with fixed IP addresses the Service Provider reserves the right to change the IP address(es) allocated to the Client, should this become necessary for technical or legal reasons. The Client is not entitled to a particular server unless expressly assured in writing. The Client is aware that it may be necessary in the normal course of business to migrate him to another server without prior approval in line with the applicable laws. The Service Provider will inform the Client about such changes according to this clause no. 4.
Subject to an expressly deviating agreement, the Service Provider provides its services with an availability of 99.0% in the monthly mean. Availability is calculated on the basis of the time attributable to the respective calendar month in the contract period minus Maintenance. The Service Provider will carry out maintenance work during off-hours where possible (“Maintenance”). During Maintenance services provided by the Service Provider may be limited or unavailable.
Given the current state of the art, it is not possible to create hardware and software that functions flawlessly for all combinations of applications or that can be protected against any and all forms of manipulation by third parties. The Service Provider gives no guarantee that the hardware and software it provides will meet the requirements of the Client or that it is suitable for certain applications or that the hardware and software will permanently function (e.g. without regular service). The Service Provider ensures that the hardware and software function essentially in accordance with the manufacturer’s specification under customary operating conditions and with customary maintenance, this shall in no case relieve the Service Provider of his main contractual obligations.
Art. 3 Responsibilities and obligations of the client
The Client is required to use the contractual services according to the contract and local laws and regulations. The Client is specifically required to prevent the misuse of access to any contractual services, and to refrain from conducting unlawful activities over the Internet.
The Client shall ensure that the information he provides is correct and complete. He undertakes to immediately inform the Service Provider of any and each change to the contact details he has given, and of any other data that is necessary for fulfilling the contract.
The Client assumes all responsibility for contents published through his account. If the Service Provider discovers that content is being published that is unlawful in the State of Kuwait or other applicable regions (especially including the physical location of the server), the Service Provider is entitled to block this content.
The Client will in particular not use the contractual services in a manner that:
Is illegal, or promotes or encourages illegal activity;
Promotes, encourages or engages in child pornography or the exploitation of children;
Promotes, encourages or engages in terrorism, violence against people, animals, or property;
Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
Disable third party computer systems by sending/forwarding of data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mail-bombing);
Search for open ports (access) to third party computer systems (e.g. port scanning);
Falsify IP addresses, mail and news headers or the dissemination of malicious software;
Promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
Promotes or facilitates human or sex trafficking;
Infringes on the intellectual property rights of third parties;
Violates the privacy or publicity rights of third parties or persons, or breaches any duty of confidentiality that he owes to any other third party;
Uses technologies that place excessive stress on the Service Provider’s installations;
Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware.
The Service Provider shall be entitled to block websites, products or accounts that he reasonably suspects to use any contents/technologies that violate the contract or applicable laws and regulations, particularly a violation against the above listed cases. It is at the equitable discretion of the provider to additionally hold back the provision of all contractual services with immediate effect until the Client has positively ceased/canceled the violations. If possible, the Client will be notified of any of the above-named actions within a reasonable period prior to shutdown, unless a violation is imminent. In the latter case, the Client will be informed immediately after the action taken.
Service Provider expressly reserves the right to assert claims for damages. In such event of the temporary blocking/holding back of contractual services according Art. 3 Sec. 4, the Client’s obligation to pay the agreed fees shall not be affected.
The Client shall use the Service Provider's server and the software stored on it at his own risk. Client shall be solely responsible for administration of the server. Service Provider shall not be obliged to proactively manage any part of the server, except installation of security updates for provided software/hardware or upon specific instruction/order by the Client. The Client therefore has sole responsibility for its content and the technical security of the server. He is responsible for installing security software, informing himself regularly about security vulnerabilities that become known and for removing such vulnerabilities. If the Service Provider makes security or maintenance software available this shall not release the Client from his own responsibilities in this respect. The Client undertakes to set-up and manage his server such that security, integrity, network availability, other servers and the software and data of third parties and of the Service Provider are not put at risk.
The Client shall, on a daily basis as well as before making major changes, make/have made backup copies of all data he transfers to the Service Providers server. These backups may not be stored on the same server, in order to ensure the rapid and cost-effective recovery of the data in the event of a system failure. In the event of the loss of data, the Client shall re-upload the affected data files to the Service Provider’s server and restore the configurations free of charge.
The Client shall be liable for all damages that arise for the Service Provider and third parties as a result of culpable breach of duty of the Client.
The Client is in particular liable for any damages the Service Provider or others incur caused by the Client’s account, whether caused by the Client himself or by an authorized person executing its obligations to the Client, or by an unauthorized person unless the Client proves that he is not responsible for the unauthorized access.
The Client will indemnify the Service Provider against possible claims that may be lodged against the Service Provider by third parties as a result of illegal or non-compliant activities on the part of the Client, specifically in relation to data confidentiality, copyright or competition laws, and to bear all associated costs of the claim, in particular for defense or remedial action.
Art. 4 Provision of services, acceptance of services, support and SLA
The contract shall become valid upon acceptance of Service Provider. The contract will either be expressly accepted or shall be deemed to be accepted as a result of the Service Provider commencing performance of the service.
Any delivery dates or other times are non-binding and for reference only, except where explicitly agreed between the parties in writing. Where the provision of materials or services is delayed as a result of forcemajeur or other events that Service Provider is not responsible for and significantly interfere with or make impossible the provision of the contractual services by the Service Provider, the Service Provider shall not be required to comply with agreed deadlines and periods. In such cases, the Service Provider shall be entitled to postpone the provision of the materials or services for as long as the cause of hindrance is in place, plus an appropriate period of grace.
If the Service Provider is unable to provide the services in question by an agreed deadline, the Client must grant him an appropriate period of grace, and shall only be entitled to terminate the contract if the Service Provider fails to provide the services prior to termination of this period of grace.
The Service Provider shall only be under obligation to provide the Client with technical support in line with the contractually agreed services. The Service Provider is not obliged to provide the Client with any additional support services free of charge. The Service Provider shall not provide direct support for the Client’s customers unless otherwise agreed in writing.
The Service Provider offers a Service-Level-Agreement (“SLA”) to its customers. Should the parties agree on such SLA, the terms of the SLA shall become part of the contract. The Client may have additional rights from the SLA to claim credits. Generally, such credits are the only remedy in such cases, additional damages can only be claimed according to Article 9 of these General Terms and Conditions of Business.
Art. 5 Third-Party Services and Licenses
Where the Client independently administers, installs or distributes the licenses installed on the servers, he ensures proper and complete licensing. Client will support Service Provider with any information necessary to help determine the number of licenses or licensed products. This includes providing the relevant data to Service Provider in a timely fashion or, upon Service Providers request, installing or condoning the installation through Service Provider of a service program for this purpose on Client’s server.
The Provider grants the Client the non-exclusive (simple) right to use the Service Provider’s software and third party software for his own business purpose in each case as provided under the customer contract. This right of use shall be limited to the term of the contract. Transferring the right to use the software, other than with the agreement of the Service Provider for the purpose of contract transfer, or granting sub-licenses for the software to third parties is not permitted. Continued use of the software following termination of the contract term is not permitted. The Client shall delete any copies of all software provided following termination of the contract term. Upon request by Service Provider, he shall give proof or confirmation about the deletion to the Service Provider within 14 days after termination of the contract.
For open source programs the respective current usage agreements of the software providers shall apply in addition. The Service Provider shall make these license agreements available to the Client upon request. Where the terms and conditions of the software provider contradict these General Terms and Conditions of Business, the terms and conditions of the software provider shall take precedence.
For Microsoft products: Some services offered by the Provider are provided to the Client directly by Microsoft; the Provider remains the Client’s contractual partner in this case. The usage of Microsoft Services is subject to the Microsoft End User Licence Agreement ("MS EULA"), which is part of this agreement, including regulations regarding data protection and data handling. By booking Microsoft products, the Client accepts the appropriate Microsoft regulations and policies.
Furthermore, the license agreements of the respective software manufacturer and, where appropriate, the manufacturer’s or software-specific additional terms and conditions of the Service Provider shall also apply.
The Service Provider shall be entitled to regularly check or audit the Client’s server for compliance with the contractual agreements and provisions, in particular the licensing provisions. In line with this, the Service Provider is in particular entitled to examine whether the Client has obtained a sufficient number of software licenses. The Client shall be obliged to cooperate during the performance of these audits. This includes providing the Service Provider necessary information and data in a timely fashion and adequate amount as well installing a perpetual software for this purpose or allowing an installation through the Service Provider. The business secrets of the Client are adequately accommodated.
Art. 6 Charges
Unless otherwise explicitly stated, all charges are quoted exclusive of VAT at the current rate. If applicable, Service Provider will bill the respective, then currently valid, VAT rate to the Client. Client agrees to pay all amounts due for services at the time of order.
For payments made using PayPal the Client authorizes the Service Provider to collect the corresponding invoice amount from his PayPal account via one-time charges or subscription payments.
If payments are made by SEPA direct debit collection, the Client shall issue the Service Provider, with a mandate under the SEPA core direct debit scheme to collect all of the charges arising from the contractual relationship. The mandate shall also apply to new bank details notified by the Client. The Service Provider shall notify the Client of the date of the corresponding direct debit collection in good time (so-called pre-notification). This notification shall be made by email to the Client before payment is collected. The Client shall ensure that, at the time agreed for collecting the direct debit payment, there are sufficient funds in his account to cover the payment. The Client undertakes to indemnify the Service Provider against losses arising as a result of the financial institution where the Client holds his account withholding payment.
In the event of payment by bank transfer from outside the SEPA payment area, the customer shall bear all bank charges. Such transfers must be made "our transfer" or "sender pays cost". Otherwise, the Service Provider reserves the right to charge the Client for transaction fees or to offset them against incoming payments.
Service Provider may participate in “recurring billing programs” or “account updater services” supported by the Client’s credit card provider (and ultimately dependent on his bank’s participation). If the Service Provider is unable to successfully charge the Client’s existing payment method, the Client’s credit card provider (or his bank) may notify the Service Provider of updates to the Client’s credit card number and/or expiration date, or they may automatically charge the Client’s new credit card on the Service Provider’s behalf. In accordance with recurring billing program requirements, in the event that the Service Provider is notified of an update to the Client’s credit card number and/or expiration date, Service Provider will automatically update the Client’s payment profile on the Client’s behalf. The Service Provider makes no promise that updated credit card information will be requested or received.
Client acknowledges and agrees that it is his sole responsibility to modify and maintain his account settings, including but not limited to (i) cancelling products and (ii) ensuring the associated payment method(s) are current and valid. Further, Client acknowledges and agrees that failure to do so may result in the interruption or loss of services.
Service Provider shall be entitled to adjust prices by giving adequate notice, if the price increase is reasonable for the Client under consideration of the interest of the Service Provider. Should the Client not dissent within an appropriate deadline set by Service Provider, the price change shall be deemed accepted by Client. In case the Client refuses the price change, both parties are entitled to terminate the contract within two weeks in written form. Otherwise the contract continues to exist under the original conditions. The Service Provider will inform the Client in the change notice of the scope and timing of the price adjustment and will indicate the period of objection and the respective legal consequences, in particular that the change will take effect if the Client does not object and to the right of termination of the parties.
Should the Service Provider deliver additional services free of charge that are not part of the contractual duties, the Client shall have no right to claim performance. The Service Provider shall, within a reasonable period, be entitled to discontinue such additional services previously made available free of charge, to amend such services or to only offer such services against payment. In such cases the Service Provider shall inform the Client in good time thereof.
Art. 7 Terms of payment
All charges shall be invoiced and paid in advance on a monthly basis. To the extent that a monthly charge is invoiced for any incomplete month’s period, such charge shall be invoiced on a pro rata temporis basis). The initial charges shall be due three working days before the service is made available by the Service Provider and all subsequent charges shall become due three working days before the commencement of each new payment period.
The Client shall be deemed to be in default, even without being sent a reminder notice, if he does not pay within 14 days of receipt of the invoice.
If a payment is not made in whole or in part on the agreed due date, the Service Provider shall have the right to retain its services by blocking the services booked by the Client until receipt of full payment by the Client. The above sentence does not apply in the case of only minor arrears.
If the Client is in default of payment or fails to meet other obligations to cooperate, the Service Provider shall be entitled to claim for any losses and additional expenditure arising as a result. In the event of payment default the Service Provider shall be entitled to demand interest amounting to 10% per annum. The Client shall on the other hand be entitled to provide evidence that no interest – or significantly lower interest costs were incurred.
In the event of default, the Service Provider explicitly reserves the right to claim further compensation from the Client, in particular lost revenue.
The Client cannot set off against claims of the Service Provider, nor can he exercise a right of retention or reduce the Service Provider's remuneration. Excluded from this are claims of the Client for damages for non-performance or reimbursement of expenses as a result of an initial or subsequent defect of the contractual services as well as undisputed, legally established or decision-ready demands of the Client.
Art. 8 Force majeure
The Service Provider shall be released from the obligation to provide services in cases of force majeure. As a consequence the Client shall be released from his obligation to pay for the relevant time.
All unexpected events, as well as events that influence the performance of contractual obligations and are not the responsibility of either party, shall be considered to be events of force majeure. These events include specifically: legal industrial disputes (including such disputes in non-affiliated companies), the imposition of official requirements, failure of communication networks and gateways of other operators, and failure of the services of network providers (e.g. Kuwait Telekom).
Art. 9 Liability of the Service Provider
The following regulations apply to the liability of the service provider as well as to the own liability of its employees, vicarious agents and vicarious agents, regardless of the legal reason:
The liability of the Service Provider is limited as follows:
The Service Provider shall be liable for an amount limited to the damage typically foreseeable at the time of conclusion of the contract for slight negligence of cardinal obligations (i.e. the proper fulfillment of which constitutes a condition sine qua non and on the fulfillment of which the customer regularly relies and may rely (cardinal obligation);
The service provider is not liable for slight negligence of other obligations.
In cases of initial impossibility, the Service Provider shall be liable if he was aware of the impediment to performance or if he was unaware due to gross negligence.
The Service Provider shall only be liable for the loss or damage of data and programs to the extent that this loss or damage was unavoidable by appropriate precautionary measures of the Client, in particular daily backup copies of all data and programs.
The limitation period for claims for damages against the Service Provider is one year from the statutory commencement of the limitation period.
Claims for damages must be brought by lawsuit before the Service Provider within 6 months of written rejection by the service provider. A subsequent assertion is excluded, unless an independent evidentiary procedure has been initiated within the time limit.
The above disclaimers, limitations and limitations do not apply to claims under the Product Liability Act, as well as to damages resulting from injury to life, body or health, and in the event of intentional or grossly negligent breach.
Insofar as the Service Provider provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services, this shall be done free of charge. In these cases, the Service Provider shall only be liable for grossly negligent, intentional or fraudulent conduct; in the event of gross negligence, however, liability is limited to compensation for the foreseeable damage typical of the contract. This does not apply to claims under the Product Liability Act as well as to damages resulting from injury to life, body or health.
Art. 10 Duration of contract, termination
The contract runs for an initial runtime as chosen by the Client (for homepage orders) or mutually agreed upon (for individual contracts) by the parties.
Unless otherwise agreed, the contract renews automatically for the same duration as the initial runtime, if not terminated in writing at least one month (for runtimes up to 6 months) or 3 months (for annual runtimes) prior to its renewal.
The date on which the notification of the contract termination is received by the other party at the address specified in the contract or otherwise explicitly specified address shall determine whether the notification period has been met.
Both parties have the right to immediate termination of the contract for material reasons. If the important reason is the breach of a contractual obligation, the termination is only admissible after the unsuccessful expiry of a period designated for remedial action or after an unsuccessful warning. The provision of a time limit for remedial action and a warning are unnecessary in the cases of Section 314 (2) sentence 2 and sentence 3 of the Kuwait Civil Code. Material reasons shall be:
situations in which it is unreasonable to expect the one party to continue to meet its contractual obligations,
severe or repeated violations of the duties listed in Article 3 and 4;
only in case the contract has a minimum term of two months or more: if the Client does not fulfill his duty for advance payments and is in default with payments by an amount equivalent to at least two basic monthly rates.
Art. 11 Data protection
Insofar as the Service Provider processes personal data provided by the Client, it processes the data as the customer's processor in accordance with Article 28 of the General Data Protection Regulation (GDPR). To this end, the parties will conclude an order processing agreement provided to the Client by the Service Provider in order to implement the requirements of Article 28 GDPR.
Client acknowledges that IP-addresses will be registered on his credentials with regional internet registries (i.e. RIPE NCC, ARIN, AFRINIC, LACNIC and APNIC). The then-current terms and conditions of the regional internet registries apply.
Art. 12 Non-disclosure
Each party is obligated to treat confidentially all information or information of the other party ("confidential information") which is deemed to be confidential on its part and does not contain copies of confidential to produce information or make this information available to third parties, unless this is necessary to meet obligations arising from the contract. This obligation does not apply to information that is publicly available, that has previously been lawfully disclosed to the Party, which has arisen independently of this Agreement, and in the case of a legal or regulatory or obligation to disclose or provide information by the disclosing party in accordance with the court order. The above-mentioned confidentiality obligations shall also apply for an unlimited period of time beyond the duration of this contract and shall be ordered accordingly on third parties, in particular employees who have access to confidential information. At the request of one of the parties, the parties shall conclude a separate non-disclosure agreement provided by the Service Provider, which shall take into account in particular the requirements of the Trade Secrets Act.
Obtaining business secrets of the Service Provider by observing, investigating, dismantling or testing products or objects of which the Client is granted lawful possession, which however are not publicly published by the Service Provider, is expressly prohibited.
The Client undertakes to keep passwords received from the Service Provider for the purpose of accessing his services strictly confidential. The Client shall immediately inform the Service Provider as soon as he becomes aware that his credentials have become known to unauthorized third parties. Service Provider reserves the right to suspend the Login, Account or, where necessary, all contractual services in case of unauthorized access or suspicion hereof. Art. 3, section 4 applies.
Art. 13 Concluding provisions
Any declaration of intent (such as notices or other information) and any correspondence may be sent by letter post, or email. All information and notices issued by the Service Provider can be addressed to the Client through electronic communication channels, in particular via the customer panel or by email to the email address stipulated by the Client. The Client agrees that invoices will be provided via email only. Should the Client request that an invoice be sent by post, the Service Provider shall be entitled to demand an appropriate fee for each invoice sent.
Place of performance is The State of Kuwait. Exclusive place of jurisdiction for claims arising from the contractual relationship between the parties (including actions filed under the summary proceedings based on bills of exchange, promissory notes and checks as well as proceedings restricted to documentary evidence and all disputes between the parties relating to the completion, performance and termination of the contract) shall be Hanau am Main, providing that the Client is a registered merchant, legal entity as defined by public law or a special fund under public law. This also applies to court orders for payment procedure as well as to persons who do not have a general place of jurisdiction in Kuwait, as well as to persons who have moved their domicile or habitual residence abroad after the conclusion of the contract or whose domicile or habitual residence is unknown at the time the action is brought. The Service Provider is entitled to bring a lawsuit at the legal place of jurisdiction.
The contractual relationship between the contractual parties shall be exclusively subject to Kuwait law with the exclusion of the regulations of private international law and unified United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any provision of this agreement be or prove to be invalid, this shall have no effect on the validity of the remaining provisions. An invalid provision shall be replaced with one that accords with or at least approximates the intended purpose of the agreement that the parties would have agreed to for the purposes of realizing the given commercial purpose of the agreement had they been aware that the original provision was invalid. The same shall apply to any loopholes.
These General Terms and Conditions of Business are provided in Arabic and English. However only the Arabic version is legally valid and binding only.