Terms and Conditions

These General Terms and Conditions apply exclusively to businesses acting in the course of their trade, business or profession and do not apply to consumers. The contractual parties are alkima Ltd., Centris Business Gateway, Level 2M, Triq Is-Salib Tal-Imriehel, Zone 3, Central Business District, CBD3020 Birkirkara, Malta (hereinafter referred to as "alkima" or "Contractor") and the customer (hereinafter referred to as the "Customer"). These General Terms and Conditions apply to all contracts concluded between alkima and the Customer, in particular for hosting services, managed services, cloud services, software development, web development, programming, design, consulting, project management, maintenance, support and other IT related services.

These General Terms and Conditions shall apply exclusively to all services provided by alkima. Any conflicting, deviating or supplementary terms and conditions of the Customer shall only become part of the contract if alkima has expressly agreed to them in text form. This requirement shall also apply if alkima performs services without reservation while being aware of the Customer's terms and conditions. The contract language is English.

These General Terms and Conditions shall apply in the version valid at the time of conclusion of the respective contract. They shall also apply as a framework agreement for future contracts of a similar nature between alkima and the Customer, provided that the Customer was informed of their applicability when the business relationship was established and no different agreement has been made.

alkima may amend these General Terms and Conditions with effect for existing continuing contractual relationships where such amendments are necessary due to changes in applicable law, court decisions, binding regulatory requirements, technical developments or to close regulatory gaps that become apparent after the conclusion of the contract. Such amendments shall not materially alter the contractual balance or unreasonably disadvantage the Customer. In particular, they shall not alter the essential subject matter of the contract or introduce new payment obligations. alkima shall notify the Customer in text form at least six weeks before the amendments become effective. Unless the Customer objects in text form within six weeks after receipt of the notification, the amended General Terms and Conditions shall be deemed accepted. The notification shall expressly inform the Customer of the right to object, the objection period and the legal consequences of failing to object. If the Customer objects in due time and the continuation of the contractual relationship under the previous terms is no longer commercially, technically or legally reasonable for alkima, alkima may terminate the affected continuing contractual relationship by giving three months' notice to the end of a calendar month. The right to terminate for cause shall remain unaffected.

The assignment of claims by the Customer against alkima to third parties shall require the prior consent of alkima in text form. Such consent shall not be unreasonably withheld.

These General Terms and Conditions become part of the contract if the Customer is informed of their applicability before or upon conclusion of the contract and has the opportunity to review their contents. The mere placement of an order shall not incorporate a version of these General Terms and Conditions that has not previously been made available to the Customer.

The Customer grants alkima the non-exclusive, worldwide and perpetual right to use publicly available deliverables created under the contractual relationship together with the Customer's name and logo as references. Such use includes, in particular, websites, presentations, reference lists, blogs, social media channels and other online or printed marketing materials. Confidential information, trade secrets, access credentials, personal data and non-public project information shall never be published without the Customer's separate consent. This right shall remain valid after termination of the contractual relationship. The Customer may object to the continued use for good cause. Good cause exists where overriding legitimate interests of the Customer prevent further use. Printed materials already produced do not have to be recalled or destroyed.

Where these General Terms and Conditions, an offer, a contract or a service description refer to supplementary terms, policies or service specific conditions, these shall form an integral part of the respective contract. These include in particular:

1. Data Processing Agreement
2. Domains: alkima sells domains as a reseller of alkima GmbH, Colmarer Str. 12, 65203 Wiesbaden. The applicable extended terms and conditions for "Domains" can be found at alkima.de/egd.
3. Supplementary Terms for Email Hosting
4. General Terms for 365 Total Protection
5. Supplementary Terms for alkima MAIL
6. CMP: alkima sells CMP as a reseller of alkima GmbH, Colmarer Str. 12, 65203 Wiesbaden. The applicable extended terms and conditions for "CMP" can be found at alkima.de/agb-cmp.
7. Software Maintenance Agreement
8. Traffic and Storage Pricing
9. Supplementary Terms for Electronic Performance Overviews
10. Service Level Agreement

In the event of inconsistencies, individually negotiated agreements shall prevail over these General Terms and Conditions. Product specific supplementary terms shall prevail where they contain more specific provisions for the respective service.

The services presented by alkima on its website, within its project management system or in any advertisements, brochures, catalogues or other media do not constitute a binding offer but merely an invitation to the Customer to submit an offer for the conclusion of a contract.

Unless otherwise expressly stated, offers issued by alkima remain valid for fourteen (14) calendar days from the date of issue. Where an offer expressly identifies individual items as estimates, effort estimates or cost estimates, such figures represent non-binding estimates based on alkima's experience. This applies in particular to work involving third party software, migrations, content maintenance, design adjustments or comparable services where the actual effort can only be determined during performance. Unless otherwise agreed, such services shall be invoiced on the basis of the actual time and effort incurred.

A contract is concluded upon acceptance of an offer by the Customer in text form. Acceptance may be effected, in particular, by signing the offer, confirmation by email, confirmation within the project management system, or any other electronic confirmation accepted by alkima. Where the offer specifies a commencement date, such date shall apply. Otherwise, the contractual relationship shall commence on the agreed project start date or, at the latest, upon the first performance of services, the provision of the agreed services or the first invoice issued by alkima, whichever occurs first.

Any individually negotiated agreements between the parties shall prevail over these General Terms and Conditions. Amendments, additions and other legally relevant declarations should be made in text form unless mandatory law requires a stricter form.

Where a dedicated Project Manager or a monthly service allocation has been agreed, the agreed service hours apply exclusively to the relevant billing period. Unused service hours expire at the end of the applicable billing period and cannot be carried forward. Services exceeding the agreed monthly allocation shall be invoiced separately in accordance with the agreed hourly rates.

A dedicated Project Manager shall coordinate communication between the Customer and the teams involved in providing the agreed services. Technical services, including but not limited to software development, programming, design, hosting, server administration and any implementation or consulting services, are not included unless expressly agreed.

Where a Service Level Agreement (SLA) has been concluded between alkima and the Customer, the response times, service levels and other provisions contained therein shall apply in addition to these General Terms and Conditions.

Where an Update Service has been agreed, alkima shall determine the timing of updates at its reasonable discretion, taking technical, operational and security considerations into account. Security updates shall generally be installed without undue delay. Feature updates shall be carried out after prior technical evaluation by alkima. The Update Service covers only updates within the same software generation. Major version upgrades, migrations, technical redesigns or other substantial software modifications are not included unless expressly agreed. Any monthly service allocation agreed for update services applies only to the relevant billing period and expires thereafter.

Where alkima provides services based on third party software, frameworks or content management systems, the contractual scope of services shall be limited to the agreed services and to the functionality of the respective third party software as available at the time of acceptance. Additional features, extensions, custom developments or third party modules shall only be owed where expressly agreed.

Frontends developed by alkima support, at the time of acceptance, the then current major versions of Microsoft Edge, Google Chrome, Mozilla Firefox and Safari running on operating systems currently supported by their respective manufacturers, unless otherwise agreed in the offer.

Unless expressly stated otherwise, all prices are exclusive of any applicable value added tax (VAT) or other taxes payable under applicable law.

No cash discounts or similar deductions shall be granted.

Invoices issued by alkima are due for payment immediately upon receipt by the Customer without deduction, unless expressly agreed otherwise in writing.

Where instalments or milestone payments have been agreed, such payments shall become due irrespective of the current stage of completion of the project. alkima allocates personnel and technical resources for the duration of the project. Such allocation may prevent alkima from accepting or performing other projects during the agreed project period.

If the Customer defaults on any due payment, alkima may, after prior notice and the expiry of a reasonable cure period, suspend the performance of outstanding services until all overdue amounts have been paid in full, unless mandatory law provides otherwise. alkima shall furthermore be entitled to claim statutory default interest and any additional remedies available under applicable Maltese law. Where payment is made by direct debit, the Customer shall bear all costs resulting from chargebacks or failed collections caused by circumstances within the Customer's control, including bank charges and reasonable administrative costs.

The Customer may only withhold payments or set off counterclaims where such counterclaims are undisputed or have been finally determined by a competent court.

alkima may adjust the fees for continuing services by giving at least three (3) months' prior notice effective at the end of a calendar month where the costs relevant for providing the services change after the conclusion of the contract. Such costs include, in particular, infrastructure costs, software licensing, personnel costs, energy costs, cloud services, hosting costs, administrative expenses, or comparable operating expenses. Both cost increases and cost reductions shall be taken into account appropriately. Upon request, alkima shall explain the basis of the adjustment in a transparent manner.

Services performed outside alkima's regular business hours, in particular emergency support, night work or work requested outside normal operating hours, may be charged at twice the agreed hourly rate unless otherwise agreed.

Where payment by instalments has been agreed and the Customer fails to pay any instalment in full or on time, the entire outstanding balance shall immediately become due to the extent permitted by applicable law. Any further statutory rights, including claims for default interest and damages, shall remain unaffected.

All intellectual property rights, copyrights, rights of use and any other exploitation rights relating to services, software, developments, source code, layouts, concepts, documentation, designs or other work results created by alkima shall remain with alkima until all agreed remuneration relating to the respective services has been paid in full, unless expressly agreed otherwise.

Where alkima procures software, licences, subscriptions, cloud services, plugins, modules or any other third party products or services on behalf of the Customer, all associated costs shall be charged to the Customer. alkima may additionally charge an administrative fee of up to ten percent (10%) of the respective net purchase price. Unless otherwise agreed, contracts relating to such third party software or services shall have a minimum term of twelve (12) months with a notice period of three (3) months prior to the end of the respective contract term.

Services may be invoiced either on a fixed fee basis or on a time and materials basis, as specified in the applicable offer or contract. Where services are billed according to actual time and effort, alkima shall provide the Customer with an electronic performance overview for information purposes. Such overview does not form part of the invoice and serves solely as supporting documentation. Only the amounts shown on the invoice shall determine the Customer's payment obligation. Further details are governed by the Supplementary Terms for Electronic Performance Overviews.

Unless otherwise agreed in the respective offer or contract, the contractual relationship shall commence on the agreed project start date or, at the latest, upon the first performance of services, the provision of the agreed services or the first invoice issued by alkima, whichever occurs first.

Unless otherwise expressly agreed, contracts shall be concluded for an initial minimum term of twelve (12) months. Following the initial term, the contract shall automatically renew for successive periods of twelve (12) months unless terminated by either party by giving at least three (3) months' written notice prior to the end of the respective contract term.

The right of either party to terminate the contract for good cause with immediate effect shall remain unaffected. Good cause for termination by alkima shall exist in particular where:

• the Customer remains in payment default for more than two (2) months;

• the Customer repeatedly or materially breaches these General Terms and Conditions or any other contractual obligation;

• insolvency, liquidation, bankruptcy, administration or any comparable insolvency proceedings are commenced against the Customer, or such proceedings are rejected due to insufficient assets, to the extent permitted under applicable law.

The Customer shall use the services provided by alkima solely for the contractually agreed purposes. Access to alkima's services shall only be made through the agreed access methods. The Customer shall not circumvent, remove, disable or otherwise interfere with any security measures implemented by alkima.

The Customer shall implement and maintain appropriate technical and organisational security measures and shall ensure that its systems do not introduce malware, malicious code or any other security risks into alkima's infrastructure. The Customer is responsible for ensuring that its employees, contractors and other authorised users use the services in accordance with the contract and these General Terms and Conditions. The Customer shall ensure that all authorised users are informed of and comply with these General Terms and Conditions. alkima shall not be liable for any damage caused solely by the Customer or by any person acting on the Customer's behalf.

The Customer warrants that all information, data, software, documents and other materials supplied to alkima may lawfully be used for the agreed contractual purposes and do not infringe the rights of any third party. Where necessary, the Customer shall obtain all required licences, permissions and consents before providing such materials to alkima. The Customer shall indemnify and hold harmless alkima against all third party claims arising from a breach of these obligations, including all reasonable legal costs incurred in defending such claims.

The Customer shall actively support alkima throughout the performance of the contract and provide all cooperation reasonably required for the proper provision of the agreed services. In particular, the Customer shall

1. provide all information, documentation, access credentials and other materials required for the performance of the contract without undue delay;

2. grant alkima, its employees and subcontractors the necessary access to the Customer's systems and infrastructure where required;

3. provide suitable technical infrastructure and qualified personnel where necessary;

4. report defects, errors and malfunctions without undue delay in text form, including a sufficiently detailed description of the issue;

5. reasonably assist alkima in identifying and resolving technical issues;

6. participate in agreed meetings and project appointments without causing unnecessary delays;

7. provide requested content in commonly used digital formats suitable for immediate processing;

8. fulfil all agreed cooperation obligations completely, correctly and free of charge.

Where the Customer fails to fulfil its cooperation obligations, agreed delivery dates and project schedules shall be extended accordingly. Any further contractual or statutory rights of alkima shall remain unaffected.

Where alkima provides software update services, the Customer shall ensure throughout the contractual relationship that all required software licences, plugins, extensions and third party modules remain valid and properly licensed. alkima shall neither procure nor pay for such licences and does not guarantee compatibility of third party extensions with future software releases.

Upon completion of the agreed services, alkima shall request acceptance of the services through the project management system or in text form. If the Customer neither declares acceptance nor reports at least one material defect in text form within fourteen (14) days after receipt of the acceptance request, the services shall be deemed accepted, provided that alkima has expressly informed the Customer of this legal consequence in the acceptance request. Acceptance shall likewise be deemed to have occurred where the Customer places the delivered services into productive use without reporting any material defects within a reasonable period, to the extent permitted by applicable law.

alkima endeavours to provide its hosting services with an annual availability of 99%. The availability calculation excludes, in particular,

• interruptions caused by failures of the public Internet or other events beyond alkima's reasonable control;

• scheduled maintenance windows;

• emergency maintenance required to maintain or restore the security, integrity or stability of the infrastructure;

• interruptions resulting from the Customer's failure to provide or maintain the required technical prerequisites for using the services.

Where reasonably practicable, scheduled maintenance shall be carried out outside normal business hours. If scheduled maintenance is expected to have a significant impact on the services, alkima shall inform the Customer in advance where reasonably possible.

alkima may modify, replace or migrate servers, data centres, cloud infrastructure, software platforms or other technical components where such changes are

• technically necessary;

• required for operational, organisational or security reasons;

• required to comply with applicable laws or regulatory requirements; or

• necessary to improve, maintain or modernise the services,

provided that the agreed functionality of the services is not materially reduced. The Customer shall have no right to the continued operation of any specific server, hardware, cloud provider, operating environment or data centre.

Where technically necessary for the proper operation, stability or availability of the agreed services, alkima may automatically increase the allocated storage capacity or traffic limits. Any resulting additional charges shall be invoiced in accordance with the applicable Traffic and Storage Pricing or any individually agreed pricing. Automatic increases shall only be made where reasonably necessary to avoid service interruptions, technical limitations or operational risks.

Dates and deadlines for the provision of services or partial services shall only be binding if they have been expressly designated as binding in the applicable contract documents or have subsequently been confirmed as binding by a director or authorised representative of alkima in text form.

Where the performance of alkima's services depends upon cooperation by the Customer, any binding dates or deadlines shall automatically be extended by the period during which the Customer fails to fulfil its cooperation obligations despite being requested to do so. alkima shall furthermore be entitled to reasonably adjust the project schedule and resource planning accordingly.

Binding dates and deadlines shall be extended by an appropriate period where delays result from circumstances beyond alkima's reasonable control. Such circumstances include, in particular,

• subsequent change requests or additional requirements made by the Customer;

• insufficient technical or organisational prerequisites on the Customer's side;

• failures, delays or interruptions of services provided by third parties on which alkima depends;

• disruptions of telecommunications networks, cloud platforms or energy supply;

• cyber attacks, security incidents or comparable events;

• force majeure, including but not limited to natural disasters, pandemics, epidemics, governmental actions, war, terrorism, civil unrest, labour disputes, embargoes, sabotage or other unforeseeable events beyond alkima's reasonable control.

Unless otherwise agreed or expressly provided for in a Service Level Agreement, alkima does not guarantee specific response times or recovery times for consulting, software development, maintenance, support or comparable professional services. alkima shall nevertheless use commercially reasonable efforts to process support requests and resolve reported issues without undue delay. The foregoing shall not affect response times or service commitments applicable to hosting services where these are expressly set out in the relevant product specific terms, supplementary conditions or other contractual agreements.

Where the services provided by alkima are defective, alkima shall be entitled, at its sole discretion, to remedy the defect by repair or replacement performance.

alkima may refuse to carry out remedial performance for as long as the Customer has not paid the remuneration due for the affected services in full, provided that such refusal is not unreasonable under the circumstances and the Customer has no legitimate right to withhold payment.

Warranty claims shall not apply where the Customer or any third party commissioned by the Customer has modified the services provided by alkima and such modification caused or contributed to the alleged defect.

The Customer shall notify alkima of any defects without undue delay in text form after becoming aware of them. The notification shall include, where reasonably possible, a detailed description of the defect, the affected functionality, the circumstances under which the defect occurred, and any information necessary to reproduce the issue. The Customer shall reasonably assist alkima in analysing and remedying the reported defect.

If, after investigation, the reported issue proves not to be a defect for which alkima is responsible, and the Customer could reasonably have recognised this, alkima shall be entitled to charge the Customer for the reasonable costs incurred in investigating and resolving the reported issue in accordance with the agreed hourly rates.

Unless otherwise required by mandatory law, warranty claims shall expire twelve (12) months after acceptance of the respective work or, where formal acceptance is not applicable, twelve (12) months after the respective services have been made available to the Customer. This limitation shall not apply to claims arising from death or personal injury, fraud or fraudulent concealment, wilful misconduct, gross negligence where such limitation is not permitted under applicable law, or any liability which cannot legally be excluded or limited under applicable Maltese law.

The Customer undertakes that, during the contractual relationship and for a period of one (1) year following its termination, it shall neither directly nor indirectly solicit, recruit, employ, engage or otherwise establish a contractual relationship with any employee, freelancer, consultant or other person engaged by alkima in connection with the performance of the agreed services, without the prior written consent of alkima. This restriction shall not apply to general recruitment campaigns, public job advertisements or similar recruitment activities that are not specifically directed at such persons.

Where the Customer intentionally or negligently breaches the obligation set out in Section 9.1, the Customer shall pay alkima a contractual penalty of EUR 25,000.00 for each individual breach. The Customer shall be entitled to prove that alkima has suffered no damage or substantially lower damage. Where the actual damage suffered by alkima exceeds the contractual penalty, alkima shall be entitled to claim the additional amount of such damage in accordance with applicable law. Any contractual penalty paid shall be credited against any claim for damages arising from the same breach.

The liability of alkima shall be governed by applicable law unless otherwise provided in the following provisions.

Nothing in these General Terms and Conditions shall exclude or limit alkima's liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, wilful misconduct, gross negligence where liability cannot legally be excluded, breach of any guarantee expressly assumed by alkima, or any other liability which cannot lawfully be excluded or limited under applicable Maltese law.

Subject to Section 10.2, alkima shall only be liable for losses caused by ordinary negligence where alkima has breached a material contractual obligation, being an obligation essential for the proper performance of the contract and on which the Customer may reasonably rely. In such cases, liability shall be limited to the foreseeable damage typically expected at the time the contract was concluded.

To the fullest extent permitted by applicable law, alkima shall not be liable for indirect or consequential losses, loss of profit, loss of revenue, loss of business opportunities, loss of anticipated savings, business interruption, loss of goodwill, or any other purely financial loss, unless such loss results from fraud, wilful misconduct or any liability that cannot legally be excluded.

In the event of loss of data, alkima shall only be liable for the costs that would have been required to restore such data if the Customer had maintained proper and regular backups appropriate to the importance of the affected systems and information. The Customer remains solely responsible for maintaining adequate backup procedures unless backup services have expressly been agreed as part of the contractual services.

To the fullest extent permitted by applicable law, alkima's liability for ordinary negligence shall, for each individual event giving rise to liability, be limited to twice the agreed net remuneration. For individual projects, the agreed remuneration for the respective project shall apply. For continuing services, including hosting, maintenance, support or software subscriptions, the liability cap shall be the total net remuneration actually paid by the Customer during the twelve (12) months immediately preceding the event giving rise to the claim.

The exclusions and limitations of liability contained in these General Terms and Conditions shall also apply in favour of alkima's directors, officers, employees, subcontractors, affiliated companies and other persons engaged by alkima in connection with the performance of the contract.

Unless otherwise expressly provided in these General Terms and Conditions or required by mandatory law, statutory limitation periods shall apply to all claims for damages. Any contractual or statutory limitation periods applicable to warranty claims shall remain unaffected.

The Parties undertake to treat as confidential all non-public commercial, technical, financial and other confidential information disclosed by the other Party in connection with the performance of the contract. Such information shall only be used for the purposes of performing the respective contractual obligations. This obligation shall survive the termination of the contractual relationship. The confidentiality obligation shall not apply to information that is or becomes publicly available without breach of this Agreement, was lawfully known to the receiving Party before disclosure, is lawfully obtained from a third party without any confidentiality obligation, or must be disclosed pursuant to applicable law, a court order or a binding order of a competent public authority.

Personal data shall be processed in accordance with all applicable data protection legislation, including in particular the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the Maltese Data Protection Act (Chapter 586 of the Laws of Malta), and any other applicable data protection legislation in force from time to time.

Further information regarding the processing of personal data can be found in alkima's Privacy Policy, available on its website.

Where personal data is processed by alkima on behalf of the Customer, the parties agree that the applicable Data Processing Agreement pursuant to Article 28 GDPR shall apply in its current version.

Should any provision of these General Terms and Conditions be or become wholly or partially invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall remain unaffected. To the extent permitted by applicable law, the invalid, illegal or unenforceable provision shall be replaced by the applicable statutory provision or, where no such provision exists, interpreted so as to achieve as closely as possible the commercial purpose originally intended.

To the extent permitted by applicable law, the courts of Malta shall have exclusive jurisdiction over all disputes arising out of or in connection with the contractual relationship between alkima and the Customer.

The place of performance for all contractual obligations shall be Malta unless otherwise expressly agreed. The contract language shall be English.

These General Terms and Conditions and all contracts concluded between alkima and the Customer shall be governed by and construed in accordance with the laws of Malta, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).