Legal

General Terms and Conditions

The Agreement between Flexispectrum, Lda., and the Customer sets forth the legal rights and obligations governing Flexispectrum, Lda., offering, provisioning and delivery of the Services and the Customer's receipt and use thereof.

These General Terms and Conditions and the Specific Terms and Conditions shall be interpreted and applied together as a single instrument (the "Agreement").

This agreement shall become effective as of the date of (1) the Customer electronic signature or (2) the activation of the Customer's account or (3) receipt by the Customer of an e-mail from Flexispectrum, Lda., confirming the Customer order, whichever happens first.

The Agreement in its entirety shall consist of: these General Terms and Conditions, the Order Form, each applicable Specific Terms and Conditions and any applicable additional Terms of Use and/or License pertaining to the software provided under this Agreement. In the event of an inconsistency between a term or condition contained in any document(s) comprising the Agreement, the order of precedence, from the most to the least controlling, shall be: (1) The Order Form; (2) The applicable Specific Terms and Conditions; and (3) The General Terms and Conditions.

These General Terms and Conditions, as well as the Specific Terms and Conditions, may be obtained by the Customer at all times by requesting them to Flexispectrum, Lda. They may be modified by Flexispectrum, Lda. at any time as permitted or required by law. Flexispectrum, Lda. shall provide the Customer with at least fifteen (15) days prior notice of any changes that would materially and adversely affect the Customer so that the Customer may elect to discontinue the Service and avoid the effects of the changes. Notice may be delivered by: (1) a message included with the invoice; (2) directly by system; (3) postal mail; (4) message in the Customer account; or (5) email. The Customer shall be bound by changes after they become effective.

Definitions

Bandwidth means the rate of data transmission in bits per second using Flexispectrum, Lda. equipment. Business Hours means 9:30 am to 6:30 pm (UTC). Customer means a person, firm, corporation or any other entity who places an order for a Flexispectrum, Lda. Service and who is responsible for compliance with all the Customer obligations set forth in the Agreement, including the duty to pay for the Service. Customer Content means the data, text, images, graphics, videos, logos and other content and material used by the Customer in conjunction with the Service. Customer Hardware means the servers, computers system and connecting lines and cables installed in the Rack Space and clearly labeled as the Customer's property. Datacenter means the facility used to house computer systems owned, leased or licensed by Flexispectrum, Lda. Dedicated Server means a dedicated physical server with specific technical specifications and functions. Domain Name means the Internet address registered and maintained by the Customer. End-User means any person or entity that receives or uses the Service. Fees means any fee the Customer shall pay for the provision of the Service. Order Form means the part of the Agreement that identifies the Service to be provided. Recurring Fee means the fees invoiced on a cycling basis such as monthly or yearly. Flexispectrum, Lda. Equipment means the computer systems and all associated components owned, leased or licensed by Flexispectrum, Lda. Flexispectrum, Lda. Network means the Internet telecommunication network used to provide the Service. Flexispectrum, Lda. Website means the websites at: flexispectrum.pt, omifi.eu, my.omifi.eu. Service Start Date means the date when the Service is available for use.

1. Interpretation

1.1 The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.

1.2 In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.

1.3 The expression "person" means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.

1.4 The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context.

1.5 The Agreement forms the entire understanding of Flexispectrum, Lda. and the Customer in respect of the matters dealt with in it and supersedes all previous agreements, understandings and negotiations.

1.6 References in these Conditions to articles mean articles of these Conditions. References to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.

2. General Information

2.1 The main objective of these General Terms and Conditions is to set forth the conditions under which Flexispectrum, Lda. provides the Services to the Customer.

2.2 The Customer expressly acknowledges having read and understood these General Terms and Conditions as well as any document comprising the Agreement. The same shall apply to any third party to whom the Customer will make directly or indirectly benefit from the Service. By placing an order using the Order Form, the Customer accepts the Agreement in its entirety and without reservation.

2.3 Only the English version of the Agreement is binding upon Flexispectrum, Lda. and the Customer. Any translation hereof is provided for informational purposes only; for the avoidance of doubt, only the English version shall apply and prevail.

3. Establishment of the Contractual Relationship

3.1 Order Form — The offering, provisioning and delivery of the Services are subject at all times to the receipt and acceptation by Flexispectrum, Lda. of an Order Form. Submission of an Order Form constitutes acceptance of the Agreement terms by the Customer in their entirety without any possibility of withdrawing such acceptance. Notwithstanding the foregoing, if the Customer receives and uses Services without a duly executed Order Form, the Customer nevertheless shall be deemed to have accepted all applicable terms and conditions.

3.2 Conclusion of the contract — The Order Form executed by the Customer (who shall have full legal competence to enter into a contract) shall only constitute a definitive order upon payment in full of the required emoluments for the Services. The Customer agrees that performance of the Service shall begin prior to the conclusion of the legally allowable cancellation period. If a Customer acts on behalf of a legal person, the Customer shall nonetheless be responsible for such legal person's compliance with the Agreement.

3.3 Handling of Customer Details — The Customer must provide current and updated address information including the Customer's email address, postal address, and a valid phone number. The Customer agrees that all email sent by Flexispectrum, Lda. shall be deemed to have been received and read, immediately upon error-free transmission.

4. Service Provision

4.1 Flexispectrum, Lda. will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Order Form, but will not be liable where it fails to meet any timescale.

4.2 Flexispectrum, Lda. will not be liable for any failure to provide the Services resulting from any breach by the Customer or its employees, agents or subcontractors.

4.3 Flexispectrum, Lda. will not be obliged to provide any services not referred to on the Order Form and cannot provide the Services where the Customer makes use of incompatible Hardware.

4.4 The terms of the Agreement form the entire agreement between the parties in relation to the Services. The Customer may not rely upon any representation made prior to the Agreement being entered into unless confirmed in the Agreement.

4.5 Flexispectrum, Lda. reserves the right at any time to improve, correct or otherwise modify all or any of the Services including substituting Software and/or Equipment with reasonable notice.

5. Login Name and Password

Upon receipt of their first order, the Customer will be provided with a login and password which the Customer must change after its first log-in. The Customer shall bear sole responsibility for the management and preservation of these credentials. Any instructions received by Flexispectrum, Lda. that include the Customer's login name and/or password shall be presumed to have been submitted by the Customer. Flexispectrum, Lda. cannot be held responsible for any fraudulent use of such credentials. In the event of loss or theft of the Customer's password, the Customer shall modify its password without delay and notify Flexispectrum, Lda. in writing.

6. Services Limitations and Suspension

6.1 Courtesy Services — Unless expressly specified otherwise in the Order Form, all services such as Backup, Antispam, Domain Name Availability Service and Control Panel are provided for the courtesy of the Customer. It is the sole responsibility of the Customer to maintain their own backup of any data. Flexispectrum, Lda. is not responsible for any loss of data due to the direct or indirect action of third party software.

6.2 Availability of Equipment and Network — The Service provision is subject to the availability of all necessary equipment. Flexispectrum, Lda. may, at its sole discretion, decline to accept a Service order if it determines that available Equipment is required for other Service needs. Flexispectrum, Lda. may restrict or allocate the Service among customers when necessary due to Equipment shortages or causes beyond its control.

6.3 Services Modification — Any modification or addition to the Services requested after the signature of the Agreement shall be subject to written acceptance by Flexispectrum, Lda. In its sole discretion, Flexispectrum, Lda. may: (a) alter the methods, processes or suppliers; (b) change the Equipment used; or (c) substitute comparable Service.

6.4 Services and Account Suspension — Flexispectrum, Lda. may, without notice, discontinue the provision of the Service if: (a) necessary to prevent or protect against fraud; (b) required by legal obligation, judicial or governmental request; (c) urgent work is needed on the Datacenter, Network or Equipment; (d) the Customer fails to provide creditworthiness information; (e) the Customer refuses to pay outstanding invoices; (f) the Customer provides false information; (g) the Customer exceeds agreed bandwidth or memory limits; (h) failure or deficiencies in the Customer Hardware; (i) the Customer becomes insolvent; or (j) in case of Force Majeure.

6.5 Condemnation or Loss of the Datacenter — Flexispectrum, Lda. may, with notice, suspend or terminate the Service following the condemnation of any material portion of the Datacenter or if a casualty renders it inoperable and beyond feasible repair.

6.6 Customer's Obligation to Pay — The suspension of the Service does not relieve the Customer of its obligation to pay Flexispectrum, Lda. for the Service provided up to the time of suspension. Flexispectrum, Lda. shall not be held responsible for any consequences and/or damage that the Customer may suffer due to a Service suspension.

7. Service Delivery

The Customer acknowledges that, given the nature of the Services, Flexispectrum, Lda. cannot guarantee that the Services will be uninterrupted or error free. The Services are provided on an "as is" and "as available" basis and no warranty or representation (express or implied) of any kind are given. Flexispectrum, Lda. warrants that it will provide the Services with reasonable care and skill. If the Customer makes a valid claim, Flexispectrum, Lda. may take steps to remedy the failure or refund such part of the Fees as relates to such Services, provided that the liability shall in no event exceed the amount of Fees paid in the two (2) months prior to the claim.

8. Support Service

8.1 Technical support requests shall be sent via the dedicated area in the Customer's account, and only when this means is unavailable, by email at support@omifi.eu, info@omifi.eu or info@flexispectrum.pt.

8.2 Unless otherwise agreed, support shall be provided during Working Days only, between 9:30 AM and 6:30 PM GMT/UTC ("Support Hours").

8.3 Support shall be covered through a ticket system. For every half Support Hour, one ticket will be charged. Every started half Support Hour is due in full.

8.4 While providing support services, Flexispectrum, Lda. shall use its best efforts but shall not guarantee any result.

9. Tariff, Invoicing, Payment

9.1 General provisions — All fees are net, in euros (EUR). All taxes and payment costs shall be paid by the Customer. Flexispectrum, Lda. reserves the right to adapt its fees at any time, providing at least fifteen (15) days prior notice.

9.2 Invoicing — Invoices shall be transmitted electronically to the email address provided by the Customer. The Customer shall be entitled to request a printed invoice for an applicable administrative fee.

9.3 Pro forma and Invoice — The first document delivered is a Pro Forma, which is not valid as a Commercial Invoice. The Customer must ensure all billing details (Full Name, Tax ID, Full Address, Zip Code, Country) are correctly filled in the Client Area.

9.4 Taxable and Non-Taxable — All European Customers must pay VAT according to the laws of their Country. Customers outside the EU or VAT-owning companies located in the EU (VAT No. required) are not required to pay VAT.

9.5 Recurring Fee — For the provision of the Service, the Customer shall pay a Recurring Fee based on the Service selection made in their Order Form.

9.6 Non-Recurring Fee — The Customer shall pay a one-time fee for Service installation or any special fees such as charges for overconsumption of bandwidth or Power Supply.

9.7 Fees imposed by Other Suppliers — Fees imposed on Flexispectrum, Lda. by other entities in connection with the Service will be invoiced on a pass-through basis to the Customer.

9.8 Invoicing and Payment — Fees are due from the order date. The Recurring Fee shall be charged at the beginning of each period in advance. Unless otherwise agreed, all payment shall be made within seven (7) days following the invoice date.

9.9 Payment Delay — Any invoice not paid upon falling due shall be subject, without formal notice, to monthly interest charges amounting to 10% of the unpaid amount. Additionally, Flexispectrum, Lda. shall be entitled to invoice administrative costs of €75 per overdue invoice, suspend the Services, or terminate the Agreement. If the Customer's account has an unsettled invoice 20 days after the due date, it will be passed to a Debt Recovery Agency. Flexispectrum, Lda. will be entitled to remove the Customer's data from Equipment if any amount due is not paid within sixteen (16) days.

9.10 Customer Responsibility — The Customer shall pay for the Services at the applicable rates and fees established by Flexispectrum, Lda.

9.11 Invoicing Errors — Flexispectrum, Lda.'s obligation with respect to errors resulting in overpayments is limited to granting invoice credits equal to the amounts erroneously billed.

10. Property Retention

Any product purchased by the Customer from Flexispectrum, Lda. shall remain Flexispectrum, Lda.'s property until reception of the payment of the entire purchase price including all interests, costs and incidental expenses.

11. Intellectual Property

The Customer acknowledges and agrees that they will not own nor acquire any rights under this Agreement in any Intellectual Property or related rights to the Services or created in performing the Services, and that they will have no other rights in or to the Services other than the rights expressly granted by the Agreement.

12. Term and Termination

12.1 Term and Renewal — The initial term shall be as set forth in the Order Form ("Initial Term") and shall begin on the Service Start Date. If no Initial Term is specified, it shall be one (1) year. The Agreement shall automatically renew for identical terms unless cancelled by either party. If the Customer terminates before the end of a Term, an early-termination fee amounting to at least the sum of the Recurring Fees for the remainder of the Term shall apply. If the Term is monthly, either party may terminate by providing at least ten (10) days prior written notice.

12.2 Termination — This Agreement may be terminated by: the Customer as provided in article 12.1; Flexispectrum, Lda. in the event of late payment; Flexispectrum, Lda. if the Customer is in violation of any term of this Agreement; Flexispectrum, Lda. if the Services become prohibited by applicable law; or Flexispectrum, Lda. if the Customer Content violates any terms of the Agreement.

12.3 Termination effects — Upon termination for any cause, Customer Content and other data shall be deleted. The Customer should always maintain back-up copies. No refund shall be granted for an early termination.

12.4 Customer Hardware removal — Upon termination, the Customer must remove Customer Hardware within the time period specified by Flexispectrum, Lda. Hardware not timely removed shall be deemed abandoned and shall become Flexispectrum, Lda. property.

12.5 Cancellation and renewal — Cancellation and renewal must be done five (5) days before the contract expires. If the client fails to do so, the server will be deemed cancelled and will automatically shut down.

12.6 Refund/Return — No refund/return will be provided under any circumstances after the service is installed and sent to the client. Funds deposited in the balance with no active service are refundable with a tax of 50%. Balance generated from credit invoices is refundable at 100% with 0% tax, except for Crypto (BTC) payments where a 50% tax applies.

13. Liability and Indemnification

13.1 Direct and indirect damages — Flexispectrum, Lda. shall not be liable for any losses or damages resulting from: (a) its provisioning of the Service; (b) any act or omission of the Customer or third parties; or (c) the loss or destruction of Customer data. Flexispectrum, Lda.'s liability for property damage caused by its gross negligence or wilful misconduct shall in no event exceed the sum of payments made by the Customer in the month immediately preceding the event.

13.2 Delays — Flexispectrum, Lda. shall not be liable for losses resulting from any delay in meeting a scheduled Service Start Date.

13.3 Third party facilities — Flexispectrum, Lda. shall not be liable for the unavailability or deficient performance of any facilities, services, equipment or systems under the control of the Customer or any third party.

13.4 Customer's failure — Flexispectrum, Lda. shall not be liable for the Customer's failure to fulfil its obligations, including obtaining necessary equipment, licences, and permits.

14. Customer Obligations

14.1 Use and maintenance — If the Customer fails to operate and maintain facilities with the result that there is harm to Flexispectrum, Lda., the Services or other customers, Flexispectrum, Lda. may require the Customer to acquire protective equipment and may suspend or terminate the Service if the harm is not eliminated.

14.2 Notice of Claims — The Customer shall immediately notify Flexispectrum, Lda. upon receipt of any information that might adversely affect Flexispectrum, Lda., and shall promptly notify of any problem relating to the Service.

15. Personal Data

Personal data pertaining to the Customer will be stored in Flexispectrum, Lda. files in a secure location. The Customer can exercise its right to access and correct such data by contacting Flexispectrum, Lda. in writing. Flexispectrum, Lda. shall not store such data any longer than is necessary for the efficient execution of the Agreement. For further details, please refer to our Privacy Policy.

16. Force Majeure

Flexispectrum, Lda. shall not be responsible for any delay or non-performance resulting from any event of force majeure, as commonly defined by custom, law and the courts, or for any outage in any electrical grid, telecommunications or Internet system. Furthermore, this includes any circumstance over which Flexispectrum, Lda. has no sole and direct control and any event that leads to economic imbalance preventing the continuity of the Agreement. The Service shall be suspended from the appearance of the force majeure event until its disappearance.

Document processed and updated on 08.09.2023