Terms and Conditions
In this Agreement, except to the extent expressly provided otherwise:
“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in the United States;
“Business Hours” means the hours of 9AM and 5PM Pacific on a Business Day;
“Customer Confidential Information ” means any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential;
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means the website which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services;
(b) a failure of the Customer to perform or observe any of its obligations in this Agreement;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
“Term” means the term of this Agreement;
“Update” means a hotfix, patch or minor version update to any Platform software; and
“Upgrade” means a major version upgrade of any Platform software.
This Agreement shall come into force upon the Effective Date and shall continue in force for the initial term contained in the Service Order Form, at which point this Agreement shall renew automatically on a yearly basis unless otherwise terminated in accordance with any other provision in this agreement.
3. Hosted Services
The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account.
The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser during the Term.
Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any unauthorised person to access or use the Hosted Services;
- the Customer must not republish or redistribute any content or material from the Hosted Services;
- the Customer must not make any alteration to the Platform[, except as permitted by the Documentation; and
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services [without the prior written consent of the Provider.
The Customer shall use reasonable endeavors, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an administrator Account.
The Provider shall use reasonable endeavors to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.
For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer’s computer systems or networks;
- any breach by the Customer of this Agreement; or
- scheduled maintenance carried out in accordance with this Agreement.
The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 1 (Acceptable Use Policy).
The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Maintenance Services
The Provider shall provide the Maintenance Services to the Customer during the Term.
The Provider shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this main body of this Agreement.
The Provider shall give to the Customer prior written notice of the application of an Upgrade to the Platform.
The Provider shall give to the Customer written notice of the application of any security Update to the Platform and prior written notice of the application of any non-security Update to the Platform.
The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
5. Support Services
The Provider shall provide the Support Services to the Customer during the Term. Regular services include no more than one hour per month of updates to the website. Customer agrees that any amount of time spent over the one hour in a single calendar month will be billed at $100 per hour.
The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. Customer Data
The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
The Provider shall create a back-up copy of the Customer Data at least weekly, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavors to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
7. Intellectual Property
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
The Customer shall pay the Charges to the Provider in accordance with this Agreement.
If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause.
The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of this Agreement.
The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
The Customer must pay the Charges by credit card or check (using such payment details as are notified by the Provider to the Customer from time to time).
If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may suspend the Customer’s use of the services.
The Provider must:
- keep the Customer Confidential Information strictly confidential;
- not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;
- use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care; and
- act in good faith at all times in relation to the Customer Confidential Information;
The Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
This Clause imposes no obligations upon the Provider with respect to Customer Confidential Information that:is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
- is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
- is or becomes publicly known through no act or default of the Provider; or
- is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
The restrictions in this Clause do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.
The provisions of this Clause shall continue in force indefinitely following the termination of this Agreement.
The Provider warrants to the Customer that:the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
- the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
- the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfillment of the Provider’s obligations under this Agreement; and
- the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
The Provider warrants to the Customer that:
- the Hosted Services will be free from Hosted Services Defects;
- the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
- the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
- the Platform will incorporate security features reflecting the requirements of good industry practice.
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under US law.
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
- modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
- procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
Nothing in this Agreement will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
The Provider shall not be liable to the Customer in respect of any loss of use or production.
The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.
The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement.
13. Force Majeure
Neither party will be liable to the other for any failure or delay in the performance of such party’s non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact.
Either party may terminate this Agreement by giving to the other party written notice of termination at least 30 days from the expiration of the current term.
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:the other party:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due; or
- is or becomes insolvent or is declared insolvent;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
- if that other party is an individual:
- that other party dies;
- as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
- that other party is the subject of a bankruptcy petition or order.
15. Effects of Termination
Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save any provisions of this Agreement that mention otherwise.
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
Within 30 days following the termination of this Agreement for any reason:
- the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
- the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties’ other legal rights.
Any notice from one party to the other party under this Agreement must be given by one of the following methods:
- delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
- sent by email, in which case the notice shall be deemed to be received immediately,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
The Provider’s contact details for notices under this Clause are as follows:
- 1600 Sacramento Inn Way #133, Sacramento, CA 95815
The addressee and contact details set out in this clause may be updated from time to time by a party giving written notice of the update to the other party.
No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
Any action related to this Agreement will be governed by California law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Sacramento, California.
In this Agreement, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
The Clause headings do not affect the interpretation of this Agreement.
References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.