Terms & Conditions
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By completing the online sign up process ("the Online Registration Process"), you acknowledge that you have read and agree to be bound by the below Lloyds terms and conditions and the EULA of each of the Component Partners in the Lloyds Business ToolBox package you select.
An individual who completes the Online Registration Process confirms that he or she is authorised to enter into these terms and conditions and the EULA of each of the Component Partners on behalf of the Subscriber.
Lloyds Bank Business ToolBox powered by Smarta
Terms and Conditions (November 2016)
Lloyds Bank plc (a company registered in England with registration number 2065 and whose registered office is at 25 Gresham Street, London, EC2V 7HN) ("Lloyds Bank") has partnered with Smarta Enterprises Limited (a company registered in England with registration number 06643570 and whose registered office is at No. 1 Croydon 7th Floor, 12-16 Addiscombe Road, Croydon, England, CR0 0XT) ("Smarta") in order to provide Business ToolBox to you, as a Lloyds Bank customer.
You will not be able to subscribe for such services if you are not a Lloyds Bank business customer. Although the Business ToolBox is offered as a benefit by Lloyds Bank and you are a Lloyds Bank customer, you shall only enter into a direct contractual relationship in respect of the Business ToolBox with Smarta under these terms and conditions and with the Component Partners (as defined below) under the respective EULA (as defined below). Any questions, concerns or complaints in relation to the Business ToolBox shall be directed to Smarta and/or the relevant Component Partner and Lloyds Bank accepts no responsibility for the provision of Services to you from Smarta and/or the Component Partners.
YOUR AGREEMENT WITH SMARTA
By completing the online sign up process (the “Online Registration Process"), you acknowledge that you have read and agree to be bound by these terms and conditions and you will read, enter into and be bound by the terms and conditions and end user licence of each of the Component Partners (each being referred to as an "EULA") in the Business ToolBox package you select. The first time that you log in to use Business ToolBox you will be provided with a link to the EULAs for the Component Partners in the Business ToolBox package you select and asked to agree to them. If you do not agree to any such EULA you will not be able to proceed with that element of the Component Services. Unless otherwise stated in the EULA, your legal relationship will be with the Component Partner. During the initial Free 30 Day Trial you may cancel at any time without charge.
You also confirm that you are authorised to enter into these terms and conditions and the EULA of each of the Component Partners on behalf of the Subscriber (as defined below).
As a subscriber to Business ToolBox, you are responsible for ensuring that any users who access the Business ToolBox services through your Account (as defined below) comply with these terms and conditions and those of each of the Component Partners who supply those services.
Introduction, Your Agreement to these and Our Component Partners’ Terms and Conditions and Definitions
Smarta offers selected packages of services for small business customers in the UK to subscribe to.
Smarta aggregates the services of trusted third parties ("Component Partners") and offers a monthly subscription to small businesses in the UK to access those packaged services, one such package being known, in the context of these terms and conditions as Business ToolBox ("Business ToolBox"). The functionality of the Business Toolbox is subject to change. Smarta is responsible for charging users of Business ToolBox on a monthly basis, and subject to the subscriber's account being in good standing as per the terms and conditions below, will arrange for subscribers to have access to the services available in the package they have selected on these terms and conditions and Smarta will provide Level-1 customer support. Smarta will not have any responsibility in respect of such services save as set out in this paragraph and more fully explained in these terms and conditions. Unless otherwise stated in the EULA, Component Partners are responsible for providing their respective services included in the Business ToolBox to subscribers upon the terms and conditions applicable to their individual services.
A list of Component Partners and links to their respective terms and conditions and EULAs are shown below (please note that our Component Partners and their EULAs are subject to change from time to time and you should check this page on our website (https://toolbox.lloydsbank.com) regularly for the up to date position):
|Sage One Accounts||Sage (UK) Ltd|
|FreeAgent||Freeagent Central Ltd|
|Mozy Pro||Mozy International Ltd|
|Basekit||Basekit Platform Ltd|
|Law Assure||Epoq Group Ltd|
|Fusemail||J2 Global Ireland Ltd|
|LivePlan||Palo Alto Software, Inc|
|Company Check||Company Check Ltd|
1. Definitions and Interpretation
In these terms and conditions the following words and expressions have the following meanings:
- 1.1 Any reference to the "Subscriber" "you" or "yours" etc shall mean the person, company firm or entity whose name is shown in the "Business/Company Name" section of the Registration Process and to which the Services will be provided;
- 1.2 "Account" means your Business ToolBox account which is opened by us automatically on the Effective Date;
- 1.3 "Add-Ons" or "Optional Add-Ons" means the right for named additional authorised users to access and use the Business ToolBox Services which are purchased during the Registration Process or later during any change of Tools;
- 1.4 "Authorised User" means each user other than the Primary User to which the Primary User has allocated a user ID and password in order for that user to use the Business ToolBox Services and/or for which you have Subscribed by way of Add-On and paid the appropriate fee. Authorised Users may include other employees, or freelancers, or professional advisors, such as accountants who the Subscriber/Primary User wants to have access to the Business ToolBox on their behalf;
- 1.5 "Billing Date" means the date in each month on which you will be charged your monthly Subscription Fee, being the date on which the first payment of your monthly Subscription Fee is charged by us to your debit or credit card (where you pay by debit or credit card) or the first day on which your Direct Debit in our favour becomes effective (for payments by direct debit) and the same date in each subsequent month;
- 1.6 "Billing Month" means a period of one month starting on each Billing Date and ending on the day before the immediately following Billing Date;
- 1.7 "Business ToolBox" has the meaning shown above;
- 1.8 "Business ToolBox Services" or "Services" means the Business ToolBox package of Component Services and any Add-Ons which you select upon Registration or thereafter;
- 1.9 "Component Partner" has the meaning shown above;
- 1.10 "Component Services" or "Component" or “Tool” means an individual software as a service application or service available as part of Business ToolBox from time to time and provided by a Component Partner;
- 1.11 "Effective Date" has the meaning shown in clause 2.2;
- 1.12 "EULA" has the meaning shown above;
- 1.13 "Force Majeure Event" has the meaning shown in clause 17.7;
- 1.14 “Free 30 Day Trial” means, subject to these terms and conditions, a 30 day period from (and including) the Effective Date during which you may use the Tools without charge and may cancel at any time without payment.
- 1.15 "Insolvency Event" means if:
- 1.15.1 Any action is taken for or with a view to the winding up of the Subscriber or a petition is presented for the making of an administration order in respect of the Subscriber or such an order is made or the Subscriber becomes insolvent or unable to pay its debts within the meaning of section 123 Insolvency Act 1986 or makes any proposal to, or enters into dealings with, any of its creditors with a view to avoiding, or in expectation of insolvency, or stops or threatens to stop payments generally or an encumbrancer takes possession or a receiver is appointed of the whole or any material part of the assets of the Subscriber; or
- 1.15.2 The Subscriber is the subject of a bankruptcy petition or order.
- 1.16 "Level-1 customer support" means the support services consisting of i) handling and responding to basic order processing and payment questions and ii) basic connectivity troubleshooting, including but not limited to questions related to browsers and supported firewalls. As part of Level 1 support, Smarta will provide a dedicated phone line for initial and on-going support to you which shall be open from Monday to Friday 09:00 to 17:00. If you make a call out of hours, a pre-recorded message will advise you of the options available. If Smarta is unable to answer the Subscriber's questions, or the questions are more complex technical or application support queries, Smarta will connect you to the applicable Component Partner who will provide additional product specific support.
- 1.17 "Lloyds Bank" has the meaning shown above;
- 1.18 "Online Registration Process" has the meaning shown above;
- 1.19 "Primary User" means the individual named in the Registration Process as the primary user of the Business ToolBox Services;
- 1.21 "Registration" means completion of the Online Registration Process or the Trial Registration Process;
- 1.22 "Registration Process" means the Online Registration Process or the Trial Registration Process (each as defined in these terms and conditions);
- 1.23 "Services Materials" means any software or documentation, including any user guides for the Business ToolBox, authentication codes, user names, passwords, PINs, and any other materials supplied by Smarta in connection with the Services;
- 1.24 "Site" means the Business ToolBox web pages found at https://toolbox.lloydsbank.com as well as individual web pages hosted by Component Partners;
- 1.25 "Smarta" has the meaning shown above;
- 1.26 "Step-In Event" has the meaning shown in clause 18.1;
- 1.27 "Subscriber" has the meaning shown above;
- 1.28 "Subscription" means your right to use the Business ToolBox Services once accepted by Smarta in accordance with clause 2.2, and "Subscribed" shall be construed accordingly;
- 1.29 "Subscription Fee" has the meaning shown in clause 4.1; and
- 1.30 “Tools” means Smarta’s various tools as set out in the Registration Process or “My Profile” section of the Business ToolBox web pages from time to time.
- 1.31 “Trial Registration Process” means the version of the sign up process used by you when signing up for Free 30 Day Trial.
2. Becoming a Subscriber and certain ongoing obligations
- 2.1 To use the Business ToolBox Services you must agree to and comply with these terms and conditions and, save for the duration of any Free 30 Day Trial period which is applicable, pay the Subscription Fee in accordance with the pricing and payment schedule for the Business ToolBox Services as set out on the Site https://toolbox.lloydsbank.com.
- 2.2 Your subscription to Business ToolBox will be accepted by us and will be effective as soon as (a) we have sent you a confirmation e-mail following your Registration and (b) you have selected your first Component (the "Effective Date"). You will be treated as having received that e-mail if it is sent to the e-mail address provided during the Registration Process. If you are unable to access that e-mail within 24 hours of completing the Online Registration Process or the Trial Registration Process, you should contact us at - firstname.lastname@example.org.
- 2.3 You acknowledge that all services in the Tools that you select will be Component Services provided by Component Partners and that Smarta will not have any responsibility in respect of Component Services save for those obligations set out in these terms and conditions. You accept and agree to be bound by the EULA for each Component.
- 2.4 You agree to provide Smarta and each applicable Component Partner with accurate information during the Registration Process and to keep it up to date by making any changes in the "My Profile" section of the Site. You agree that Smarta and each applicable Component Partner may rely on any information you provide. Smarta may suspend your use of the Business ToolBox Services, Site or any Component if you provide inaccurate information.
- 2.5 You warrant that Business ToolBox Services will be used for business purposes only and only for the purposes of the Subscriber's own business.
- 2.6 Smarta reserves the right not to accept any subscription to Business ToolBox for any reason and without giving any explanation.
3. Passwords and security and your responsibility for all Primary Users and Authorised Users
- 3.1 During the Registration Process the Primary User will be asked to enter their email address as their user ID and to select a password.
- 3.2 The Primary User will have the opportunity to create new user IDs and passwords for any Authorised Users by entering the user's email address and selecting a password. You shall be responsible for ensuring that personal and other data provided to Smarta are always properly and accurately maintained, in particular that any user IDs and passwords which are no longer required are disabled and any contact details, including email addresses, are accurate and up-to-date. In accordance with clause 2.4, Smarta may exercise its right to suspend your use of the Business ToolBox Services, Site or any Component if you provide inaccurate information;
- 3.3 Each user ID and password is personal to the Primary User or Authorised User concerned and is not transferable. User IDs and passwords should only be used by the Primary User or Authorised User you originally applied for and named in the Registration Process or change of Tools (and to whom they were originally allocated) and are not transferable.
- 3.4 You are responsible for maintaining the confidentiality of each user ID and password as well as all details of your Account. You agree to comply with all applicable security procedures and keep secure and confidential all usernames, passwords, and PINs and change the same no less frequently than recommended by Smarta from time to time, or if at any time it is suspected that a breach of security has taken place. You will be responsible for taking all appropriate and necessary measures for the protection of your own systems and equipment from any virus or any other intrusive devices which may have a deleterious effect on the operation of the Services or Business ToolBox.
- 3.5 You are fully responsible for all activities that occur under any user ID or password whether for any Primary User or any Authorised User or which relate to your Account.
- 3.6 You agree to set up and maintain adequate security measures including, without limitation, measures to safeguard the Services Materials and Business ToolBox from use by an unauthorised person and shall procure the compliance of any Primary User and Authorised Users to the same. You shall immediately notify Smarta of any unauthorised use of any user ID or password or any other breach of security or unauthorised access to your Account or the Business ToolBox Services of which you become aware. You shall immediately notify Smarta if the Services Materials (or part thereof) are lost, stolen, damaged or compromised.
- 3.7 You are responsible for ensuring that the Primary User and all Authorised Users comply with these terms and conditions and with each applicable EULA whether such Primary User or Authorised User is an employee or member of the Subscriber or a freelancer, professional adviser or any other person. Any breach of these terms and conditions or any EULA by the Primary User or any Authorised User shall be treated as a breach by the Subscriber.
- 3.8 You shall not, and shall procure that the Primary User and all Authorised Users shall not:
- 3.8.1 Use the Business ToolBox, the Services Materials, and/or Services in a way or for a purpose not authorised or intended by Smarta;
- 3.8.2 Use the Business ToolBox, the Tools, the Services or the Services Materials in contravention of any applicable law or regulation or permit to be done anything in connection with the access to or use of the Services, Business ToolBox, Tools or the Services Materials which is or is reasonably likely to result in a breach by Smarta and/or Lloyds Bank of applicable laws or regulations;
- 3.8.3 Use any software or other tool or take or permit any third party to take any action which may compromise the security and control of access to the Business ToolBox and/or Tools and/or Services by you or for any other person;
- 3.8.4 Create or permit to be created any links to or from any website to any part of the Business ToolBox or cause or cause it to appear in any other form other than that presented by Smarta;
- 3.8.5 Permit any third party to use the Business ToolBox or seek to gain or permit any third party to gain unauthorised access to any system or network of Smarta, its agents, or subcontractors;
- 3.8.6 Use any offensive, foul or derogatory language in any communications with Smarta; or
- 3.8.7 Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, or any other harmful programs which may interfere with or disrupt the Business ToolBox, Services or any other network connected thereto.
- 3.9 The Services Materials and Business ToolBox include software proprietary to Smarta or its licensors and may include software which is designed to operate with your internal systems as described by you to Smarta. If any defect appears in any software contained within the Services Materials or Business ToolBox, your sole remedy will be the correction of the defect by Smarta as soon as practicable following receipt of written notice thereof. Smarta specifically denies (i) any express or implied warranty or representation that software will be able to operate in conjunction with any hardware items or software products other than those which have been identified by you (and those in the configuration) and (ii) that the use of the software will be uninterrupted or error free.
4. Payment and refunds and cancellation during the Free 30 Day Trial
- 4.1 Save for the period of any Free 30 Day Trial, you agree to pay the subscription fee for Business ToolBox Services in accordance with the pricing and payment schedule from time to time applicable to your chosen set of Tools ("Subscription Fee").
- 4.2 In providing us with card details you warrant to us that you are an authorised user of the relevant card. By submitting bank account details, you warrant to us that you are an authorised signatory of that account.
- 4.3 You agree to pay the Subscription Fee monthly on each Billing Date.
- 4.4 If you change to a different Tool or Tools within the Business ToolBox or add 'Optional Add-Ons' to the Tools to which you have Subscribed, you will be charged according to the fee applicable to that Tool, and your next monthly payment of the Subscription Fee will reflect the new monthly fee applicable.
- 4.5 You may cancel your Subscription without payment during the Free 30 Day Trial. You will not be charged a fee for Business ToolBox Services if you cancel your Subscription during the Free 30 Day Trial (including the last day of the trial) and will only be charged when you subscribe to a Tool during or at the end of the Free 30 Day Trial unless you have selected a personalised domain for creating your website and email address, in which case the charges in clause 5.3 shall apply.
- 4.6 Subject to clause 4.7, Smarta will not make any refund of any Subscription Fee which you have already paid for any reason, save in the case of error on the part of Smarta.
- 4.7 Refunds may be given at the discretion of Smarta.
5. Cancellation outside the Free 30 Day Trial
- 5.1 Subscription to the Business ToolBox Services is on a monthly basis and you can cancel your Subscription by following the instructions and cancellation procedures provided in the 'My Settings/Account Settings' information page of the Site.
- 5.2 You may cancel your Subscription at any time and no further Subscription Fees will be payable, just do so before 9pm on the next Billing Date. If you cancel after 9pm on the next Billing Date, you will be charged your monthly payment of the Subscription Fee due on that Billing Date and your cancellation will take effect on the Billing Date in the following month.
- 5.3 If you have selected a personalised domain and cancel your corresponding Subscription before you have paid 6 full monthly payments of the Subscription Fee, we will charge you a £10 +VAT fee to cover our costs in setting up the domain name. If you wish to transfer your domain name to a different domain name registrar (at any time including but not limited to the first 6 months of Subscription) this will incur an additional £10 +VAT transfer fee. We will provide you with instructions on how to transfer the domain name. Following cancellation of your Subscription you will remain solely responsible for transferring your personalised domain name to another domain name registrar and, apart from taking those steps which are set out in transfer instructions referred to in this clause 5.3, Smarta will have no further obligations in respect of that domain name and will not have any obligation to renew that domain name. You should arrange to transfer your personalised domain name to a new domain name registrar as soon as possible after the date on which cancellation of your Subscription takes effect. Smarta will have no obligation to transfer your domain name after cancellation.
6. Term and Termination and suspension
- 6.1 Your rights to use the Business ToolBox Services will start on the Effective Date and continue unless you cancel the Subscription in accordance with clauses 4 or 5 above or Smarta terminates the Subscription in accordance with any of the provisions in these terms and conditions.
- 6.2 Smarta may terminate your Subscription without refund immediately on notice if, in the reasonable opinion of Smarta, you have committed a material breach of these terms and conditions or any EULA or any Lloyds Bank terms (including if you, the Primary User or any Authorised Users use the Business ToolBox or the Services for or in connection with any purposes which is or may be unlawful) or you undergo any Insolvency Event.
- 6.3 All EULAs relating to the Business ToolBox Services will terminate on termination of your Subscription for any reason.
- 6.4 Smarta may terminate your Subscription on six (6) months’ written notice to you if the Business ToolBox Services are to be discontinued. In such circumstances Smarta and Lloyds Bank will use reasonable endeavours to provide you with options to carry on your use of the Services or services similar to the Services.
- 6.5 On termination of your Subscription for any reason:
- 6.5.1 You will no longer have access to the Business ToolBox Services save as provided in clause 6.5.3;
- 6.5.2 Smarta and each Component Partner may immediately deactivate access to and archive the content held in the relevant Components and the termination provisions under the EULA of each applicable Component Partner on termination will apply save as provided in clause 6.5.3;
- 6.5.3 Following termination, we will allow you access to each Tool in the Business ToolBox Services for such period (if any) as the applicable Component Partner allows you to access such Tool after termination of its EULA but in any event for not more than 30 days. Such access is granted for such purposes only (if any) as are permitted under such EULA following termination of such EULA in order for you to retrieve any data that you need and you will not be permitted to make any further use of the Business ToolBox Services during such period. The provisions (if any) relating to retention of and access to your content which is held by Component Partners following termination of your Subscription will be governed by the terms of the EULA of the relevant Component Partner which apply on termination of that EULA. It is your responsibility to check that the provisions on termination of each applicable EULA are suitable for your purposes; and
- 6.5.4 You shall make arrangements with Smarta to return any Services Materials or other materials supplied by Smarta to you for use in connection with the Services and Business ToolBox.
- 6.6 In the event of a failed payment or charge back by a credit card company (or similar action by another payment provider) in connection with payment of your Subscription Fee, Smarta may suspend access to the Site and the Business ToolBox Services. Smarta may reinstate your rights to these Services solely at Smarta's discretion, and subject to Smarta's receipt of the unpaid fees and Smarta's then-current reinstatement fee if applicable.
- 6.7 The Free 30 Day Trial is available to first time users of the Business ToolBox only (i.e. not available to anybody who has already undertaken a Free 30 Day Trial or used the Business ToolBox before). Smarta may not allow you to complete the Registration Process, require you to pay a Subscription Fee or terminate your Subscription in its entirety if, in Smarta's sole discretion, it decides that you are not a first time user of the Free 30 Day Trial.
- 6.8 Smarta reserves the right at any time to suspend the Services or access thereto for such period or periods as it considers appropriate in its absolute discretion by notice to you if (a) suspension is necessary for the purpose of (routine or emergency) maintenance or enhancement of the Services; (b) for technical reasons provision of the Services is not possible; (c) suspension is necessary if there are reasonable grounds to suspect compromise of security or any unauthorised or fraudulent use of the Services; (d) if you, any Primary User, and/or Authorised User, breach any of their obligations hereunder; or (e) in the circumstances set out in clauses 2.4 and 6.5. In any case where Smarta suspends the Services or access thereto under these terms and conditions, it shall give its reasons in its notice to you unless to do so would compromise reasonably security measures or is otherwise unlawful. If Smarta is unable to give you prior notice in respect of any of the foregoing, it will do so as soon as practicable thereafter. When the reasons for suspension have ceased to prevail, Smarta shall notify you that the supply of the Services has resumed and shall take such other action as is appropriate in pursuance thereof.
7. Using the Tools and the Business ToolBox Site and contacting us
- 7.1 You are responsible for ensuring the compatibility of any of your devices, software and systems with the Services Materials and Business ToolBox.
- 7.2 If you have problems accessing the Business ToolBox Services you should contact Smarta customer services by telephone or email. For training and quality control purposes, calls to Smarta customer services may be recorded and/or monitored.
- 7.3 From time to time Smarta and the Component Partners may issue updates to Business ToolBox, the Site or Tools and the Site and any or all Tools may not be available during that time. Smarta shall make reasonable efforts to schedule these updates outside of U.K. business hours. Smarta is not responsible for seeking permission to issue these updates to the Subscriber.
8. Intellectual Property
- 8.1 All copyright, trade marks, database rights and other intellectual property rights in Business ToolBox are owned by Lloyds Bank, Smarta and/or the Component Partners as applicable. No material or content relating to Business ToolBox or Site can be reproduced or replicated without written consent from Smarta, except for use of Components for the purposes of running your own business as permitted in the applicable EULA. Smarta grants you a non-exclusive, non-transferable, royalty free right and licence to use all intellectual property rights in Business ToolBox solely for the purposes of, and to the extent necessary for, access to and use of the Services and Business ToolBox. You shall have no right to sub-license such rights to any third party and shall have no right to use the intellectual property rights save as specified in these terms and conditions.
- 8.2 You acknowledge that "Business ToolBox", "Smarta", "Smarta Enterprises Limited", or any Smarta associated logos must not be used without the prior written permission of Smarta. You acknowledge that, as the Business ToolBox is a product offered by Lloyds Bank, and that any trade marks or Lloyds Bank associated logos must not be used without the prior written permission of Lloyds Bank.
- 8.3 You shall not, and shall procure that the Primary User and any Authorised Users shall not, remove or alter any proprietary markings, copyright notices, confidential legends, trade marks, trade or brand names of Smarta or Lloyds Bank appearing on the Services or Services Materials or any material supplied by Smarta under these terms and conditions.
9. Smarta obligations, limited warranty and limitations and exclusions
- 9.1 Smarta is responsible for (i) making arrangements with the relevant Component Partners for them to make the Component Services comprised in the Business ToolBox Services available to you; and (ii) for providing Level-1 support only. Smarta is not responsible for providing the Component Services in the Business ToolBox Services and the provision of Component Services remains the sole responsibility of the applicable Component Partner.
- 9.2 Smarta does not provide any warranties in relation to the Services and you should rely on those warranties (if any) as are set out in the relevant EULA. Smarta is not responsible for the performance of its Component Partners nor for Component Partners' compliance with their EULAs. Smarta will, however, pass on any complaints it receives from you in respect of the Component Services to the relevant Component Partner as part of the Level-1 support.
- 9.3 In view of the fact that the Tools come from a number of Component Partners and because of their nature and because such services are provided as 'Software as a Service' via the Internet, Smarta is not responsible for ensuring that the Services are always available. The EULA sets out the provisions which relate to the times at which the applicable Component Services will be available and any provision as to their restoration should the Component Services be unavailable at any time. The applicable Component Partner and not Smarta will be responsible for any restoration in accordance with the applicable EULA.
- 9.4 In particular, and:
- 9.4.1 Without limiting any other provisions in these terms and conditions, Smarta makes no warranty that the Tool will be suitable for your particular needs or that the Site or Tools are free from infection by viruses or anything else that has contaminating or destructive properties;
- 9.4.2 Without limitation, all warranties, terms and conditions which would otherwise be included by law are excluded from these terms and conditions.
- 9.5 The Site may contain inaccuracies and typographical errors. Smarta does not warrant the accuracy or completeness of the materials or the reliability of any advice, opinion, statement or other information displayed on the Site. You acknowledge that any reliance on any such opinion, advice, statement or information is at your own sole risk.
- 9.6 All Tools are provided solely on the terms and conditions of the EULA of the applicable Component Partner and not by Smarta.
10. Other Exclusions and Limitations
- 10.1 Except as expressly stipulated elsewhere in these terms and conditions, this clause 10 sets out the entire liability of Smarta (including any liability for the acts or omissions of its employees, agents and sub-contractors in respect of the Services) to you in respect of any breach of these terms and conditions, any use of the Services and any representation, statement, tortious act or omission (including negligence) arising out of or in connection with these terms and conditions.
- 10.2 Smarta's liability to you is limited as follows: (a) if there is fault on any part of the Site for which Smarta is responsible, our liability to you is to correct that fault as soon as reasonably practicable; (b) if there is a fault with any Tool or any part of the Site for which a Component Partner is responsible we will work with the applicable Component Partner to correct the fault as soon as reasonably practicable.
- 10.3 Smarta shall not be liable for any indirect or consequential loss or damage of any kind or any loss of profits, business, goodwill, anticipated savings, business interruption or, loss of or corruption of information or programs or other data, or similar loss or pure economic loss whether such loss or damage was foreseeable or whether or not Smarta was aware that the same could occur, arising or from or relating to your use of or the inability to use the Business ToolBox Services, the Site or any Tool or otherwise and however arising, including by way of negligence.
- 10.4 Smarta shall not be liable for the Tool, or any other part of the Services which are provided to you by any Component Partner. Please check each applicable EULA which sets out the liability of the applicable Component Partner to you and any applicable exclusions of and limitations to such Component Partner's liability to you.
- 10.5 Smarta shall not be liable for any loss or damage arising directly or indirectly from any failure or delay by you in the carrying out of any instructions from Smarta or its agents or subcontractors or for any interruptions in or suspension of or inability to access the Services or any acts or omissions of any third party, including any financial institution or network operation.
- 10.6 Subject to the provisions of clause 10.7:
- 10.6.1 Smarta's aggregate liability to you in respect of all acts or omissions arising in any Billing Month which give rise to any claim is limited to a maximum of the amount you have paid for your Subscription Fee on the Billing Date at the beginning of that Billing Month is limited to a maximum of the amount you have paid for that 12 month period;
- 10.6.2 As the Business ToolBox Services are provided free of charge during the Free 30 Day Trial Period, Smarta does not accept and shall not have any liability to you at all in respect of any acts or omissions arising during the Free 30 Day Trial Period.
- 10.7 Save as expressly stipulated in these terms and conditions, all warranties, conditions and other terms concerning the Services which might otherwise be implied by these terms and conditions or any collateral agreement (whether by statute or otherwise) are hereby excluded from these terms and conditions to the fullest extent permitted by law. Nothing in these terms and conditions excludes or limits Smarta's liability for death or personal injury or for fraud or fraudulent misrepresentation.
11. Getting advice
- 11.1 Where Tool content is of a legal nature, Smarta recommends you seek advice from a suitably qualified professional advisor before acting on that content.
12. Permitted Uses
- 12.1 As a Subscriber you agree not to use the Services, Site or any Component Service for any purpose other than as expressly authorised herein or in the EULA for the applicable Component Service.
- 12.2 You agree not to adapt, modify, copy, reverse engineer, disassemble or decompile any part of the Services, Site, Services Materials, or Tool or any other material provided by Smarta, or permit any third party to do the same.
- 13.1 These terms and conditions may be amended at any time. Changes will be notified to you in writing, by post or by email to the address provided to us by you, and in either case may direct you to the relevant website where details of the change are posted. If a change is to your disadvantage, Smarta will give you 60 days' prior written notice in writing of the change. You may, by notice in writing to Smarta, to be received by Smarta no later than 60 days after the date of Smarta's notice as aforesaid, terminate these terms and conditions with immediate effect without additional charge. If a change is not to your disadvantage the change shall take immediate effect provided that Smarta shall notify you of the relevant details within 60 days. If Smarta has made a major change or a large number of minor changes in any one year, Smarta will send you a copy of the new terms and conditions or a summary of the changes or direct you to the web page where the latest terms and conditions and/or summary of the changes are posted. Copies of the latest documents are available to you on request from Smarta.
- 13.2 Smarta is continually seeking to improve and update the Business ToolBox service. Consequently, Smarta reserves the right, at its discretion, to make changes to any part of the Services or Site subject to provision of reasonable prior notice to you and provided that you shall be entitled to, prior to the change taking effect, reject or terminate your Subscription at no cost if any change materially affects the ToolBox or Business ToolBox Services for which you are Subscribed or the Subscription Fee and/or other charges payable by you.
- (i) Make best endeavours to keep your data confidential and will not disclose to third parties, and
- 14.3 Data entered directly into Tools is hosted by the relevant Component Partners and will be treated according to their terms and conditions and not this agreement.
- 14.4 In any case where you have given Smarta or Lloyds Bank information about individuals (including the Primary Users and Authorised Users), you represent and confirm that those individuals have appointed you to act for them to consent to the processing of their personal data for the purpose of the performance of these terms and conditions and to the transfer of that information abroad and to receive any data protection notices on their behalf. Without prejudice to any other agreement that you have with Smarta and/or Lloyds Bank permitting the wider use of personal data, Smarta and Lloyds Bank shall use the data provided by you only for the purposes of supply of the Services.
- 14.5 You agree to comply with all data protection and privacy laws and regulations when using the Business ToolBox and Services. If you access the Services and/or Business ToolBox from any country outside the European Economic Area it shall be your responsibility to take all appropriate measures to ensure that personal data is processed in accordance with the provisions of the Data Protection Act 1998 (and any amendments or replacement thereof) as if the same were applicable and also in accordance with the relevant laws and regulations applicable in the country in question.
- 14.6 You agree to maintain in confidence, and shall procure that the Primary User and Authorised Users maintain in confidence the Services Materials, the Business ToolBox, and any other material disclosed by Smarta or Lloyds Bank related to the Services and/or Business ToolBox, whether in tangible or intangible form and that neither you, the Primary User nor Authorised Users shall disclose the same to any third party except in pursuance of these terms and conditions.
15. Compliance with EULAs and Indemnity
- 15.1 You agree in all respects to comply with each EULA.
- 15.2 You agree to indemnify and to keep indemnified Smarta and Lloyds Bank in respect of all claims, costs, losses and expenses which may arise out of any failure of you to comply with any EULA.
16. Contact/Complaints procedure
- Should you have reason to contact us or to complain, you may do so by telephone, in writing by
email or by post. If you have a complaint, please contact us directly, any complaint will be
investigated fully by our customer relations team and you will receive a prompt reply:
By telephone: 0330 335 1562 or
By email: email@example.com or
By post to:
Smarta Enterprises Limited
No. 1 Croydon
12-16 Addiscombe Road
- 17.1 References to clause numbers are to clause numbers in these terms and conditions.
- 17.2 The headings in these terms and conditions are for ease of reference only and shall not affect their interpretation or construction.
- 17.3 You may not assign, sub-licence or otherwise transfer these terms and conditions or your Subscription.
- 17.4 If any court of competent jurisdiction finds any provision of these terms and conditions invalid, the invalidity of that provision will not affect the validity of the remaining provisions, which shall remain in effect.
- 17.5 Failure by Smarta to exercise any right or remedy under these terms does not constitute a waiver of that right or remedy.
- 17.6 Each Component Partner shall have the right to enforce these terms and conditions and the EULA applicable to the Tools it provides against the Subscriber. Lloyds Bank shall have the right to enforce these terms and conditions as the Data Controller and the ultimate provider of the Business ToolBox. With the exception of the Component Partners and Lloyds Bank, a person who is not a party to these terms and conditions shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of these terms and conditions. This shall not affect any right or remedy of a third party which exists or is available apart from that Act. For the avoidance of doubt, the parties to these terms and conditions are Smarta and the Subscriber.
- 17.7 Smarta shall have no liability to you under these terms and conditions if it is prevented from or is delayed in performing its obligations under these terms and conditions, or from carrying on its business, by any abnormal or unforeseeable circumstances beyond its reasonable control including (without prejudice to the generality of the foregoing and without limitation) acts of God, expropriation or confiscation of facilities, any form of war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, and floods, fires, explosions or other catastrophes or natural disasters, compliance with a law or governmental order, rule, regulation or direction, or failure of equipment, software or communications network(s) (including any failure or interruption of the Business ToolBox, the Services or a Tool due to or connected with any breakdown or failure of the Internet or any telecommunications systems or any computer hardware or software of Smarta, the Component Partner or any third party which is required for the performance of the Business ToolBox Services, Site or any Tool (including without limitation, any breakdown or failure caused by a computer virus or hacking)) or other circumstances affecting the supply of goods or services (a "Force Majeure Event").
- 17.8 These terms and conditions constitute the entire understanding and agreement between you and Smarta in relation to the Business ToolBox the Business ToolBox Services and the Site. Your use of the Tools is subject to additional and separate terms and conditions published by the Component Partner in the applicable EULA.
- 18.1 In the event that (i) Smarta suffers an Insolvency Event; or (iii) there
is a Force Majeure Event, (each a "Step-In Event") Lloyds Bank shall have the right to:
(a) take control of any of the Services impacted;
(b) perform any of the impacted Services itself;
(c) engage another third party service provider to perform any of the impacted Services; or
(d) transition any of your data to Lloyds Bank and/or any third party service provider engaged under (c) to provide the Services instead of Smarta or the relevant Component Partner to the extent that it is necessary to continue to provide you with the Services and Component Services.
- 18.2 If Lloyds exercises its right to Step-In accordance with clause 18.1 it shall notify you as regards the impact of this on the provision of the Services.
19. Governing Law and Jurisdiction
- 19.1 These terms and conditions including all non-contractual disputes arising out of them are governed by the laws of England and Wales. Each party submits to the exclusive jurisdiction of the English courts.
- 19.2 Each EULA is governed by the law specified in it which may not be English law. You should check each EULA for the appropriate governing law and jurisdiction.
1. General Terms
These terms regulate the provision of BaseKit's website creation service (the "Service"). Your use of the Service is subject to these Terms and Conditions ("T&Cs"). BaseKit reserves the right to update and change the T&Cs from time to time without notice or acceptance by you. By using the Service, you signify your irrevocable acceptance of these T&Cs
2. Website creation service (the "Service")
The Service is web-based and allows users that register for an account on the Service to create and
update an online website on
Once the user has registered its account with BaseKit a website can be created and deployed in
Unless explicitly stated otherwise, any new features that enhance the current Service, including the release of new BaseKit tools and resources, shall be subject to the T&Cs.
You acknowledge that BaseKit may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time without notice to you.
BaseKit reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time.
3. Registration to the Service
To Register for the Service you must provide BaseKit with a valid email address and then choose a password. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to
- (a) Immediately notify BaseKit in writing of any unauthorized use of your password or account or any other breach of security.
- (b) And ensure that you exit from your account at the end of each session.
In consideration of use of the Service, you agree to:
- (a) Provide true, accurate, current and complete information about yourself as prompted by the Service's registration form,
- (b) And maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or BaseKit has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BaseKit has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
- (c) Allow BaseKit to contact you on your email address with personal communications related to your account, including but not limited to registration notices, subscription notices and updates, and account introduction materials.
4. Website creation rules
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials ("Content") are the sole responsibility of the person from which such Content originated. You, and not BaseKit are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. BaseKit does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will BaseKit be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that BaseKit does not pre-screen Content, but that BaseKit shall have the right (but not the obligation) in their sole discretion to refuse, move or delete any Content that is available via the Service. Without limiting the foregoing, BaseKit shall have the right to remove any Content that violates the T&Cs or is otherwise objectionable in BaseKit's sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge and agree that BaseKit may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
- (a) Comply with legal process;
- (b) Enforce the T&C
- (c) Respond to claims that any Content violates the rights of third-parties; or
- (d) protect the rights, property, or personal safety of BaseKit, its users and the public.
Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in BaseKit's sole discretion as to what action should be taken.
You agree that you will not:
- (a) Upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
- (b) Harm minors in any way;
- (c) Impersonate any person or entity, including, but not limited to, a BaseKit official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- (d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- (e) Upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- (f) Upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
- (g) Upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", such as (a) sending mass email to recipients who haven't requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;
- (h) Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- (i) Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- (j) Intentionally or unintentionally violate any applicable local, national or international law,
- (k) "Stalk" or otherwise harass another;
- (l) Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
- (m) Offer for sale or sell any item, good or service that (a) violates any applicable local, national or international law,, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) BaseKit determines, in its sole discretion, is inappropriate for sale through the Service provided by BaseKit;
- (n) Use the Service as a forwarding service to another website;
- (o) Solicit passwords or personal identifying information for commercial or unlawful purposes from other users;
- (p) Exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples comments or content;
- (q) Make any automated use of the system.
If any user is reported to be in violation with the letter or spirit of these terms, BaseKit retains the right to terminate such account at any time without further warning.
5. Subscription fees and Payments
Once the website is created on BaseKit and published the user will be prompted to accept the payment of Fees.
The Fees are payable to BaseKit subject to the following conditions:
- Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Service is terminated during the period to which the payment relates;
- Any set up fee will (unless stated to be included within later payments) be payable immediately;
- Fees will become payable if the Client exceeds agreed or stipulated bandwidth use levels.
All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay for any such taxes that might be applicable to your use of the Service and payments made by you herein.
Subscription fees for "Unlimited" services are subject to fair usage. BaseKit reserves the right to cease services without notice for any users violating fair usage policies. This includes:
- Using the service purely as a file storage and/or hosting service
- Remotely accessing the service using automated methods
- Serving copyrighted or other content of an illegal nature
Users who are regularly exceeding high usage thresholds will have their account and service fees subject to review. BaseKit services will not be unduly witheld, but BaseKit reserves the right to increase any individual users' pricing to cover minimum storage and bandwidth costs associated with any particular site.
For reference, current high usage thresholds are 30GB of storage and 2TB bandwidth.
The final choice of whether an account is in violation of any of these policies is at the sole discretion of BaseKit Platform.
6. Termination of the Service
If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your website and all information contained therein may be deleted by BaseKit. BaseKit accepts no liability for such deleted information or content.
If you have purchased or were provided as part of your subscription package one or multiple domain names you will not be able to cancel the Service until a minimum period of sixty days from the last confirmation date of any successful domain registrations associated with your Account. Early termination within this 60 day period may be subject to an early termination fee based upon the number of domain names associated with your Account and the length of your subscription.
You agree BaseKit, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service, for any reason, including and without limitation, the lack of use, or if BaseKit believes that you have violated or acted inconsistently with the letter or spirit of the T&Cs.. BaseKit may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this T&Cs may be effected without prior notice, and acknowledge and agree that BaseKit may immediately deactivate or delete your web site, as applicable, and all related information and files. BaseKit reserves the right to bar any further access to such files or the Service. You agree that BaseKit shall not be liable to you or any third-party for any termination of your access to the Service.
7. Websites created and Content submitted
By submitting Content to BaseKit for the creation of a website in BaseKit, you grant BaseKit a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content within the BaseKit platform. This license exists only for as long as you continue to be a BaseKit customer and shall be terminated at the time your website is terminated.
You acknowledge that BaseKit does not pre-screen Content, but that BaseKit shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, BaseKit shall have the right to remove any Content that violates the T&Cs or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You agree to indemnify and hold BaseKit, and its subsidiaries, affiliates, officers, director's, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your Guests activities, your connection to the Service, your violation of the T&Cs, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
9. BaseKit Intellectual Property Rights
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by BaseKit, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
BaseKit does not want to receive confidential or proprietary information from you through the Service or by email. Unless otherwise agreed in writing by an authorized BaseKit representative, any material, information or idea you transmit to BaseKit by any means may be disseminated or used by BaseKit or its affiliates without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products.
10. Disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BASEKIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- BASEKIT WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, BASEKIT IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. BASEKIT DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
11. Limitations of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BASEKIT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM:
- THE USE OR THE INABILITY TO USE THE SERVICE;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
- UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
- STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
- ANY OTHER MATTER RELATING TO THE SERVICE.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the T&Cs or other matters by displaying notices or links to notices to you generally on the Service. The T&Cs and the relationship between you and BaseKit shall be governed by the laws of the United Kingdom.
The T&Cs constitutes the entire agreement between you and BaseKit and govern your use of the Service, superseding any prior agreements between you and BaseKit (including, but not limited to, any prior versions of the T&Cs). You also may be subject to additional terms and conditions that may apply when you use affiliate or other BaseKit services, third-party content or third-party software. If any provision of the T&Cs or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the T&Cs remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the T&Cs must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the T&Cs are for convenience only and have no legal or contractual effect.
Domains that have been registered by Basekit on behalf of an Account holder can be can be transferred to another Registrar subject to the following exclusions determined by the Internet Corporation for Assigned Names and Numbers (ICANN):
- Evidence of fraud
- UDRP action
- Court order by a court of competent jurisdiction
- Reasonable dispute over the identity of the Registered Name Holder or Administrative Contact
- No payment for previous registration period (including credit card charge-backs) if the domain name is past its expiration date or for previous or current registration periods if the domain name has not yet expired. In all such cases, however, the domain name must be put into "Registrar Hold" status by the Registrar of Record prior to the denial of transfer.
- Express written objection to the transfer from the Transfer Contact. (e.g. - email, fax, paper document or other processes by which the Transfer Contact has expressly and voluntarily objected through opt-in means)
- A domain name was already in “lock status” provided that the Registrar provides a readily accessible and reasonable means for the Registered Name Holder to remove the lock status.
- The transfer was requested within 60 days of the creation date as shown in the registry Whois record for the domain name.
- A domain name is within 60 days (or a lesser period to be determined) after being transferred (apart from being transferred back to the original Registrar in cases where both Registrars so agree and/or where a decision in the dispute resolution process so directs). "Transferred" shall only mean that an inter-registrar transfer has occurred in accordance with the procedures of this policy.
Instances when the requested change of Registrar may not be denied include, but are not limited to:
- Nonpayment for a pending or future registration period
- No response from the Registered Name Holder or Administrative Contact.
- Domain name in Registrar Lock Status, unless the Registered Name Holder is provided with the reasonable opportunity and ability to unlock the domain name prior to the Transfer Request.
- Domain name registration period time constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer.
- General payment defaults between Registrar and business partners / affiliates in cases where the Registered Name Holder for the domain in question has paid for the registration.
Domain names cannot be transferred outside of your Account whilst you are within the 60 day minimum term for domain registration regardless of whether your domain names have been purchased or been granted as part of your package.
- 1. This is an Agreement between the Customer and Company Check Ltd (“Company Check”) a company incorporated in England and Wales under registered number 04905417 at the registered address 3-5, College Street, Nottingham, NG1 5AQ.
- 2. The Company Check Service (“Service”) purchased by the Customer will consist of Company Check Company Information (which provides information on and assessment of the creditworthiness of third parties via the internet)
- 3. This Agreement consists of the Online Order and the Terms and Conditions and constitutes the entire agreement between the Customer and Company Check in relation to the Service.
- 4. By accessing or using the Service, the Customer accepts the content of this Agreement.
2. Agreement Period
- 1. This Agreement shall be in force from the date inserted on the Online Order and continue for the period specified in the Online Order.
- 2. The Customer may be contacted during this Agreement period regarding new developments and products.
- 3. From time to time Company Check may make alterations to the Service. Company Check will take reasonable steps to inform the Customer of these changes with as much advance warning as possible.
- 4. This Agreement entitles the Customer to access and retain the Service for the purposes detailed in this Agreement and for the duration of the Agreement only. At the end of this period, the ownership of the Service and ensuing rights shall revert to Company Check.
3. Charges and Payment
- 1. In consideration of Company Check providing the Service, the Customer agrees to pay the sum specified in the Online Order and on the times and dates specified therein.
- 2. If you fail to pay the amount specified in the Online Order on the times and dates agreed the full amount will become due with immediate effect. Should the service be suspended in accordance with clause 7, then Company Check shall be under no obligation to:
- 3. Re-instate the Service and/or:
- 4. Recompense the Customer in respect of any period of suspension from the time of payment default to receipt of payment.
- 5. If the Customer fails to pay Company Check any sum due pursuant to the Agreement, the Customer shall be liable to pay interest to Company Check on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Plc, accruing on a daily basis until payment is made, whether before or after any judgment.
- 6. Company Check reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
- 7. The Customer agrees to fully indemnify Company Check against all third party costs incurred in the pursuit of payment.
4. Company Check's Proprietary Rights
- 1. Except as expressly provided herein access to the Service does not grant the Customer any database rights or rights in the copyright, trademarks or any other intellectual property rights of Company Check or any third party.
- 2. The Service is protected by copyright and other intellectual property rights. The Customer is not permitted and will not allow any third party to adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with any element of the Service without Company Check’s written permission. Company Check may take steps to assist identification of its Service.
5. Customer Obligations and Conduct
- 1. The Customer shall:
- 2. provide Company Check with any information or assistance which the parties have agreed the Customer shall provide in order for Company Check to perform its obligations under this Agreement, and shall use all reasonable endeavors to ensure that any such information provided to Company Check is complete, accurate and in the agreed format
- 3. not to do anything to harm Company Check’s reputation
- 4. abide by all laws & regulations applicable to its use of the Service, including full compliance with all aspects of the Data Protection Act 1998.
- 5. not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means. You will not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services. You will not access all or any part of the Services in order to build a product or service which competes with the Services nor will you use the Services to provide services to third parties. Use of any automated system or software to extract data from the Site, the Application or the Services (“screen scraping”) is expressly prohibited.
- 6. The Service made available to the Customer is a non transferable license and is provided solely for the Customer’s own internal use within the United Kingdom and the Republic of Ireland. The Customer may not sell, transfer sublicense, distribute, commercially exploit or otherwise make available to, or use for the benefit of, any of the Service. The Customer may not include the Service in any product or service which theCustomer sells.
- 7. During this Agreement the Customer agrees not to attempt to gain unauthorised access to the Service or modify the same.
- 8. The Customer shall only take such copies of the Service as are reasonably required for the use of the Service in accordance with this Agreement.
- 9. The Customer agrees to be responsible for maintaining the confidentiality of its password and account details.
- 10. The use of the Service provided under the terms of this agreement is limited to one designated user. The use of the Service by more than one individual, either simultaneously or otherwise will require the provision of additional licenses.
- 11. The term 'unlimited' is defined as 'unlimited use by a human being performing manual queries or downloads. We reserve the right to determine an 'appropriate use' on a case by case basis. Our decision is final if we believe misuse of the system is taking place.
6. Warranties and Limitation of Liability
- 1. The Company Check Service is not intended to be used as the sole basis for any decision making and is based upon data which is provided by third parties, the accuracy of which it would not be possible for Company Check to guarantee. Whilst Company Check aims always to maintain a quality, fully operative service, the Service and third party services are nonetheless provided on an "as is", as available basis without warranties of any kind, whether express or implied.
- 2. Specifically Company Check gives the Customer no warranty or assurance about the contents of the Service. Whilst Company Check does endeavour to maintain the accuracy and the quality of the Service, information contained may be incorrect or out of date. Therefore any use of the Service is at the Customer’s own risk.
- 3. Subject to clause 6.5 Company Check disclaims all liability in contract, negligence, for breach of statutory duty, or under any indemnity or otherwise in connection with the Service and third party service and shall not be liable for any indirect, or consequential loss. Company Check shall not be liable for the following types of financial loss; loss of profits, loss of earnings, loss of business or goodwill in addition to the following types of anticipated or incidental losses; loss of anticipated savings, increase in bad debt and failure to reduce bad debt.
- 4. Where any matter gives rise to a valid claim against Company Check its liability shall be limited to a sum equal to the sum paid for the Service supplied under this Agreement in the year the claim arises.
- 5. Nothing in this clause 6 or any other provision of this Agreement shall seek to exclude or limit liability for infringement, death, or personal injury or for breach of its obligation under s12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982 or fraudulent misrepresentation.
- 6. Each party to this Agreement warrants that it has obtained and will continue to hold all necessary licenses, consents, permits and agreements required for it to comply with its obligations under this Agreement and for the grant of rights to the other party under this Agreement.
- 1. If Company Check believes the Customer has breached any provision of this Agreement or in the event of the Customer’s insolvency or bankruptcy Company Check may, with immediate effect and without notice, suspend access to the Service or terminate this Agreement.
- 2. Upon termination, the Customer must use best efforts to delete all and any part of the Service held by the Customer in any format and the Customer may not make any further use of the Service.
- 3. Upon termination clauses 3, 4, 5, 6, 7, 8, and 11 shall continue with full force and effect.
- 1. The Customer agrees to indemnify, defend and hold Company Check, its parents, subsidiaries, affiliates, officers and employees harmless from any loss, cost, damage, claim or demand, including reasonable legal fees, made by any third party or incurred or suffered by Company Check or its parents, subsidiaries, affiliates, officers or employees in connection with the Customer’s use of the Service in breach of this Agreement.
- 1. Company Check may assign both the benefit and burden of this Agreement.
10. Force Majeure
- 1. Company Check will not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency or circumstances beyond the reasonable control of Company Check, including without limitation Internet outages, communications outages, fire, flood war or act of God.
- 1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 11.2.
- 2. Each party may disclose the other party's confidential information:
- 3. To its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11;
- 4. And as may be required by law, court order or any governmental or regulatory authority.
- 5. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
- 1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall remain enforceable.
- 2. The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement
- 3. The terms of this Agreement and the provision of the Service and the relationship between the Customer and Company Check shall be governed by the laws of England and Wales. The Customer agrees irrevocably to submit to the exclusive jurisdiction of the courts of England and Wales.
- 4. The failure of Company Check to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such a right. The Service is subject to availability.
- 5. Should any third party data become unavailable to Company Check, Company Check shall be entitled to, upon giving one months prior notice to the Customer, obtain a similar service from another third party supplier.
THIS AGREEMENT HAS A PROVISION FOR ARBITRATION OF DISPUTES BETWEEN THE PARTIES.
This Registration Agreement ("Agreement") sets forth the terms and conditions of your use of domain name registration and related services ("Services"). In this Agreement "you" and "your" refer to you and the registrant listed in the WHOIS contact information for the domain name. "We", "us" and "our" refer to the registrars listed at the bottom of this document, any one of which will be the registrar for your domain name . To determine which registrar your domain name is registered with, perform a WHOIS lookup at http://www.uwhois.com . You obtain the Services through your primary service provider, with whom we have a wholesale relationship (your "Primary Service Provider"). Your relationship with your Primary Service Provider may be governed by additional terms, as you and your Primary Service Provider may agree. "We," "us" and "our" does not include your Primary Service Provider, except when specifically mentioned or unless your Primary Service Provider is one of us (i.e., if your Primary Service Provider is also one of the registrars listed at the bottom of this document)).
1. YOUR AGREEMENT:
By using the Services, you agree to all terms and conditions of this Agreement, the UDRP (defined below) and any rules, policies, or agreements published in association with specific Services and/or which may be adopted or enforced by the Internet Corporation for Assigned Names and Numbers ("ICANN"), any registry, or governments.
2. CHANGES TO THIS AGREEMENT:
This Agreement may change over time, either through amendments by us, changes to ICANN policy or applicable law which may or may not be reflected in the text of this Agreement, or otherwise. Before any material changes to this Agreement become binding on you (other than changes resulting from a change in ICANN policy or applicable law), we will notify you of such changes by, for example, sending email to you at your email address of record. If, as a result of such a change, you no longer agree with the terms of this Agreement, your exclusive remedies are (a) to transfer your domain name registration services to another registrar, or (b) to cancel your domain name registration services with us. Your continued use of the Services following notification of a change in this Agreement indicates your consent to the changes. Unless otherwise specified by us, any such change binds you: (1) 30 days after we notify you of the change, or (2) immediately if such change is a result of a new or amended ICANN policy or applicable law.
3. YOUR ACCOUNT
You must create an account to use the Services ("Account"). Your Account is typically managed and/or provided by your Primary Service Provider. You are solely responsible for maintaining, securing, updating, and keeping strictly confidential all login IDs and passwords, and for all access to and use of your Account by you or any third party.
(a) ACCOUNT CONTACT INFORMATION AND DOMAIN NAME WHOIS INFORMATION:
- i. You must provide certain current, complete and accurate information about you with respect to your Account information and with respect to the WHOIS information for your domain name(s). You must maintain and update this information as needed to keep it current, complete and accurate. You must submit the following with respect to you, the administrative, technical, and billing contacts for your domain name registration(s) and other Services: name, postal address, e-mail address, voice telephone number, and where available, fax number. The type of information you are required to provide may change and you must provide such information and keep your Account information current. Not providing requested information may prevent you from obtaining all Services.
- You may provide information regarding the name-servers assigned to your domain name(s) and, if we are providing name-server services to you, the DNS settings for the domain name. If you do not provide complete name-server information, or if you purchase "Name Only" Services, we may supply this information (and point your domain name to a website of our choosing) until such time as you elect to supply the name-server information or until such time as you elect to upgrade from "Name Only" Services.
(b) OBLIGATIONS RELATING TO THE ACCOUNT AND WHOIS CONTACT INFORMATION:
- If, in obtaining Services, you provide information about or on behalf of a third party, you represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party's information as set forth in this Agreement, and (b) obtained the third party's express written consent to the disclosure and use of that party's information as set forth in this Agreement.
- You represent and warrant that the statements in your application are true and that no Services are being procured for any unlawful purpose, including but not limited to the infringement of any intellectual property right, the unauthorized transfer to yourself or any other party of any domain name or Services, or the violation of any laws, rules, or regulations (the"Illegal Uses"). Providing inaccurate information, failing to immediately update information or engaging in any Illegal Uses will constitute an incurable material breach of this Agreement. Your failure to respond for over ten (10) calendar days to inquiries by us concerning the accuracy of Account and WHOIS contact information shall constitute an incurable material breach of this Agreement.
- You are responsible for regularly monitoring email sent to the email address in your Account. You may lose your rights to the domain name(s) or your right to receive the Services if you do not respond appropriately and timely to an email sent in conjunction therewith.
- You authorize your Primary Service Provider to modify your Account and domain name information, initiate transfers of your domain name(s) to other registrars, initiate registrant changes to your domain names which may terminate your rights to use such domain name(s), update DNS changes to your domain name(s) which may result in changes to the content associated with your domain name(s) and take other actions which may affect or terminate your rights and access to your domain name(s) and/or the Services.
(c) ACCESSING YOUR ACCOUNT
- In order to change any of your Account or domain name WHOIS information, you must access your Account with your Primary Service Provider, or your Account with us. It is your duty to safeguard your Account login identifier and password from any unauthorized use. Any person in possession of your Account login identifier and password will have both the ability and your authorization to modify your Account and domain name information, initiate transfers of your domain name(s) to other registrars, initiate registrant changes to your domain names which may terminate your rights to use such domain name(s), update DNS changes to your domain name(s) which may result in changes to the content associated with your domain name(s) and take other actions which may affect or terminate your rights and access to your domain name(s) and/or the Services.
- We will take reasonable precautions to protect the information we obtain from you from loss, misuse, unauthorized access or disclosure, alteration or destruction of that information and such reasonable precautions include procedures for releasing Account access information to parties who claim to have lost Account access information. If we take reasonable precautions in relation thereto, IN NO EVENT SHALL WE BE LIABLE IF SUCH REASONABLE PRECAUTIONS DO NOT PREVENT THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD AND, EVEN IF WE FAIL TO TAKE REASONABLE PRECAUTIONS, OUR LIABILITY UNDER ANY CIRCUMSTANCES SHALL BE LIMITED BY THE LIMITATION OF LIABILITY PROVISION FOUND IN PARAGRAPH 13 BELOW IN THIS AGREEMENT.
- If you contact us alleging that a third party has unauthorized access to your Account or domain names, we may charge you administrative fees, currently set at $50 (US dollars) per hour, for our time spent in relation to the matter, regardless of whether or not we return control over the Account and/or domain name(s) to you. You will indemnify us for any reasonable attorneys' fees and costs we may incur in relation to the matter, even if those fees and costs accrue as a result of defending an action, or responding to a threat of an action, initiated by You or a third party.
(d) SHARING OF WHOIS INFORMATION
- We will make available the domain name registration information you provide or that we otherwise maintain to the following parties: ICANN, any ICANN-authorized escrow service, the registry administrator(s), and to other third parties as ICANN and applicable laws may require or permit (including through web-based and other on-line WHOIS lookup systems), whether during or after the term of your domain name registration services of the domain name. You irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of such information. We may make publicly available, or directly available to third parties, some, or all, of the information you provide, for purposes of inspection (such as through our WHOIS service) or for targeted marketing and other purposes as required or permitted by applicable laws, including by way of bulk WHOIS data access provided to third parties who enter into a bulk WHOIS data access agreement with us. Please click here if you would like your WHOIS information made available for bulk access. We reserve the right to discontinue providing bulk WHOIS data access to third parties.
- ICANN may establish or modify the guidelines, limits and/or requirements that relate to the amount and type of information that we may or must make available to the public or to private entities, and the manner in which such information is made available. Information regarding ICANN's guidelines and requirements regarding WHOIS can be found at http://www.icann.org/registrars/wmrp.htm, http://www.icann.org/registrars/wdrp.htm, and elsewhere on the ICANN website at http://www.icann.org/.
1. OUR SERVICES
(a) DOMAIN NAME REGISTRATION
- We are accredited registrars with ICANN for generic Top Level Domain Names ("gTLDs") (such as .com, .net, .org, etc.). ICANN oversees registrations and other aspects of the gTLDs. We also are registrars for a variety of country code Top Level Domains ("ccTLDs") (such as .co.uk, .de, etc.). For a partial list of registry administrators and for more information on gTLDs, see http://www.icann.org/tlds/. Domain name registrations are not effective until the registry administrator puts them into effect. Domain name registrations are only for limited terms which end on the expiration date. For domain names which are created as a new registration out of the pool of available domain names, the term begins on the date the domain name registration is acknowledged by the applicable registry. For domain name registrations which were not returned to the pool of available domain names, the term begins on the date the previous registrant's domain name registration was acknowledged by the applicable registry.
- We and your Primary Service Provider are not liable or responsible in any way for any errors, omissions or any other actions by the registry administrator arising out of or related to a request to register, renew, modify the settings for, or transfer of a domain name registration. You acknowledge that domain name registration is a service, domain name registrations do not exist independently from services provided pursuant to this or a similar registration agreement with a registrar, domain name registration services do not create a property interest and you have no such property interest in any domain name(s) which you may register with us.
(a) AFTER MARKET DOMAIN NAMES
- We offer for sale domain names that are registered to third parties (also known as aftermarket domain names) in a variety of top level domain names ("TLDs") ("After Market Domain Name(s)"). All After Market Domain Name registrations are offered on a first come, first served basis. If you are the first to complete an After Market Domain Name registration application for a particular domain name, including payment of the purchase price we designate, we will initiate a transfer of the relevant After Market Domain Name to your Account. At the time of transfer of the After Market Domain Name into your Account, we will add one year to the existing registration period. Any subsequent renewals of the After Market Domain Name will be charged at the then-current renewal fee. Once you submit your order for an After Market Domain Name, you have entered into a valid, binding and enforceable contract to pay the designated purchase price for the After Market Domain Name. Because we are selling After Market Domain Names initially registered to third parties, we have no control and make no representations regarding the accuracy or legality of domain names advertised, the accuracy or legality of any domain name listing, or the right and the ability of the third party seller to transfer the After Market Domain Name or complete the transaction. We do not control whether or not third party sellers will complete a transaction. We reserve the right to reject or cancel your After Market Domain Name registration for any reason including, but not limited to, any pricing errors. In the event your After Market Domain Name registration is rejected or cancelled by us, for any reason, we will refund in full the amount of the purchase price for the After Market Domain Name as your sole remedy.
- Once the After Market Domain Name is transferred into your Account, such After Market Domain Name may not be transferred away from us to another registrar during the first 60 days following the transfer, during which time the After Market Domain Name may be placed on transfer lock. All of your obligations under this Agreement which apply to the registration or renewal of domain name(s) created by you apply to any After Market Domain Name(s) acquired by you, including but not limited to prohibition against any Illegal Uses.
(b) NOT INCLUDED IN THE SERVICES
- We are not responsible to determine whether the domain name(s) you select, or the use you or others make of the domain name(s), or other use of the Services, infringes legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use or allow others to use infringe legal rights of others.
- We might be ordered by a court or arbitrator to cancel, modify, or transfer your domain name; it is your responsibility to list accurate contact information in association with your Account and to communicate with litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other communications to you. Our policy is to comply with court orders from courts of competent jurisdiction as well as UDRP Panel decisions. If you contact us informing us that you are contesting a court order from a court of competent jurisdiction, we may, but are not obligated to, place a transfer lock on the domain name pending the outcome of the dispute. If you contact us informing us that you are contesting an adverse UDRP Panel decision, your time limits and procedures to do so are subject to the requirements set forth in the UDRP. We will not delay implementation of a UDRP Panel decision based solely on your informing us that you intend to contest the decision.
2. SERVICES PROVIDED AT WILL; TERMINATION OR SUSPENSION OF SERVICES
- (a) We and your Primary Service Provider may reject your domain name registration application or elect to discontinue providing Services to you for any reason within 30 days of a Service initiation or a Service renewal. Outside of this period, we and your Primary Service Provider may terminate or suspend the Services at any time for cause, which, without limitation, includes (i) registration of prohibited domain name(s), (ii) abuse of the Services, (iii) payment irregularities, (iv) allegations of illegal conduct, (v) failure to keep your Account or WHOIS information accurate and up to date, (vi) failure to respond to inquiries from us for over ten (10) calendar days, or (vii) if your use of the Services involves us in a violation of any third party's rights or acceptable use policies, including but not limited to the transmission of unsolicited email or the violation of any copyright.
- (b) If we terminate or suspend the Services provided to you under this Agreement, we may then, at our option, make either ourselves or a third party the beneficiary of Services which are substantially similar to those which were previously provided to you. If we have grounds to terminate or suspend Services with respect to one domain name or in relation to other Services provided through your Account, we may terminate or suspend all Services provided through your Account. No fee refund will be made when there is a suspension or termination of Services for cause.
- (c) At any time and for any reason, we may terminate the Services thirty (30) days after we send notice of termination via mail or email, at our option, to the WHOIS contact information provided in association with your domain name registration. Following notice of termination other than for cause, you must transfer your domain name within such thirty (30) day notice period or risk that we may delete your domain name, transfer the registration services associated with your domain name to ourselves or a third party, or suspend or modify Services related to your domain name. If we terminate Services for a reason other than cause, we will provide a pro-rata refund of your fees.
- (d) Your registration of a domain name is subject to suspension, cancellation or transfer by any ICANN procedure now in affect or which may come into affect at a later date, by any registrar or registry administrator procedures approved by an ICANN-adopted policy or any policy adopted by any ccTLD registry or governing body, to correct mistakes by us, another registrar or the registry administrator in administering the domain name or for the resolution of disputes concerning the domain name or as a result of any government decree, rule, law or regulation.
3. EXPIRATION AND RENEWAL OF SERVICES
- It is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire and to maintain current and accurate credit card information should any Services be placed on"auto-renew." As a convenience to you, and not as a binding commitment, we and/or your Primary Service Provider may notify you via an email message or via your Account when renewal fees are due. Should these fees go unpaid, your Services will expire or be cancelled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Services, we may attempt to renew the Services a reasonable time before expiration, provided your credit card or other billing information is available and up to date. It is your responsibility to keep your billing information up to date and we are not required to, but may, contact you to update this information in the event that an attempted transaction is not processed successfully. Please note: for certain TLDs, the automatic renewal option is not available.
4. EXPIRATION OF A DOMAIN NAME REGISTRATION
Immediately after the expiration of the term of domain name registration services and before deletion of the domain name in the applicable registry's database, we may direct the domain name to name-servers and IP address(es) designated by us, including, without limitation, to no IP address or to IP address(es) which host a parking page or a commercial search engine that may display advertisements, and we may either leave your WHOIS information intact or we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
a) Reactivation Period Process.
For a period of approximately 30 days after expiration of the term of domain name registration services, we may provide a procedure by which expired domain name registration services may be renewed. We may, but are not obligated to, offer this process, called the "reactivation period." You assume all risks and all consequences if you wait until close to or after the expiration of the original term of domain name registration services to attempt to renew the domain name registration services. We may, in our sole discretion, choose not to offer a reactivation period and we shall not be liable therefore. The reactivation period renewal process, if any, may involve additional fees which we and your Primary Service Provider may determine. We may make expired domain name services(s) available to third parties, we may auction off the rights to expired domain name services (the auction beginning close to the end or after the end of the reactivation period), and/or expired domain name registration services may be re-registered to any party at any time.
b) After the reactivation period, we may:
- (i) Discontinue the domain name registration services at any time thereafter without notice. In which case, certain registry administrators may provide procedures by which discontinued domain name registration services may nonetheless be renewed. We may, but are not obligated to, participate in this process, typically called the "Redemption Grace Period" ("RGP"). We may, in our sole discretion, choose not to participate in the RGP process with respect to any or all of your domain name registration services and we shall not be liable therefore. If available, RGP typically ends between 30 and 42 days after the end of the reactivation period of the domain name services. The current RGP fee is set forth on the Pricing page and does not include any registration fees that may also be due. We are not obliged to contact you to alert you that the domain name registration services are being discontinued; or
- (ii) Pay the registry's registration fee or otherwise provide for the registration services to be continued. In which case, we may then set the name-servers and the DNS settings for the domain name services, we may set the DNS to point to no IP address or to IP address(es) which host parking page(s) or a commercial search engine that may display paid advertisements, and we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name. We do not have to pay you any of the proceeds we may earn as a result. We are not obliged to contact you to alert you that the domain name registration services are being continued. The domain name will be designated as being in the extended redemption grace period ("ERGP"), and you will be allowed to assume, during the first 120 days of the then extant registration term, complete management of the domain name services, including the right to control the DNS settings, provided that you pay the fee set forth on the Pricing page plus any registration fees. After the end of the 120-day period, if you do not exercise your rights under this provision, you have abandoned the domain name services, and relinquish all interests and use of the domain name services; or
- (iii) If we auctioned the domain name services to a third party, we may transfer the domain name registration services to such third party. In which case, the third party who won the auction for the domain name services will control the domain name services, including control over the WHOIS information and the DNS settings. You may recover the domain name registration services for a period of up to 42 days after the end of the reactivation period, as such reactivation period applied to you. We are not obliged to contact you to alert you that the domain name registration services are or were auctioned. We do not have to pay you any of the proceeds we may earn as a result of such an auction. To exercise your rights to recover auctioned domain name services, you must contact us and provide us with a certified letter addressed to "Expiration Recovery" and include documents setting forth your identity and address, which identity and address must be the same as the registrant as it was listed in the WHOIS information for the domain name services immediately prior to expiration, a copy of a commonly accepted (in the United States) picture ID (such as a drivers license or passport) which supports your identity and address claim, a front and back photocopy of the credit card you used to pay for Services and you must provide a statement authorizing payment of the reinstatement fee to such credit card, which amount is set forth on the Pricing page, plus any registration fees. In doing so, you must provide us with sufficient time, in our sole discretion, to allow us to receive and evaluate your documents and to contact the auction winner prior to the end of 30 days after the end of the reactivation period of the domain name services.
- (a) Transfer of your domain name(s) services shall be governed by ICANN's transfer policy, available at http://www.icann.org/transfers/, including the Registrar Transfer Dispute Resolution Policy, available at http://www.icann.org/en/transfers/dispute-policy-12jul04.htm as well as the UDRP as described in Section 16 of this Agreement, as these policies may be modified from time to time. To transfer your domain name(s) you should first login to your Account to lock or unlock your domain name(s) and/or to obtain the EPP "AuthCode" which is required to transfer domain services in an EPP registry (such as .org). Alternatively, you should contact your Primary Service Provider to have your domain name(s) services locked or unlocked or to obtain the EPP "AuthCode." If your Primary Service Provider is unresponsive, you may contact us to have your domain name(s) locked or unlocked or to obtain the EPP "AuthCode" though we may first contact your Primary Service Provider to request that the Primary Service Provider address the request. Only the registrant and the administrative contacts listed in the WHOIS information may approve or deny a transfer request. Without limitation, domain name services may not be transferred within 60 days of initial registration, within 60 days of a transfer, if there is a dispute regarding the identity of the domain name registrant, if you are bankrupt, or if you fail to pay fees when due. We will follow the procedures for both gaining and loosing registrars as outlined in ICANN's transfer policies. Transfer requests typically take five business days to be processed. A transfer will not be processed if, during this time, the domain name registration services expire, in which event you may need to reinstate the transfer request following a redemption of the domain name, if any. You may be required to resubmit a transfer request if there is a communication failure or other problem at either our end or at the registry. YOU ASSUME ALL RISK FOR FAILURE OF A TRANSFER WHETHER OR NOT THE TRANSFER PROCESS IS INITIATED CLOSE TO THE END OF A REGISTRATION TERM.
- (b) We may place a "Registrar Lock" on your domain name services and this will prevent your domain name services from being transferred without your authorization, though we are not required to do so. By allowing your domain name services to remain locked, you provide express objection to any and all transfer requests until the lock is removed.
6. OWNERSHIP OF INFORMATION AND DATA
We own all database, compilation, collective and similar rights, Component and interests worldwide in our domain name database, and all information and derivative works generated from the domain name database. We own the following information for those registrations for which we are the registrar:
- (a) The original creation date of the registration,
- (b) the expiration date of the registration,
- (c) the name, postal address, e-mail address, voice telephone number, and where available fax number of the registrant and all contacts for the domain name registration,
- (d) any remarks concerning the registered domain name that appear or should appear in the WHOIS or similar database, and
- (e) any other information we generate or obtain in connection with the provision of Services, other than the domain name being registered, the IP addresses of the primary nameserver and any secondary nameservers for the domain name, and the corresponding names of those nameservers. We do not have any ownership interest in your specific personal registration information outside of our rights in our domain name database.
7. AGENTS AND LICENSES
If you are registering a domain name for or on behalf of someone else, you represent that you have the authority to bind that person as a principal to all terms and conditions provided herein. If you license the use of a domain name you register to us or a to third party, you remain the domain name holder of record, and remain responsible for all obligations at law and under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full contact information, and accurate technical, administrative, billing and zone contact information adequate to facilitate timely resolution of any problems that arise in connection with the domain name and domain name registration and for ensuring non-infringement of any third party intellectual property rights.
8. LIMITATION OF LIABILITY
WE WILL NOT BE LIABLE FOR ANY
- (a) SUSPENSION OR LOSS OF THE SERVICES,
- (b) USE OF THE SERVICES,
- (c) INTERRUPTION OF SERVICES OR INTERRUPTION OF YOUR BUSINESS,
- (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR WEB SITE(S) OR SERVICES OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO A DOMAIN NAME REGISTERED WITH US;
- (e) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL
- (f) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (g) THE PROCESSING OF AN APPLICATION FOR A DOMAIN NAME REGISTRATION;
- (g) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD; OR
- (h) APPLICATION OF ANY DISPUTE POLICY. NEITHER WE NOR YOUR PRIMARY SERVICE PROVIDER WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE OR YOUR PRIMARY SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR OR YOUR PRIMARY SERVICE PROVIDER'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR SERVICES, BUT IN NO EVENT GREATER THAN $400.00 (US Dollars). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR AND YOUR PRIMARY SERVICE PROVIDER'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You hereby release, indemnify, and hold us, ICANN, the registry operators, and your Primary Service Provider, as well as the contractors, agents, employees, officers, directors, shareholders, and affiliates of such parties harmless from and against any and all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and court costs, for third party claims relating to or arising under this Agreement, including any breach of any of your representations, warranties, covenants or obligations set forth in this Agreement, the Services provided hereunder, or your use of the Services, including, without limitation, infringement by you, or by anyone else using the Services, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our or ICANN's operating rules or policies relating to the Services provided. We may seek written assurances from you in which you promise to indemnify and hold us harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in our sole discretion, the posting of a performance bond(s) or other guarantees reasonably calculated to guarantee payment. Your failure to provide such assurances may be considered by us to be a breach of this Agreement by you and may, in our sole discretion, result in loss of your right to control the disposition of domain name Services for which you are the registrant and in relation to which we are the registrar of record. This indemnification is in addition to any indemnification (a) required under the UDRP or any other ICANN policy or any policy of any relevant registry; or (b) set forth elsewhere in this Agreement.
10. REPRESENTATIONS AND WARRANTIES
YOU REPRESENT AND WARRANT THAT NEITHER THE REGISTRATION OF A DOMAIN NAME NOR THE MANNER IN WHICH IT IS DIRECTLY OR INDIRECTLY USED NOR THE USE OF OTHER OF THE SERVICES INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY OR WILL OTHERWISE SUBJECT US TO A LEGAL CLAIM. THE SERVICES ARE INTENDED FOR USE BY PERSONS WHO ARE AT LEAST 18 YEARS OLD AND BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR PROCUREMENT OF THE SERVICES IS ACCURATE. ALL SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS. EXCEPT FOR OUR STATEMENT REGARDING OUR ACCREDITATION AS ICANN-APPROVED DOMAIN NAME REGISTRARS, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR E-MAIL FORWARDING OR OTHER EMAIL SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OUR E-MAIL SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH OUR E-MAIL SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
11. DISPUTE RESOLUTION POLICY
12. GOVERNING LAW AND JURISDICTION FOR DISPUTES
- (a) Except as otherwise set forth in the UDRP or any similar ccTLD policy, with respect to any dispute over a domain name registration, this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Washington, as if the Agreement was a contract wholly entered into and wholly performed within the State of Washington.
- (b) Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be determined by arbitration in King County, Washington, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Service of process on you by us in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your Account and/or domain name WHOIS information or by electronically transmitting a true copy of the papers to the email address listed by you in your Account and/or domain name WHOIS information.
- (c) Notwithstanding the foregoing, for the adjudication of third party disputes (i.e., disputes between you and another party, not us) concerning or arising from use of domain names registered hereunder, you shall submit without objection, without prejudice to other potentially applicable jurisdictions, to the subject matter and personal jurisdiction of the courts (i) of the domicile of the registrant as it appears in the public WHOIS record for the domain name(s) in controversy, and (ii) where we are located, currently those State or federal courts whose geographic districts include Bellevue, Washington.
Any notices required to be given under this Agreement by us to you will be deemed to have been given if delivered in accordance with the Account and/or domain name WHOIS information you have provided.
This Agreement and all applicable ICANN policies and the policies of any relevant registry, including but not limited to the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
THE FOLLOWING REGISTRARS ARE REFERENCED IN THIS DOCUMENT
!$6.25 DOMAINS! Network, Inc. Afterdark Domains, Incorporated Arab Internet Names, Incorporated AsiaDomains, Incorporated Big House Services, Inc. Blisternet, Incorporated Dagnabit, Incorporated DBMS, Incorporated Domain Rouge, Inc. Domainnovations, Incorporated Dropoutlet, Incorporated eNom, Incorporated eNom Corporate, Inc. eNom1, Inc. eNom2, Inc. eNom3, Inc. enom371, Incorporated enom373, Incorporated enom375, Incorporated enom377, Incorporated enom379, Incorporated enom381, Incorporated enom383, Incorporated enom385, Incorporated enom387, Incorporated enom389, Incorporated enom391, Incorporated enom393, Incorporated enom395, Incorporated enom397, Incorporated enom399, Incorporated enom403, Incorporated enom405, Incorporated enom407, Incorporated enom409, Incorporated enom411, Incorporated enom413, Incorporated enom415, Incorporated enom417, Incorporated enom419, Incorporated enom421, Incorporated enom423, Incorporated enom425, Incorporated enom427, Incorporated enom429, Incorporated enom431, Incorporated enom433, Incorporated enom435, Incorporated enom437, Incorporated enom439, Incorporated enom441, Incorporated enom443, Incorporated enom445, Incorporated enom447, Incorporated enom449, Incorporated enom451, Incorporated enom453, Incorporated enom455, Incorporated enom457, Incorporated enom459, Incorporated enom461, Incorporated enom463, Incorporated enom465, Incorporated enom467, Incorporated enom469, Incorporated enom623, Incorporated enom635, Incorporated enom646, Incorporated enom647, Incorporated enom650, Incorporated enom652, Incorporated enom654, Incorporated enom655, Incorporated enom656, Incorporated enom659, Incorporated enom661, Incorporated enom662, Incorporated enom663, Incorporated enom666, Incorporated enom672, Incorporated enom1008, Incorporated enom1009, Incorporated enom1010, Incorporated enom1012, Incorporated enom1013, Incorporated enom1014, Incorporated enom1033, Incorporated enom1034, Incorporated enom1035, Incorporated enom1036, Incorporated enom1037, Incorporated enom1038, Incorporated eNom5, Inc. eNomAu, Inc. eNombre Corporation eNomEU, Inc. eNomfor, Inc. eNomGMP Services, Inc. eNomMX, Inc. eNomnz, Inc. eNomsky eNomToo, Inc. eNomV, Inc. eNomWorld, Inc. eNomX, Inc. Entertainment Names, Incorporated Extra Threads Corporation FeNomINAL, Inc. Fushi Tarazu, Incorporated Gunga Galunga, Inc. Indirection Identity Corporation Internet Internal Affairs Corporation Kingdomains, Incorporated Mark Barker Incorporated Mobile Name Services, Incorporated Name Nelly Corporation Name Thread Corporation Nerd Names Corporation Nom Infinitum Corporation One Putt, Inc PostalDomains, Incorporated Private Domains, Incorporated Retail Domains, Inc. SBSNames, Incorporated Searchnresq, Inc. Sicherregister, Incorporated Sipence, Incorporated Sssasss, Incorporated Traffic Names, Incorporated TravelDomains, Incorporated Vedacore, Inc Whiteglove Domains, Incorporated
The LawAssure website ("the Website") is provided by Epoq Legal Limited ("ELL"), company number 3707955, whose registered office is at Middlesex House, 29-45 High Street, Edgware, Middlesex, HA8 7UU.
Reference to "our", "us" and "we" on the Website is a reference to ELL and a reference to "our Solicitors" is to the law firm, MyLawyer Solicitors LLP. MyLawyer Solicitors LLP is a limited liability partnership registered in England and Wales under number OC376661 with registered office at Middlesex House, 29-45 High Street, Edgware, Middlesex, HA8 7UU. Our Solicitors are authorised and regulated by the Solicitors Regulation Authority. Their SRA number is 569955.
Reference to a "Service Provider" is a reference to an organisation providing a User Service. The Service Provider in relation to each User Service is identified in the Conditions.
By using the Website, you indicate that you accept the Conditions and that you agree to abide by them. If you do not agree to the Conditions, please refrain from using the Website.
Use of this Website
The content of this Website is provided for guidance and information purposes only and is not to be construed as advice. We do not in any way recommend that the products and services available on this Website are suitable for you in your particular circumstances.
Reasonable efforts will be made to keep this Website available for use; however access is not guaranteed to be available all the time. We will not be liable for any damage or loss suffered as a result of any periodic unavailability of this Website.
Due to the nature of the internet and the possibility of third party interference, this Website is not guaranteed to be free of all viruses and technical defects of any description or any forms of computer misuse. We will not be liable for any damage or loss caused by such third party interference as a result of your use of this Website. You acknowledge that you are responsible for taking back up copies of your data and taking appropriate precautions to protect your computer systems against technical defects, viruses or computer misuse. In particular, without limitation, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any website linked to it. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these Conditions.
If there are links from this Website to other websites operated by third parties, we do not guarantee you will be able to access the other websites via any link on this Website. We do not guarantee the content or accuracy of any third party's website, nor do we accept any responsibility for any damage or loss you may suffer as a result of your use of that website.You may not establish a link to this Website from any other website without our prior written consent.
We reserve the right to withdraw or amend the services we provide on this Website without notice. From time to time, we may restrict access to some parts, or all, of this Website.
We aim to update this Website regularly and may change the content at any time. Any of the material on this Website may be out of date at any given time and we are under no obligation to update such material. The material displayed on the Website is provided without any guarantees, conditions or warranties as to its accuracy.
You must not misuse this Website by knowingly introducing viruses, trojans, worms, logic bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware. You must not attempt to gain unauthorised access to this Website, the server on which this Website is stored or any server, computer or database connected to this Website. You must not attack this Website via a denial-of-service attack or a distributed denial-of-service attack. You must not use this Website in any way that breaches any applicable local, national or international law or regulation, or which is in any way unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect. You must not use this Website to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
You are responsible for making all arrangements necessary for you to have access to this Website. You are also responsible for ensuring that all persons who access this Website through your internet connection are aware of these terms, and that they comply with them.
You are responsible for the security of any usernames, passwords or access codes that are used to access the User Services and for ensuring that they are not misused. Any unauthorised use of this access information must be reported to us as soon as you are aware of such use.
On no account should access information be used for gain - for example, by selling access to others to our products and services.
You may be provided with membership of a Content Scheme.
Where this is the case, membership of a Content Scheme, while it continues, entitles you to a range of User Services free of any additional charges.
The range of User Services available to you as part of a Content Scheme is determined by a code that you will have to enter when you register to gain access to the Content Scheme.
1. The Law Guide
The information contained in the Law Guide is for guidance and information only and is not to be construed as advice.
Although every effort is made to ensure that the Law Guide is accurate and reflects the law at the time of use, it may or may not reflect current events or changes in the law. Before you act or rely on the Law Guide, you should take advice. We disclaim all liability for actions taken or not taken based on the Law Guide.
2. Document Preparation Service
The online document preparation service ("the Document Preparation Service") is provided by us. It does not provide legal advice nor does it represent a legal service. It is designed to collect relevant information and data to assist in the preparation of a legal document ('the Document') from a document template. It is designed for use by persons who do not have complicated legal requirements.
The Document Preparation Service uses a document assembly and drafting system ("the System").
When using the Document Preparation Service you will be asked a series of questions by the System. The answers you give will dictate the content of the Document produced by the System from the document template. You alone are responsible for ensuring the answers or any information that you give are correct (this includes information in relation to the identity of any parties or signatories, their age or capacity). The System relies on you providing the correct information. You must carefully check that the Document produced, fully reflects your wishes. If it does not, you should not execute it.
All Documents should be used in conjunction with proper advice as to their suitability for your particular requirements and circumstances. We cannot be responsible if you use a Document, or alter or amend it, without seeking proper advice.
We disclaim all liability for actions taken or not taken based on a Document.
It is your responsibility to ensure that any Document is properly executed in accordance with any instructions that are provided to you.
The document templates available on this Website from which Documents can be created by you using the System have been prepared by us. Please note that these document templates have been prepared to produce Documents that comply with the law of a particular jurisdiction only, as is clearly indicated on every document template. These jurisdictions are either that of England and Wales, Northern Ireland or Scotland. A reference in these Conditions to the "chosen jurisdiction" is a reference to the jurisdiction chosen by you when selecting a template and/or while using the System to create a Document from a template.
If any person or entity that is to sign a Document is outside the chosen jurisdiction, it is your responsibility to ensure that any Document is properly executed in accordance with the requirements of that jurisdiction where those requirements prevail.
Documents are prepared for use in accordance with the law of the chosen jurisdiction. You should not use them in any other jurisdiction, or if property the Document deals with is outside the chosen jurisdiction.
We recommend that before reusing a Document you check the Website to ensure that you have the latest version. If we have replaced it with a revised version, we recommend that you obtain the latest version.
Documents completed online will be stored for a maximum period of six years. After this period you may not be able to obtain online access to your Documents, and they may be deleted. We reserve the right to levy a reasonable recovery charge in respect of any Documents that are capable of being recovered. If you have not logged in to the Website for a period of twelve months or more, then we reserve the right to store your Documents offline and levy a reasonable recovery charge for you to access them again.
We will not have any responsibility for the following:
- Verifying your authority or capacity to create a Document, or your answers or any information given by you when using the Document Preparation Service;
- Proofreading data you have input for typographical errors;
- Any alterations made by you or on your behalf to a Document once it has been made available to you;
- The Limited Engagement provided by MyLawyer Solicitors;
- Supervising or checking the due and proper execution of any Document;
- Any use of a Document or execution of a Document by a person or entity outside of the chosen jurisdiction;
- Any adverse consequences if you use any Document without taking appropriate legal advice as to its suitability for your particular circumstances; or
- Undertaking any future review of any document or for providing any ongoing advice, legal or otherwise, as to the continued effectiveness for legal, taxation or any other purpose of any Document.
Where the Document is a Will, a trust or a power of attorney
There is no obligation or duty to supervise the execution of any Will or to take responsibility for the Will being correctly executed. You will be provided with instructions on how to sign the Will in accordance with the law of the chosen jurisdiction.
With respect to a Will, we have no responsibility and will accept no liability for verifying:
- The identity of the testator;
- That the testator is over 18 years of age;
- The testamentary and/or mental capacity of the testator;
- Whether the testator or any other person was subject to any undue influence when using the Document Preparation Service;
- Whether the testator knew, understood and approved the contents of their Will; or
- Whether there were or might be any actual or potential third-party beneficiary(ies) who might have a claim in law against the estate.
With respect to a power of attorney, we have no responsibility and will accept no liability for verifying the capacity of the donor or whether the donor was subject to any undue influence when using the Document Preparation Service.
We do not assume any responsibility nor will we accept liability for failing to provide later advice on the terms of any Will or trust prepared using the Document Preparation Service should future taxation changes or any other changes in the law render their terms inappropriate. The responsibility for future reviews of the terms of your Will or trust rests with you.
3. Document review
Certain document templates will be available with Document review. This means that once you have drafted a Document using the Document Preparation Service, you are given the opportunity to send it electronically using the Website for review by a firm of solicitors.
This review is undertaken by MyLawyer Solicitors.
When you submit a Document for review, MyLawyer Solicitors may telephone you or email you to clarify your requirements.
The Document review is performed by MyLawyer Solicitors only as part of a Limited Engagement.
You will be provided with a written engagement letter setting out the terms of the Limited Engagement.
MyLawyer Solicitors will exercise reasonable skill and care when carrying out a Document review in accordance with their terms of engagement. They will perform their work as quickly as is reasonably possible, but shall not be liable in respect of any failure to meet any specified deadline or completion date.
A Limited Engagement is so called because there are limitations on the work that MyLawyer Solicitors will do, as follows:
What MyLawyer Solicitors will do
The scope of their work is:
- (1) To indicate to you whether or not they are satisfied, based on the answers that you gave the System, that the Document is effective, so far as has been disclosed, to meet your requirements and suitable for your circumstances; and
- (2) If necessary, to amend the Document to ensure that it is suitable for your disclosed requirements and circumstances.
To that intent, MyLawyer Solicitors shall:
- Review the answers you gave the System;
- Review the Document; and
- Engage in reasonable correspondence and/or communications with you. Subject to the fair use policy (see below), they will endeavour to respond to your correspondence and communications as fast as they can, but do not guarantee any particular response time.
What MyLawyer Solicitors will not do
MyLawyer Solicitors will not have responsibility for, and exclude liability for:
- Undertaking any investigation of your particular circumstances beyond those that you disclosed in the answers that you gave the System, or that you conveyed to them via subsequent communications;
- The provision of legal advice about the suitability of the Document to your particular circumstances save to the extent that they are disclosed by the answers that you gave the System and/or in any subsequent communications with them;
- Verifying your answers or any information given by you when using the Document Preparation Service;
- Proofreading data you have input for typographical errors;
- Any alterations made by you or on your behalf to a Document after it has been approved by them, unless such alteration is approved by MyLawyer Solicitors;
- Supervising or checking the due and proper execution of any Document;
- Any use of or execution of a Document by a person or entity outside of the jurisdiction in which they operate;
- Any adverse consequences if you use any Document without taking appropriate legal advice as to its suitability for your particular circumstances from them; or
- Undertaking any future review of any Document or for providing any ongoing advice, legal or otherwise, as to the continued effectiveness for legal, taxation or any other purpose of any Document.
Work outside the scope of the Limited Engagement
If MyLawyer Solicitors, at any time, consider that it will be impractical or inappropriate to continue their work on the basis of the Limited Engagement, or that any work you want them to do falls outside the scope of the Limited Engagement, they will tell you straightaway and discuss with you your options.
If you do not use the Document review service within 12 months of purchase (or within 12 months of creating a Document pursuant to a Content Scheme) you will not be able to obtain access to it thereafter. In such circumstances (where applicable) we shall not have any obligation to rebate you any part of the sum you have paid us.
Fair use policy
MyLawyer Solicitors will aim to complete a Limited Engagement quickly and efficiently. They expect that in most cases the work that they undertake as part of a Limited Engagement will take no more than one hour in total. They reserve the right to manage a Limited Engagement to ensure that, so far as possible, that expectation is fulfilled.
What this means in practice is as follows:
- MyLawyer Solicitors will expect that correspondence and communications between you and them will take place by email or by telephone. They are not able to offer face-to-face interviews.
- They may limit the extent to which they engage in communications with you or to which they respond to correspondence from you if they reasonably consider that to do so would be incompatible with the efficient conduct of a Limited Engagement.
- You may provide them with additional information about your requirements and circumstances beyond that revealed by the answers that you gave the System, but they reserve the right to terminate a Limited Engagement at any time if, by reason of the volume and/or complexity of that additional information, they reasonably consider that it is impractical or inappropriate to continue to work on the Document on the basis of that Limited Engagement.
- They may decline to deal with, as part of a Limited Engagement, any requests, issues or questions made or raised by you if they are not essential to their work on the Document.
No solicitor/client relationship is established by use of the Website. Sending or receiving information through the Website does not establish a solicitor/client relationship. MyLawyer Solicitors will, where applicable, establish a solicitor/client relationship with you only by your express or implied acceptance of their engagement letter and their confirmation of their agreement to act for you after conflict checking and other verification processes have been completed.
We are committed to providing quality services and products. However, in the event that you have a complaint in relation to services or products available form this Website please follow the Complaints Procedure.
Use of the Website and the content on the Website and the User Services is subject to the notices of ownership of intellectual property rights detailed from time to time on the Website.
"RAPIDOCS" and "LAWASSURE" and their respective logos are either UK registered trademarks or other trademarks of Epoq Group Ltd.
Your use of the content on the Website ('Content')
The Content includes the software featured on the Website.
Reproduction of part or all of the Content in any form is prohibited other than in accordance with the following terms:
- You may print or download to a single local hard disk, extracts from the Content for your personal use or use in your business in accordance with these Conditions.
- You may not sell or make a commercial profit by selling or exploiting in any way any Content.
- You may not use any data mining, robots or similar extraction methods in relation to the Content.
- You must not remove any proprietary notices from such extracts.
- You are not permitted to copy, broadcast, download, store (in any medium), transmit in any form or by any means, electronic, mechanical, recording or otherwise, show or play in public, adapt or change in any way, the Content or any other part of this Website for any purpose whatsoever in breach of the Conditions without the prior written permission of ELL.
- Any software or applications may only be used as is expressly or impliedly licensed, and you may not modify in any way, decompile, reverse engineer, modify or resell it or any part thereof.
- The reproduction of all trade marks, both registered and unregistered is strictly prohibited.
Any application in relation to the licensing of the Content of any of these Website pages (other than detailed above) should be addressed to ELL at firstname.lastname@example.org
As a condition of your use of this Website, you warrant to us that you will not use this Website for any purpose that is unlawful or prohibited by these Conditions, and any other notices appearing on this Website.
Any claim in respect of breach of contract or for negligence or in any other way for or related to the provision of or failure to provide a User Service shall be against the applicable Service Provider of the User Service.
Subject to that, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
- 1. Any breach of the Conditions; or
- 2. Any representation, statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Conditions, the Website or the User Services.
Except as expressly and specifically provided in the Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Conditions.
Nothing in the Conditions shall exclude or limit:
- 1. liability arising from death or injury to persons caused by negligence; or
- 2. liability arising as a result of fraud or gross negligence to which no limit applies.
We shall not be liable for:
- 1. Any loss resulting from the provision of any of the User Services by other Service Providers
- 2. Any loss for which liability is disclaimed elsewhere in the Conditions;
- 3. Loss of profits;
- 4. Loss of business;
- 5. Depletion of goodwill or similar losses;
- 6.Loss of anticipated savings;
- 7. Loss of goods;
- 8. Loss of use;
- 9. Loss or corruption of data or information;
- 10. Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
If we are held liable to you for any loss or damage, such liability shall in all cases be limited to the payment of an amount not exceeding £50,000, including costs and expenses in respect of any one claim. For the avoidance of doubt, a claim shall be defined as a claim or a series of claims (whether by one or more claimant) arising from, or in connection with, or attributable to, any one act, error, omission or originating cause or source or the dishonesty of any person or group of persons acting together, and any such series of claims shall be deemed to be one claim for all purposes under this clause.
You acknowledge that these exclusions and/or limitations are reasonable having regard to the fact that the Website, the Law Guide and the Document Preparation Service are freely accessible and available at no or low cost.
We reserve the right to change the terms, conditions, and disclaimers under which this Website or any User Service is offered.
This right shall not affect the existing terms and conditions accepted by you upon making a legitimate purchase using this Website.
These terms and conditions shall not affect your statutory rights as a consumer.
The Conditions (and all communications) are in English and governed by, and will be construed in accordance with, English Law, and the English courts shall have jurisdiction in any legal proceedings. We retain the right to bring proceedings against you for breach of the Conditions in your country of residence or any other relevant country.
If any part of the Conditions (and/or notices on the Website) is found to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and limitations set forth above, then the invalid or unenforceable provision will be deemed replaced by a valid and enforceable provision that most closely matches the intent of the original provision and the remainder of the provisions shall continue in full force and effect.
No forbearance or delay by us in enforcing any of the Conditions will prejudice the rights, powers or remedies available to us and such rights, powers or remedies will be cumulative.
We shall be able to assign the benefit of all or part of the Conditions.
Headings in these Conditions are for convenience only and shall not affect their interpretation.
Your use of the Website or any of the User Services signifies your consent and agreement to these Conditions.
Any rights not expressly granted herein are reserved.
LivePlan is a web-based tool that is owned and operated by Palo Alto Software, Inc. and which enables you to write your business plan online. LivePlan is at times referred to in these Terms of Service as "The Service." You hereby agree to be bound by and comply with the terms and conditions contained herein.
1. The LivePlan Service
LivePlan is a web-based service available at www.liveplan.com that that allows you to use software developed and owned by Palo Alto Software, Inc. and offered as a software as a service in order to create, upload, store, transmit, disseminate, print and otherwise distribute business plans (herein, "Content"). Your use of The Service is at your own risk. The Service is provided on an AS IS and AS AVAILABLE basis.
3. Modification of these Terms.
When using LivePlan, any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time. All such Guidelines and rules are hereby incorporated by reference into these Terms of Service. Palo Alto Software, Inc. may, in its sole discretion and at any time, modify or revise these Terms of Service and policies at any time; by using The Service you agree to be bound by such modifications or revisions. If you do not accept and abide by this Agreement and these Terms of Service, you may not use The Service.
4. Use of The Service
You are responsible for your own communications and communications to and from your account with The Service, and for all Content sent to and from your account, stored under your account, and activity that occurs under your account (even when Content is posted by others who have access to your account) and for any consequences thereof or arising therefrom. You agree that you will use The Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (a) use the Service to upload, store, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Palo Alto Software, Inc.; (b) upload, store, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (c) prevent others from using The Service; or (d) use The Service for any fraudulent or inappropriate purpose. Violation of any of the foregoing may result in immediate termination of this Agreement and your account with LivePlan, and may subject you to state and federal penalties and other legal consequences. Palo Alto Software, Inc. reserves the right, but shall have no obligation, to investigate your use of The Service in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
5. Content of the Service, Ownership and Intellectual Property Rights.
Palo Alto Software, Inc. takes no responsibility for third party content (including, without limitation, any viruses or other disabling features), nor does Palo Alto Software, Inc. have any obligation to monitor such third party content. Palo Alto Software, Inc. reserves the right at all times to remove or refuse to distribute any Content on The Service, such as content which violates the terms of this Agreement. Palo Alto Software, Inc. also reserves the right to access, read, preserve, and disclose any information and Content as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests, or (e) protect the rights, property or safety of Palo Alto Software, Inc., its users and the public. Palo Alto Software, Inc. will not be responsible or liable for the exercise or non- exercise of its rights under this Agreement.
The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, services, and all other elements of LivePlan provided and owned by Palo Alto Software, Inc. are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws and are the property of Palo Alto Software, Inc. or its subsidiaries or affiliated companies and/or third-party licensors. Except as may otherwise be noted, all trademarks, service marks, and trade names are proprietary to Palo Alto Software, Inc. or its affiliates and/or third-party licensors. Palo Alto Software, Inc. does not claim any ownership in any of the Content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit or store in your LivePlan account.
6. User Representations and Warranties.
You are solely responsible for your Content and the consequences of uploading, storing, transmitting or otherwise distributing Content to and/or from your account. Except as set forth herein, Palo Alto Software, Inc. will not use any of Content for any purpose except to provide you with The Service.
By uploading, storing, transmitting or otherwise distributing Content, you affirm, represent, and warrant that:
a) the Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, or libel any other person; and c) the Content does not contain any viruses, adware, spyware, worms, or other malicious code. Violators of any third-party rights may be subject to criminal and civil liability. Palo Alto Software, Inc. reserves all rights and remedies against any Users who violate these Terms of Service.
7. Content Disclaimer
You understand that when using LivePlan you may be exposed to Content from a variety of sources, and that Palo Alto Software, Inc. is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Palo Alto Software, Inc. with respect thereto. Palo Alto Software, Inc. does not endorse any Content or any opinion, recommendation or advice expressed therein, and Palo Alto Software, Inc. expressly disclaims any and all liability in connection with Content.
8. Statement of Policies
Palo Alto Software, Inc. disclaims any and all liability in connection with or arising from Content uploaded, stored, transmitted or otherwise distributed by User. In the event Palo Alto Software, Inc. receives any information or notice that any Content uploaded, stored, transmitted or otherwise distributed by User violate these Terms of Service or infringes any copyright, trademark, or patent, or is alleged to infringe any copyright, trademark, or patent, Palo Alto Software, Inc. reserves the right to immediately remove the Content without notice to the User and without any obligation to investigate an allegation of infringement. Palo Alto Software, Inc. further reserves the right in its sole and unfettered discretion to remove for any reason whatsoever and at any time, any Content uploaded, stored, transmitted or otherwise distributed by a User, without prior notice to User.
Palo Alto Software, Inc. further reserves the right to terminate User access to the LivePlan website in the event User violates these Terms of Service.
9. Prohibited Activities; Enforcement of Policies
By agreeing to these Terms of Service you agree not to:
- (a) Eexcept as expressly permitted herein, use The Service for any purposes other than to access and use LivePlan as such services are offered by Palo Alto Software, Inc.;
- (b) Share a single login with multiple people. Your login may be used by only one person, but you may create separate logins for as many others as you desire;
- (c) Block ads if you are a free account user;
- (d) Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access LivePlan accounts of others without permission, forge another persons' digital signature or identity, misrepresent the source, identity, or content of information transmitted via LivePlan, or perform any other similar fraudulent activity;
- (e) Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of LivePlan. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- (f) Use LivePlan for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- (g) Defame, harass, abuse, threaten or defraud Users of LivePlan, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- (h) Use LivePlan if you are not legally competent to do so;
- (i) Remove, circumvent, disable, damage or otherwise interfere with security-related features of LivePlan or User Content, features that prevent or restrict use or copying of any content accessible through LivePlan, or features that enforce limitations on the use of LivePlan or User Content;
- (j) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of LivePlan or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- (k) Modify, adapt, translate or create derivative works based upon LivePlan or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- (l) Intentionally interfere with or damage operation of LivePlan or any user's enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- (m) Use any robot, spider, scraper, or other automated means to access LivePlan for any purpose or bypass any measures Palo Alto Software, Inc. may use to prevent or restrict access to LivePlan;
- (n) Interfere with or disrupt LivePlan or servers or networks connected to LivePlan, or disobey any requirements, procedures, policies or regulations of networks connected to LivePlan.
Palo Alto Software reserves the right to scan all Content to ensure compliance with these Terms of Service. In the event Palo Alto Software determines, in its sole discretion, that your use of LivePlan is in violation of these Terms of Service, Palo Alto Software shall have the right without recourse by the User to immediately terminate your account.
10. Account, Payment, Refund, Upgrading and Downgrading
When you use LivePlan, you may be asked to establish an account and establish passwords. You are solely responsible for maintaining the confidentiality of your account and passwords and for restricting access to your computer and/or account, and you agree to accept responsibility for all activities that occur under your account or passwords. You agree that the information you provide to Palo Alto Software, Inc. on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify Palo Alto Software, Inc. You may be liable for the losses incurred by Palo Alto Software, Inc. or others due to any unauthorized use of your LivePlan account.
11. User Indemnifications and Hold Harmless
User agrees to defend, indemnify and hold harmless Palo Alto Software, Inc., its affiliated companies, officers, directors, employees and agents from and against all claims, demands, suits, costs, damages, and expenses, including but not limited to attorneys' fees and reasonable settlements that Palo Alto Software, Inc. may sustain or incur by reason of (a) use of LivePlan website, (b) breach, alleged breach or violation of the foregoing warranties, representations and covenants, (c) any violation of any third party right arising from User Content submitted by User, (d) any claim that any User Content submitted by User caused damage to a third party, or (e) any other violation of these Terms of Service. User's obligation to defend, indemnify and hold harmless Palo Alto Software, Inc. shall survive these Terms of Service and LIVEPLAN.
12. Disclaimer of Warranties
USE OF LIVEPLAN SHALL BE AT USER'S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PALO ALTO SOFTWARE, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH LIVEPLAN AND USE THEREOF. PALO ALTO SOFTWARE, INC. ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF WEBSITE CONTENT, (ii) PERSONAL INJURY OR DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF LIVEPLAN, (iii) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH LIVEPLAN WEBSITE BY ANY THIRD PARTY, AND/OR (iv) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA LIVEPLAN.
PALO ALTO SOFTWARE, INC. DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH LIVEPLAN OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. PALO ALTO SOFTWARE, INC. WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN A USER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
13. Limitations of Liability
USER AGREES NOT TO HOLD PALO ALTO SOFTWARE, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL, INCURRED AS A RESULT OF USER'S USE OF LIVEPLAN, (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (ii) PERSONAL INJURY OR DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM USER'S ACCESS TO AND USE OF LIVEPLAN, (iii) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM LIVEPLAN, (iv) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH LIVEPLAN BY ANY THIRD PARTY, AND/OR (v) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER'S USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA LIVEPLAN, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PALO ALTO SOFTWARE, INC. IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
In addition to the right to terminate your account for using LivePlan in a manner that violates these Terms of Service as provided in section 9, Palo Alto Software, Inc. may at any time and for any reason terminate The Service, terminate this Agreement, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information and Content may remain in the LivePlan system.
15. Miscellaneous Terms
- These Terms of Service shall be governed by and construed in accordance with the laws of the State of Oregon, except for its conflicts of laws principles. User consents to the exclusive jurisdiction and venue in the state and federal courts in Lane County, Oregon.
- Palo Alto Software, Inc. may transfer and assign these Terms of Service without restriction. User may not transfer or assign any of these Terms of Service.
- User affirms and warrants that User is legally competent to enter into these Terms of Service, and the conditions, obligations, affirmations, representations, covenants and warranties set forth herein.
- If any provision of these Terms of Service is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remaining provisions of these Terms of Service shall not be affected.
- No waiver of any term of these Terms of Service shall be deemed to constitute a continuing waiver of such term.
- Palo Alto Software, Inc. may provide you with notices, including those regarding changes to these Terms of Service, by email, regular mail or postings on LivePlan. Notice will be deemed given twenty-four hours after email is sent, unless Palo Alto Software, Inc. is notified that the email address is invalid. Alternatively, Palo Alto Software, Inc. may give you legal notice by mail to a postal address, if provided by you through LivePlan. In such case, notice will be deemed given three days after the date of mailing. Notice posted on LivePlan is deemed given five (5) days following the initial posting.
The Service is offered by Palo Alto Software, Inc., located at:
488 E 11th Ave, #220, Eugene, OR 97401
Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014)
Part A of this document sets out the terms and conditions which govern your membership of the Sage Online Accounting Programme and Part B contains the end user terms and conditions governing access to and use of the service modules individually and collectively referred to as Sage One. You must read and accept both sets of terms and conditions.
PART A – SAGE ONLINE ACCOUNTING PROGRAMME TERMS AND CONDITIONS
1. What this agreement is about
- 1.1 These terms and conditions govern the agreement between us in respect of your membership of the Sage Online Accounting Programme (the “programme”) which allows you to promote and facilitate the provision of Sage One (as defined in clause 1.3 of the Sage One Terms and Conditions of Use set out in Part B below) as a solution for your clients through the Sage One Accountant Edition service (“Accountant Edition”). If there is any difference between these terms and conditions and the Sage One Terms and Conditions of Use set out in Part B of this agreement or, where appropriate, your Sage Accountants Club/Network Membership Agreement, these terms and conditions will take precedence in relation to your participation in the programme and your use of the Accountant Edition.
- 1.2 We may change the terms and conditions of this agreement at any time. We will make reasonable efforts to communicate any changes to you via a notification on Sage One or by sending you an email but it is up to you to ensure that you regularly check, read, understand the most recent version of this agreement as you will be deemed to accept all changes to these terms and conditions if you continue to participate in the programme and/or use the Accountant Edition.
2. Who this agreement is between
- 2.1 This agreement is between: you, the person or organisation authorised to use the Accountant Edition under and in accordance with these terms and conditions; and us, Sage (UK) Limited (company registration number 1045967, VAT number GB 555909605, registered office: North Park, Newcastle upon Tyne NE13 9AA, United Kingdom) if you subscribe to the programme in the United Kingdom or Sage Hibernia Limited trading as Sage Ireland (company registration number 300549, registered office: Unit 3096, Lake Drive, Citywest Business Park, Dublin 24) if you subscribe to the programme in the Republic of Ireland.
- 2.2 By participating in the programme and/or using the Accountant Edition you and we agree to be bound by and comply with the terms and conditions set out herein.
3. How you accept this agreement, and when the agreement between us starts
- 3.1 You accept these terms and conditions, and this agreement between us starts, from the earliest date you tick a box or click on a button (or something similar) when Sage One asks you to confirm that you accept this agreement.
- 3.2 Our agreement will continue until terminated in accordance with clause 12.
- 3.3 If you don’t accept this agreement, you should contact us immediately and you should not promote or facilitate the usage of Sage One by your clients or otherwise hold yourself out as a member of the programme.
4. Programme Subscription
The fees that you must pay to become a member of the programme are set out in our price list from time to time in force and are payable in accordance with clause 7.
5. Facilitation of Sage One for your clients
- 5.1 Once you become a member of the programme you can either: (i) set up and administer Sage One accounts for your clients which will link to your own Accountant Edition account; or (ii) link to your clients’ own existing Sage One accounts, in each case, so that you can access reports, transfer files, help your clients to manage their own Sage One accounts and provide your own services to your clients as agreed between you and your individual clients.
- 5.2 Where you link to a client’s existing Sage One account your client can revoke your access to its Sage One account at any time. Where your client is a Direct Billing Customer (as defined in clause 7.2 below), that client may revoke the link from their Sage One account to your Accountant Edition account and this will prevent your access to their Sage One account.
- 5.3 You must take all reasonable steps to ensure that your clients comply with the Sage One Terms and Conditions of Use set out below in Part B of this agreement.
- 5.4 We reserve the right to access your Accountant Edition account at any time for the purposes of enabling us to establish your compliance with this agreement, your participation in the programme and/or your use of the Accountant Edition.
6. Your obligations
- 6.1 You will perform your obligations promptly, diligently and in accordance with the standard to be reasonably expected of an experienced, trained and appropriately qualified accountant (or equivalent) operating in your market; and comply with
Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014)
all rules, regulations and laws affecting your business relating to Sage One including those relating to e-commerce, data protection, direct marketing and anti-competitive practices.
- 6.2 For each client you invite to join Collaborate (“Collaborate” means the Sage One functionality whereby you and your clients are able to share online access to documents in a secure environment), you are responsible for notifying them:
- 6.2.1 Of the maximum amount of data storage available to them at any one time;
- 6.2.2 That the content of any files must not and will not result in any injury, damage or harm to us or to any third party (including, without limitation, defamation or breach of confidentiality) and that the content does not (and will not) contain anything which is unlawful, obscene, indecent or immoral or promotes illegal or unlawful activities; and
- 6.2.3 That on termination by you of your accounting relationship with the client, all Collaborate data will be not be accessible after the date of termination and that it is the responsibility of your client to make a back-up copy of that data.
7. Price and payment method
- 7.1 You acknowledge that we are moving to a direct billing subscription model for our products and in order to facilitate this model, we are making some changes to the way we pay you for those clients for whom you introduce, set up (or have set up) and administer a Sage One account.
- 7.2For each new client you introduce to and set up and administer a Sage One account through the Accountant Edition, you may: (i) procure for that client to pay us directly (rather than pay you) in full for all applicable fees for that account, in accordance with such instructions as we may provide to you from time to time (“Direct Billing Customers”); or (ii) those new clients may pay you directly for their use of Sage One (in the same way as your existing customers pay you pursuant to clause below 7.3). Where (ii) applies, your client will not be eligible for a free trial of Sage One. If you do not elect how your new client will pay, they will automatically be set up as a Direct Billing Customer and in these circumstances, your client will be entitled to receive a free trial if requested.
- 7.3 You will continue to invoice your existing clients for whom you have already set up and administer Sage One accounts via your Accountant Edition and you will continue to pay us in full for all applicable fees for those accounts until such time as we may advise you that those existing clients will pay us directly for their use of Sage One. We will pay you Commission (as defined in clause 7.6 below) for Direct Billing Customers as well as for your existing clients and your new clients who pay you directly for their use of Sage One (rather than paying us) pursuant to and in accordance with the terms and conditions of this clause 7 (even though this clause 7 refers to Direct Billing Customers) and such instructions as we may issue to you from time to time. If those clients pay us directly (rather than paying you), those clients will then become (and will be known as) Direct Billing Customers.
- 7.4 For a client who subscribes to both: (i) Payroll; and (ii) Cashbook, Accounts or Accounts Extra (all as defined in paragraph 1.3 of Part B below), the same billing model must be adopted for that client’s use of Sage One. By this we mean that your client would either: (a) pay you for their use of Payroll, Cashbook, Accounts or Accounts Extra and you would pay us for their use pursuant to clause 7.3; or (b) they would pay us for their use of Payroll, Cashbook, Accounts or Accounts Extra as a Direct Billing Customer.
- 7.5 You acknowledge and agree that your clients cannot use a different billing model to pay for its use of Sage One such that they cannot be a Direct Billing Customer for Payroll but then pay you directly for their use of Cashbook, Accounts or Accounts Extra or vice versa. However, you may have clients on different billing models with some clients paying you for their use of Payroll, Cashbook, Accounts or Accounts Extra and your other clients paying us for their use of Payroll, Cashbook, Accounts or Accounts Extra as a Direct Billing Customer. Calculation and Payment of Commission
- 7.6 For each Direct Billing Customer that you introduce (or have introduced in the case of an existing client (or will introduce pursuant to clause 7.2(ii) above) ) to Sage One and which are linked to your Accountant Edition account, we will pay you a commission which we will calculate as a percentage (such percentage to be notified to you in writing from time to time) of the Net Monthly Fee paid to us by the Direct Billing Customer for their use of Sage One (“Commission”). “Net Monthly Fee” means in relation to Sage One, the price actually charged by us to the Direct Billing Customer after any discounts or other deductions and less any VAT (as defined below) or other sales tax. Commission is not payable in respect of any use by a client of Sage One where that use is free of charge and we will give you 30 days’ notice in writing of any changes to the percentage of Commission payable to you.
- 7.7 Any and all Commission due to you shall be accrued monthly but shall be paid to you quarterly in arrears in accordance with this clause 7 (unless we advise you of such other billing periods). We will advise you in writing of the quarterly periods which we will use to calculate the Commission payable to you for the Direct Billing Customers.
- 7.8 We will pay you Commission only in respect of cleared funds that we have received from the Direct Billing Customer for their use of Sage One. Payment will be made via electronic transfer to such bank account as you may notify to us in Sage One Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014) writing from time to time and payment shall be made within 15 days of the end of each quarter unless we notify you otherwise.
- 7.9 We may, at any time and without notice, set off any liability of yours (including, without limitation, any outstanding balances you may owe to us) from the Commission and whether that liability is present or future, liquidated or unliquidated, and whether or not it arises under this agreement. Any exercise by us of our rights under this clause shall not limit or affect any other rights or remedies available to us under this agreement or otherwise.
- 7.10 We will only pay you Commission for so long as a Direct Billing Customer: (i) remains an active client of yours; and (ii) that client continues to pay their subscription fee in full for their use of Sage One. By an “active client of yours” we mean those clients using Sage One whom you introduced to and are linked to your Accountant Edition account. We do not mean those clients who signed up directly to Sage One and then subsequently linked to your Accountant Edition account. Once a Direct Billing Customer is no longer an active client of yours and/or they are no longer paying (or have failed to pay) for their use of Sage One, you will no longer be entitled to receive Commission for that Direct Billing Customer.
- 7.11 If, during any quarter, a Direct Billing Customer fails to pay their subscription fee for their use of Sage One and/or their agreement with us to use Sage One is terminated, your entitlement to Commission will be calculated on a pro rata basis for that quarter (the “final Commission payment”). You will not be entitled to receive any further Commission for that Direct Billing Customer once you have received the final Commission payment and this will apply even where that customer subsequently recommences the payment of its subscription fee to use Sage One. Self-Billing and VAT
- 7.12 Unless we advise you otherwise, if you are VAT registered you will only be entitled to receive Commission if you have entered into and maintain a valid self-billing agreement with us for VAT purposes. This is because we will pay you Commission against a self-billing VAT invoice which we will raise on your behalf. We will provide you with a self-billing agreement (including, without limitation, any renewals of that agreement) which you must sign and return to us in such form (and in accordance with such instructions) as we may provide you from time to time.
- 7.13 Where you are VAT registered (and unless we have advised you otherwise), you understand and agree that in order for us to calculate and pay you Commission during any quarter we must have a valid and binding self-billing agreement in place between us. This means that we will not be required to pay you any Commission which accrues during a period where we have no self-billing agreement in place.
- 7.14 If you are VAT registered, you will provide us with your VAT registration number and such other information as we may reasonably require in the performance of our obligations under this agreement and you will advise us immediately in writing if there is any change to your VAT registration number or your VAT status.
- 7.15 If you are not VAT registered, we will pay you Commission at the end of each quarter in accordance with the terms and conditions of this agreement. If, at any time, you become VAT registered you will notify us in writing within 7 days of making that registration and you will promptly enter into a self-billing agreement with us pursuant to clauses 7.10 and 7.13 above to enable us to pay you Commission.
- 7.16 Unless otherwise agreed in writing by us, you will pay our fees and other prices and charges in advance and by monthly direct debit or within 30 days of the date of any invoice we issue in respect of such fees, prices and charges incurred during the previous month.
- 7.17 We may amend our prices and payment terms (including individual credit terms) from time to time in our absolute discretion and we will take reasonable steps to notify you in advance of any price increases or changes to credit terms.
- 7.18 All amounts payable under this agreement will be:
- 7.18.1 Paid in pounds sterling (where you subscribe to the Accountant Edition in the UK) or Euros (where you subscribe in the Republic of Ireland); and
- 7.18.2 Exclusive of value added tax (“VAT”) or similar sales tax, which if applicable and subject to receipt of a valid VAT invoice you shall pay, as well as all other duties, charges and taxes (if any) which shall be paid at the rate and in the manner for the time being prescribed by law.
- 7.19 While you understand that we have other rights and remedies, you agree that if any payment due to us is paid after the due date, we may charge you interest on a daily basis at the rate of 4% above the base rate of Lloyds Bank plc if you subscribe to the Accountant Edition in the UK (or The Bank of Ireland if you subscribe in the Republic of Ireland) from time to time in force, and from the due date until the date of actual payment. Interest shall accrue before as well as after judgment and in respect of any part payment. You agree to reimburse us for any costs (including our own and any third party costs) we incur in recovering any outstanding sums due to us from you.
- 7.20 All payments you make to us under this agreement will be made in full without any set-off, restriction or condition and without any deduction or withholding, unless you are required by law to make any such deduction or withholding.
- 7.21 Without prejudice to any other right or remedy we may have, if you fail to make any payment in accordance with this agreement or fail to perform any other obligation to us, we may at our option and upon written notice terminate this agreement or suspend performance of our obligations under this agreement until such time that you make payment or perform such obligation in full.
Restrictions around the Payment of Commission
Sage One Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014)
8. Sage Marks and Sage Materials
- 8.1. You must not:
- 8.1.1 Use or permit any third party to use any Sage Mark (as defined below) or any mark, words, logo, device or any other branding which is the same as, or similar to or mimics any Sage Mark;
- 8.1.2 Use any Sage Mark for any business reason (other than in relation to your legitimate and permitted use of Sage One) or as part of your corporate or business name;
- 8.1.3 Use, create or register any trade mark which incorporates any Sage Mark or any similar mark, logo, words, device or any other branding; and/or
- 8.1.4 Register or use as a domain name any Sage Mark, or any mark, words, logo, device or any other branding which is the same as, similar to or mimics any Sage Mark, without our prior written consent.
- 8.2 If you do use or register or have registered any Sage Mark or any mark, words, logo, device or other branding as more particularly described in clause 8.1, you will immediately on our request and at your own cost:
- 8.2.1 Stop doing so and, if applicable, remove that Sage Mark or similar branding from the relevant registration or use;
- 8.2.2 Transfer any registration incorporating any Sage Mark or similar branding to us.
- 8.3 You must only use Sage Materials in accordance with our written instructions and you must not modify Sage Materials or use them for any other purpose without our prior written consent.
- 8.4 You will immediately stop using Sage Materials (as defined below) upon our instruction and you will withdraw from circulation any such Sage Materials you have issued.
- 8.5 For the purposes of this agreement:
- 8.5.1 “Affiliates” means in relation to any company, any holding company of that company or any subsidiary of any such holding company (“holding company” and “subsidiary” having the same meanings as are assigned to each of them by section 1159 of the Companies Act 2006 (as amended)).
- 8.5.2“Sage Mark” means any name, trade mark, trade name, insignia, logo, symbol or slogan (whether registered or not) owned or used by us or any of our Affiliates now or in the future anywhere in the world; and
- 8.5.3 “Sage Materials” means any marketing or promotional materials that we may at our sole discretion supply to you from time to time (if any) during the term of this agreement to enable you to actively promote Sage One or your membership to the programme.
9. What are each of our rights and obligations relating to Sage’s Intellectual Property Rights
- 9.1 You acknowledge that we or our licensors are the owners of the Sage Intellectual Property Rights (as defined below) and agree that except to the extent set out in this agreement, you acquire no interest in or to any of the Sage Intellectual Property Rights.
- 9.2 Except to the extent permitted by law, you will not do anything nor allow anything to be done which will or may damage or affect the validity of the Sage Intellectual Property Rights, including (without limitation) breaching any terms and conditions of this agreement or the Sage One Terms and Conditions of Use or which arises out of or in connection with you use of, or holding yourself out as the owner of, the Sage Intellectual Property Rights.
- 9.3 You will immediately inform us in writing if you become aware of any actual or potential infringement or invalidity of any of the Sage Intellectual Property Rights. You will at our request and expense sign, execute and do all such deeds, documents, acts and things (including allowing your name to be used in any proceedings) as we may reasonably require with a view to restraining such infringement (or preventing such invalidity) and/or obtaining damages and/or otherwise protecting our or our licensors’ rights.
- 9.4 You acknowledge that we are the owners of the goodwill in Sage One and agree that if any goodwill in Sage One is created or developed by your distribution of it in accordance with this agreement, the goodwill in Sage One will arise solely for our benefit. Nothing in this clause prevents you from benefiting from the goodwill you create or develop in your own business.
- 9.5 For the purpose of these conditions, “Sage Intellectual Property Rights” means any and all Sage Marks, the Sage Materials and all vested contingent and future intellectual property rights in and to Sage One including, without limitation, goodwill, reputation, rights in confidential information, copyright, trade marks and design rights whether registered or unregistered, logos, devices, plans, models, diagrams, specifications, source and object code materials, data and Sage One Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014) processes, patents, know how, trade secrets, inventions, get-up, database rights and (as applicable) any applications or registrations for the protection of these rights and renewals and extensions of them, existing in any part of the world, whether now known or created in the future.
10. Our liability and responsibility to you if something goes wrong
- 10.1 Subject always to clauses 10.2, 10.3 and 10.4 below, our total liability to you arising under or in connection with this agreement whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation or otherwise will not exceed an amount equal to the total of:
- 10.1.1 The fees paid or payable by you to us for your annual programme or network membership in the 12 month period in which the claim arose; and
- 10.1.2 Where a claim relates to a client who pays you directly for their use of Sage One (such that they are not a Direct Billing Customer), the fees you have paid to us for your client’s use of the relevant Sage One product during the 12 month period immediately preceding the date on which the claim arose (such relevant Sage One product being the product forming the subject matter of the claim); and/or
- 10.1.3 Where a claim relates to a Direct Billing Customer, the Commission we have paid or is payable to you for the relevant Sage One product for that Direct Billing Customer during the 12 month period in which the claim arose (such relevant Sage One product being the product forming the subject matter of the claim).
- 10.2 We will not be responsible for any of the following, even if we knew or should have known there was a possibility you could experience:
- 10.2.1 Loss of profits, revenues or contracts, lost savings, business interruption, lost funding, loss of goodwill or reputation, wasted expenditure or loss or corruption of data, in each case whether arising directly or indirectly and whether it is known, foreseen or foreseeable; and/or
- 10.2.2 Indirect, incidental, special, punitive or consequential loss or damage, whether it is known, foreseen or foreseeable.
- 10.3 Nothing in these conditions will exclude or limit your or our liability for:
- 10.3.1 Fraud;
- 10.3.2 Death of or personal injury to any person as a result of our negligence; or
- 10.3.3 Any other matter which cannot be excluded or limited under applicable law.
- 10.4 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
- 10.5 Your and our responsibilities under this agreement are reasonable because they reflect that:
- 10.5.1 We cannot control how, and for what purposes, you or your clients use Sage One;
- 10.5.2 We have not developed Sage One specifically for you or your clients; and
- 10.5.3 Although we follow good industry practice, it is not economically possible for us to carry out all the tests necessary to make sure that Sage One is problem or error free.
11. What is your responsibility to us if another person makes a claim against us relating to your obligations?
- 11.1 You will indemnify us for all third party claims which arise out of or in connection with:
- 11.1.1 Your promoting, distributing and/or otherwise exploiting Sage One;
- 11.1.2 Your supporting or providing any other service for Sage One; or
- 11.1.3 Any breach or other failure by you of this agreement.
12. How this agreement may be brought to an end and what happens on termination
- 12.1 Without prejudice to any other right or remedy which we may have, we may exercise our right of suspension under clause 7.19 or, at our discretion, end this agreement immediately if we do not receive payment from you for any amounts you owe to us. Suspension of your access to your Accountant Edition account or the termination of this agreement (as the case may be) will also suspend or terminate the Sage One account of each client which is linked to your Accountant Edition account, and you accept that we will not be liable for any such suspension or termination.
- 12.2 You may end this agreement at any time by telephoning our loyalty team whose contact details are available on our Website or by sending us an email to email@example.com and we will confirm to you the date that this agreement will come to an end. If you end this agreement, you must pay all sums due to us under this agreement which are incurred up to and including the date of termination (and this will include, without limitation, payment by you of all fees due for your clients who have a Sage One account during the month of termination). Once this agreement ends you will not be entitled to receive any further Commission but we will pay you any Commission which is properly due to you up to and including the date of termination of this agreement. We will make this payment to you in accordance with clause 7 above. Sage One
- 12.3 We may end this agreement at any time upon 30 days’ written notice and, in such circumstances, we will repay to you any sums you have paid to us in respect of any unexpired portion of your subscription period for your Accountant Edition calculated from the date of termination.
- 12.4 If you or we discover that the other has done something which is not allowed by this agreement, or has not done something that must be done, the one making such discovery can give the other written notice that the matter must be put right within 30 days. If the matter is put right in that time, no further action will be taken. If it is not put right in that time, the person who made the discovery may end this agreement upon giving the other notice in writing.
- 12.5 This agreement will automatically (i.e. without us having to tell you) and immediately end without refund if you become bankrupt (or something similar happens) or your business is unable to pay its debts, stops trading or becomes insolvent (or something similar happens). In those circumstances, we will have no further obligation to you and any monies due from you will become immediately due and payable to us in full.
- 12.6 Where we suspend or terminate your access to your Accountant Edition in accordance with this agreement, we may at our discretion agree to reactivate your account subject to you paying to us a reactivation fee.
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
13. Anti-Bribery and Corruption
- 13.1 We do not tolerate bribery or corrupt practices and expect those we do business with to take the same stance. Accordingly you will:
- 13.1.1 Comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
- 13.1.2 Have and maintain in place throughout the term of this agreement your own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
- 13.1.3 Promptly report to us any request or demand for any undue financial or other advantage of any kind received by you in connection with the performance of this agreement;
- 13.1.4 Immediately notify us if a foreign public official becomes an officer or employee of your business or acquires a direct or indirect interest (and you wanted that no foreign public official is an officer, employee or direct or indirect owner of your business at the date of this agreement);
- 13.1.5 On request certify to us in writing your compliance with this clause and provide such supporting evidence of compliance as we may reasonably request.
- 13.2 Breach of this clause will be deemed a material breach of contract and will entitle us to terminate this agreement immediately without notice or further obligation to you.
- 13.3For the purpose of this clause, the meaning of “adequate procedures” and “foreign public official” will be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
14. What else do you need to know?
- 14.1 If a court or similar body decides that any wording in this agreement cannot be enforced, that decision will not affect the remainder of this agreement, which will remain binding on both parties. However, if the wording that cannot be enforced could be enforced if part of it is deleted, we will both treat the relevant part of the wording as if it is deleted.
- 14.2 If you or we fail to, or delay in, exercising any rights under this agreement, that will not mean that those rights cannot be exercised in the future.
- 14.3 This agreement and the documents we refer to herein constitute is the entire agreement between you and us for your participation in the programme and your use of the Accountants Edition, and replaces all documents, information and other communications (whether spoken or written) between us for such participation and use.
- 14.4 Both of us agree that we are independent contractors and neither of us will represent ourselves as agent, servant, franchisee, joint venturer or partner of, or endorsed by, the other. You do not have and will not hold yourself out as having any authority to accept any order on our behalf. You agree not to pledge our credit, receive any money or give any receipt on behalf of us or compromise any debt due to us, or incur any other liability or obligation, or make any promise or representation on behalf of us or claim to do any such thing.
- 14.5 This agreement is personal to you and may not be assigned, subcontracted, licensed (including sub-licensed), charged or otherwise dealt with or disposed of (whether in whole or in part) by you without our prior written consent. As an example, this means that if you sell the assets of your business, you cannot automatically transfer this agreement to the buyer.
- 14.6 A person who is not a party to this agreement has no right to enforce any term of it.
- 14.7 Where either party is required to notify the other party by email, the party will be deemed to have received the email on the first business day following transmission. Sage One
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
15. Which laws govern this agreement?
- 15.1 If you subscribe to the Accountant Edition in the United Kingdom, this agreement is governed by the laws of England and you and we both agree that the courts of England will be the only courts that can decide on legal disputes or claims about this agreement.
- 15.2 If you subscribe to the Accountant Edition in the Republic of Ireland, this agreement is governed by the laws of Ireland and you and we both agree that the courts of Ireland will be the only courts that can decide on legal disputes or claims about this agreement.
PART B – SAGE ONE TERMS AND CONDITIONS OF USE
1. What this agreement is about
- 1.2 If you are an accountant and have subscribed to the Sage Online Accounting Programme (“Sage Accountant”), this agreement describes how you and your own clients may use Sage One and this agreement applies in addition to the terms and conditions of the Sage Online Accounting Programme. If there is any difference between this agreement and the Sage Online Accounting Programme terms and conditions or (where appropriate) your Sage Accountants Club Membership Agreement, the terms of this agreement will take precedence in relation to your operation and use of Sage One.
- 1.3 In this agreement, where we say “Sage One” we mean all products comprising the payroll product family (“Payroll”) and all of the products comprising the Sage One accounting product family being Sage One Cashbook (“Cashbook”), Sage One Accounts (“Accounts”) and Sage One Accounts Extra (“Accounts Extra”). If you are using Accounts Extra, there are specific terms applicable to you and these are set out in clause 9 below.
2. Who this agreement is between
- 2.1 This agreement is between: you, the person or organisation authorised to use Sage One; and us, Sage (UK) Limited (company registration number 1045967, VAT number GB 555909605, registered office: North Park, Newcastle upon Tyne NE13 9AA, United Kingdom) if you subscribe to Sage One in the United Kingdom; or Sage Hibernia Limited trading as Sage Ireland (company registration number 300549, registered office: Unit 3096, Lake Drive, Citywest Business Park, Dublin 24) if you subscribe to Sage One in the Republic of Ireland.
- 2.2 By entering into this agreement, we both agree to be bound by and keep to it.
3. How you accept this agreement, and when this agreement starts
- 3.1 You accept every term and condition of this agreement, and this agreement starts from the earliest date you tick a box or click on a button (or something similar) when Sage One asks you to confirm that you accept this agreement.
- 3.2 This agreement will continue until terminated in accordance with clause 12.
- 3.3 If you don’t accept this agreement, you should contact us or your Sage Accountant immediately (where you have set up your Sage One account through your Sage Accountant and your Sage Accountant administers it for you) and you should not use Sage One.
4. Your rights to use Sage One and your obligations
- 4.1 If you accept this agreement and pay the relevant subscription fees (where applicable), we give you the right to use Sage One in the way described in this agreement. You must not use Sage One in any other way.
- 4.2 You must only use Sage One for your internal business purposes and only to input your own information into Sage One, unless you are a Sage Accountant. Sage Accountants may link to their clients’ Sage One services for the purposes of inputting, transferring and analysing data on behalf of such clients (where the client permits this) and for making the Sage One service available to them. You may also link with your Sage Accountant and share access with them to documents online in a secure environment (this functionality is known as “Collaborate”).
- 4.3 All rights of ownership of the information you or a Sage Accountant inputs into Sage One remain yours but your access to this information is dependent upon you complying with these terms and conditions and your applicable subscription fee being paid in full. We follow good industry practice to prevent data loss; however, you must keep copies of any information inputted into Sage One (or generated by it) as we cannot guarantee that your information will not be lost or Sage One
- 4.4 You should also be aware that if you upgrade from Cashbook or Accounts to Accounts Extra you will not be able to downgrade to Cashbook or Accounts. Therefore, a trial period is recommended using an alternative email address – please see clause 9 below.
- 4.5 You cannot transfer your Sage One subscription (or your use of Sage One for demonstration and evaluation purposes or any free trial, promotion or activation code) to any other person or organisation. For example, you cannot sell it if you no longer want to use Sage One, or if you become insolvent an insolvency practitioner may not pass on your Sage One subscription (including your sign-in information) as part of your business’s assets. Further information on this is set out in clause 17.4.
- 4.6 You must comply with all applicable laws and legislation in respect of your use of Sage One and for any filing, sharing or using the Collaborate functionality, you must ensure that the content of any files does not and will not result in any injury, damage or harm to us or any third party (including, without limitation, defamation or breach of confidentiality) and the content does not contain anything which is unlawful, obscene, indecent or immoral or promotes illegal or unlawful activities.
- 4.7 You acknowledge that we are not your accountant and Sage One should not be used as a substitute for professional accountancy advice.
- 4.8 Some features of Sage One rely on integration with other Sage products and services (such as Sage Pay) or provide access to technology, information or services not provided by us (such as the HM Revenue & Customs website even though it may look like Sage operates these technologies or services). You may purchase or subscribe to third party complimentary products, software or services (including from the Add-On section of the Sage One website) that integrate or work with Sage One or any other Sage products and services or technology, information or services not provided by us (“Additional Services”). It is your responsibility to decide whether or not to use Additional Services and if you choose to do so you must agree to the separate applicable terms and conditions presented to you by Sage or the third party for those Additional Services. If there is a conflict between any of the terms of this agreement and the Additional Services terms, the Additional Services terms will apply in relation to your use of the Additional Service in question. Except where clause 10.3 applies, we are not responsible for any issue with any third-party technology, information and/or services and will not be liable for those issues. We may withdraw access to such third party technology, information or services via Sage One at any time and without notifying you.
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
damaged and you should be aware that in the event of your Sage Accountant ceasing to administer your Sage One account, any documents stored using Collaborate will be destroyed.
5. Setting up a Sage One account directly with Sage
- 5.1 We will give you your sign-in details and passwords to enable you to use Sage One (the “sign-in information”) once you have registered with us. If you wish to redeem a promotion or activation code you must enter this as part of the registration process. You will need to activate your account within 28 days of receiving the activation email which we will send to the email address you have registered with us. Failure to activate your account may lead to an inability to access any data which may have been entered into that account.
- 5.2 You may elect to purchase Sage One without first taking out a free trial – details on how to buy now without a free trial and the applicable subscription fee are available on our Website, as we may amend from time to time without notice. Following registration we will send you an email confirming how to start using Sage One and/or the duration of any applicable free trial period (as the case may be). If you continue to use Sage One following your trial period (or if you have elected to purchase Sage One without taking out a free trial), you agree to pay the applicable subscription fee (plus any VAT or applicable sales tax) directly to us via the payment method specified during registration or via any different payment method which we may notify to you from time to time, until either you or we end this agreement in one of the ways set out in clause 12. If at any time we charge you an incorrect price, we reserve the right to rectify our invoice and claim payment from you for the correct amount which you agree to pay. If we have overcharged you, we will reimburse you for the amount by which you have been overcharged. If you fail to pay any amount payable by you under this agreement, we may charge you interest on the amount overdue from the due date of payment up to and including the date of actual payment (as well as before and after judgment), at the rate of 4% per annum above the base rate for the time being of Lloyds Bank plc if you subscribe to Sage One in the United Kingdom or The Bank of Ireland if you subscribe to Sage One in the Republic of Ireland. Such interest shall accrue on a daily basis and be compounded quarterly and you will pay the interest to us immediately upon demand.
- 5.3 We may increase the subscription fee for Sage One at any time by giving you not less than 30 days’ written notice and such an increase will take effect from your next payment date after this notice period has ended.
- 5.4 By using the functionality within Sage One you can grant your Sage Accountant access to your Sage One account provided that your Sage Accountant has subscribed to the Sage Online Accounting Programme. If you choose to do this, we cannot accept any liability for the actions of your Sage Accountant including, without limitation, their access to your Sage One account or the data contained within it. Except where your Sage Accountant has set up your Sage One
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
account (in which event, clause 6 shall apply), you can withdraw your Sage Accountant’s access to your Sage One account at any time.
6. Setting up a Sage One account through a Sage Accountant
- 6.1 If your Sage Accountant sets up your Sage One account for you it will automatically link your account to the Sage Accountant’s own Sage One account. If you pay your Sage Accountant and not us (until such time that we, and/or your Sage Accountant, notifies you to pay us directly) for your use of Sage One, your Sage Accountant will manage your Sage One account. As you cannot withdraw your Sage Accountant’s access to your Sage One account in these circumstances, you would need to request that your Sage Accountant withdraws their access to your Sage One account.
- 6.2 We cannot accept any liability which arises out of or in connection with any act, omission or other failure of your Sage Accountant including, without limitation, its access to your Sage One account.
7. Setting up a Sage One account through a Sage One Reseller
- 7.1 We promote Sage One through a number of resellers who may introduce you to or provide you with access to Sage One. Where a Sage One reseller provides you with a registration code, you should enter this code as part of the registration process when you sign up with us directly in accordance with clause 5.
- 7.2 Where you purchase Sage One through a Sage One reseller, the terms and conditions relating to the purchase of Sage One will be determined by the Sage One reseller. This agreement applies to your use of Sage One.
- 7.3 Resellers are not our agents and cannot bind us in any way. You should not rely on any representations, warranties, guarantees or other statements made by any third parties including our resellers regarding our products and services.
8. Use of Sage One
- 8.1 You are solely responsible for obtaining and maintaining your internet and network connections and any associated problems are your responsibility.
- 8.2 We will take reasonable steps to make sure that Sage One is free from viruses but we cannot guarantee this. We recommend that you use your own virus-protection software as we will not be responsible for any loss or damage caused by any viruses or other harmful technology that may infect your computer systems, data or other material owned by you.
- 8.3 We cannot guarantee that Sage One will be compatible with your web browser or computer set-up or that your access to Sage One will be uninterrupted or error free (this may be beyond our control).
- 8.4 You are responsible for controlling who can access your Sage One account. We advise that you don’t allow anyone else to use your sign in information and that you change your password at regular intervals.
- 8.5 From time to time we may temporarily suspend access to Sage One, for maintenance, repairs or other reasons. We will try to do this outside normal business hours and provide advance notice but this might not always be possible.
9. Special Terms for Accounts Extra
If you subscribe to Accounts Extra (including any applicable free trial period), the following terms and conditions shall apply to you.
Setting up Accounts Extra
- 9.1 When you register with us to use Accounts Extra, the first business you register will be known as the “Lead Business”. During this registration process, you will be registered with us as the “Subscriber User” for that Lead Business.
- 9.2 Accounts Extra allows you to add via your Sage One account additional businesses owned and controlled by you to Sage One so that those additional businesses may use Accounts Extra, subject to your payment of the applicable subscription fee (“Additional Business”). If you wish to add more Additional Businesses than is permitted by your Sage One account, you will need to contact us at firstname.lastname@example.org or 0845 111 6611 if you are calling from the United Kingdom, or 1890 812811 if you are calling from the Republic of Ireland. We will confirm the number of Additional Businesses you may add to your Sage One account and the applicable monthly subscription fee immediately payable for each Additional Business (such Additional Businesses do not qualify for a free trial).
- 9.3 The subscription fee payable for Accounts Extra for the Lead Business and for each Additional Business you add to your Sage One account is payable to us monthly in advance. You agree to set up a monthly direct debit for the Lead Business and for each Additional Business using Accounts Extra so that we will receive a separate payment from you in respect of the Lead Business and each Additional Business for their use of Accounts Extra.
- 9.4 If your Sage Accountant sets up and manages your Sage One account pursuant to clause 6.1 above, your Sage Accountant will not be able to add Additional Businesses to your Sage One account to use Accounts Extra. If you wish to add an Additional Business in these circumstances, please contact us as set out in clause 9.2 above.
- 9.5 For each Additional Business you will need to allocate a person who will be the system manager for that Additional Business (“System Manager”). The System Manager is responsible for allocating and managing the number of users for the Additional Business and may be the same person as the Subscriber User but need not be.
- 9.6 The number of users for a Lead Business and/or an Additional Business is subject to our discretion and we may reduce the number of users for a Lead Business and/or an Additional Business upon notice to you at any time.
- 9.7 You will at all times (and will procure that the System Manager and each user of Accounts Extra will) properly and fully comply with the terms and conditions of this agreement. Any act, omission or other failure on the part of the System Manager and/or any user of Accounts Extra will be deemed to be an act, omission or failure by you.
- 9.8 We may change how we provide support for Accounts Extra (and if any
applicable charges may become payable) by posting a notification on Sage One or emailing you
with details of the changes. We will aim to give you as much advance notice as possible of these
Trial Periods, Promotion/Activation Codes and Upgrading to Accounts Extra
- 9.9 If you have paid for Sage One upfront for a fixed term (including, without limitation, an annual licence) or are part way through a free trial period, promotion code or activation code and wish to upgrade to Accounts Extra, you will need to contact us so that we may advise you if your fixed term licence, free trial period, promotion code or activation code is transferrable. We will also advise you (via your Sage One account) of the amount and date when any subscription fees will start to become payable by you for Accounts Extra.
- 9.10 If you are considering an upgrade to Accounts Extra from either Cashbook or Accounts, or wish to use Accounts Extra for a free trial period (for your Lead Business) or would like to transfer a fixed term licence, redeem a valid promotion code or activation code, please contact us at email@example.com or 0845 111 6611 if you are calling from the United Kingdom or 1890 812811 if you are calling from the Republic of Ireland.
- 9.11 You may upgrade from Cashbook or Accounts to Accounts Extra by choosing the upgrade option via your Sage One account. You acknowledge and agree that if you upgrade to Accounts Extra in this way you may not be able to transfer your fixed term licence, free trial, promotion code or activation code which you are currently using as part of that upgrade. In these circumstances, you may also be charged a subscription fee for that upgrade. We recommend that you contact us in accordance with clause 9.10 above before you proceed with your upgrade to Accounts Extra so that we may discuss the options available with you.
- 9.12 You acknowledge that there are restrictions in relation to upgrading to and downgrading from Accounts Extra in that once you have upgraded to Accounts Extra from Cashbook or Accounts, you will not be able to downgrade to Cashbook or Accounts. Therefore, a trial period is recommended using an alternative email address as set out in clause 9.13 below. There are no such restrictions in place regarding Payroll and you can upgrade and downgrade within this product family without restriction (subject to your payment of any applicable subscription fees).
- 9.13 If you are an existing user of Cashbook or Accounts and wish to trial Accounts Extra, unless we advise you otherwise, you will need to set up a new email address for your use of Accounts Extra during the free trial period. You can revert to your original email address used for Cashbook or Accounts if you decide to upgrade to Accounts Extra following the expiry of the trial period. You can revert to your original email address and use of Cashbook or Accounts if you decide not to upgrade to Accounts Extra following the expiry of the trial period.
Using Accounts Extra
Sage Online Accounting Programme Terms and Conditions and Sage One Terms and Conditions of Use (Last updated: November 2014)
10. Restrictions on your use of Sage One
- 10.1 The following list gives examples of things you must not do with Sage One:
- 10.1.1 You must not introduce any viruses or harmful technology to Sage One;
- 10.1.2 You must not try to gain unauthorised access to Sage One or any underlying technology;
- 10.1.3 You must not try to affect the availability of Sage One to our users (sometimes called ‘a denial-of-service attack’);
- 10.1.4 unless you are a Sage Accountant or except as expressly permitted in this agreement, you must not give anyone else any right (of any kind) to use or benefit from Sage One in any way or provide Sage One to others. For example, you cannot use Sage One with someone else’s information to provide a service to them;
- 10.1.5 You may not use Sage One to help you develop your own software. For example, you must not use or copy all or any part of Sage One’s ‘graphical user interface’, ‘operating logic’ or ‘database structure’ for it to be part of, or to develop, any software or other product or technology, unless that use or copying is allowed by law.
- 10.2 It is impossible to provide an exhaustive list of exactly what constitutes acceptable and unacceptable use of Sage One. In general, we will not tolerate any use which damages or is likely to damage our business or reputation, the availability or integrity of Sage One or which causes us or threatens to cause us to incur any legal, tax or regulatory liability. We will also not tolerate any conduct by you with is (or we reasonably deem to be) offensive, malicious, threatening, intimidating or otherwise unacceptable behaviour (“Unacceptable Conduct”). If we consider you have participated in any Unacceptable Conduct, we may end this agreement by giving you 20 days’ notice in writing. In these circumstances you will not be entitled to a refund of any amounts you have paid to us in advance for your subscription period. Sage One
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
11. Your Information, Customer Data and Personal Data
Information you provide to us (this information excludes any data inputted by you or on your behalf into Sage One which we refer to in this agreement as “Customer Data”)
- 11.1.1 Provide, manage and administer your use of Sage One;
- 11.1.2 Fulfil our contractual obligations under this agreement;
- 11.1.3 Liaise with regulators, banks, law enforcement agencies (including the police);
- 11.1.4 Contact you to see if you would like to take part in our customer research;
- 11.1.5 Contact you about other products and services which we think you will be interested in;
- 11.1.6 Deliver targeted advertising, marketing (including in-product messaging) or information to you which may be useful to you, based on your use of Sage One; and
- 11.2 We may disclose information you provide to us (but not Customer Data) to other companies in the Sage group of companies, our contractors, and other organisations including, without limitation, we may disclose information to:
- 11.2.1 The Sage Group plc (which is our ultimate parent company);
- 11.2.2 Organisations which we use to help us send communications;
- 11.2.3 Organisations we use to help us provide the software or services (such as hosting providers, where relevant);
- 11.2.4Law enforcement agencies;
- 11.2.5 Third parties (if any) used by us to perform our obligations to you under this agreement; and
- 11.2.6 Any other person in order to meet any legal obligations on us, including statutory or regulatory reporting.
- 11.3 If you provide us with information which contains personal data we will process and you agree and authorise us to process that data in accordance with the Data Protection Act 1998 if you subscribe for Sage One in the United Kingdom or the Data Protection Acts 1988 and 2003 if you subscribe for Sage One in the Republic of Ireland (“Data Protection Laws”). Where we use the terms “personal data”, “data processor” and “data controller” in this agreement we mean as those terms are defined in the Data Protection Laws.
- 11.4 If at any time you do not want us to use your personal data in the
manner described at clause 11.1.4 (customer research), clause 11.1.5 (information about other
products or services) and/or you do not wish to receive targeted advertising or marketing,
please email us at
- 11.5 You own your Customer Data and you have sole responsibility for its legality, reliability, integrity, accuracy and quality.
- 11.6 To the extent personal data is included in any Customer Data we will process that data on your behalf as a data processor. We will only process such personal data in accordance with your instructions (and you hereby instruct us to take such steps in the processing of personal data on your behalf as are necessary for the provision of Sage One under this agreement and the performance of our obligations under this agreement).
- 11.7 We will use any Customer Data that you transfer to us pursuant to this agreement to:
- 11.7.1 Provide, manage and administer your use of Sage One;
- 11.7.2 Fulfil our contractual obligations under this agreement; and
- 11.7.3 Undertake internal testing of our system to test and improve the security, performance and provision of Sage One under this agreement. In these circumstances, we would anonymise all data (including Customer Data) used for such testing purposes.
- 11.8 You warrant and represent that:
- 11.8.1 You will comply with the Data Protection Laws;
- 11.8.2 You are authorised pursuant to the Data Protection Laws to disclose any personal data which you disclose or otherwise provide to us regarding persons other than yourself;
- 11.8.3 You will where required under the Data Protection Laws obtain all necessary consents in order for (i) you to disclose the personal data to us; (ii) us to process the personal data for the purposes of providing Sage One; (iii) us to disclose the personal data to those parties set out in clause 11.11 below including where the recipients of the personal data are outside the European Economic Area.
- 11.9 We warrant and represent that during the term of this agreement we will:
- 11.9.1 Comply with the Data Protection Laws applicable to us whilst such personal data are in our control;
- 11.9.2 (Having regard to the state of technological development and the cost of implementing any measures), take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data Sage One
- 11.9.3 Take reasonable steps to ensure the reliability of our employees who have access to any personal data.
- 11.10 You acknowledge and agree that for the purposes of providing Sage One under this agreement personal data may be transferred outside the European Economic Area.
- 11.11 We may, subject to clause 11.7, provide Customer Data that you transfer to us pursuant to this agreement to:
- 11.11.1 Our agents, service providers and other companies within the Sage group of companies;
- 11.11.2 Law enforcement agencies;
- 11.11.3 Any other person in order to meet any legal obligations on us, including statutory or regulatory reporting; and
- 11.11.4 Any other person who has a legal right to require disclosure of the information.
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
And against accidental loss or destruction of, or damage to, personal data, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected; and
12. Technical support and how we may access your Sage One account
- 12.1 During the period of your subscription, we aim to give you 24-hour technical support 7 days a week (although there may be times where we are unable to do this for reasons outside our control) covering problems you may have using Sage One. We may provide this by telephone, email, web-chat, remote assistance (where we will access your account and data online) or self-help online support as described in the Help Section of Sage One. You grant us the right to access your systems to provide such support (and, in the case of Accounts Extra, you shall ensure that we will have access to your systems for the Lead Business and each Additional Business using Accounts Extra so that we may provide you with support). If we do not have this access we may not be able to provide you with support.
- 12.2 We will not at any time give you technical support or other assistance for any hardware, third-party software, services or other equipment used with Sage One.
13. Intellectual Property Rights
- 13.1 Although you have rights to use Sage One as described in this agreement, you do not own any of the intellectual property rights in Sage One or any of its related logos. We (or the third party from whom we obtain our rights if we are not the owner) continue to own the intellectual property rights in Sage One and any related logos, including any software we provide to replace all or part of Sage One. The only rights you have to Sage One are as set out in this agreement.
- 13.2 You undertake not to use Sage’s name or brand in any promotion or marketing or other announcement.
14. Our promises relating to Sage One
- 14.1 Whilst we aim to provide uninterrupted use of Sage One, unfortunately we can’t guarantee this, for example, some interruptions may be caused by reasons outside our control and in such circumstances, we will not be responsible for any failure to perform our obligations in this agreement, and we will be excused from that failure for so long as those circumstances continue. Wherever possible, we will provide an advance warning notification on Sage One or by email of any known or planned interruptions and we will try to keep any interruption as brief as possible.
- 14.2 We do not promise:
- 14.2.1 That Sage One will meet your own needs;
- 14.2.2 That you will be able to use Sage One in any particular way;
- 14.2.3 That you will get particular outputs from Sage One;
- 14.2.4 The standard of the results you get from using Sage One; or
- 14.2.5 That, where you use our technical support services, we will be able to
fix your problem or remedy your issue.
The fact that you have told our representative about how you intend to use Sage One will not affect this clause as Sage One has been developed for many different types of users, and you are responsible for setting up and accessing Sage One so that you can use it in the way you need, and as best suits your circumstances.
- 14.3 We promise that we will use our reasonable skill and care to provide any service to you under this agreement.
- 14.4 This agreement describes all of our promises relating to Sage One. Unless this agreement says otherwise, we are not bound by any other contract terms, warranties or other type of promise. If, under any law, a particular term, warranty or other type of promise relating to Sage One would automatically be included in this agreement, we will only be bound by that term, warranty or promise to the extent prescribed by law.
15. Our liability and responsibility to you if something goes wrong
- 15.1 This clause 9.5 sets out our entire liability to you (including any Lead Business and/or Additional Business) which arises out of or in connection with this agreement whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise.
- 15.2 Subject to clauses 10.3 and 15.5, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising under or in connection with this agreement will be limited to paying you an amount Sage One
- 15.3 Subject to clauses 10.3 and 15.5, we will not be responsible whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for any of the following (even if we knew or should have known there was a possibility you could suffer or incur such loss or damage):
- 15.3.1 Loss of profit, business or revenue and/or depletion of goodwill or similar losses;
- 15.3.2 Loss of use or loss of or damage to data/information inputted by you into Sage One;
- 15.3.3 Any interruption to your business or damage to information, however that interruption or damage is caused;
- 15.3.4 Losses you suffer as a result of using Sage One other than as described in the relevant documents or instructions; and/or
- 15.3.5 Any loss or damage which we could not have reasonably known about at the time you entered into this agreement including, without limitation any special, indirect or consequential loss or damage.
- 15.4 Nothing in this agreement will exclude or limit our liability for:
- 15.4.1 Fraud;
- 15.4.2 Death of or personal injury to any person as a result of our negligence; or
- 15.4.3 Any other matter which cannot be excluded or limited under applicable law.
- 15.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent, permitted by law, excluded from this agreement.
- 15.6 Your and our responsibilities under this agreement are reasonable because they reflect that:
- 15.6.1 We cannot control how, and for what purposes, you use Sage One;
- 15.6.2 We have not developed Sage One specifically for you; and
- 15.6.3 Although we follow good industry practice, it is not economically possible for us to carry out all the tests necessary to make sure that Sage One is problem or error free.
Sage Online Accounting Programme Terms and Conditions
and Sage One Terms and Conditions of Use (Last updated: November 2014)
Which is equal to the total of all fees you have paid to us for your use of the relevant Sage One product during the 12 month period immediately preceding the date on which the claim arose (such relevant Sage One product being the product forming the subject matter of the claim).
16. How this agreement may be brought to an end and what happens on termination
- 16.1 We may end this agreement:
- 16.1.1 Immediately if we or your Sage Accountant (if appropriate) do not receive your subscription fee or any other fees due to us under this agreement by the relevant due date; or
- 16.1.2 At any time on giving you at least 30 days’ notice and if we do, we will refund to you any amounts you have paid in advance for the applicable subscription period calculated from the date of termination.
- 16.2 You may end this agreement at any time by sending us an email to firstname.lastname@example.org or by notifying your Sage Accountant (where your Sage Accountant has set up your Sage One account). In the case of Accounts Extra, the Subscriber User must send this email. If you end this agreement, we will confirm the date that this agreement will end. We will not give you a refund for any amounts you have paid in advance for the applicable subscription period, and you must immediately pay all amounts you owe to us (or your Sage Accountant (as the case may be)) by the date this agreement ends. If you continue to use Sage One after the expiry of any subscription period we will be entitled to charge you for such use at our then current applicable fees.
- 16.3 If you choose not to pay the subscription fee to continue to use Sage One at the end of any trial period your access to Sage One will immediately end.
- 16.4 If you or we discover that the other has done something which is not allowed by this agreement, or has not done something that must be done, the one making such discovery can give the other written notice that the matter must be put right within 30 days. If the matter is put right in that time, no further action will be taken. If it is not put right in that time, the person who made the discovery may end this agreement upon giving the other notice in writing.
- 16.5 This agreement will automatically (i.e. without us having to tell you) and immediately end without refund if you or your Sage Accountant become bankrupt (or something similar happens) or your business or that of your Sage Accountant is not able to pay its debts, stops trading or becomes insolvent (or something similar happens). In those circumstances we will have no further obligation to you under this agreement and any monies due from you will become immediately due and payable.
- 16.6 No matter how this agreement ends, the information you store in Sage One remains your information and you can access it in a format provided by Sage One before the end of this agreement. If you (or your Sage Accountant) wish to access your information after this agreement has ended, you agree to pay our reasonable charges for that access.
- 16.7 In addition to our rights to end this agreement, we may also suspend your use of Sage One at any time if we (or your Sage Accountant if applicable) do not receive payment in full when due or if we suspect that you or your Sage Accountant has breached any part of this agreement. If you are an Accounts Extra customer, we may suspend your use of Accounts Extra for the Lead Business and each Additional Business regardless of which business is in breach of this agreement and/or has defaulted in payment.
- 16.8 Any suspension of your Sage One account will continue until such time that the breach in question has been remedied to our reasonable satisfaction and/or we have received payment from you in full. Where we suspend or terminate your use of Sage One under this clause 12, we may at our discretion agree to reactivate your account subject to you paying to us a reactivation fee.
17. What else do you need to know?
- 17.1 If a court or similar body decides that any wording in this agreement cannot be enforced, that decision will not affect the rest of this agreement, which will remain binding on both parties. However, if the wording that cannot be enforced could be enforced if part of it is deleted, we will both treat the relevant part of the wording as if it is deleted.
- 17.2 If you or we fail to, or delay in, exercising any rights under this agreement, that will not mean that those rights cannot be exercised in the future.
- 17.3 This agreement and the documents we refer to above constitute the entire agreement between you and us for your use of Sage One, and replaces all documents, information and other communications (whether spoken or written) between us for such use.
- 17.4 As specified in clause 4.5, this agreement is personal to you and may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by you without our prior written consent. We may transfer, assign, subcontract, license, charge or otherwise deal with or dispose of (whether in whole or in part) this agreement at any time without your consent.
- 17.5 A person who is not a party to this agreement has no right to enforce any term of it.
- 17.6 Where either party is required to notify the other party by email, the party shall be deemed to have received the email on the first business day following transmission.
18. Which laws govern this agreement?
If you subscribe to Sage One in the United Kingdom, this agreement is governed by the laws of England and you and we both agree that the courts of England will be the only courts that can decide on legal disputes or claims about this agreement.
If you subscribe to Sage One in the Republic of Ireland this agreement is governed by the laws of Ireland and you and we both agree that the courts of Ireland will be the only courts that can decide on legal disputes or claims about this agreement.
What some words mean
So that we can be completely clear, here are some words we use which have specific meanings:
- “Account Holder” means a sole trader or company which has a FreeAgent account (generally this will be your business, or if you are an accountant, the business which you are advising);
- “FreeAgent account” means a current subscription to The Service;
- “Service Provider” means Smarta Enterprises Limited, a company incorporated in England and Wales with registration number 6643570, whose registered office is at No. 1 Croydon 7th Floor, 12-16 Addiscombe Road, Croydon, England, CR0 0XT and whose contact details are email@example.com;
- “The Service” means our FreeAgent software which is accessed and used via the Business Toolbox portal;
- “Us” “we” and “our” refers to Free Agent Central Limited, a company registered in Scotland with registered number SC316774 and having its registered office at 40 Torphichen Street, Edinburgh, EH3 8JB;
- “You” means you, the person who accesses and uses The Service; and
- “Your Data” means any data entered or uploaded by you while using The Service.
Creating and accessing a FreeAgent account
How to apply: In order to access and use The Service, a FreeAgent account must first be created. You can apply for a FreeAgent account to be created by submitting your details on the “sign up” page which is located on the Business Toolbox portal.
Formation of a contract: If we accept an application for the creation of a FreeAgent account, LBG or the Service Provider will confirm this by email and at that point a legally binding contract will be created between the Account Holder and us. If you apply for a FreeAgent account to be created, you must therefore ensure that you are authorised to enter into this contract for and on behalf of the Account Holder. The contract will be concluded in the English language and the provisions of these Terms of Service shall govern our agreement with the Account Holder and you. Although you are accessing The Service through the Business Toolbox portal, and you may have entered into terms and conditions with LBG and/or the Service Provider, this contract for use of The Service is with us and not with LBG or the Service Provider.
Errors in information you gave us: If you made any mistakes in the details you gave to us, LBG or the Service Provider when applying for a FreeAgent account, these errors can be corrected by accessing The Service and using the “edit” function on the “Company Details” or “People” pages.
Refusal to create an account: We, LBG and/or the Service Provider reserve the right, at our discretion, not to accept an application to create a FreeAgent account. This may be due to technical constraints, because you or your business has been banned by us from using The Service or for any other reason. No charge will be made by us for declined applications.
How to access the account: To use The Service you will need a username and password for the Business Toolbox Portal.
Once LBG has confirmed to you that you have a binding agreement with us, you will be able to access The Service by logging in to the Business Toolbox portal using the username and password that you have been provided.
If you have forgotten your username or password please contact LBG or use the "forgot my password" feature available on the Business Toolbox portal.
Third party applications: Third party applications may, with your permission, allow you to interact with The Service via the FreeAgent API. In order to allow API access to your FreeAgent account, please refer to the instructions here. Please note that:
- You should only enable API access if you have the permission of the Account Holder.
- By enabling API access to your FreeAgent account you agree to the FreeAgent API Terms on your own behalf and on behalf of the Account Holder.
- Any third party application which you use to access The Service has the ability to access your Data. Before using any third party application, you should carefully assess whether or not you are happy with the assurances provided by the developer regarding your privacy and security. You can disable API access to your FreeAgent account at any time by modifying your account preferences.
- We accept no responsibility for any loss suffered by you as a result of the use of any third party application to access The Service.
Your rights: If the business you represent (or which you are advising) is an Account Holder and you are authorised by it to use The Service, we grant you a non-transferable, non-exclusive licence to use The Service in accordance with these Terms of Service.
Conditions: The above licence is strictly subject to compliance with these Terms of Service by you (and by the Account Holder whose FreeAgent account you are accessing and by all other users of that FreeAgent account.) We will provide updates to The Service so far as such updates are permitted by LBG.
- Only access an Account Holder's FreeAgent account by using a password and username which that Account Holder authorises you to use; and
- Only use The Service on behalf of the Account Holder whose FreeAgent account you are accessing through the Business Toolbox portal and solely for money management purposes relating to that Account Holder's own business which are legal.
You must not:
- Do anything which could reasonably be expected to damage, disable, overburden, or materially impair The Service or our website generally or which is likely to interfere with any other party's use or enjoyment of The Service;
- Question or dispute our ownership of the intellectual property rights in The Service;
Security: The Account Holder is ultimately responsible for administering and safeguarding any passwords created to control access to its FreeAgent account: please keep any password issued to you secure.
Paying for The Service
You have purchased (or been granted free trial) access to The Service from LBG and/or the Service Provider. Unless otherwise notified to you by LBG and/or the Service Provider:
- Your subscription fee will be based on LBG’s and/or the Service Provider’s subscription rates as notified to you and as may be varied from time to time; and
- Shall be payable directly to LBG and/or the Service Provider as applicable.
We reserve the right to take the actions specified under “Non-payment” below in the event of
non-payment to LBG and/or the Service Provider.
You may also be required to accept terms and conditions by LBG and the Service Provider in order to purchase The Service from them, in which case:
- Your subscription fee will be based on LBG’s and/or the Service Provider’s subscription rates as notified to you and as may be varied from time to time;
- You must adhere fully to LBG’s and/or the Service Provider’s terms and conditions relating to your use of The Service in addition to these Terms of Service; and
- Breach by you of LBG’s and/or the Service Provider’s terms shall be deemed a breach of these Terms of Service.
Free trials and beta trials: No charge for use of The Service will be made during any ‘free trial' period or any ‘beta trial’ period. The Account Holder is not however entitled to benefit from more than one ‘free trial’ - if we discover that more than one ‘free trial' has been requested, we will notify LBG and/or the Service Provider and the Account Holder will become liable for payment of the subscription fee for all use of The Service made after the first ‘free trial' period to LBG and/or the Service Provider.
Automatic renewal: Once any ‘free trial’ or ‘beta trial’ period is over, the Account Holder's subscription will automatically renew and LBG and/or the Service Provider will bill the Account Holder every month using the credit or debit card details provided to LBG and/or the Service Provider, until the FreeAgent account is closed.
Non-payment: We shall be under no obligation to provide The Service if the subscription fee (plus VAT) is not paid to LBG and/or the Service Provider on time. The Account Holder must ensure that LBG and/or the Service Provider has complete and accurate billing and contact information throughout the subscription period, including the full name of the Account Holder, its business address, and a billing contact email address. If subscription fees become overdue, because for example the Account Holder's credit card has expired, we reserve the right to suspend your access to The Service until the balance is paid and we may close the Account Holder's FreeAgent account permanently.
Our VAT number is: 916 3863 08.
Term of The Service
Your access to The Service will be for such period as communicated to you in correspondence from LBG and/or the Service Provider if your application to open a FreeAgent account and use The Service is accepted and will be subject always to our and your rights to terminate access to The Service as set out below under “Closing a FreeAgent account”. The Account Holder's subscription will automatically renew on a monthly basis and LBG and/or the Service Provider will bill you every month in advance using the credit or debit card details provided to LBG and/or the Service Provider, until the FreeAgent account is closed.
Who owns what
Rights in our software: All copyright, database rights, trade marks and other intellectual property rights in The Service are either owned by or licensed to us and nothing in these Terms of Service shall transfer any ownership rights to you or to the Account Holder.
Third party features: All copyright, database rights, trade marks and other intellectual property rights in any external data sources or embedded third party services used in FreeAgent are the intellectual property of the relevant third party provider. Certain terms referred to in The Service are registered trade marks of third parties including, but not limited to, "Yodlee” which is a registered trade mark of Yodlee, Inc
If you encounter any problems or issues regarding your use of The Service you should contact LBG (firstname.lastname@example.org) who shall provide you with Level 1 support and assistance to help resolve your problem as more fully set out in LBG’s terms of service relating to the Business Toolbox.
Please ensure that you keep a backup of all the personal data, financial data and other information which you provide to us, as following termination we will no longer have access to this data or be able to provide you with a copy of it should you require it.
Closing a FreeAgent account
Cancellation by you: You can close the Account Holder’s FreeAgent account at any time by accessing The Service and using the “cancel my account” option on the “Billing” page. Notwithstanding that you may close your account at any time, when closing your account you should notify LBG and/or the Service Provider and cancel your subscription to The Service through the Business Toolbox. Before you close your account please ensure that you have a copy of all of the financial data, personal data and other information which you have provided to us, as following closure of your account we will no longer have access to this data or be able to provide you with a copy of it should you require it.
Suspension and closure by us: If you (or any other user of the Account Holder's FreeAgent account) fail to abide by these Terms of Service, or if payment of the subscription fees is not paid on time, we reserve the right to suspend your access to The Service or permanently cancel the Account Holder’s FreeAgent account. If we withdraw access to The Service because these Terms of Service have been breached, no refund will be payable by LBG, the Service Provider or by us.
We also reserve the right to close any FreeAgent account (including during any ‘free trial’ or ‘beta trial’ period) for any reason at any time without providing you with any notice in the event that our agreements with LBG and/or the Service Provider regarding the provision of The Services through the Business Toolbox are terminated or if LBG and/or the Service Provider instruct us to terminate these Terms of Service with you. In such circumstances, access to The Service may be continued until the expiration of the current period in respect of which your subscription fee has been paid. If your access to the Business Toolbox is terminated for any reason at any time, your FreeAgent account and your right to use The Service shall automatically terminate. For more information please contact LBG (email@example.com).
IMPORTANT: This section restricts the extent to which we are liable for any losses which may be suffered in connection with your use of The Service. It also requires the Account Holder to compensate us for any loss we suffer as a result of your failure to comply with these Terms of Service.
No guarantees: We make no guarantee that The Service will be suitable for your intended use, neither do we guarantee that it will be error-free, timely, reliable, entirely secure, virus-free or available, especially since we are dependent on the reliability of the Internet and your use of your own computer to access The Service. We will try to keep disruptions to a minimum but we may suspend The Service from time to time to carry out maintenance and support work and to investigate unauthorised use. The Service is not a substitute for a professional accountant and any information presented does not constitute accounting advice.
Exclusion of our liability: You use The Service entirely at your own risk. We do not restrict our liability (if any) for personal injury or death resulting from our negligence, for fraud committed by us or for any matter which it would be illegal to limit or to attempt to restrict. We exclude all other liability and responsibility for any amount or kind of loss or damage arising in connection with The Service (even if we have been advised of their possibility).
Limitation of our liability: Where we are not legally entitled to exclude our liability, our total liability for any loss or damage relating to The Service (or to our website generally) shall not exceed an amount equal to the subscription fees which the Account Holder has paid to LBG and/or the Service Provider in the previous month.
Liability to us: If you access The Service using a password created to control access to the Account Holder's FreeAgent account, then the Account Holder shall be held liable for any reasonable costs and expenses incurred by us as a result of breach of these Terms of Service by you. Otherwise, you shall personally be held liable for any reasonable costs and expenses incurred by us as a result of breach of these Terms of Service by you.
General legal matters
Third party features: In order to use certain optional features of The Service which relies on external data sources or embedded third party services you will be required to accept the terms and conditions of the relevant third party provider. These will be notified to you within The Service at the point of first use of the relevant feature and thereafter where those terms are subsequently updated from time to time, but currently include automated access to bank transaction data for supported banks via the Yodlee bank feed service.
Maintaining your privacy is really, really important to us. You entrust us with sensitive financial information, and we take that responsibility seriously.
All of the data which you provide to us, and/or which is provided to us by Lloyds Bank plc, a company registered in England with registration number 00002065 and whose registered office is at 25 Gresham Street, London, EC2V 7HN (“LBG”) and Smarta Enterprises Limited, a company incorporated in England and Wales with registration number 6643570, whose registered office is at No. 1 Croydon 7th Floor, 12-16 Addiscombe Road, Croydon, England, CR0 0XT (the “Service Provider”) and/or which we collect from you in relation to your use of The Service is being collected, and shall be processed, in accordance with the instructions of LBG. LBG is the “data controller” in respect of your personal data for the purposes of the Data Protection Act 1998 (the “Act”) and we are the “data processor”. We have been instructed by LBG to collect and process your personal data to enable you to use, and benefit from, The Service only.
When we say your “personal data” we mean any information that identifies any person that you provide to us during your trial period, after you subscribe, or contained in any other information that you provide to us. Your “personal data” may also be contained in information that we collect about you in connection with your use of The Service. The financial data that you enter into The Service isn’t part of the “personal data” discussed here, unless it identifies a person – for more information about your financial data, jump ahead to the next section. When it comes to your personal data, we process this at all times in compliance with the Act.
Information you provide – Your personal data includes the information you provide when you sign up for a FreeAgent account, include in your account profile, or during a support enquiry which we receive about you and/or your organisation.
Examples of this personal data include your name, your email address, contact and/or employee names; and any correspondence when you contact us.
Information we collect – On behalf of LBG (the data controller) and in order to provide you with access to and use of The Service, we collect and process information about your use of The Service to help us improve our service and to understand trends. Some of this data may be personal data, where it identifies a person. Here’s the information that we collect and process on behalf of LBG (the data controller) in order to provide you with access to and use of The Service and how we use it:
- We monitor patterns of usage, such as login dates and volumes of data, so we can understand how people are using The Service to develop and improve our products; and
- For security reasons and to aid in monitoring patterns of usage, we log your IP address when you use The Service. This is your computer's individual identification number that is assigned to your computer when connected to the Internet.
Financial Data - it's yours, you own and control it.
In addition to your personal data, we will also hold financial data that you enter into The Service. Examples of your financial data include your organisation’s invoices, expenses, and bank transactions.
You own all of the financial data you enter or upload into The Service, and have ultimate control over who has access to it. For example, if you want to give your accountant access to your financial data, you can switch on their access in The Service. Keep in mind, however, that with great power comes great responsibility -- it is your job to safeguard your password and account access.
How we use your personal data & financial data.
This section details how we use your personal data and your financial data.
Providing The Service - We use your personal data to enable us to provide you with access to The Service. It will also enable us to contact you by email, fax, post, SMS, social media or telephone where necessary concerning your use of The Service. Should you choose to use parts of The Service that involve you providing your personal and/or financial data to third parties (for example, if you choose to give your accountant access to your data), then your personal and/or financial data will be shared in that way. We may use third parties to assist us in providing The Service from time to time, and in those cases may pass on your personal and/or financial data to them. In such cases we will only share your data with third parties that we trust, and where there are assurances in place as to how they will protect the data. Additionally, we may permit third parties to access your personal and/or financial data as part of an audit of our systems to be conducted by or on behalf of LBG in relation to the Business Toolbox.
Improving The Service - We will also use and analyse your financial data so that we can administer, support, improve and develop our customer service and the features of The Service. We may use third parties to assist us in doing these things from time to time, and in those cases may pass on your financial data to them. We will only share your data with third parties that we trust, and where there are assurances in place as to how they will protect the data.
Providing Insights - We monitor anonymous, aggregated information about account and financial data so that we can produce insights about small businesses finance. For example, based on an anonymous, aggregate data analysis, we may produce a white paper that reports how most small businesses are not paid on time. We may share these insights with customers, on our blog or other promotional material, use them internally to improve our product and communications, or share with other interested third parties. Just to be clear - we will never identify you or your business in such communications or white papers, and will never report data in such a way that your business could be identified.
Making Contact - We may use your personal data to contact you by email, fax, post, SMS, social media and/or telephone to notify you about important changes or developments to The Service as used by you. By using The Service you are consenting to this use of your data. If you change your mind about being contacted in the future, that's no problem – just contact us using the details below.
You can export your financial data anytime.
You can export a copy of your financial data as an Excel file whenever you like - this will include
your financial transactions, invoices, and expenses (without any uploaded receipts). We recommend
that you use the export functionality to keep a backup of your financial data. While we regularly
back up your financial data (see our security section), we can’t restore backups on an individual
basis. Read here for
about how to export your FreeAgent data.
You can also ask us for a copy of your personal data that we hold (see “Your Rights” below).
You can delete your financial data at any time.
You have the option to delete all of your financial data at any time, using the “Delete all data” option in the settings area of The Service. You can use this option before cancelling your account, or to reset The Service after loading test data during your free trial. After you delete your financial data, we may not immediately delete residual copies from our active servers and may not remove information from our backup systems. Please see below for information on how your personal data and financial data are dealt with once your access to The Service ceases for any reason.
We highly recommend that you export and backup your financial data before cancelling, since many countries (including the UK) require you retain your business records going back many years, even if you have finished trading.
We also recommend that you keep a backup of all of the financial and personal data which you provide to us as following termination we will no longer be able to access and use such information as its use is controlled by LBG (the data controller). For more information, see "Termination of your subscription" below.
If your free trial expires, it is not automatically cancelled within our system. We will retain historical details about your payments to us for accounting purposes, because we need to do so by law.
We don't store your credit card details.
Once your free trial is over, you need to provide payment details to LBG to start your subscription and continue using The Service. You should contact LBG (firstname.lastname@example.org) who is providing you access to The Service through the Business Toolbox portal for more information on how LBG process your subscription fees.
You control sharing of personal data & financial data.
When you sign up for, and/or use The Service, you authorise us to share your data (personal data and financial data) with others in certain circumstances (for the avoidance of doubt, we may share your personal data with LBG (the data controller) for any reason and at any time):
- We may disclose your data to any member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries for purposes directly related to your use of The Service;
- We may also pass aggregate information on the usage of The Service, to maintain, improve and manage The Service, but this will not include your personal data;
- We may share your data with partners who help us carry out our day-to-day provision of The Service, or who help us improve The Service. Examples of these functions include e-mail, data analysis, handling credit card transactions, fulfilling orders and providing customer service. In these circumstances we will make sure that these partners have the right measures in place to protect your data;
- Finally, we reserve the right to cooperate with law enforcement officials in the investigation of alleged unlawful activities of users of The Service. We will have no legal liability for such disclosures of your information.
The Service may, from time-to-time, contain links to and from the websites of our partner networks, advertisers and affiliates. If you follow a link to any of these websites or services, please note that they have their own privacy policies and that we do not accept any responsibility or liability for these policies. Please check these policies before you submit any data to these websites.
Your Data's Security
When you use The Service, you will enter information about your bank account(s) such as the sort code and account number. You'll also upload or automatically import electronic bank statements, or manually enter transaction data. We use this financial data to calculate your business accounts and tax liabilities. We are very aware that this information is sensitive and we are very careful about how we store it.
We partner with secure sites
All data you provide to us is stored securely on our servers. Where we pass your data to third parties, we do so over a secure connection.
Where we have given you (or where you have chosen) a password which enables you to access The Service, you are responsible for keeping this password confidential. We ask you not to share a password with anyone.
Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect your data, we cannot guarantee the security of your data transmitted through The Service; any transmission is at your own risk. Once we have received your data, we will use strict procedures and security features to try to prevent unauthorised access.
- You have the right to request a copy of personal data we hold about you. To do this, simply write to us or send us an email – just use the contact details below. We may charge you £10 for providing this information to cover our administration costs.
- To provide the highest level of customer service we need accurate customer information. You can help by informing us whenever your circumstances change. You can ask us to correct incorrect personal data about you by writing to or emailing us at email@example.com.
- You can find detailed information about your rights under UK Data Protection legislation on the UK Information Commissioner's website at www.ico.gov.uk.
Termination of your subscription
In the event of your subscription and/or access to The Service terminating for any reason whatsoever we shall no longer process any of your personal data or financial data. Unless required to do so by law, we shall not retain any of your personal or financial data. We may provide a copy of your personal data and financial data to LBG following termination.
If you decide to use The Service in the future out with the Business Toolbox platform, you will be required to provide us with your personal data and financial data in the same manner as a new customer. This will be necessary as we will not retain any of your data other than as required by law, and we will not use any data which is retained for this reason to provide any services to you.
Please ensure that you keep a backup of the personal data and financial data which you provide us as following termination we will no longer have access to this or be able to provide you with a copy of it should you require it.
Terms and Conditions
End User Licence Agreement
(This document is included in the installation portion of the MozyPro software. It is posted here for Distributors reference.)
Mozy International Licence and Service Agreement
This agreement (the "Agreement") is a legal agreement between you, either an individual or a single legal entity ("You" or "you"), and Mozy International Limited, an Irish company with its registered address at 70 Sir Rogerson’s Quay, Dublin 2, Ireland ("Mozy"). This Agreement governs your use of the MozyPro Backup Client software distributed with this Agreement, including any updates that may be provided to you and any accompanying written documentation (the "Software") and the MozyPro backup service ("Service").
Although Mozy may, in its sole discretion, update and maintain the Software, it is under no obligation to do so other than as expressly provided in this Agreement.
PRIVACY AND COMMUNICATIONS
ACCOUNTS, PASSWORDS, AND SECURITY
You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your data. You must notify Mozy immediately of any unauthorized use of your account or any other breach of security regarding the Service or the Website that comes to your attention. If Mozy concludes that there has been or is likely to be a breach of username or password security Mozy may (at its sole discretion):
(a) Suspend your username(s) and passwords; and
(b) Require you to change any or all of the username(s) and/or password(s) you use in connection with the Service.
When you use the Mozy website (located at [https://mozy.com]) (the “Website”) to request provision of the Service, this is an offer by you to pay Mozy to provide the Service to you. Your offer is subject to Mozy’s acceptance. Mozy’s acceptance of your offer and the contract between us for the provision of, and payment for, the Service will be formed only when the applicable initial payment for the Service has been successfully processed. You agree that as soon as your payment has been successfully processed we will commence making the Service available to you.
The fees payable for the Service are as set out on the Website at [ https://mozy.com/registration/unlimited] at the time Mozy enters into this Agreement, and may be modified in accordance with its terms. While Mozy tries hard to ensure that all prices displayed on the Website are correct and up to date at the time you request the Service, it is possible that an occasional mistake may be made. Mozy may refuse any order or cancel any contract between us in respect of the Service and/or your access to any data, information, material, software or any other item or service which has been obviously incorrectly priced or where some other clear error has been made. All prices are inclusive of all sales and other taxes unless otherwise stated.
You must make the appropriate payment by credit [or debit] card or other payment mechanism approved by Mozy and made available through the Website and provide Mozy and/or our payment service providers with the necessary information for your payment to be processed. You confirm that the payment card or account used by you is yours or that you are authorized to use such card or account and there are sufficient funds or credit facilities to cover the payment.
You will be given the opportunity to correct any input errors in your payment details prior to completing your purchase request.
You may not be able to access or use the Service and/or the Software or other items or services, and orders for items or services made available through the Website may not be processed, until Mozy has completed any validation checks described below and Mozy has received payment in full. Additional provisions regarding payment and your rights to any refund are set out in our Payment and Refund Policy, which is available at [ http://mozy.com/payments_and_refunds] as such policy may be modified and/or updated by Mozy from time to time.
All credit[/debit/charge] card and other payment service transactions may be subject to validation checks and authorization by the relevant card and service providers. If your card issuer/payment service provider refuses to authorize payment to Mozy, we will not be liable for any delay or non-acceptance of orders made by you through the Website.
We reserve the right to require proof of identification and age before processing any order made through the Website.
ACCEPTABLE USE AND CONDUCT
You are responsible for your, your company’s and/or your customers’ conduct, use of the Service and the consequences of any failure by you to comply with the terms and conditions of this Agreement. The Software and Service are made available to you, your company, and/or your customers for use in compliance with all applicable laws, rules and regulations. Such use must not infringe or violate third party rights.
Without prejudice to the generality of the above, you, your company and/or your customers may not:
(a) Use the Software or Service to upload, store or transmit files that:
(i) Infringe the intellectual property or other rights of third parties (for example, illegal copies of music tracks, TV programming and / or movies);
(ii) Contain any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, racially, ethnically or otherwise objectionable material of any kind;
(iii) Contain viruses, "Trojan Horses", worms, cancelbots, corrupted files or other such similarly destructive features;
(b) Otherwise in any way damage, disable or impair the operation of the Software or the Service, or attempt to do any of the same; or
(c) Gain or attempt to gain unauthorized access to the Software or Service, or to networks connected to it, or to content stored or delivered through it, by any means, including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures. Any unauthorized use of any Mozy computer system is a violation of this Agreement and applicable laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.
CONSENT TO COLLECT PERSONAL DATA, NON-PERSONALLY IDENTIFIABLE STATISTICAL INFORMATION AND PERFORMANCE METRICS; USE AND DELETION OF DATA
When you use the Software and/or Service we may request and/or you may provide certain personal data.
The Software and Service may also collect certain technical and statistical non-personally identifiable information that resides on your computer, including, without limitation, statistics relating to how often backups are started and completed, performance metrics relating to the Software, and configuration settings.
When your account is terminated for any reason or you delete a particular device or machine associated with your account, you agree that we may delete any data that you have stored, which is associated with the relevant account and/or machine.
CHANGES TO THE SERVICE AND TERMS AND CONDITIONS
Mozy reserves the right at any time to modify, suspend, or discontinue providing the Service or any part thereof in its sole discretion with or without notice.
Mozy will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Service either by sending an email to the email address you provide with your registration or by a posting on the Mozy.com website. However, in no event will Mozy be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.
Mozy reserves the right at any time to modify this Agreement in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon acceptance of registration for new users and effective for all existing users 15 days after the posting of any amended terms on the Mozy.com website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to this Agreement, you must terminate your account immediately.
Please review the most current version of this Agreement from time to time, located at https://mozy.com/mozy/terms?product=pro (or such successor URL as Mozy may provide), so that you will be apprised of any changes.
USE OF SOFTWARE
Subject to the terms and conditions of this Agreement, Mozy grants you a non-exclusive, licence for the term of this Agreement to install and execute copies of the Software (in executable code form only) on your own, your company's and/or your customers' computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party licence terms accompanying such code, and not the terms of this Section, will govern your use of such code.
Any sublicences granted to your company and/or your customers must be on substantially similar terms to this Agreement save that any such sublicence must be non-transferable and non-sublicensable.
The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Mozy and its licensors, and accordingly you agree not to (and agree not to allow third parties to) (1) sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party who is not your customer, (2) modify, adapt, translate, or prepare derivative works from the Software or Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service except that you may decompile the Software only to the extent permitted by law where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with the Software or with another program and such information is not readily available from Mozy or elsewhere, (4) extract portions of the Software's files for use in other applications, or (5) remove, obscure, or alter Mozy's or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.
You acknowledge that Mozy or third parties own all right, title and interest in and to the Software and Service, portions thereof, or software or content provided through or in conjunction with the Software or Service, including without limitation all intellectual property rights. Except for the licence granted in this Section, all rights in and to the Software and Service are reserved, and no implied licenses are granted by Mozy.
If you have comments on the Software or Service or ideas on how to improve them, please visit http://mozy.com/feedback.html. Please note that by doing so, you also grant Mozy a perpetual, royalty-free, irrevocable, transferable licence, with right of sublicense, to use and incorporate your ideas or comments into the Software or Service (or third party software, content, or services), and to otherwise exploit your ideas and comments, in each case without compensation.
TERM AND TERMINATION
This Agreement becomes effective when Mozy has successfully processed your payment. In such circumstances, and because we will make the Service available to you from this time, any potentially applicable statutory right to cancel this Agreement shall not apply. However, you may terminate this Agreement at any time by destroying the Software and closing your account by following the instructions on the Mozy.com website.
This Agreement remains in effect until your account is terminated.
If you are a paying user of the Service, Mozy may terminate your account after e-mail notification if you have failed to make payment in full for 3 consecutive months.
Mozy reserves the right to terminate this Agreement if you fail to comply with its terms and conditions and/or to refuse or discontinue participation of any user at any time at its sole discretion.
You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Service will immediately terminate.
Upon termination of this Agreement, for whatever reason, you may be entitled to a pro rata refund of any prepaid payment that relates to the period after the date of termination in accordance with the Payment and Refund Policy http://mozy.com/about/legal/payments_and_refunds .
The terms of the Sections entitled Consent to Collect Statistical Information and Performance Metrics; Use and Deletion of Data, Intellectual Property, Warranties, Indemnities and Disclaimers, Limitation of Liability, and Miscellaneous will survive expiration or termination.
If this Agreement terminates, other than for your failure to comply, Mozy will use commercially reasonable efforts to make your Data available for you to download for a period of three (3) days. Mozy has no obligation to provide you with a copy of your Data and may remove and discard any Data.
WARRANTIES, INDEMNITIES AND DISCLAIMERS
Nothing in these terms and conditions excludes, restricts or affects your statutory rights.
The Service will be provided to you with reasonable skill and care. In this context, you specifically acknowledge and accept that the Service, as with other internet applications, is not capable of being 100% secure and Mozy does not guarantee the prevention or detection of any unauthorized attempts to access your data through the Service, the Website and/or our other systems and services.
Mozy also cannot be held responsible for any loss or corruption of data or any unauthorized access of such data that takes place over third party systems and services used by you to transmit the data to or retrieve the data from Mozy. It is also entirely your responsibility to protect your computer from computer viruses by installing and updating adequate anti-virus software.
Without prejudice to any other provision of this agreement, if a failure with the Website, the Software, the Service, and other content, information, material, software or other items or services made available or provided by Mozy through the website or the service (“Other Materials”) materially or permanently prevents you from accessing or retrieving any data that you have stored through the Service, then Mozy shall, at our option either (a) resolve the issue or (b) refund to you that proportion of the price you paid for the Service which is reasonably attributable to the data in question, taking into account its size relative to the total volume of data stored by you during the term of this agreement. To the maximum extent permitted under applicable law, such resolution or refund is Mozy’s entire liability and your exclusive remedy relating to any such failure.
TO THE FULLEST EXTENT PERMITTED BY LAW, MOZY AND ANY THIRD PARTY SOFTWARE AND SERVICE SUPPLIERS, EXCLUDE ALL OTHER EXPRESS OR IMPLIED TERMS AND CONDITIONS, CONDITIONS, WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH REGARD TO THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS INCLUDING WITHOUT LIMITATION THOSE AS TO SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES OR OTHER TERMS REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES.
MOZY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE ILLEGAL, INCORRECT OR INAPPROPRIATE USE OF THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS BY YOU OR ANYONE ELSE USING YOUR ACCOUNT.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL MOZY, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MOZY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
WITHOUT LIMITING THE FOREGOING, SAVE IN THE CASE OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, OR WHERE WE HAVE ACTED FRAUDULENTLY, THE TOTAL AGGREGATE LIABILITY OF MOZY, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO MOZY FOR THE SOFTWARE OR SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND YOU AGREE THAT MOZY WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
Your ability to use the Website, the Software and/or the Service will depend on your geographical location, and whether you have appropriate technical equipment, including connectivity and bandwidth, available to you to download software and use the Service properly, as well as other factors. [Please see our Help page for further details http://support.toolbox.lloydsbank.com/.] We recommend that you check, and you are responsible for checking, that you have all necessary equipment, internet connectivity and systems properly to download the Software and use the Website, the Software and/or the Service.
You acknowledge and agree that the Software which is the subject of this Agreement may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. If you are located in a country subject to embargo by the United States government, you are not entitled to use the Software or Service.
This agreement will be governed by and construed in accordance with the laws of England, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
The failure of Mozy to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
All disputes arising out of this Agreement will be subject to English law, and the parties agree and submit to the personal and exclusive jurisdiction and venue of the English courts, except that nothing will prohibit Mozy from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights.
You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Mozy. Mozy may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning.
GENERAL TERMS AND CONDITIONS FOR j2 GLOBAL IRELAND LIMITED (TRADING AS FUSEMAIL® ) (“FUSEMAIL”)
These General Terms and Conditions (“Agreement”) are effective on June 30, 2014, for each Customer and User.
In this Agreement, unless the context clearly requires otherwise, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement (including the Cover Page and Schedules which are provided to Customer via mail, email or fax):
- “Acceptable Use Policy” means FUSEMAIL’s Acceptable Use Policy, as amended from time to time by FUSEMAIL in its sole discretion.
- “Account” means a discrete email address that is or may be used by a single User.
- “Cover Page” means the page entitled Corporate Services Agreement which is signed by the Customer and governs the delivery of the Services.
- “Customer Data” means electronic mail, messages, and other data and information accessible, communicated, obtained, received or transmitted by Customer or Users through or using the Services.
- “Effective Date” means the date the Customer signs up for FUSEMAIL Services as specified on the Cover Page.
- “Fees” means Initial Fees, Monthly Fees, Termination Fees, and the fees to be paid by Customer for Additional Services.
- “Initial Fees” means the fees and expenses payable by Customer to FUSEMAIL for initial setup and installation services as indicated in Schedule A.
- “Monthly Fees” means monthly fees and expenses payable by Customer to FUSEMAIL for the Services Customer chose as indicated in Schedule A and/or the Cover Page.
- “Primary Services” means the services Customer signed up for to be provided by FUSEMAIL to Customer as described in the Schedule A.
- “Schedule” or “Schedules” means the online description of services which Customer signed up for to be provided by FUSEMAIL, including this Agreement, Schedule B.
- “Services” means Primary Services, technical support and additional services.
- “Term” has the meaning specified in paragraph 11.1.
- “Users” means an individual employee or representative of Customer, either at the Effective Date or at any time thereafter, who uses the Services for Customer’s business purposes.
The headings in this Agreement are for reference only and do not impact the meaning of this Agreement or any of its provisions.
3.1 Primary Services.
FUSEMAIL will provide Customer the Primary Services indicated on the Cover Page and as described in the applicable Schedules.
3.2 Technical Support.
FUSEMAIL will use commercially reasonable efforts to make available and provide technical support to Customer. FUSEMAIL will provide technical support only to Customer’s Mail Administrator, as defined in Section 5.3. Initial requests for technical support may be made by telephone, facsimile or email using the Technical Support contact information indicated from time to time on FUSEMAIL’s website www.fusemail.com. Technical support is subject to the limitation that not all technical problems can or will be corrected or resolved. Technical support is generally provided for no additional fee or charge, except if FUSEMAIL determines that the technical problem is not caused by FUSEMAIL’s software or systems.
4.1 Fees and Taxes.
As payment for the Services, Customer will pay the Fees to FUSEMAIL. Fees are exclusive of taxes, which are the sole responsibility of Customer. Taxes include but are not limited to national, state, provincial, municipal or any other governmental tax, fee or assessment. Following the Initial Term or the then current Renewal Term, as the case may be, FUSEMAIL reserves its right to increase Fees in its absolute sole discretion upon fifteen (15) days prior notice to Customer.
Monthly Fees are calculated on the basis of the number of Users declared or created by the Customer, or otherwise identified, at the start of each month with additional per User fees being billed when new Users are added by the Customer during the billing period. It is the Customer’s responsibility, as stated in section 5.4 to bring changes in the number of Users to the attention of FUSEMAIL without undue delay.
4.3 Invoices and Payment.
FUSEMAIL will invoice Customer for all Fees. Invoices may be delivered to Customer by email to the Customer Representative’s email address, and are due and payable immediately upon receipt by Customer. In order to avoid interruptions in the Services caused by rejected credit or debit card charges, FUSEMAIL reserves the right to update Customer’s credit or debit card details (such as expiration dates or new card numbers) where this is not prohibited by law. Customer understands and agrees that FUSEMAIL is entitled to obtain such updated card details, store them and use them to bill charges.
Payment will be overdue if not paid within ten (10) days of the date of the applicable invoice. Overdue payments will be subject to interest of one and one-half percent (1½%) for each month (18% per annum) or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law. Customer will reimburse FUSEMAIL for all costs incurred in collecting overdue payments, including all of FUSEMAIL’s legal fees, disbursements and expenses.
5. CUSTOMER OBLIGATIONS
5.1 Equipment and Services.
Customer is solely responsible for obtaining, provisioning, configuring, maintaining and paying for all equipment (including without limitation computer hardware, software and telephone lines) and services necessary for Customer and Users to access and use the Services.
5.2 Customer Representative.
Customer will designate from time to time an individual (the “Customer Representative”) who will act as its primary contact regarding the performance of this Agreement. The current Customer Representative is identified on the Cover Page. Customer may change the Customer Representative from time to time upon written notice to FUSEMAIL.
5.3 Customer’s Email Administrator.
Customer will designate one (1) User as its mail administrator (the “Mail Administrator”) who is responsible for Customer’s technical installation and use of the Services and is authorized by Customer to request and receive from FUSEMAIL technical support regarding Services. Customer may change the Mail Administrator from time to time upon written notice to FUSEMAIL. Customer will ensure that the Mail Administrator has suitable qualifications and expertise regarding computer software and electronic mail systems.
5.4 Permitted Users.
Customer will restrict access to and use of the Services to its Users, and at all times maintain a record of the number of Users in order to disclose same in accordance with section 4.2. Customer may not assign, sublicense or re-sell access to or use of the Services or any portion thereof.
5.5 Acceptable Use.
Customer is solely responsible and liable for Customer’s and Users’ use of the Services and any and all acts and omissions by Customer and Users. Customer will ensure that all use of the Services by Customer and Users complies with all applicable laws, this Agreement and the Acceptable Use Policy, and does not infringe third party rights.
5.6 Security and Passwords.
Customer and its Users are required to use a user name and password. User names and passwords may not be shared with other persons. Customer is solely responsible for all Users’ use and misuse of user names and passwords. Customer must immediately notify FUSEMAIL if Customer discovers or suspects any unauthorized use of the Services or that any of its Users’ user names or passwords have been lost or stolen or become known to any unauthorized person. FUSEMAIL is not obligated to verify the actual identity or authority of the user of a user name or password. If FUSEMAIL, in its absolute discretion, considers a password to be insecure or to have been used inappropriately, then FUSEMAIL may immediately cancel the password without notice.
5.7 Content and Export Laws.
Customer is solely responsible and liable for the content of communications sent or received by Customer and Users using the Services. Customer will comply with and ensure that its Users comply with all applicable Canadian, US, EU and other export laws concerning the transmission of technical data and other regulated materials using the Services.
5.8 Customer Information and Assistance.
Customer will promptly provide to FUSEMAIL all information requested by FUSEMAIL regarding performance of the Services or to verify the number of Accounts. Customer will reasonably assist FUSEMAIL to provide the Services and will perform such tasks as FUSEMAIL may reasonably request, such as recording error information and installing software updates.
6. CONFIDENTIAL INFORMATION
“Confidential Information” means all non-public information, in any form and on any medium, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under this Agreement, regardless of the form of disclosure, and includes without limitation and without the need to designate as confidential: (a) Customer Data (which is Customer’s Confidential Information); and (b) FUSEMAIL’s computer software, technologies, and related documents and information (which is FUSEMAIL’s Confidential Information); BUT DOES NOT INCLUDE any information to the extent, but only to the extent, that such information is: (a) already known to or in the possession of the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) subsequently learned by the Receiving Party from a third party and without breach of this Agreement or any agreement with such third party; (c) becomes publicly available through no wrongful act of the Receiving Party; or (d) independently developed by the Receiving Party without reference to any Confidential Information.
6.2 Duty to Protect; Permitted Disclosures.
The Confidential Information will only be used by a party for the purposes of carrying out the obligations of, or as otherwise contemplated by this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required by a valid order of a court, tribunal or governmental body or institution of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Confidential Information. FUSEMAIL may disclose Customer Data and personally identifiable information regarding Customer and Users to a governmental body or institution if FUSEMAIL has reasonable grounds to believe the information could be useful in the investigation of unlawful activity.
6.3 Return and Destruction of Confidential Information.
Upon termination of this Agreement or at any time upon request by the Disclosing Party, the Receiving Party will promptly deliver to the Disclosing Party all originals and copies of the Disclosing Party’s Confidential Information and delete all the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s sources, or systems.
6.4 Monitoring Service Use; Disclosure of Aggregated Data.
Notwithstanding any other provision of this Agreement, FUSEMAIL may in its absolute discretion:
- monitor the use of the Services by Customer and Users without any further notice or any liability to Customer or any other person; and (b) disclose to other persons aggregated, non-identifiable information regarding the use of the Services by Customer and Users.
7. PROPRIETARY RIGHTS
7.1 FUSEMAIL Ownership.
As between the Parties, FUSEMAIL owns and retains all right, title and interest (including without limitation all copyrights, patents, moral rights, trademark rights and other intellectual property and industrial property rights) in, to and associated with the Services and all software and technology used to provide the Services and related documents and information. Customer and Users will not acquire any right, title or interest in or to any software or technology provided by FUSEMAIL for use by Customer or Users as part of the Services.
7.2 Customer Ownership.
As between the Parties, Customer owns and retains all right, title and interest in, to and associated with Customer Data, except that Customer grants to FUSEMAIL a non-exclusive, royalty free, non-transferable license during the Term to access, copy, and otherwise use Customer Data for the purpose of providing the Services and fulfilling its obligations under this Agreement. Customer is solely responsible for, and bears all risks and liabilities associated with, all Customer Data.
8. REPRESENTATIONS, DISCLAIMERS AND REMEDY
8.1 Mutual Representations and Warranties.
Each Party represents and warrants that it has all requisite power, authority and approvals to enter into, execute and deliver this Agreement and to perform fully its obligations under this Agreement, and its entering into this Agreement and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that it now or in the future owes to any other person.
8.2 NO OTHER WARRANTIES.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 8.1, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIY OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE, OR MERCHANTABILITY, ALL OF WHICH ARE HEREBY DISCLAIMED BY FUSEMAIL TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FUSEMAIL DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY USER’S NEEDS OR BE FREE FROM ERRORS OR THAT THE SERVICES WILL BE UNINTERRUPTED.
8.3 GENERAL DISCLAIMER.
USE OF THE SERVICES IS AT CUSTOMER’S AND USERS’ OWN RISK. THE SERVICES MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND FUSEMAIL’S CONTROL, AND MAY NOT BE CONTINUOUS OR UNINTERRUPTED OR SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION MAY NOT PREVENT UNAUTHORIZED ACCESS TO CUSTOMER DATA OR OTHER INFORMATION CUSTOMER OR USERS MAY USE IN CONNECTION WITH THE SERVICES. CUSTOMER WILL REMAIN SOLELY AND EXCLUSIVELY RESPONSIBLE FOR CUSTOMER’S AND USERS’ USE OF THE SERVICES AND THE CONTROL, SECURITY AND CONFIDENTIALITY OF CUSTOMER DATA. CUSTOMER HEREBY ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION, AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY.
8.4 NO RESPONSIBILITY FOR THIRD PARTY CLAIMS.
CUSTOMER IS SOLELY LIABLE AND RESPONSIBLE FOR ANY AND ALL CLAIMS AND PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING FROM, CONNECTED WITH OR RELATING TO THE USE OF THE SERVICES BY CUSTOMER, USERS, OR ANYONE USING CUSTOMER’S
OR USERS’ USER NAME OR PASSWORD, CUSTOMER’S BREACH OF THIS AGREEMENT, CUSTOMER’S VIOLATION OR INFRINGEMENT OF THE RIGHTS OF OTHER PERSONS, USERS’ VIOLATION OF THE ACCEPTABLE USE POLICY, OR CUSTOMER’S OR USERS’ VIOLATION OF ANY APPLICABLE CIVIL OR CRIMINAL LAW. FUSEMAIL DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY REGARDING ALL SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
8.5 NO RESPONSIBILITY FOR UNAUTHORIZED ACCESS OR DAMAGE.
FUSEMAIL IS NOT OBLIGATED TO VERIFY THE IDENTITY OF USERS. NOR IS FUSEMAIL RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF FUSEMAIL’S NEGLIGENCE. FUSEMAIL WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES.
9. LIMITATION OF LIABILITY
9.1 LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, AND REGARDLESS OF THE FORM OF CLAIM, INCLUDING BUT NOT LIMITED TO WHETHER IN CONTRACT OR IN TORT OR WHETHER FROM BREACH OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER FUSEMAIL HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGE, IN NO EVENT WILL THE MEASURE OF DAMAGES RECOVERABLE BY CUSTOMER AGAINST FUSEMAIL FOR ANY ACT OR OMISSION OF FUSEMAIL, INCLUDE ANY AMOUNTS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY PERSON OR FOR LOSS OF ACTUAL OR ANTICIPATED PROFITS LOST SAVINGS OR OTHER ECONOMIC LOSS OF ANY PERSON OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED, USING REASONABLE DILIGENCE, BY FUSEMAIL, AND IN NO EVENT SHALL CUSTOMER RECOVER DAMAGES AGAINST FUSEMAIL FOR NEGLIGENCE. CUSTOMER FURTHER AGREES THAT, UNDER NO CIRCUMSTANCES WILL FUSEMAIL’S LIABILITY TO CUSTOMER OR ANY OTHER PERSON EXCEED THE GREATER OF (A) US$500 (OR £500 IF THE CSUTOMER ADDRESS IS NOT WITHIN THE UNITED STATES); OR (B) THE MONTHLY FEES PAID OR PAYABLE BY CUSTOMER TO FUSEMAIL FOR THE MONTH DURING WHICH THE LIABILITY AROSE. IN THIS PARAGRAPH, “FUSEMAIL” INCLUDES FUSEMAIL AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, SUCCESSORS, PERMITTED ASSIGNS AND RELATED PERSONS.
9.2 FAIR ALLOCATION OF LIABILITY.
THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY, WHICH IS REFLECTED IN THE FEES TO BE PAID BY CUSTOMER.
10.1 FUSEMAIL Indemnity.
FUSEMAIL will defend, indemnify, and save and hold Customer and its past, present and future directors, officers, employees, agents, representatives, successors, permitted assigns, related persons and each of them (collectively, the “Customer’s Indemnified Representatives”) harmless from and against any and all claims and proceedings directly or indirectly arising from, connected with or relating to any proven or unproven allegation that the Services or any part thereof, when used by Customer and Users in accordance with this Agreement, infringe or violate any intellectual, industrial or proprietary rights of a third party, excluding any such actual or alleged infringement or violation resulting from: (a) the combination of any Services with software, products or services not supplied by FUSEMAIL; or (b) any breach by FUSEMAIL of its obligations under this Agreement.
10.2 Customer Indemnity.
Customer will indemnify, defend and hold harmless FUSEMAIL and its past, present and future directors, officers, employees, agents, subcontractors, representatives, successors, permitted assigns, related persons and each of them (collectively, the “FUSEMAIL’s Indemnified Representatives”) from and against any and all claims and proceedings directly or indirectly arising from, connected with or relating to: (a) use of the Services by Customer or Users; any negligence, misconduct, breach of this Agreement or violation of the Acceptable Use Policy by Customer, Users, or other any person for whom Customer is under this Agreement or in law responsible; (c) the suspension of Services; or (d) the termination of this Agreement.
10.3 Indemnity Procedure.
The Indemnifying Party’s obligations are conditional upon the Indemnified Party and its Indemnified Representatives (if applicable): (a) giving the Indemnifying Party prompt notice of the claim or proceeding; (b) granting control of the defence and settlement of the claim or proceeding to the Indemnifying Party (provided that a claim and/or proceeding will not be settled without the prior written consent of the Indemnified Party and its Indemnified Representatives (if applicable), which consent will not be unreasonably withheld or delayed); and (c) reasonably co-operating with the Indemnifying Party regarding the defence and settlement of the claim and/or proceeding at the Indemnified Party’s expense. Notwithstanding anything contained in this Agreement to the contrary, the Indemnified Party and its Indemnified Representatives (if applicable) retain the right to participate in the defence of and settlement negotiations relating to any claim or proceeding with counsel of its own selection at its sole cost and expense.
11. TERM, TERMINATION AND SUSPENSION
The initial term of this Agreement (the “Initial Term”) will be for the period specified on the Cover Page commencing on the Effective Date, unless terminated earlier by either Party pursuant to this Agreement. This Agreement will automatically renew for additional one-year periods (each a “Renewal Term”) unless either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the Initial Term or the then-current Renewal Term. For purposes of this Agreement, the Initial Term and each Renewal Term are referred to collectively as the “Term”. If this Agreement is terminated prior to completion of the then current term for any reason other than due to FUSEMAIL’s material breach of Agreement, Customer shall, within ten (10) days of the effective date of termination, pay FUSEMAIL a termination charge (which Customer hereby acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to 100% of the fees that would have been paid for the Service had the Service been provided for the entire duration of the then current term.
11.2 Termination for Cause.
Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if a Party materially breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a notice (the “Default Notice”) from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within thirty (30) days (the “Cure Period”), provided that such termination notice must be delivered no later than thirty (30) days after the end of the Cure Period. If the other Party does not give notice of termination to the breaching Party within that further 30 day period, and if the breach continues after the end of the Cure Period, the other Party may give a further Default Notice in respect of the breach, in which case the provisions of this paragraph 11.2 shall apply in respect of that further Default Notice.
11.3 Suspension of Services or Termination by FUSEMAIL.
FUSEMAIL may in its sole absolute discretion either suspend its provision of Services or terminate this Agreement for cause immediately upon delivery of notice to Customer if: (a) Customer becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent or takes any step or proceeding for its liquidation, dissolution or winding up; (b) Customer violates the Acceptance Use Policy; or (c) Customer fails to pay any Fee when due.
11.4 Effect of Expiration or Termination.
Immediately upon expiration or termination of this Agreement, Customer and all Users will cease using the Services and Customer will pay FUSEMAIL all Fees accrued up to the date of termination without any right of deduction or setoff. Upon expiration or termination of this Agreement, FUSEMAIL will co-operate with and provide reasonable assistance to Customer in transferring Customer Data currently stored in FUSEMAIL’s systems to Customer or a different service provider, provided Customer pays all outstanding Fees and pays in advance FUSEMAIL’s fees for all such services based upon FUSEMAIL’s then-current fee schedule.
Notwithstanding anything herein to the contrary, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: sections 4, 6, 6, 8, 9, 10, and 13 and paragraphs 11.4, 11.5.
12. MODIFICATIONS TO CUSTOMER AGREEMENT
FUSEMAIL reserves the right to amend this Agreement at any time by sending information regarding the amendment to the email address you provided to FUSEMAIL. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING YOUR EMAILS TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE PRIMARY SERVICES AFTER INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and FUSEMAIL.
13.1 Force Majeure.
Notwithstanding any other provision of this Agreement, FUSEMAIL will not be liable to Customer or any other person for any delay in performing or failure to perform any of its obligations hereunder if performance is delayed or prevented due to any cause or causes that are beyond FUSEMAIL’s reasonable control, including without limitation: (a) acts of God, such as fire, lightning, storm, flood, earthquake or natural disaster; (b) war, terrorism, riot, civil unrest, commotion or acts of a public enemy; (c) labor shortages, strikes, lock-outs or other labor, industrial or trade action disputes, disruption or disturbances; (d) theft, sabotage, malicious damage, fraud, epidemic or quarantine restrictions; (e) material shortages; (f) general failure, malfunction or unavailability of power, utilities, telecommunications, data communications or related services; (g) action, demand, order, restraint, restriction, requirement, or prevention by any government or court; or (h) applicable law or regulation. Any delay or failure of this kind will not be deemed to be a breach of this Agreement by FUSEMAIL, and the time for FUSEMAIL’s performance of the affected obligation will be extended by a period that is reasonable under the circumstances.
13.2 Relationship of Parties.
The Parties are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the parties.
Customer may not, by operation of law or otherwise, assign, transfer, delegate, sub-license or grant all or any part of this Agreement or its rights or obligations under this Agreement to any other person without FUSEMAIL’s prior written consent, which consent may be withheld by FUSEMAIL in its absolute discretion. Any purported transfer in violation of the prohibitions in this paragraph 13.3 will be null and void.
13.4 No Third Party Beneficiaries.
Nothing herein shall be construed to confer upon or give to any person other than Customer and FUSEMAIL, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. Without limiting the generality of the foregoing, Users will not have any rights hereunder.
13.5 Lawyers’ Fees.
In addition to any other relief awarded in any court proceedings arising out of or relating to this Agreement, the prevailing Party will be entitled to its reasonable lawyers’ fees, disbursements and expenses.
13.6 Anti-Bribery Provisions.
The Parties hereby agree that they shall comply with local anti-bribery laws as well as the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act as well as any other applicable laws and regulations.
Except for electronic notices pursuant to paragraph 5.5 and invoices pursuant to paragraph 4.3, any notice required or permitted to be given under this Agreement will be in writing and will be delivered by personal delivery, by overnight or express courier, or by facsimile transmission to FUSEMAIL at its head office address indicated from time to time on its website and to Customer at the address and facsimile indicated on the Cover Page (the “Customer Address”), or at such other addresses and facsimile numbers as a Party may from time to time designate in a notice to the other Party. A notice delivered personally, by courier or facsimile will be deemed to have been received on the next business day following, as applicable, the date of delivery or the fax transmission (with confirming receipt), as applicable.
13.8 No Waiver.
No consent or waiver by a Party to or of any breach or Default by the other Party in its performance of its obligations hereunder will be deemed or construed to be a consent to or waiver of a continuing breach or Default or any other breach or Default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by both Parties.
Except as specifically provided herein, the specific rights and remedies of a Party hereunder are cumulative and not exclusive of any other rights or remedies to which such Party may be entitled under this Agreement or at law or equity, and the Parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. It is the intention of the Parties that this Agreement would have been executed without reference to any provisions that may, for any reason, be held to be invalid or unenforceable.
13.11 Counterparts and Execution by Fax.
This Agreement may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission, and each counterpart when so executed and delivered will be deemed an original, and all such counterparts will together constitute one and the same document.
13.12 Complete Agreement.
This Agreement, comprised of the Cover Page and the Schedules referenced by the Cover Page, sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. This Agreement may be modified only by a written instrument signed by both Parties or their successors or permitted assigns.
13.13 Governing Law and Venue.
This Agreement will be governed by and construed in accordance with the substantive laws of (1) California, if the Customer Address is within the United States or (2) England and Wales if the Customer Address is within in any other jurisdiction, without regard to conflict of law principles. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed.
13.14 Dispute Resolution.
Any dispute between the Parties arising from, connected with, or relating to this Agreement, the subject matter of this Agreement (including the Services), or the expiration or termination of this Agreement will be determined by respective courts of the England, when the law of England and Wales applies or Los Angeles County, California, United States when California law applies, and each shall have jurisdiction in any dispute between the Parties and the Parties consent to venue and personal jurisdiction there.
ACCEPTABLE USE POLICY OF j2 GLOBAL IRELAND LIMITED (TRADING AS FUSEMAIL®) (“FUSEMAIL”)
Capitalized terms used herein are defined in Schedule B to the Corporate Services Agreement. Customer agrees to use, and to cause its Users to use, the Services in a courteous and cooperative manner, and so as not to abuse the Services or the custom and user etiquette in place from time to time respecting the use of the Internet, and so as not to violate or affect the rights of others.
Without limiting the generality of the foregoing, Customer agrees not to use the Services so as to violate the law, or to misuse the proprietary information or property of others for his or her own purposes or otherwise, and not to make publications which are threatening or defamatory or otherwise injurious to the safety, business or reputation of others.
Without limiting the generality of the foregoing, Customer shall not do any of the following or permit any of Customer’s Users, or other third parties to do any of the following:
- disclose private communications without permission to parties other than the intended recipient, or disclose confidential information;
- post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, or profane information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, provincial, state, national or international law, including without limitation, export control laws and regulations;
- post or transmit any information or software that Customer is aware contains a virus, worm, or other harmful component;
- upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Internet which is protected by copyright or other proprietary right, without obtaining the permission of the copyright owner or right holder;
- falsify User information provided to Fusemail or to other users of the Services in connection with the use of a Fusemail Service;
- share accounts, including without limitation, letting third parties use your account and password;
- spam or other advertising that is objectionable to Fusemail in its sole discretion, including without limitation, sending unsolicited mass emailings to more than twenty-five (25) email users if such unsolicited emailings provoke complaints from the recipients, posting a single article or advertisement to more than ten (10) Usenet or other news groups, forums, email mailing lists or other similar groups or lists, and posting to any Usenet or other news group, forum, email mailing lists or other similar group or list articles which are off-topic according to the charter or other published FAQ or description of the group or list; and
- engage in any of the foregoing activities using the service of another provider, but channeling such activities through a Fusemail account or remailer, or using a Fusemail account as a mail drop for responses.
- operate any open relay (a mail server that accepts and transmits mail for one or more 3rd party domains) that is connected or can connect to Fusemail servers or networks.
- use the Services to store (a) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191) unless Customer is using CypherSmart, or (b) any other type of information that imposes independent obligations upon Fusemail.
Fusemail reserves the right to implement without notice on a Customer wide basis technical measures to block excessive load, whether intentional or unintentional, caused by repeated or excessive transmission of data over Fusemail servers and networks that Fusemail considers in its sole discretion would cause degradation to any service or network.
Fusemail considers the above practices to constitute abuse of Fusemail’s Services and of the recipients of such unsolicited mailings or postings or both, who often bear the expense. Engaging in one or more of these practices will result in termination of the Services.
Fusemail reserves the right to implement without notice on a Customer-wide basis technical mechanisms which block multiple postings as described above, including without limitation incoming and outgoing unsolicited advertising or spam mail.
Nothing contained in this policy shall be construed to limit Fusemail’s actions or remedies in any way with respect to any of the foregoing activities, and Fusemail reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation, all rights and remedies available to it at law or in equity.