Apis CRM TERMS OF SERVICE
Last updated 24 Sep, 2012
In this Agreement, and in the Schedules attached hereto, unless otherwise specified or the context otherwise requires the following expressions shall have the following meanings:
||means (1) the provision of Licences, Support and Hosting pursuant to this Agreement.
||means the Customer's computer system upon which the Software is to operate
||means the elements or parts of the Contracted Services to be provided by Web Enabled Software Limited to the Customer, which are more particularly described in the Schedules to this Agreement.
||means the date upon which the Customer has access to any use of the software.
||means the On-Line Help system and any other documentation in respect of the Software necessary to enable the Customer to operate the Software.
|"Provision of Service"
||means the provisions set out in Schedules B and C
||means the schedules attached to this Agreement.
||means the combination of fees payable for Licences, support and hosting services.
||means the offices of the Customer and/or such other office from which the Customer may carry on business from time to time
||means the software package as described in Schedule A
||shall include but will not be limited to all of the customer's data held by the Supplier
||any location where the customer's data is stored on behalf of The Supplier
1 SOFTWARE LICENCE
1.1 Web Enabled Software agrees to provide the Software to the Customer in accordance with this Agreement and hereby grants to the Customer a personal, non-exclusive, non-transferable, licence (the "Licence") to use the Software, for the duration of this Agreement, together with any additional modules and any corrections, modifications, enhancements or upgrades provided from time to time under the Customer Support Service, all in accordance with the following Licence terms.
1.2 The Customer may only use the Software subject to the number and type of licences purchased and in the presence of a current valid and up to date service fees payment for such.
1.3 The Customer undertakes:
1.3.1 not to copy the Software without the express written consent of Web Enabled Software.
1.3.2 except to the extent permitted by law, not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Software without the express written consent of Web Enabled Software, except as permitted by the Copyright Designs and Patents Act 1988;
1.3.3 to maintain accurate and up-to-date records of the number and location of all copies of the Software supplied by Web Enabled Software and to supervise and control use of the same;
1.3.4 to reproduce and include the copyright notice of Web Enabled Software on all and any copies, whether in whole or in part, in any form, or on modifications of the Software made pursuant to this Agreement;
1.3.5 not to provide or otherwise make available the Software in whole or in part in any form to any person other than to the Customer's partners or employees, or contractors instructed to maintain and support the Customer's computer system, nor to use the Software for any other purpose than the Customer's own business without prior written consent from Web Enabled Software;
2 PAYMENT TERMS
2.1 All payments must be made by direct debit mandate unless agreed in writing by the Supplier.
2.2 The amount of any invoice shall not be treated as paid until any cheque or other instrument of payment given by the Customer has been met on presentation or otherwise honoured in accordance with its terms.
2.2.1 In the event of failure to pay any invoice including refusal to pay on presentation any Direct Debit mandate request or cheque Web Enabled Software reserves the right to suspend access to the services with immediate effect and to continue the suspension of services until such time as cleared funds have been received. Web Enabled Software Limited also reserves the right to charge an administration fee of L50.00 plus VAT for each re-presentation of a Direct Debit mandate or for each cheque that is cashed and not honoured. A reactivation fee of L25.00 plus VAT will be also be charged on reactivation of your service where you service has been suspended due to non-payment of your Service Fees.
2.2.2 In the event that the Customer fails to pay any invoice including refusal to pay on presentation of any Direct Debit mandate request three times during the term of this agreement Web Enabled Software Limited reserves the right to cease Direct Debit collections and will provide the service on the basis that the Customer ensures cleared funds are with Web Enabled Software Limited by the payment date. Where cleared funds are not with Web Enabled Software Limited by the payment date Web Enabled Software Limited reserves the right to suspend access to the services with immediate effect and to continue the suspension of services until such time as cleared funds have been received.
2.2.3 In the absence of a valid reason late payment of any invoice will bear interest at a rate equal to 2% over the base rate of The Bank of England from time to time, after as well as before any judgement thereof.
2.3 As part of our carbon neutralisation plan Web Enabled Software Limited only supply electronic invoices. These can be emailed or sent to you by facsimile. Should you require a printed version of the invoice a charge of L15.00 plus VAT will be levied per invoice to cover our administration costs.
3 ADDITIONAL USER LICENSES AND ADDITIONAL SERVICES
3.1 Additional user licenses and additional services will be subject to the terms of this contract.
4. PROPERTY AND RISK
4.1 Risk in each Element of the Contracted Services shall pass to the Customer upon delivery.
5 WEB ENABLED SOFTWARE'S UNDERTAKINGS
5.1 Web Enabled Software hereby undertakes
5.1.1 to provide the Software for use with the Customer's System;
5.1.2 to use all reasonable endeavours to supply the Elements of the Contracted Services in accordance with the provisions of this Agreement;
5.1.3 to use all reasonable skill and care to carry out the Contracted Services in a proper and efficient manner;
5.1.4 to correct or rectify any faults or defects in the Software arising or occasioned through its proper use, in accordance with the Terms & Conditions of Customer Support Service.
5.1.5 If necessary, to attempt where possible to recover and to the extent possible reconstruct any lost or corrupted data arising or occasioned through proper use of the Software, in accordance with the Terms & Conditions of Customer Support Service
6 CUSTOMER'S UNDERTAKINGS
6.1 The Customer undertakes:
6.1.1 to provide all such information as Web Enabled Software may reasonably require from the Customer's staff and otherwise in all respects punctually to undertake and complete all such matters as are to be undertaken and completed by the Customer in this Agreement.
6.1.2 to ensure that suitably qualified and properly trained personnel are available to assist Web Enabled Software in carrying out the Contracted Services.
6.1.3 to ensure that the equipment used to access the Software is of a suitable nature and is fit for purpose
6.1.4 to ensure that efficient and reliable Internet bandwidth is available to make use of the Software
7 INTELLECTUAL PROPERTY RIGHTS & PROPRIETARY RIGHTS
7.1 All title, interests, and rights (including intellectual property rights) in the Service remain in Web Enabled Software and/or its suppliers. The Customer acknowledge such title, interest and rights and the Customer shall not take any action to jeopardise, limit or interfere in any manner with Web Enabled Software (or any third party supplier's) title, interests or rights with respect to the Service including, but not limited to, using its trademarks or trade name.
7.2 The Customer shall faithfully reproduce the copyright symbol and clause of Web Enabled Software. on all copies (authorised or otherwise) made of the Software. The Customer shall not either during or after the expiry or termination of this Agreement, without the prior written consent of Web Enabled Software abuse or permit the abuse of such copyright or use or adopt any trade mark, trade name or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by Web Enabled Software.
7.3 Title and related rights in any content accessed through the Service are the property of the applicable content owner and are protected by applicable laws. The right to use granted to the Customer under this Agreement gives the Customer no rights to such content. If the Customer wishes to use such content, the Customer must ensure that he has the appropriate consent or licence of the content owner.
8.1 Web Enabled Software warrants to the Customer that:
8.2 its title to and property in the Software is free and unencumbered and that it has the right, power and authority to enter into this Agreement;
8.3 the software will operate substantially in accordance with the provisions of Schedule A
9 LIMITATION ON LIABILITY
9.1 Nothing in this Agreement shall exclude or limit liability for (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees or (b) fraud.
9.2 Web Enabled Software limits its liabilities to a maximum of one year's Services Fees in contract, tort, pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with this Agreement for:
9.2.1 any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); or
9.2.2 any loss of goodwill or reputation; or
9.2.3 any special, indirect or consequential losses or any destruction of data, in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, suffered or incurred by that party arising out or in connection with the provisions of, or any matter under this Agreement.
9.3 Each provision excluding or limiting liability shall be construed separately, applying and surviving even if for any reason any other provision does not remain in force, notwithstanding the expiry or termination of this Agreement.
10 CONFIDENTIALITY AND NON-COMPETITION
10.1 Each of Web Enabled Software and the Customer hereby undertakes to the other both during the term of the Agreement and for a period of no less than two (2) years after its termination and in perpetuity where it is reasonable to do so;
10.1.1 to keep in confidence all Confidential Information using at least the same standard of care that each of the parties use with their own confidential information, but in any event no less than reasonable care. Each of the parties may not use or disclose any Confidential Information other than for purposes and activities specifically permitted by the Agreement. Each of the parties may only disclose Confidential Information to an employee or contractor under binding obligations of confidentiality substantially similar to those set forth in this Agreement on a 'need to know' basis. If either party is legally compelled to disclose any Confidential Information, then, prior to such disclosure, the party must:
10.1.2 immediately notify the other party to allow the party an opportunity to contest the disclosure;
10.1.3 assert the privileged and confidential nature of the Confidential Information; and
10.1.4 co-operate fully with the other party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection is not obtained the party making the disclosure may disclose the Confidential Information only to the extent necessary to comply with applicable legal requirements.
10.2 The foregoing obligations of this Clause 10.1 shall not apply to any information, which either party is required as a matter of law to disclose or provide, or to any information, which comes into the public domain other than by breach of this Clause.
10.3 Each of Web Enabled Software and the Customer hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of such information and the provisions of this clause and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause.
11 DATA PROTECTION/PERSONAL DETAILS
11.1 Web Enabled Software may retain the Customer's personal data, and the Customer authorises Web Enabled Software to use its personal data, for the following purposes:
11.1.1 provision of the Service to the Customer;
11.1.2 keeping of a record for a reasonable period after termination of the Customer's Service;
11.1.3 operation and enforcement of these Conditions;
11.1.4 technical maintenance;
11.1.5 providing the Customer with information about other services Web Enabled Software offer, subject to the Customer's right to opt out of receiving such information;
11.1.6 transferring it to another company in the event of a sale of Web Enabled Software subject to the transferee agreeing to be bound by Clause 15.1. above; and
11.1.7 legal compliance including disclosing it to any third party who Web Enabled Software reasonably consider has a legitimate interest in any such investigation or its outcome.
11.2 It is the Customer's responsibility to keep the personal data that the Customer provide to Web Enabled Software up to date. Web Enabled Software may send notices or other information to the Customer at the address the Customer give Web Enabled Software. The Customer should notify Web Enabled Software immediately of any change to the Customer's personal data.
12.1 This Agreement may be terminated:
12.1.1 by Web Enabled Software on the expiry of any trial version, immediately should the customer fall in breach of the payment terms (clause 2) or by giving 30 day
12.1.2 by the Customer providing 30 days' notice to Web Enabled Software Limited
12.1.3 forthwith by either party (or a third party acting on the Customer's behalf or instruction) if the other commits any material breach of any term of this Agreement (other than one falling within Clause 3.1 of the Terms and Conditions of Provision of Service below) and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;
12.1.4 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignation/assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of a bona fide amalgamation or reconstruction).
12.1.5 by Web Enabled Software immediately upon written notice to the Customer if it becomes unlawful for Web Enabled Software to continue to provide the Service; or (ii) Web Enabled Software is required to cease the Service by a competent regulatory authority.
12.1.6 The provisions of this Agreement regarding Confidential Information and limitation of liability shall survive the termination of the Agreement.
12.2 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to clauses 7, 9, and 10.
12.3 In the event of termination of this Agreement by Web Enabled Software as a result of the Customer's breach of the Software Licence or non-payment of monies owing relating thereto, the Customer shall cease immediately to use the Software and Web Enabled Software shall disable access to the same within 7 days of the date of termination.
13 DISPUTE RESOLUTION
13.1 Should the Customer have reason to make a complaint in respect of the Service provided by the Supplier the Customer should make a complaint in accordance with the Supplier's Escalation & Complaints Procedure, a copy of which will be supplied as part of your sales documentation and a further copy of which can be supplied upon request.
13.2 If after completing the Supplier's Escalation & Complaints Procedure the Customer wishes to raise a formal dispute, the parties having already endeavoured to resolve any dispute or claim whatsoever arising in relation to the agreement to the Sales Implementation Procedure that proceeded the Agreement and/or to the validity of the Agreement itself by means of good faith negotiations which will have taken place between senior executives of the parties who shall have authority to settle the dispute and that this dispute is not resolved within 30 days from the commencement of these good faith negotiations both parties agree that the dispute will be resolved by an agreed Arbitration conducted by IDRS Limited
13.3 Subject to Clause 15.2 either party will be entitled to serve Notice to Arbitrate and commence the arbitration proceedings.
13.4 All negotiations in relation to the matters in dispute shall be strictly confidential and shall be without prejudice to the rights of the parties in any future proceedings.
13.5 The parties agree to be bound by the award made by the Arbitrator. Awards shall be final and binding on the parties as from the date of publication by the Arbitrator.
14 FORCE MAJEURE/ MATTERS BEYOND THE PARTIES' REASONABLE CONTROL
14.1 If either party is unable to perform any of its obligations under this Agreement because of a matter beyond that party's reasonable control including, but not limited to, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, or acts of local or central Government or other competent authorities or acts or omissions of third party telecommunications service providers, that party shall have no liability to the other for such failure to perform its obligations
15.1 Any notice required to be given hereunder shall be deemed to be properly given if delivered by hand or sent by pre-paid post to the party concerned at the address, as the case may be, specified below or to such other address or facsimile number as may from time to time be communicated to the sender of the notice. Notices sent by pre-paid post shall be deemed to have been received three (3) working days after the date of posting. Notices delivered by hand shall be deemed to have been received on the first working day following the date of delivery.
16.1 Web Enabled Software reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the Customer's further consent to such assignment or sub-contract.
16.2 The Customer shall not, without the prior written consent of Web Enabled Software, assign or transfer the Software or the benefit of this Agreement or any of its rights hereunder to any other person, firm or company provided, however in the event that the Customer's business becomes an LLP, is merged, taken over in whole or substantially in whole by another party, Web Enabled Software will not unreasonably withhold or delay its consent although Web Enabled Software will be entitled to review any Fees and Charges in the event of any change in the number of user licences or the Site location to the extent that the same affects implementation or performance of the Contracted Services including but not limited to the provision of support.
17.1 Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party's rights to take subsequent action.
17.2 Any waiver of any breach of any provision of the Agreement will not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions of the Agreement. A waiver of a provision or breach of a provision of the Agreement will only be effective if made in writing and signed by an authorised representative of the waiving party.
18 AMENDMENT OF THESE CONDITIONS
18.1 Web Enabled Software reserves the right to add to and/or amend the Conditions at any time provided that such addition or amendment does not materially change the commercial effect of the Conditions. Such changes can be viewed when clicking on “Terms of Service” when logging on to the Software. Changes in this manner shall be deemed to have been accepted if the Customer continues to use the Service.
19 ENTIRE AGREEMENT AND AMENDMENTS
19.1 The Agreement will constitute the entire agreement between the parties concerning the subject matter of these Conditions. It will supersede all prior and contemporaneous agreements, communications and representations (except for fraudulent or negligent misrepresentations) whether oral or written, between the parties relating to the subject matter of this Agreement, and all past courses of dealing or industry custom. The Agreement will prevail over any other conflicting written instrument or other notice the Customer may submit to Web Enabled Software.
20.1 The headings of the clauses of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
21.1 In the event that any or any part of the terms, conditions or provisions contained in this Agreement or any schedule attached or adopted as relative hereto be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
22.1 The licence granted under the Agreement will not create a partnership, joint venture, agency relationship or franchise relationship.
22.2 Notwithstanding any other provision in this Agreement, nothing in this Agreement will create or confer any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the Customer or Web Enabled Software.
22.3 If the Customer has involved any third party during the process of contracting for APISCRM the Customer may, at any time, contact the Supplier in order to establish whether commission has been paid by the Supplier to that third party.
23 PROPER LAW
23.1 The Agreement shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England.
1 The Software means the software package created and marketed by Web Enabled Software as at the date of this Agreement together with any corrections, modifications, enhancements and updates which may be provided to the Customer from time to time during the continuance of the Customer Support Service.
2 the Software will operate substantially in accordance with the functionality as described in the on line help files as published at the commencement date of this Agreement and as may be amended from time to time throughout the Term of this Agreement
3 the use of the Software will be limited to functionality as described in Proposal and paid for by the Service Fees.
4 new functionality of the Software may be subject to an increase in the Service Fees where the use of the new functionality is optional for the customer.
Terms & Conditions of Provision of Service
IMPORTANT: The Customer's use of the Service (as defined below) and /or acceptance of these Terms and Conditions ('Conditions') constitute the Customer's agreement to be bound by these Conditions. These Conditions must be read in conjunction with the Acceptable Usage Policy set out in Schedule C which may be subject to change from time to time upon reasonable notice by Web Enabled Software to the Customer. It is the Customer's responsibility to ensure that they comply with the latest edition of the Acceptable Usage Policy (AUP) in force at any given time.
These Conditions, together with those of Web Enabled Software AUP, explain the responsibilities of Web Enabled Software to the Customer and the Customer's responsibilities to Web Enabled Software and to other users of the Service ('Users'). The AUP in particular outlines what Web Enabled Software considers to be unacceptable use of the Internet by our customers so that Web Enabled Software can take appropriate steps against abusers of the Internet. The AUP is an integral part of these Conditions and, unless otherwise expressly stated, all references to Conditions include reference to the AUP.
Terms and conditions for Web Enabled Software Hosting Services:
Please note some terms used in these Conditions have a certain meaning:
'Access Line' means the telecommunications circuit that the Customer uses to obtain telecommunications services over the public switched telephone network at the Premises as notified by the Customer to Web Enabled Software.
'Act' means the Telecommunications Act 1984; 'Agreement' means these Conditions together with the AUP.
'Carrier' means any supplier of telecommunications services to Web Enabled Software for the Service.
'Commencement Date' means the date when the Customer first receives access to the Service.
'Confidential Information' means any information of a confidential nature obtained under or in connection with this Agreement.
'Customer' means the person who orders the Service and person shall be taken to include bodies corporate or unincorporated. Web Enabled Software may accept instructions from another person who Web Enabled Software reasonably believes is acting with the Customer's authority or knowledge.
‘Service' means the provision of the Software and Hosting Services.
1 Provision of the Service
1.1 Web Enabled Software will provide the Service to the Customer in accordance with the Conditions and with reasonable skill and care. It is technically impracticable to provide the Service free of faults and Web Enabled Software does not undertake to do so. Web Enabled Software will make reasonable efforts to make the purchased services available between 08:00 – 20:00 (GMT) during week days and 10:00 – 17:00 during weekends, except for a) times of planned maintenance of which the customer will receive at least 8 hours' notice if possible or b) where the unavailability is caused by circumstances beyond our reasonable control including without limitation, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, or acts of local or central Government or other competent authorities or acts or omissions of third party telecommunications service providers, that party shall have no liability to the other for such failure to perform its obligations.
1.2 Web Enabled Software undertake to provide a facility for the customer to download their data at the end of the Agreement for no less than 30 days in order to allow the customer to retain a local copy of such.
1.3 Web Enabled Software will use its reasonable endeavours to provide a prompt and continuing Service but will not be liable for any loss of data resulting from delays, non-deliveries, missed deliveries, or service interruptions caused by events beyond the control of Web Enabled Software, or by errors or omissions of the Customer.
1.4 Web Enabled Software exclude all and any warranties and conditions of any kind, whether express or implied, in respect of any content or data obtained or downloaded from the Service or the accuracy of information received through it.
1.5 Web Enabled Software provides no warranties of any kind in relation to any equipment or configuration of any equipment used to access the Software
1.6 Web Enabled Software provides no warranties of any kind in relation to the Customers use or provision of Internet bandwidth to access the software
1.7 To use the Service, the Customer needs to supply Web Enabled Software with certain details. Web Enabled Software will respect the privacy of this information and will comply with applicable data protection legislation in respect of it.
1.8 The Customer acknowledges that the Service will depend upon the characteristics of the Customer's Access Line.
1.9 From time to time certain Points of Presence (PoPs), servers, or the whole or part of the network may be closed down for routine repair or maintenance work. Web Enabled Software or its authorised representative shall give as much notice as in the circumstances is reasonable and Web Enabled Software shall endeavour to carry out such works during the scheduled maintenance periods as published from time to time.
1.10 Web Enabled Software may occasionally have to interrupt the Service or change the technical specification of the Service for operational reasons or because of an emergency. Web Enabled Software will give the Customer as much notice as possible of any planned interruption of the Customer's Service. In these circumstances The Customer shall have no claim against Web Enabled Software for any such interruption.
1.11 Except as otherwise expressly permitted in these Conditions, and in addition to other restrictions herein, the Customer may not:
1.11.1 redistribute, encumber, sell rent, lease, sub-license, copy or use the Service or otherwise transfer rights to the use of the Service to any third party, whether in whole or in part;
1.11.2 disclose Service features, errors or viruses to any third party without the prior written consent of Web Enabled Software;
1.11.3 use the Service except in conjunction with Web Enabled Software recommended operating environment, notified by Web Enabled Software; or
1.11.4 modify the Service without Web Enabled Software prior written consent.
1.12 It is the Customer's sole responsibility to maintain security over the identity of their passwords.
2 Service Fees
2.1 Web Enabled Software reserves the right to suspend the provision of service to the Customer immediately if the Customer is in default of payment. Such action is without prejudice to the rights of either party accrued prior to the date of suspension.
3 The Customer's Use of the Service
3.1 The Customer must NOT use the Service:
3.1.1 in a way that does not comply with the Conditions or any legislation or that is in any way unlawful or fraudulent; or
3.1.2 in connection with the carrying out of a fraud or criminal offence; or
3.1.3 to send, encourage the receipt of, upload, download, use or re-use any material which is abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights or which may contain viruses or other similar programs, or which could reasonably be expected to cause overloads to the Web Enabled Software System; or
3.1.4 to send or procure the sending of unsolicited advertising or promotional material; or
3.1.5 in a way that does not comply with any instructions given by Web Enabled Software for reasons of health, safety or the quality of the Carrier's telecommunications services or the Web Enabled Software System; or
3.1.6 to attempt to use the Service in a way that modifies, decompiles, translates, reverse engineers, reconfigures, disassembles or otherwise alter or attempt to modify or reconfigure the Service or any Equipment or Software or copy any manual or documentation relating to the Service except to the extent applicable law specifically prohibits such restrictions.
3.1.7 to distribute copies of the licensed programs or their documentation to others;
3.1.8 to rent, lease or grant its rights to the licensed programs;
3.1.9 to ship or transmit (directly or indirectly) any copies of the licensed programs or any technical data in the licensed programs or its media or any direct product thereof to any entity or country destination.
3.2 The Customer will co-operate with Web Enabled Software reasonable requests for information regarding the Customer's use of the Service and supply such information without delay.
3.3 The Customer warrants that as the registered user of the account, it will keep the username and password secure and not let them become public knowledge and that the password will not be stored anywhere on a computer in plain text.
3.4 Use by others: The Customer acknowledges that Web Enabled Software is unable to exercise control over the content of information passing over the Web Enabled Software network or via the Service, and Web Enabled Software hereby excludes all liability of any kind for the transmission or reception of infringing information of whatever nature.
3.5 Each Software Licence allows for a data storage capacity based up Software edition. Should your data usage exceed this capacity the Supplier reserves the right to make additional charges for the same.
4 Domain Names & Internet Protocol Addresses
4.1 The Customer confirms and warrants that it is the owner of, or that the Customer has been and is duly authorised by the owner to use, any trade mark or name requested or allocated as its domain name.
4.2 The Customer acknowledges that Web Enabled Software cannot guarantee that any domain name the Customer requests will be available or approved for use.
4.3 Web Enabled Software has the right to require the Customer to select a replacement domain name and may suspend the relevant service associated with the domain name if, in the opinion of Web Enabled Software, there are reasonable grounds for Web Enabled Software to believe Customer's current choice of domain name is, or is likely to be, in breach of the provisions of this Agreement and law.
4.4 If the Service includes the registration of an Internet domain name the Customer acknowledges and agrees that:
4.4.1 Web Enabled Software does not represent, warrant or guarantee that any domain name applied for by the Customer or on its behalf will be registered in its requested name or is capable of being registered by it or that the use of such domain name by it will not infringe any third party rights. Accordingly, the Customer should take no action in respect of its requested domain name(s) until it has been notified that its requested domain name has been duly registered and Web Enabled Software will not be liable for any such action taken by the Customer.
4.4.2 The registration of the domain name and its ongoing use by the Customer is subject to the relevant naming authority's terms and conditions of use and the Customer undertakes to Web Enabled Software that it will comply with such terms and conditions. The Customer hereby irrevocably waives any claims it may have against Web Enabled Software in respect of any decision of a naming authority to refuse to register a domain name and, without limitation, the Customer acknowledges and agrees that any administration or other charge paid by the Customer in respect of the registration of the domain name is non-refundable in any event.
4.4.3 Web Enabled Software accepts no responsibility in respect of the use of a domain name by the Customer and any dispute between the Customer and any other individual or organisation regarding a domain name must be resolved between the parties concerned and Web Enabled Software will take no part in any such dispute. Web Enabled Software reserves the right on becoming aware of such a dispute concerning a domain name at its sole discretion and without giving any reason, to either suspend or cancel the relevant service associated with the domain name and/or to make such representations to the relevant naming authority as it deems appropriate.
4.5 Any Internet Protocol address allocated by Web Enabled Software to the Customer shall at all times remain the sole property of Web Enabled Software and the Customer will have a non-transferable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, the Customer's licence to use the Internet Protocol address shall automatically terminate and thereafter it will not use such address.
5 Breach of Conditions
5.1 Web Enabled Software shall investigate any suspected or alleged breach of these Conditions or any suspected compromise to its network systems or security and in doing so Web Enabled Software will act reasonably and fairly at all times.
5.2 Web Enabled Software reserve the right to take any action Web Enabled Software deem appropriate and proportionate to the breach of the Conditions.
5.3 If Web Enabled Software decides that the Customer has breached the Conditions, Web Enabled Software will use reasonable endeavours to ensure that the Customer is made aware of the breach without suspension or termination of the Service. However it may be necessary, due to the severity of the breach, to suspend the Service whilst details of the breach are investigated further. Web Enabled Software reserve the right to suspend the Customer's Account at its sole discretion without refund, and make an additional charge for all reasonable costs incurred due to investigating and dealing with the misuse and/or blocking access to any component(s) of the Service.
5.4 Any breach of the obligations as set out in Condition - 5.1 above shall entitle Web Enabled Software to immediately suspend the Service to the Customer without notice.
6.1 The Customer agrees to indemnify and hold Web Enabled Software harmless for all liabilities, loss, claims and expenses that may arise from (a) any breach of these Conditions by the Customer; and (b) any transmission or receipt of any content or message which the Customer has requested or made using the Service.
Acceptable Use Policy
IMPORTANT: you must comply with this Acceptable Use Policy (“Policy”) if you use our network or services.
REASON FOR THIS POLICY
While it is impossible to define exhaustively what constitutes “acceptable use” and “unacceptable use” or “abuse” of the internet, or of our network and services, this Policy gives examples of the types of use which we consider unacceptable. Note that the fact that an activity is not specifically stated in this Policy to be unlawful or unacceptable, or otherwise in breach of this Policy, does not automatically mean that such activity complies with the Policy.
Our relationship with other networks, and accordingly our ability to connect to the rest of the internet, depends to a significant extent upon proper behaviour by our Customers. We therefore cannot tolerate any behaviour by Customers which is detrimental to our equipment, network, or services, or indeed to our reputation. Nor do we permit any such behaviour which has a negative impact upon other users of the internet.
It is crucial that when activity which might constitute abuse occurs, we are entitled to take appropriate action; otherwise we would lose the confidence of the wider internet community, which in turn would significantly reduce our Customers' freedom to use the internet.
In this Policy:-
“intellectual property rights” includes (without limitation) trade secrets, database rights, know-how, patents, copyrights, registered design rights, unregistered design rights, and trademarks, all whether recorded in any manner or otherwise, and including all applications for any rights which are registrable;
“we/us/our” refers to Web Enabled Software Limited, a company incorporated in England (registered number 4362044), and having its registered office at Web Enabled Software House, Suite 1 Falstaff House, Enigma Commercial Centre, Enigma Business Park, Sandy's Road, Malvern, Worcestershire, WR14 1JJ
“you/your” refers to you, the person or company using our network or services.
1.1 Our network and services may be used for lawful purposes only and in compliance with all relevant legislation in force from time to time. (You should be aware that the internet is a global communications network and what may be legal in the United Kingdom may be illegal elsewhere and render you liable to prosecution in another country).
1.2 You shall not use our network or services to send, receive or store any prohibited material. “Prohibited material” means material which:-
1.2.1 violates any applicable law or regulation of any country in the world; or
1.2.2 is defamatory, threatening, malicious, offensive, abusive, indecent, blasphemous, obscene, or otherwise objectionable in any way, or in breach of confidence, privacy, trade secrets, or of any third party rights (including intellectual property rights).
1.3 You should be aware that the storage, distribution or transmission of unlawful materials could lead to civil liability or criminal prosecution, in addition to any action we may take, which is set out in section 3 below and in our Terms and Conditions of Provision of Service.
1.4 Examples of prohibited materials include (without limitation):-
1.4.1 any material which constitutes, or encourages the commission of, a criminal offence;
1.4.2 hardcore and child pornography;
1.4.3 programs containing viruses or Trojan horses or any tools designed to compromise the security of other websites;
1.4.4 material protected by intellectual property rights, and other proprietary material, if such materials are used without proper authorisation.
1.5 You shall not post, upload or otherwise distribute material protected by intellectual property rights on our servers without the consent of the owner of the intellectual property rights.
1.6 Your traffic over the internet may cross other networks, or use other services which are not owned or operated by us. You must abide by the acceptable use policies and other terms and conditions imposed by the operators of those networks and services.
2 VIOLATIONS OF SYSTEM OR NETWORK SECURITY
2.1 Any violation by you of systems or network security is prohibited, and may result in you incurring criminal or civil liability. We shall investigate incidents involving such violations and will inform and co-operate with the relevant law enforcement organisations if we are requested by them to do so.
2.2 Violations may include, but are not limited to the following:-
2.2.1 unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network;
2.2.2 unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network;
2.2.3 Interfering with any user, host or network, including mailbombing (see definition at clause 4.2), flooding, and deliberate attempts to overload a system, and broadcast attacks.
3 EMAIL USE
3.1 You shall not send e-mail to any person who does not wish to receive it. You must comply with any request that you stop sending e-mails to any person.
3.2 You shall not send, distribute or reply to mailbombs. “Mailbombing” is defined as either e-mailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent.
3.3 You shall not use false e-mail headers or alter the headers of e-mail messages to conceal their e-mail address or to prevent internet users from responding to messages. You shall not use any e-mail address that you have not been authorised to use.
3.4 Violations of the Policy can sometimes result in massive numbers of e-mail responses. We reserve the right to shut down your account and terminate your agreement with us in accordance with our Terms and Conditions of Provision of Service if this occurs and adversely affects our resources, to the extent that it prevents us from providing a proper level of service to our Customers.
4 WORLD WIDE WEB USAGE
4.1 “Web usage” includes the use of web hosting on our dedicated servers.
4.2 We cannot and do not proactively monitor content on any data maintained by you (as part of web-hosting services), and we cannot and do not guarantee that such sites are free of illegal content or other materials that may be considered unacceptable by any person.
4.3 You undertake sole responsibility for any data owned or operated by you, hosted on our servers. You shall accordingly ensure that all data hosted by us does not infringe any third party rights, including intellectual property rights, and shall bear sole responsibility for any dispute in this connection.
5.1 We have in place a procedure for handling your complaints about material stored and/or accessed via our services, or about the behaviour of other users of our services. If you wish to make such a complaint, please ensure that you do so by e-mail to firstname.lastname@example.org
6.1 We reserve the right to investigate suspected violations of this Policy. When doing so we shall endeavour to act reasonably and fairly at all times.
6.2 An investigation may include gathering information from the user involved and the complaining party, if any, and examination of material on our servers.
6.3 During an investigation, we may (without prejudice to any other rights we may have in our Terms and Conditions of Provision of Service, or elsewhere) suspend the account involved, and/or remove the material involved from our servers. Such action may include temporary or permanent removal of material from our servers, warnings to the user responsible, and the suspension or termination of the account responsible, in accordance with the Terms and Conditions of Provision of Service. We will determine what action will be taken in response to a violation on a case-by-case basis.
7 ACTION WE MAY TAKE IF YOU BREACH THIS POLICY
7.1 If you are found to have breached this policy, we reserve the right (without prejudice to any other rights we may have in our Terms and Conditions of Provision of Service, or elsewhere) to take whatever measures we (acting reasonably) deem appropriate and proportionate to the breach, including (without limitation) giving you a formal warning, suspending or terminating your Agreement with us (as defined in the Terms and Conditions of Provision of Service), making an additional charge for our reasonable costs of investigating and dealing with the misuse, blocking access to any component of the service, and removing any access to our servers.
8 VARIATION OF POLICY
8.1 We may change this Policy to reflect any changes in the law or Internet community standards, or whenever we consider it necessary. Any such amendment shall be effective upon its posting onto our website at the following URL: www.apiscrm.com/TermsOfService.aspx and it is your responsibility to ensure that you are fully aware of any such amendment.