TERMS AND CONDITIONS FOR SUBSCRIPTION TO THE INSIGHTCLOUD SERVICES

Transcription

1 TERMS AND CONDITIONS FOR SUBSCRIPTION TO THE INSIGHTCLOUD SERVICES Important notice: please read the following terms and conditions carefully. By issuing an order for any InsightCloud Service (powered by Zynstra), you confirm that you understand and accept these terms and conditions. 1 Definitions 1.1 When they start with a capital letter, the following words and phrases have the meanings shown: (a) Agreement: these terms and conditions together with the Order accepted by Supplier under clause 2. (b) Commencement Date: the earlier of: (i) the date when Supplier notifies Customer that users can be registered in active directory on the hardware installed by Supplier at Customer s premises; or (ii) thirty days after Supplier accepts the Order under clause 2.2 extended by the period of any delay to the setup of the Services caused by Supplier or Customer. (c) Customer: the company or organisation identified on the Order who subscribes for the Services. (d) Intellectual Property: patents, trade and service marks, trade names, design rights, topography rights, copyright (including rights in computer software and moral rights), database rights, rights in know- how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection which have a similar effect anywhere in the world. (e) Order: Customer s purchase order or a completed Supplier order form. (f) Party: Supplier or Customer and Parties means both of them. (g) Service Description: the then current versions of the specification applicable to the particular Services covered by the Order, as further detailed in the Service Delivery lifecycle and Service Levels document and the Service Commitment document a copy of which are available upon request. (h) Services: the particular services to be supplied by Supplier that are identified on the Order and defined in the Service Description. In order to supply the Services, Supplier will install hardware on Customer s premises which remains the property of Supplier and which may only be used by Supplier and solely to deliver the Services. The Services require but do not include internet connectivity unless otherwise agreed. (i) Supplier: Insight Direct (UK) Limited. 2 Order procedure and term 2.1 Customer must submit an Order to Supplier whenever it requires new or additional Services. The Order must show: (a) the particular Services required by the Customer; (b) Customer s technical and financial contacts; (d) Customer s preferred Commencement Date; (c) the unit rates or price for the Services agreed between the Parties. 2.2 Supplier will confirm its acceptance of the Order and advise the planned Commencement Date. Supplier may reject any Order at its sole discretion. The Order will be deemed accepted if Supplier has not notified Customer of its acceptance or rejection within five business days of receipt. Following acceptance the Agreement shall come into existence. 2.3 Unless otherwise agreed the Services shall continue for successive 12, 36 or 60 month periods from the Commencement Date as shown on the Order. Where the Services are for an initial twelve month period, unless agreed otherwise and shown on the Order, the Services shall continue automatically for successive twelve month periods subject to the right of either Party to terminate the Services on any anniversary of the Commencement Date by giving the other at least thirty days prior written notice. 3 Setup of the Services 3.1 Each Party s general responsibilities for setup of the Services are described in the Service Description. Following acceptance of the Order, Supplier will confirm with Customer s technical contact, each Party s detailed responsibilities and the timetable for making the Services available by the planned Commencement Date. Supplier must approve Customer s internet connectivity specification. Customer is 1

2 responsible for arranging for the approved internet connectivity service to be in place by the planned Commencement Date. 3.2 Customer must provide Supplier with reasonable access to Customer s premises, systems and technical contact for the purpose of setup of the Services. Customer must give Supplier prior notice of all reasonable regulations relating to Customer s premises and Supplier will use reasonable endeavours to observe the same. 3.3 Supplier may charge at its standard rates for any previously agreed visits to Customer s premises, if Supplier is unable to carry out its responsibilities because Customer responsibilities are incomplete. 3.4 Customer accepts that it may experience temporary disruption to its systems and operations during the setup of the Services. Supplier will use its reasonable endeavours to minimise such disruption. 3.5 Supplier will reasonably endeavour to comply with Customer s requests in respect of the setup of the Services but Customer accepts that Supplier has the final decision on matters that might affect the efficient performance of the Services. 3.6 Once the setup is complete, Supplier will notify Customer of the Commencement Date. 4 The Services 4.1 Supplier warrants that it will supply the Services in all material respects in accordance with the Agreement and the Service Description. 4.2 Supplier shall use reasonably endeavour to commence the supply of the Services by the planned Commencement Date, but shall not be liable for any delays beyond its reasonable control, and thereafter to supply the Services with the skill and care of a competent supplier of such services. 4.3 Supplier warrants that it will maintain all necessary authority and rights to Intellectual Property to supply the Services. 4.4 To the extent permitted by law, Supplier s obligations in this clause 4 replace all other warranties with respect to the Services, either express or implied, including but not limited to any implied warranties of satisfactory quality or fitness for any particular purpose. 4.5 In order to measure and improve performance, Supplier may install monitoring systems in connection with the Services so as to collect and analyse anonymised and/or aggregated information. Supplier will only disclose the same to third parties who supply components of the Services or as may be required by any third party with relevant statutory authority. 4.6 Supplier may from time to time issue Customer reports on usage and performance of the Services in such format as Supplier shall decide. 4.7 Customer must use the Services in accordance with the Agreement and any documentation or reasonable instructions of Supplier. Customer will not use the Services to access, store, distribute or transmit any Objectionable material or for any Objectionable purpose. Objectionable means unlawful, false, fraudulent, misleading, offensive, pornographic, obscene, derogatory, discriminatory, racist, defamatory, inflammatory, malicious, threatening, causing nuisance or anxiety, unsolicited mass mailing, flooding, mail- bombing, spamming, or infringing the rights of Supplier or others or likely to expose Supplier to claims, liability, prosecution, disrepute or other similar third party actions. 4.8 Customer may not sell or re- sell, sub- license, lease, rent or otherwise supply the Services to any third party but Customer may use the Services to provide its own products or services to its own customers including the right for Customer s own customers to access the Services where this is necessary for Customer to successfully deliver its products and services. 4.9 Customer will ensure that its technical contact has the ability to undertake routine diagnostics, maintenance and systems administration of the Services Customer will ensure that administrative privileges are only assigned to suitably experienced persons who are sufficiently familiar with the Services and that such persons protect their passwords and generally observe good information security practice. 2

3 4.11 Customer shall abide by the licence terms notified by Supplier of any software incorporated into or supplied with the Services including those End User Terms annexed hereto The Services may include some maintenance responsibility for specified Customer applications or systems but otherwise Customer is solely responsible for the legality, compatibility, operation and maintenance of the applications and systems it uses with the Services Customer shall maintain the environmental, systems and operational requirements specified by Supplier and take all reasonable measures to prevent the hardware supplied by Supplier from loss or damage Customer must not attempt to repair, adjust, modify, interfere with or copy any software or hardware used or supplied by Supplier in connection with this Agreement; nor attempt to circumvent any security measures put in place by Supplier or interfere with any monitoring systems installed by Supplier. Customer will reasonably co- operate with any requests from Supplier concerning such systems and with any monitoring or reporting requirements Customer accepts that computer systems in general cannot be free of errors or interruptions and agrees that their existence does not constitute a breach of this Agreement Customer may only use the Services for its own internal business purposes Customer may copy and use any documentation supplied by Supplier only in connection with the proper use of the Services. 5 Support 5.1 Customer will only use the call reporting and handling processes advised by the Supplier to notify any problems with the Services. Customer will provide such information and access that Supplier may reasonably require to analyse the fault. Customer s own customers must notify problems through Customer and not directly with Supplier. 5.2 Supplier s responsibilities for fixing reported problems are described in the Service Description. 5.3 The Supplier shall use reasonable endeavours to achieve the availability target, recovery point objective and recovery time objective (RTO) set out in the Service Description. Availability and RTO are measured after allowing for acts or omissions of Customer, Supplier s published maintenance window and any incident of force majeure under clause 17. Any service credits are in full and final settlement of the relevant deficiency in the Services. 5.4 The obligations in clauses 5.2 and 5.3 are in full satisfaction of any breach by Supplier of the warranties in clause The support provided by Supplier as part of the Services does not include consultancy, user familiarisation or training. 5.6 Supplier may upon request, at its sole discretion, assist Customer with any problems relating to the Services which are excluded or not covered by the Agreement and will advise Customer in advance of any charges relating to such assistance. Any such assistance will be provided on a reasonable endeavours basis only and any timescales set out elsewhere in this clause 5 will not apply. 6 Prices and payment 6.1 Customer will pay Supplier for the Services either at the price shown on the Order or calculated at the rates/unit prices shown on the Order. 6.2 Unless the Order states otherwise, by giving Customer at least sixty days prior written notice, Supplier may increase its rates and prices with effect from any anniversary of the Commencement Date by either: (a) the annual movement in the latest available All Items Retail Prices Index excluding Mortgage Interest Payments published by the UK Office for National Statistics (RPIX); or (b) the price change generally applicable to Supplier s customers. If Customer does not accept this new price it may terminate the Agreement as set out in clause

4 6.3 Prices exclude UK VAT and any sales or purchase taxes, taxes on use, withholding tax, duties, levies or similar in any territory whether relating to the Agreement or the Services; which will be paid by Customer at the prevailing rate. 6.4 Supplier will invoice for the Services from the Commencement Date in advance on either a monthly, quarterly or annual basis or for the entire Agreement term as agreed and shown on the Order. 6.5 Payments are due within thirty days of invoice date. Supplier may charge interest on late payments as permitted under the Late Payment of Commercial Debts (Interest) Act 1998 and/or may suspend the Service by giving Customer written notice. 7 Changes 7.1 So as to continuously improve its operations, Supplier may revise the Services or these terms and conditions or any associated documents with effect from the 1 st January and 1 st July each year. 7.2 Such revisions are intended to clarify or improve customers rights or benefits without reducing or impairing the Services. 7.3 Supplier will announce each revision to its customer base at least sixty days ahead of the effective date. 7.4 In addition to the general announcement, Supplier will notify Customer where any revision would reduce customers rights or benefits. 7.5 If Customer reasonably believes that any revision reduces its rights or benefits, it may terminate the Services by giving Supplier at least thirty days notice prior to the date when the revision would become effective. In such case Supplier will repay Customer fees already received for the terminated Services that would have been supplied after the date of termination, less any third party termination fees agreed between the Parties during the thirty day notice period. 7.6 Customer must give Supplier at least thirty days notice of any changes to its premises. Supplier may charge Customer for any reasonable and substantiated costs incurred as a result of such change. 7.7 Customer may not change its internet connectivity arrangements without Supplier s prior written agreement. 7.8 Customer may add to or vary the Services by issuing a new Order. If the pricing band applicable to the new Order is different to that which applied to the original Order, the subscription term for the new Order will be as set out in clause 2.4 but otherwise the subscription term for the new Order will co- term with that which applied to the original Order. 7.9 The Agreement may only be changed as set out in clause 6 or this clause 7 or by any written agreement of the Parties which is stated to be a change made under this clause Intellectual Property 8.1 All Intellectual Property relating to the Services and derivative works thereof arising out of or during the course of the Agreement will be owned exclusively by Supplier or its licensors. 8.2 Supplier grants Customer the non- exclusive, non- assignable right (without right to sub- license) to use the Intellectual Property in the Services for the duration and purpose of the Agreement. Customer acquires no other rights to Supplier s Intellectual Property. 8.3 Supplier will indemnify Customer from all claims that the Intellectual Property in the Services infringes the rights of any third party provided that Customer: (a) (b) (c) (d) (e) has used the Intellectual Property in accordance with the Agreement; does not knowingly make or intimate any admission, settlement, opinion or undertaking that may be detrimental to Supplier s defence; gives Supplier prompt notice of any claim and the right to defend and settle any such claims in its own discretion; gives Supplier reasonable assistance to defend any such claims at Supplier s cost; uses all reasonable endeavours to mitigate Supplier s liability. 4

5 8.4 If any such infringement occurs or may occur, Supplier may at its sole option and expense obtain the right for Customer to continue using the Services or modify them so as to avoid the infringement without materially altering their functionality or withdraw the affected Services and repay Customer 100% of the aggregate sum paid for those Services in the twelve months prior to the infringement claim. 9 Suspension and termination 9.1 Supplier may suspend the Services: (a) (b) (c) (d) for any reason that would give Supplier the right to terminate the Agreement subject to giving Customer at least ten days notice; or if required to do so by any third party with relevant statutory authority. Supplier will give Customer as much notice as practicable in the circumstances; or for delayed payment described in clause 6.5; or in order to carry out emergency maintenance. Supplier will give Customer as much notice as practicable in the circumstances. 9.2 Supplier will promptly re- instate the Services as soon as practicable after the event causing the suspension has ceased. 9.3 Except for suspension under clause 9.1 (d), Customer remains liable to pay Supplier as if the Services had been continuously supplied throughout any period of suspension. 9.4 Supplier s rights to suspend the Services do not affect its termination rights. 9.5 Either Party may terminate the Agreement with immediate effect by giving the other Party written notice if the other Party: (a) (b) breaches any material term, condition or provision of the Agreement or of any material provision required by law or persistently breaches any lesser term, condition or provision, and fails to remedy the breach within thirty days of written notice; or ceases to carry on the business relevant to the Agreement, or receives a court order or passes a resolution for winding- up (other than for the purpose of solvent amalgamation or reconstruction), or is declared insolvent; or initiates any arrangement or composition with its creditors; or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or is deemed by any relevant statutory provisions to be unable to pay its debts. 9.6 Promptly following termination howsoever occurring and in any case within 5 days thereof, Customer is solely responsible for: arranging any replacement of the Services, returning all software and documentation received from Supplier, backing up all its affected systems and data and removing all of its software and data from hardware provided by Supplier as part of or in connection with the Services. At any time after five days from the date of termination, Supplier may disable the Services and delete any copies of Customer information and data within its control and remove hardware supplied as part of or in connection with the Services unless the Parties have agreed for such hardware to be transferred to Customer. 9.7 All rights and obligations of the Parties under the Agreement, including any right to any accrued service credits, will automatically cease upon termination except for such rights of action that accrue prior to termination and any rights or obligations under the Agreement or at law, which expressly or by implication come into or continue in force upon termination. 10 Liability 10.1 Subject to clauses 10.2 and 10.3, Supplier s aggregate liability in any twelve month period to Customer for direct loss or damage arising under negligence, breach of contract, breach of statutory duty or otherwise shall not exceed 100% of the sum paid by Customer for the affected Order(s) in the twelve months prior to the event giving rise to the liability Supplier has no liability to Customer for any indirect, special or consequential loss or damage, loss of anticipated savings, profits, business, revenue, data, goodwill or reputation howsoever arising, whether or not the Supplier has been advised of the possibility of any losses arising therefrom. 5

6 10.3 Supplier does not exclude or limit liability for death or personal injury caused by its negligence or for liability resulting from its wilful misconduct or fraud, or any other liability which it is unlawful to exclude or limit. 11 Confidentiality 11.1 Confidential Information is information which the disclosing Party identifies as confidential or which is usually considered to be confidential in the industry. Confidential Information excludes information which was already legitimately known by the receiving Party before the start of discussions leading to the Agreement or which is or becomes independently known to it or becomes public knowledge without any breach of this clause. Each Party will only disclose the other Party s Confidential Information to those of its own personnel who need to know for purposes connected with the Agreement and to those third parties who have relevant statutory authority. Each Party will apply the best practices of the industry to protect the other Party s Confidential Information from unauthorised disclosure. The obligations in this clause survive termination of the Agreement Customer agrees that Supplier may include Customer in its list of customers. Supplier will obtain Customer s prior written approval, which will not be unreasonably withheld or delayed, for any publicity which mentions Customer. 12 Dispute resolution 12.1 Except for interim injunctive measures in respect of breach of confidentiality or infringement of Intellectual Property, the chief executive of each Party or their nominees will have thirty days to resolve any dispute before either Party may resort to any other course of action. 13 Assignment 13.1 Supplier may subcontract any part of the Services but will be responsible for the acts and omissions of such subcontractors but otherwise neither Party may assign or transfer all or part of the Agreement, or any of its rights or obligations or appoint any agent to perform the same without the other s prior written agreement. Neither Party will unreasonably delay or withhold agreement if the other wishes to transfer all of its rights and obligations to a wholly owned subsidiary, or to a wholly owned subsidiary of its parent company, or to its parent company. The Agreement is binding upon the Parties successors or assignees. 14 Waiver 14.1 Failure by either Party to enforce any provisions of the Agreement will not represent a waiver of such rights and will not affect the validity of the Agreement. 15 Severability 15.1 If any part of the Agreement is found to be invalid or unenforceable, it will be deemed to be amended to the minimum extent required to remove the invalidity or unenforceability so that the Agreement remains valid and unaffected to the fullest possible extent. 16 Notices 16.1 Any notice or written agreement under the Agreement may be given by:- (a) mail or courier to the other Party s authorised representative at any address shown in the Agreement, or to any other address as one Party has notified the other of, and will be valid on the date of recorded receipt, or (b) fax to the other Party s authorised representative to any fax number shown in the Agreement, or to any other fax number as one Party has notified the other of, and will be valid at the time shown on a successful transmission report, or (c) to the address of the other Party s authorised representative and will be valid at the time of sending unless the system has generated an unsuccessful transmission or unsuccessful delivery report. 17 Force majeure 17.1 Except for the obligation to make payments properly due, neither Party will be liable for delays or failures caused by circumstances beyond its reasonable control. The affected Party must promptly give the other notice of any such delay or failure and use reasonable endeavours to mitigate the delay or failure. 6

7 18 Legal construction of the Agreement 18.1 Customer does not acquire ownership of hardware supplied as part of or in connection with the Services and therefore Customer may not permit or create any claim, encumbrance or lien over such hardware No part of the Agreement may be enforced by any person who is not a party to it whether relating to the Contracts (Rights of Third Parties) Act 1999 or otherwise The Parties agree to use the English language for all matters relating to the Agreement The Agreement is governed by English law and subject to the exclusive jurisdiction of the English courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply The Agreement represents the entire agreement and understanding between the Parties in respect of its subject matter and the terms and conditions of any purchase orders, acknowledgements or similar documentation put forward by Customer have no effect whether or not Supplier supplies the Services without expressly rejecting such terms and conditions Customer accepts all of the above by submitting an Order to Supplier. Supplier accepts all of the above by accepting the Order. 7

8 END USER LICENSE TERMS TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE This document governs the use of Microsoft software, which may include associated media, printed materials, and online or electronic documentation (individually and collectively, Products ) provided by Zynstra Limited (hereinafter referred to as Customer ). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend. 1. DEFINITIONS. Client Software means software that allows a Device to access or utilize the services or functionality provided by the Server Software. Device means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, smart phone, server or other electronic device. Server Software means software that provides services or functionality on a computer acting as a server. Software Documentation means any end user document included with server software. Redistribution Software means the software described in Paragraph 4 ( Use of Redistribution Software ) below. 2. OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively Microsoft ). All title and intellectual property rights in and to the Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and applets incorporated into the Products) are owned by Microsoft or its suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you. 3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices by Customer only in accordance with the instructions, and only in connection with the services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software. 4. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to you by Customer, you may have access to certain sample, redistributable and/or software development ( SDK ) software code and tools (individually and collectively Redistribution Software ). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS ( SPUR ) APPLICABLE TO CUSTOMER, WHICH TERMS MUST BE PROVIDED TO YOU BY CUSTOMER. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer. 5. COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products. 6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity. 7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Customer. 8. TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts. 9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES. 10. PRODUCT SUPPORT. Any support for the Products is provided to you by Customer and is not provided by Microsoft, its affiliates or subsidiaries. 11. NOT FAULT TOLERANT. THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE. 12. EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions. 8