Results Freak – Customer Agreement (last updated 25 August 2009)
AGREEMENT BETWEEN YOU AND ALLIANCE SYSTEMS LIMITED
These terms of Service are an agreement between Alliance Systems Limited (company number: 03219024), the company which provides the Results Freak hosted CRM service, and you, (the “Agreement”).
This Agreement applies to the provision (and your use) of all and any part of the Results Freak and Microsoft Dynamics CRM services and software, including without limitation any related trials, updates, upgrades, support, content, information, images, files or documents (collectively referred to as the “Service”).
Please read this Agreement carefully. Alliance may provide, in connection with the Service other posted notices or written codes of conduct. Any such notices and codes of conduct shall be incorporated by reference into this Agreement. By subscribing to and/or using any part of the Service, you agree to be bound by this Agreement, including any modifications properly made to it from time to time. If you do not agree to the terms and conditions in this Agreement you may not subscribe to or use the Service.
1. Definitions and Interpretation
In this Agreement:
the terms "you" and “your” mean the company, firm or person on whose behalf the person who accepts these terms and conditions is acting (and includes any successors or permitted assigns of any such company, firm or person);
“Administrator” means any person designated by you to be an administrator of your Service and your account and approved by us;
“Affiliate” means, in relation to a body corporate, any individual shareholder/owner or any body corporate wholly or materially (meaning as to 50% or more of voting control) under common ownership with it having regard to the ultimate owners;
“Authorised User” means any authorised user of the Service and your account as designated by you and as agreed by us; the terms “we”, “our” or “us” mean Alliance Systems Limited (company number: 03219024) whose trading address is at 5 Westbury Mews, Bristol BS9 3QA (“Alliance”);
the singular shall include the plural and vice versa; and
the schedules hereto form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.
2. Subscribing to the Service and Authorised Users
Subscribing to the Service. You must sign up for a subscription to one of the Service levels (the “Subscription”) before you can use the Service. A list of the Service levels together with the related charges is set out under Schedule 1 to this Agreement.
Only you (through your Authorised Users) are licensed to access or use the Service. The Service level to which you subscribe will begin after Alliance receives and processes all of the information requested in the Subscription process. You represent and warrant to Alliance that any information you provide in connection with (a) any Subscription and (b) the Service shall be true, accurate and complete.
Authorised Users. You may (through any of your authorised representatives or your Administrator) specify who you wish to appoint as an Authorised User and such a person shall become an Authorised User subject to our prior consent. You may (through any of your authorised representatives or your Administrator and with our prior consent) add additional Authorised Users to the Service up to and including the total number of user licenses purchased as part of the Service level for which you subscribed.
Any one user license cannot be shared or used by more than one individual Authorised User and cannot be reassigned to a new user to replace a current Authorised User who has terminated employment or otherwise changed job status or function and no longer uses the Service. However, you may request that we delete an Authorised User from the Service and add a new Authorised User to the Service to replace the former Authorised User, and we will notify you if we consent to such a request.
If you wish to use the Service for more than the total number of user licenses available through the Service level you subscribed to, you must subscribe to the appropriate Service level prior to commencing any such use (and the charge rates may increase accordingly).
As part of the Service you may use an amount of space on Alliance’s servers which is no more than the total of 1 gigabyte multiplied by the number of your Authorised Users (except where Alliance has given express written permission for you to exceed this limit for a specified period of time).
Appointment of any Administrator. You may notify us of a specific person whom you wish to appoint as your Administrator for the purposes of the Service and, if we consent to such appointment, we agree that we shall deal with any such Administrator in connection with the Service.
3. How You May Use the Service
You may use the Service only under the terms and conditions of this Agreement and for your internal business purposes. All rights not expressly granted to you under this Agreement are reserved by Alliance and its licensors. In using the Service, you will (and you will procure that any Authorised User, employee, consultant, agent or Affiliate of yours will):
- comply with all applicable laws and regulations which may relate to your use of the Service (including without limitation any laws and regulations relating to data protection from time to time);
- comply with any codes of conduct or other notices we provide which relate to the Service;
- at all times keep your password(s) secret; and
- promptly notify us in writing if you learn of a security breach or unauthorised access related to the Service.
You shall fully indemnify Alliance against any loss, cost, expense or liability which Alliance may suffer or incur as a result (directly or indirectly) of your breach of any part of this clause 3.
4. How You May Not Use the Service
In using the Service, you will not (and you will procure that any Authorised User, employee, consultant, agent or Affiliate of yours will not):
- use the Service in any way that harms Alliance or its Affiliates, resellers or distributors (collectively, the “Alliance parties”), or any customer of an Alliance party or any other Service user;
- engage in, facilitate, or further unlawful conduct;
- damage, disable, or impair the Service (or the networks connected to the service) or interfere with anyone’s use and enjoyment of the Service;
- resell or redistribute the Service, or any part of the Service, unless you have a written contract with Alliance that permits you to do so;
- use any portion of the Service as a destination linked with any unsolicited bulk messages or unsolicited commercial messages (“Spam”) or otherwise send or promote any Spam via the Service;
- send or cause to be sent any Spam;
- use any unauthorised automated process or service to access and/or use the Service (including without limitation a BOT, a ‘spider’, any periodic caching of information stored by Alliance or ‘meta-searching’) although periodic automated access to the Service for report creation or scheduling is permitted;
- use any unauthorised means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
- modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology or system used by Alliance in connection with the provision of the Service;
- create Internet ‘links’ to the Service or ‘frame’ or ‘mirror’ any content of the Service in order to give the impression that you are offering all or any part of the functionality of the Service as your own service located on your own servers;
- copy any ideas, features, functions or graphics of the Service or otherwise infringe any intellectual property rights relating to the Service; or
- access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall fully indemnify Alliance against any loss, cost, expense or liability which Alliance may suffer or incur as a result (directly or indirectly) of your breach of any part of this clause 4.
5. Email Sent To Or Through The Service
You may not send email to or through the Service which:
- uses any invalid or forged headers or domain names;
- employs any technique to misrepresent or obscure any information which identifies the point of origin or the transmission path or which is otherwise materially misleading;
- uses a third party’s internet domain name or which is relayed from any third party equipment without the permission of the third party in question.
6. Your Service Account
Responsibility for Your Service Account. Only you (through your Authorised Users or your Administrator) may use your Service account. You are responsible for all activity under your Service account and the related passwords. You are solely responsible for monitoring usage of your Service account and for any use or misuse of your Service account or the Service resulting from any third party using any password or user name selected by you or issued to you.
Accuracy of Your Information. You agree to provide Alliance with complete and accurate contact information. This information includes your legal company name, street address, email address, and the name and telephone number of any Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact or billing information you have provided is false or fraudulent, Alliance reserves the right to terminate immediately your access to the Service in addition to pursuing any other legal remedies.
Data. Alliance does not own any data, information or material that you submit to the Service in the course of using the Service ("Data"). You are responsible for maintaining and backing-up any Data that you use with the Service. You, not Alliance, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of the Data and for all rights in the Data. You may not share Data belonging to third parties unless you own have permission from the owner, or unless such sharing is otherwise legal. Alliance shall not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store any Data that you use or provide in connection with the Service.
Each party covenants with the other party that it shall comply with any applicable laws and regulations relating to data protection from time to time.
7. How We May Change this Agreement
Subject to the below paragraph, Alliance may change this Agreement from time to time.
If Alliance wishes to make any change to this Agreement, we will notify you at least 30 days before the change takes place (“Change Date”). If you do not agree to the change, you must give notice to terminate this Agreement and stop using the Service before the Change Date. If you do not cease to use the Service prior to the Change Date, you will be deemed to have agreed to the Agreement as changed and your continued use of the Service will be under the changed Agreement.
8. Charges and Payment
This clause applies in all situations in which you are required to pay Alliance for any part of the Service or for any product or service provided under this Agreement.
Payment Method.
You will provide a payment method to enable us to charge you in connection with the Service (“Payment Method”). You hereby confirm that you will be authorised to use any such Payment Method. You authorise us to charge you via the Payment Method for the Service and for any additional service or product provided by us under this Agreement. If the amount to be charged to your Payment Method is greater than any amount you have pre-authorised, we will tell you the amount at least 10 days before we charge you.
Subscription Fees and Renewals.
“Subscription Fee” means the monthly amount you are required to pay for your Subscription to the Service as set out in Schedule 1 to this Agreement (or as otherwise notified to you in writing from time to time in accordance with this Agreement).
You may be required (by notice provided by Alliance) to pay your Subscription Fee in advance, in arrears or both, depending on whether you are making a one-time or a recurring payment. Alliance may charge you at any one time for more than one of your prior billing periods.
The Subscription Fee charged by Alliance for the Service excludes phone and internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. These charges are your responsibility.
The Subscription Fee you pay will be in effect for the duration of each of your Subscription periods for the Service. Renewal of your Subscription to the Service will be at the then current charges (as set out in Schedule 1 or as otherwise notified to you in writing) and under the then current terms.
Your Subscription to the Service (at the current Service level) will be automatically renewed (at the then current charge rates and on the then current terms) at the end of your Subscription period unless you terminate your Service prior to the end of the Subscription period or unless you provide written notice that you wish to change your Service level.
We may amend the charge rates for the Service set out under Schedule 1 from time to time, but we will give you at least 90 days notice before the new charge rates takes effect. At the end of your Subscription period, if you do not agree to the new charge rates for the Service, then you must stop using the Service and terminate this Agreement before the commencement of a new Subscription period.
Trial Period Offer. You may receive free use of the Service for a limited time as part of a trial period offer (provided that we confirm any such offer in writing). Unless we tell you otherwise, if you are participating in any trial period offer, you must terminate the Service in writing by the end of the trial period to avoid incurring charges as set out in Schedule 1. If you do not terminate your Service in writing by the end of the trial period and we have informed you that the Service will automatically be converted into a paid subscription at the end of the trial period, then you will be deemed to have authorised us to charge your Payment Method (in accordance with Schedule 1) for the Service.
Updates to your Billing Account. You must keep all information in your billing account accurate and current, including your billing address and any expiration date for your Payment Method. If you tell us to stop using your current Payment Method, but you do not provide an alternative Payment Method, we will immediately cancel your Service. Your notice to us will not affect charges we submit to your billing account before we could reasonably act on your request.
Change in Service Level and Change in Charges. You may be able to change your current Service level to a different Service level. If you do, you authorise us to charge your Payment Method for any new Service charges. If you switch to a Service level where we charge a lower fee, we may, but are not required to, refund the unused portion of the Subscription Fee for the Service level you previously used or the difference in the amount of the Subscription Fees between the two Services levels. The provision of any Service level, however, will be under the terms and conditions of this Agreement (and as properly modified from time to time).
Payments Non-Refundable. All payments made by you to us are non-refundable unless expressly stated otherwise, or otherwise provided by law. The costs of any returns will be at your expense, unless otherwise provided by law.
Payment to You. To receive a payment from Alliance, you must promptly provide us with all information we need to make the payment (for example, bank account information for receiving the payment). You must provide us with the information we request before your right to receive payment accrues. If you receive a payment that was not due to you, we may reverse or seek return of the payment, and you agree to cooperate fully with us in such circumstances.
Online Billing Statement. We will provide you with an online billing statement. If you ask us to mail a copy to you, we may charge you a related fee. We can only provide a paper copy that covers the 120 days prior to your request. If we make an error on your bill, we will correct it promptly after you tell us and we investigate the charge. You must tell us within 120 days after an error first appears on your bill. If you do not tell us within this time, we will not be required to correct the error. Unless otherwise prohibited by law, you release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first appears on your online statement.
Late Payment. If payment is not made by you on the due date, Alliance shall be entitled, without limiting any other right it may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of 4 per cent above the base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full. You will also be liable for Alliance’s costs incurred in collecting any outstanding sums due. We may immediately suspend or terminate your Service if you do not pay in full and on time.
VAT. All charges stated by Alliance are exclusive of value added tax (VAT) or other applicable taxes. You will be liable to pay any applicable VAT (or any other applicable taxes) which may be properly added to any charge made by Alliance.
9. Termination
By Alliance. We may terminate or suspend your Service or a part of your Service at any time and for any reason by giving written notice to you. If we do so, your right to use the Service will immediately cease. Termination of the Service will not change your obligation to pay any charges due on your billing account for your current subscription period. If we terminate the Service without cause, we will refund the unused portion of your Service charge for that period on a pro rata basis.
By You. You may terminate your Service (by giving written notice to us) at any time for any reason. Certain Service levels may oblige you to pay termination charges, and you will pay all termination charges as specified in Schedule 1 or in any written notice provided to you prior to your subscription to that Service level. Termination of the Service by you will not change your obligation to pay any charges to your billing account for your current subscription period.
Data. Upon termination of the Service by you or Alliance for any reason, Alliance may delete your data permanently from our servers. You are responsible at all times for taking the necessary steps to back up your data and ensuring that you maintain your primary means of business.
Any termination of the Service or this Agreement shall be without prejudice to any rights or liabilities accrued up to the date of termination and shall not affect the continuance in force of any provision of this Agreement which is expressly or impliedly intended to continue in force after such termination, which shall include without limitation clauses 13, 17, 20, 21 and 22.
10. Limits on the Service
Alliance may limit:
- the number of days the Service will retain any Content that you or other users may post or provide;
- the number and size of e-mail messages that you may send or receive through the Service;
- the maximum storage space on Alliance’s servers available to you through the Service (as set out in clause 2);
- how long we retain an inactive Service account, which we define as one where you do not sign in to the Service for what we deem to be an extended period of time; and
- the number of transactions you can conduct through the Service. If you exceed the Service storage limits (as set out in clause 2), Alliance may give you the right to delete data until the storage limit is met. If, after receiving notice of such excess, you continue to exceed the Service limits of which you have been notified, Alliance reserves the right to cancel your Service.
11. Alliance Does Not Have Control Over Your Content
Content. Both you and Alliance may be able to post or store materials via the Service, including data, documents, information, advertisements, communications, messages and links to third party Web sites (“Content”).
Intellectual property rights relating to the Content. Alliance does not sanction or approve the unauthorised use of Content protected by copyright and other intellectual property rights. You represent and warrant that the use and publication of your Content does not breach the intellectual property rights of any third party and you shall fully indemnify Alliance against any loss, cost, expense or liability which Alliance may suffer or incur as a result (directly or indirectly) of any breach by you of the provisions of this clause 11. You understand that Alliance may remove Content at any time without notice when the Content (or its posting) breaches this Agreement or any applicable code of conduct, or when we have a good faith reason to believe it is necessary to do so.
Posting Content.
You acknowledge that Alliance does not control or endorse the Content that you and others post or provide on the Service. Alliance doesn’t claim ownership of Content that you and others post or provide.
For the avoidance of doubt, Alliance will not pay you for any Content which you post in connection with the Service.
Links to third-party Web sites. The Service may contain links to third-party Web sites. These third-party Web sites are not under Alliance’s control. If Alliance has included these links in the Service, we provide them to you as a convenience only. The inclusion of these links is not an endorsement by Alliance of any third-party Web site, service or product. Alliance reserves the right to disable links to any third-party Web site that you post on the Service.
12. Privacy
Access and Disclosure. In order to operate and provide the Service, we collect certain information about you. We shall not disclose such information to any person except:
- to our officers, employees or agents on a confidential basis and only to the extent necessary to enable them to perform or cause to be performed any obligations or enforce any rights under this Agreement;
- to our professional advisers on a confidential basis; or
- where required by law, by a court of competent jurisdiction or by any official body with authority to impose binding requirements.
Transfer of personal information. Personal information collected through the Service may be stored and processed in the United Kingdom or any other country in which Alliance or its Affiliates, or agents maintain facilities. By using the Service, you consent to any such transfer and storage of information outside of your country to the extent necessary in connection with this clause 12.
Performance and usage data. In order to provide you with the Service, we may collect certain information about the Service performance, your computer and your Service use. We may upload such information from your computer from time to time.
Filtering technology. We may use technology or other means to protect the Service, protect our customers, or stop you from breaching this Agreement. Examples include filtering to stop Spam and viruses or to increase security. These means may hinder your use of the Service from time to time.
Contacting us about privacy. We welcome your views about our privacy practices. If you would like to contact us with any queries or comments, please use our contact form.
Your privacy practices. In using the Service, you may be able to collect personal information about third parties through your dealings with such third parties. If you do, you agree to (a) post a privacy policy on your Web site that, at a minimum, discloses any and all uses of personal information that you collect from such third parties, (b) provide a hypertext link to your privacy policy on the home page of your Web site and on all pages where you collect personal information from third parties, including on check out pages, and (c) use personal information only as expressly permitted by your privacy policy.
Communication from Alliance. Because the Service is a hosted online application, Alliance may need to notify users of the Service occasionally of important announcements regarding the operation of the Service. As a condition of the use of the Service, users may also receive marketing and other non-critical Service-related communications from Alliance from time to time.
13. Software
Use of software. If you receive software from us as part of the Service, we grant you the right to use the software only in connection with the Service and under the terms and conditions of this Agreement. All other rights to the software are reserved. You acknowledge and agree that you shall also (a) comply with the terms of any licence provided by a third party in connection with such software and (b) only use such software on that number of computers stated in your Service level. Unless we notify you otherwise, your right to use the software expires when your right to use the Service terminates or expires or when Alliance updates the Service and it no longer uses the software. You must promptly uninstall the software when your right to use it expires or terminates. We may disable the software after the date on which the Service is terminated.
Updating software. We may from time to time download upgrades to the software to your computer in order to update, enhance and further develop the Service.
Intellectual property rights. Any software provided in connection with the Service is licensed to you, not sold. You acknowledge and agree that any copyright or other intellectual property rights in any software connected with the Service (or in any other part of the Service) belong to Alliance or to any third party who has licensed such rights to Alliance (“Licensor”). You will not (and you will procure that any Authorise User, employee, consultant, agent or Affiliate of yours will not) infringe the intellectual property rights of Alliance or any Licensor and you will notify Alliance immediately of any actual or suspected unauthorised use of the software by any third party which may come to your attention.
You will not (and you will procure that any Authorised User, employee, consultant, agent or Affiliate of yours will not) disassemble, decompile, or reverse engineer any software provided in connection with the Service.
You will not grant any assignment or sub-licence of any rights licensed to you by Alliance without the express written permission of Alliance.
You will fully indemnify Alliance against any loss, expense, cost or liability which Alliance may suffer or incur as a result (directly or indirectly) of any breach by you of this clause 13.
14. Service Level Guarantee
We will aim to offer you a stable and reliable Service. We also aim to provide you with 95% uptime (“Service Level Guarantee”).
If you do not receive 95% uptime in any given month, under the Service Level Guarantee you will be entitled to claim one month’s refund (for the month in question) provided that any such claim must be made in writing with 3 months from the end of the month in question and subject always to the below provisions in this clause 14. To make any such claim you should send an email to the following address: sla@resultsfreak.com or such other email address as we may notify you of from time to time.
The Service Level Guarantee does not cover:
- scheduled downtime (including without limitation any downtime on account of the maintenance or upgrading of any system or software);
- downtime arising as a result of (directly or indirectly) any act or omission made by you or any third party including without limitation the addition of any third party software or hardware, and anyone other than you or Alliance accessing your account using your password(s);
- downtime arising as a result of any activity which we have advised you not to pursue;
- any period of downtime (from time to time) that is 10 minutes or less in duration.
The Service Level Guarantee shall not apply where the figure of 95% uptime is not achieved as a result of any cause beyond Alliance’s reasonable control.
15. Microsoft SPLA agreement
You acknowledge and agree that you shall fully comply with Microsoft’s standard SPLA agreement (the “SPLA Agreement”), as attached in Schedule 2 to this Agreement and which forms part of this Agreement. You shall fully indemnify Alliance against any loss, cost, expense, or liability which Alliance may suffer or incur as a result (directly or indirectly) of any breach by you of any provision of the SPLA Agreement.
16. Your Dealings with Third Parties
If you obtain any product, service or thing from a third party (“Third Party Service”) through the Service or our network, you acknowledge and agree that your relationship is with the third party in connection with such Third Party Service and not with Alliance. You may not make a claim against Alliance in respect of any such Third Party Service, even if Alliance assisted in billing for the Third Party Service. You are solely responsible for your dealings with any such third party.
You represent and warrant that you will comply with all applicable laws and regulations (including privacy laws and regulations that relate to your collection of information from third parties) in connection with any Third Party Service.
17. Feedback provided by you
If you give written feedback about the Service to Alliance, you thereby give to Alliance, without charge, the right to use, share and commercialise your feedback in any way and for any purpose. These rights survive this Agreement.
18. Our Notices to You and Your Notices to Us
This Agreement is in electronic form. We have promised to send you certain information in connection with the Service, including notices of changes to the Service or this Agreement and we have the right to send you this information in electronic form. There may be other information about the service that we are required to send to you. We may send this information to you in electronic form.
We may provide required information to you
- by e-mail at the e-mail address you specified when you signed up for the Service, or
- by posting on a sign-in or welcome page when you log into the Service. Notices will be deemed given and received by you on the transmission date of the e-mail or our posting of the notice.
If you do not consent to receive notices electronically, you must immediately terminate the Service.
You may give Alliance any written notice by sending an email to the following address: notice@resultsfreak.com or such other email address as we may notify you of from time to time.
19. No Warranty provided by Alliance relating to the Service
Alliance gives no guarantee about the reliability, accuracy or timeliness of the Service or the results obtained from the Service. You acknowledge that the security mechanisms in the Service have inherent limitations and agree that you are responsible for determining whether the Service meets your needs.
We provide the Service “as-is,” “with all faults” and “as available.” You bear the risk of using it. To the maximum extent permitted by law, Alliance gives no express warranties, guarantees or conditions relating to the Service (or any part of it). You may have additional rights under your local laws that this Agreement cannot change. To the extent permitted by law, however, we exclude any implied warranties or conditions including those of fitness for purpose and satisfactory quality in each case relating to the provision by Alliance of the Service.
20. Liability Limitation
The provisions of this clause 20 shall survive termination of this Agreement however arising.
Alliance’s entire liability under or in connection with this Agreement (whether for negligence, breach of contract or otherwise) for any one cause of action or series of causes of action arising out of the same event, act or omission shall not exceed the amount of charges connected with the Service (including Subscription Fees) paid by you to Alliance during the 12 months prior to the date of the event giving rise to Alliance’s liability.
Alliance shall have no liability to you for any loss, damage, cost or expense arising from (a) any information, Data, Content or instructions supplied by you which were inaccurate or misleading or from our reliance on the same, (b) any virus or harmful components within any website used by you in connection with the Service or (c) any failure or delay in the performance of any of Alliance’s obligations under this Agreement if such failure or delay was caused by your act or omission. Subject to the last paragraph of this clause 20, Alliance shall have no liability to you for any loss of profit, loss of opportunity, loss of data, loss of business or any other special, indirect or consequential loss.
Nothing in this clause 20 or in this Agreement as a whole shall limit or exclude either party’s liability for (a) death or personal injury caused by the other party’s negligence, (b) fraud or (c) any other liability which cannot be limited or excluded at law.
21. Any Claim By You Must Be Filed Within 18 months
Except as provided otherwise under clause 14 (Service Level Guarantee), any claim made by you under this Agreement or the Service must be made by giving Alliance notice in writing of such claim (specifying in reasonable detail the nature of the claim and the amount claimed) within 18 months of the event giving rise to Alliance’s alleged liability. Any liability of Alliance for any claim specified in such written notice shall (in the absence of agreement between you and Alliance as to a settlement figure) absolutely determine and cease if legal proceedings have not been instituted in respect of such claim by the due service of process on Alliance within 6 months of such written notice.
22. Confidentiality
Each party (each of whom is in this clause 22 called the “Covenantor”) covenants with the other party that it shall not (and it shall procure that any of its employees, consultants, agents or Affiliates shall not) disclose any confidential or sensitive commercial information concerning the other party or its business to any person except to the Covenantor’s officers or employees on a confidential basis and only to the extent necessary to enable them to perform or cause to be performed any obligations or to enforce any rights under this Agreement, or except where required by law or by a court of competent jurisdiction.
23. Applicable Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
24. Enforceability of this Agreement
All parts of this Agreement apply to the maximum extent permitted by law. A court may hold that either party cannot enforce a part of this Agreement as written. If this happens, then that part will be replaced with terms that most closely match the intent of the unenforceable part. The rest of this Agreement will not change.
Subject to the above paragraph in this clause 24, if any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement shall continue to be valid as to the other provisions and the remainder of the affected provision.
25. Entire Agreement and Variation
This Agreement (including its Schedules), together with any codes of conduct and other notices provided by Alliance, is the entire Agreement between Alliance and you regarding the Service. It supersedes any other Agreement or statements related to the Service. The clause headings in the Agreement do not limit the other terms of this Agreement. Except where otherwise provided herein, no variation of this Agreement shall be valid unless it is agreed in writing by both parties.
26. Assignment
Alliance may assign this Agreement, in whole or part, at any time without notice to you. You may not assign this Agreement, or any part of it, to any other party. Any attempt to do so is void.
27. Force Majeure
Alliance will not be liable for any loss or damage or be deemed to be in breach of this Agreement due to any event or circumstance beyond its reasonable control, including, war, invasion, electrical shortages, terrorist attacks, earthquakes or acts of god.
SCHEDULE 1
Charge rates
Service level A: The charge rate applicable for this Service level is £50 per user per month.
SCHEDULE 2:
Microsoft’s SPLA agreement
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, “Licensed Products”) provided by Alliance Systems Limited (hereinafter referred to as “Customer”). Customer does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Licensed 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 LICENSED PRODUCTS. The Licensed Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). All title and intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed 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 Licensed Products does not transfer any ownership of the Licensed 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 Licensed 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 Licensed Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Licensed 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 Licensed Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Licensed Products except for the sole purpose of accessing the functionality of the Licensed 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 Licensed 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 Licensed Products are licensed, you must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of its 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 Licensed Products is provided to you by Customer and is not provided by Microsoft, its affiliates or subsidiaries.
11. NOT FAULT TOLERANT. THE LICENSED 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 LICENSED PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS. The Licensed Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and U.S. laws that apply to the Licensed Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/ .
13. 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.