qpAlert Service Terms and Conditions
This Agreement is between you as a customer of the qpAlert service, herein referred to as
“Customer,” and Arclid.com Ltd., referred to below as “Arclid”. By
using the qpAlert service, you agree to be bound by this agreement and the Terms and
Conditions herein.
Terms & Conditions
1. Definitions
In this Contract unless the context otherwise requires:
"Service" or "Services" means Website design and development, Program
Development, Domain name registration, Virtual Server hosting, bandwidth provision, email
and any other service or facility provided by Arclid to Customer.
"Server" means the computer server equipment operated by Arclid or for Arclid,
or provided by Customer in connection with the provision of the Services.
“Delivery” means provision of source code and/or executable code to Customer for
the purposes of Service commencement or final customer testing. Such Delivery will be
notified to Customer in writing either by letter, email or facsimile.
"Contract" means the agreement between Arclid and the Customer incorporating
these conditions, the Arclid Service Order Form (where completed) and Arclid's charges for
the provision of its services; References to "Agreement" shall, where the
context admits, be read as referring to the Contract.
“Specification” means documentation detailing the work to be done by Arclid and
will include detail of the exact requirements as agreed by Customer.
"Charges" means the charges as agreed on the Service Order Form (where
completed) and Arclid’s latest prices for products and services requested or incurred
by you.
"bandwidth" means the allocated transmission capacity, measured in bits per
second, of the network connection as specified in the Contract.
"data transfer" means all traffic that passes through the Virtual Server
including specifically but not exclusively web traffic, email, FTP transfers and any
telnet session data.
"Site" means the premises or location at which Service is or is to be provided
under this Contract.
"Equipment" means equipment which is supplied by or on behalf of Arclid to the
Customer or placed at or on a Site for the purpose of providing Service.
"Internet" means the global data network comprising Internet connected networks
using TCP/IP (Transmission Control Protocol/Intermit Protocol) Internet Standards means
the protocols and standards defined in the following Internet documents: RFC 1009, 1122,
1123 and 1250 and any future such protocols and standards as appropriate.
2. Fees and Billing
2.1. Service Charges. Customer agrees to pay the charges for the Service
“Service Charges” as published on the qpAlert web site. Service Charges do not
include any applicable taxes, including Value Added Tax, all of which shall be billed in
addition to the Service Charges and shall be the responsibility of the customer.
2.2. Billing and Payment Terms. Beginning on the date of commencement of
the Services, as set forth in the Service Order or otherwise documented, Customer will be
billed monthly in advance for the contracted Services; except for specified one-time
Services ordered by Customer, which will be billed after the end of the month. All Service
Charges and other fees will be due in Pounds Sterling within thirty (30) days of the date
of invoice, or on such other terms as Arclid may require if Customer has not satisfied a
credit check. Late payments will accrue interest at a rate of one and one-half percent
(1˝%) per month or the highest rate allowed by applicable law, whichever is lower. If
Customer fails to make payments when due and does not cure such failure pursuant to the
terms hereof, Arclid may require payment in advance of further Services.
3. Services
3.1. The Services will be provided to Customer subject to the provisions
of this Agreement. Requests for additional services may be made to Arclid’s staff and
will be effective when accepted by Arclid. Such additional Services shall result in an
increase in the Service Charges as set forth in the Service Order
3.2. This Contract does not include the provision of telecommunications
services necessary for connection to the Service which will remain the responsibility of
Customer.
3.3. Requests relating to the provision of Service are, unless otherwise
agreed, to be made or confirmed in writing, or by electronic mail.
3.4. Arclid will use all reasonable endeavours to adhere to any dates
proposed by either Arclid or Customer for the provision of Service; however any such date
is to be treated as an estimate only and Arclid accepts no liability for failure to meet
such dates.
3.5. Arclid will use all reasonable endeavours to provide reliable
Service; however, it is not practicable to provide Service free of faults and Arclid does
not undertake to do so. In the event of a fault in Service, you must report the fault by
telephone, telefax or electronic mail to Arclid's Technical Support at the appropriate
numbers or addresses or other such numbers or addresses that Arclid may from time to time
provide. Upon receipt of the fault report, Arclid will take all proper steps without undue
delay to correct the fault. Arclid shall not, in any event, be liable for interruptions of
Service or downtime of a Server.
3.6. Arclid make no representation and give no warranty as to the
accuracy or quality of information received by any person via the Server and we shall have
no liability for any loss of or damage to any data stored on the Server.
3.7. Customer shall effect and maintain adequate insurance cover in
respect of any loss of or damage to data stored on the Server.
3.8. Customer represents, undertakes and warrants to Arclid that
Customer will use the Service allocated to you only for lawful purposes. In particular,
Customer represents, warrants and undertakes to us that it:
3.8.1. will not use the Service in any manner which infringes any law or
regulation or which infringes the rights of any third party, nor will it authorise or
permit any other person to do so;
3.8.2. will not post, link to or transmit:
3.8.2.1. any material which is unlawful, threatening, abusive,
malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise
objectionable in any way;
3.8.2.2. any material containing a virus or other hostile computer
program;
3.8.2.3. any material which constitutes, or encourages the commission
of, a criminal offence or which infringes any patent, trade mark, design right, copyright
or any other intellectual property right or similar rights of any person which may subsist
under the laws of any jurisdiction.
3.9. Customer shall keep secure any identification, password and other
confidential information relating to its account and shall notify Arclid immediately of
any known or suspected unauthorised use of its account or breach of security, including
loss, theft or unauthorised disclosure of any password or other security information.
3.10. Customer shall procure that all email is sent in accordance with
applicable legislation (including data protection legislation) and in a secure manner.
3.11. While Arclid will use every reasonable endeavour to ensure the
integrity and security of the Server, it does not guarantee that the Server will be free
from unauthorised users or hackers or from corruption by virus and Arclid shall be under
no liability for non-receipt or misrouting of email or for any other failure of email or
damage to data or operations.
4. Warranty
4.1. Arclid warrants that it will provide the Services at a professional
level of quality conforming to generally accepted industry standards and in compliance
with all applicable laws and regulations. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S OWN RISK, AND ARCLID
DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR
CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES OR
CONDITIONS ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, THERE IS NO WARRANTY THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
5. Disclaimer of Third Party Actions and Control
5.1. Arclid does not and cannot control the flow of data to or from the
Internet. Such flow depends on the performance of Internet services provided or controlled
by third parties. At times, actions or inactions caused by these third parties can produce
situations in which Customer connections to the Internet (or portions thereof) may be
impaired or disrupted. It cannot be guaranteed that such situations will not occur and,
accordingly, Arclid disclaims any and all liability resulting from or related to such
events.
5.2. In the event that Customer’s use of the Service or interaction
with the Internet or such third parties is causing harm to or threatens to cause harm to
the Arclid Network or its operations, Arclid shall have the right to suspend the Service.
Arclid shall restore Service at such time as it reasonably deems that there is no further
harm or threat of harm to the Arclid Network or its operations.
6. Limitations of Liability.
6.1. Damage to Customer Business. Arclid shall not be liable by reason
of any representation, warranty, condition or other term, whether express or implied by
statue, common law or otherwise or of any statutory provision for contribution or of
limitation any other statutory duty or duty or common law or under the express terms of a
contract, for any loss (including, without limitation, loss of profit, income, business,
revenue, or goodwill, costs, expenses or other claims whatsoever) damage or injury of any
kind, direct or indirect and consequential loss, howsoever arising and whether as a result
of any loss of technology, loss of data, or interruption or loss of use of Service or
otherwise, or any other similar claims by Customer or related to Customer’s business,
and even if Arclid is advised of the possibility of such damages.
6.2. Maximum Liability. Notwithstanding anything to the contrary in this
Agreement, Arclid’s maximum aggregate liability to Customer related to or in
connection with this Agreement whether under theory of contract, tort (including
negligence), strict liability or otherwise will be limited to the total amount due to
Arclid from Customer hereunder for the first one (1) month period of the Agreement.
7. Indemnification
7.1. Covered Claims. Each party (the “Indemnifying Party” for
the purposes of this Section) will indemnify, defend and hold harmless the other party
(the “Indemnified Party”), its directors, officers, employees, and affiliates
(collectively, the “Indemnified Entities”) from and against any and all claims,
actions or demands brought against any of the Indemnified Entities alleging (a)
infringement or misappropriation of any intellectual property rights by the indemnifying
party except to the extent caused by the Indemnified Party, (b) defamation, libel,
slander, obscenity, pornography, or violation of the rights of privacy or publicity, or
spamming or any other tortious or illegal conduct, (c) any property loss suffered by any
other customer of Arclid resulting from acts or omissions by the Indemnifying Party or its
representative(s) or designees, or (d) any personal injury suffered by any
representatives, employee or agent of the Indemnified Party’s negligence or willful
misconduct (collectively, the “Covered Claims”).
7.2. Notice Procedure. The Indemnified Party will provide the
Indemnifying Party with prompt written notice of each covered claim of which the
Indemnified Party becomes aware. At the Indemnified Party’s sole option, it may elect
to participate in the defence and settlement of any covered claim, provided that such
participation shall not relieve the Indemnifying Party of any of its obligations under
this section. The Indemnifying Party shall have the right to control the defence of any
Covered Claim.
8. Term
8.1. Use of the qpAlert Service is on a per item basis. You agree to be
bound by the terms and conditions of this agreement until full payment has been received
by Arclid.
9. Termination
9.1. Non-payment. Service to Customer may be suspended, without prior
notification, if any amount due hereunder is not paid in full within thirty days (30) days
after the due date for payment of the same. Reinstatement of Services may involve costs,
for which a reconnection fee may be required. Arclid may terminate this agreement (or at
its option, only the relevant Service Order) if any amount due hereunder is not paid in
full within fifteen (15) days after Customer is sent notice of non-payment.
9.2. Bankruptcy. Either party may terminate this Agreement upon written
notice to the other party if such other party becomes insolvent or files for bankruptcy or
goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction)
or makes any voluntary arrangement with its creditors or becomes subject to administration
order, a petition in bankruptcy or any proceeding relating to insolvency, receivership, or
liquidation for the benefit of creditors, if such petition or legal proceeding is not
dismissed within 60 days of filing.
9.3. For Other Cause. Except as otherwise stated, either party may
terminate this Agreement if the other party breaches any material term or condition of
this Agreement and fails to cure such breach within ten (10) days after receipt of written
notice of the same.
9.4. Effect of Termination. Upon expiration or termination of this
Agreement (a) Arclid will cease providing the Services, (b) except in the case of
termination by Customer pursuant to section 9.3, all of Customer’s payment
obligations under this Agreement, including but not limited to the Service Charges through
the end of the Term indicated on the Service Order(s) will become due in full immediately;
and (c) Arclid reserves the right to restrict Customer’s physical access to its
equipment or data in any facility of Arclid and to hold such equipment or data securely
until payment in full has been received or until such equipment is taken in full or
partial satisfaction of any lien of judgment.
10. Survival
10.1. The Parties respective representations, warranties and covenants,
together with obligations of indemnification, confidentiality and limitations on liability
will survive the expiration, termination or rescission of this Agreement and continue in
full force and effect.
11. Miscellaneous Provisions
11.1. Force Majeure. Other than with respect to failure to make payments
due, neither party shall be liable under this Agreement for delays, failures to perform,
damages, losses or destruction, or malfunction of any equipment, or any consequence
thereof, caused or occasioned by or due to fire, earthquake, flood, water, the elements,
labour disputes or shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or supplies, unavailability of
transportation, acts or omissions of third parties, or any cause beyond its reasonable
control.
11.2. Confidentiality. Each party agrees that all information furnished
to it by the other party, or information of the other party to which it has access under
this Agreement, shall be deemed the confidential and proprietary information (collectively
referred to as “Confidential Information”) of the Disclosing Party and shall
remain the sole and exclusive property of the Disclosing Party (the Party furnishing the
Confidential Information referred to as the “Disclosing Party” and the other
Party referred to as the “Receiving Party”). Each party shall treat the
Confidential Information and the contents of this agreement in a confidential manner,
shall use such information only to the extent necessary to perform its obligations
hereunder and neither party may directly or indirectly disclose the same to anyone other
than its employees on a need to know basis and who agree to be bound by the terms of this
section, without the written consent of the Disclosing Party. Information will not be
deemed Confidential Information hereunder if such information (i) is known to the
Receiving Party prior to the receipt from the Disclosing Party directly or indirectly from
a source other than one having an obligation of confidentiality to the Disclosing Party;
(ii) becomes known (independent of disclosure by the Disclosing Party) to the Receiving
Party directly or indirectly from a source other than one having an obligation of
confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases
to be secret or confidential, except through a breach of this Agreement by the Receiving
Party; (iv) is independently developed by the Receiving Party; or (v) is required to be
released by law or regulation, provided that the Receiving Party provide prompt written
notice to the Disclosing Party of such impending release, and the Receiving Party
cooperate fully with the Disclosing Party to minimise such release.
11.3. Marketing. Unless Customer at any time requests otherwise, Arclid
may refer to Customer by name and with logo in Arclid’s marketing materials and
website and, subject to Customer’s review and approval, may promote Customer’s
business use of the Services through a press release, advertising and other marketing
literature.
11.4. Assignment. Neither party may assign its rights or delegate its
duties under this Agreement either in whole or in part without the prior written consent
of the other party, except to an affiliate or a party that acquires substantially all of
the assigning party’s assets or a majority of its stock as part of a corporate merger
or acquisition. Any attempted assignment or delegation without such consent will be void.
This Agreement will bind and inure to the benefit of each party’s successors and
permitted assigns.
12. Entire Agreement
These Terms and Conditions together with any documents expressly referred to in them,
contain the entire Agreement between Arclid and Customer relating to the subject matter
covered and supersede any previous Agreements, arrangements, undertakings or proposals,
written or oral, between us in relation to such matters. No oral explanation or oral
information given by any party shall alter the interpretation of these terms and
conditions. In agreeing to these terms and conditions, you have not relied on any
representation other than those expressly stated in these terms and conditions and you
agree that you shall have no remedy in respect of any misrepresentation which has not been
made expressly in this Agreement. Arclid may amend this Agreement at any time by posting
the amended Agreement on our site or by giving you notice by e-mail. Any amended Agreement
will govern new user registrations from the date that it is posted on our website.
Existing users will be bound by the amended Agreement after the expiry of 30 days
following the date of notice. No other amendment to this Agreement will be effective
unless made in writing, signed by you and by Arclid.
|
|
