Please read carefully this agreement before using Vezinet. By clicking the check box on the sign-up form you (Customer) agree to become bound by the Terms and Conditions of this agreement, to the exclusion of all other terms.
1. Warranties relating to the software:
1.1. The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 90 days from the date of this agreement (Software Warranty Period). If, within the Software Warranty Period, the Software User notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Software User, or anyone acting with the authority of the Software User, having used the Software outside the terms of this agreement, for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, the Supplier shall, at the Supplier's option, do one of the following:
a) replace the Software; or
b) repair the Software; or
c) terminate this agreement immediately by notice in writing to the Software User and refund any of the Software Fee paid by the Software User as at the date of termination (less a reasonable sum in respect of the Software User's use of the Software to date of termination),
provided the Software User provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including sufficient information to enable the Supplier to re-create the defect or fault.
1.2. Notwithstanding clause 1.1 above, during the Software Warranty Period in case of non conformity of the Software in all material respects to the Specification the Supplier shall, upon receiving the Software User's request, such request to be submitted within 90 days of the first invoice from the Software User to the Supplier, fully refund the Software Fee to the Software User.
1.3. The Supplier does not warrant that the use of the Software and the delivery of the Software Services will be uninterrupted, without delay or error-free.
2. Warranties relating to HOSTING services and plugins
2.1. The Hosted Material and the Hosted Services are provided on an "as is" basis. As such no representations, conditions, warranties or other terms of any kind are given in respect of the Hosted Material or the Hosted Services, and all statutory warranties and conditions are excluded to the fullest extent possible.
2.2. The Customer accepts responsibility for the selection of the Plugin to achieve its intended results.
2.3. The Supplier does not warrant that the use of the Hosting Services and the delivery of the Hosted Material will be uninterrupted, without delay or error-free.
3. SUPPLIER'S LIMITs OF LIABILITY
3.1. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
3.2. Except as expressly stated:
a) the Supplier's liability, whether under this agreement or any collateral contract, for loss of or damage to the Customer's tangible property caused by the negligence of the Supplier, its officers, employees, contractors or agents, shall not exceed the amount paid to the Supplier by the Customer for the previous 12 months;
b) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
ii) loss of profits;
iii) loss of anticipated savings;
iv) loss of business opportunity;
v) loss of goodwill;
vi) loss of data;
c) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed a sum equal to the amount paid to the Supplier by the Customer for the previous 12 months; and
d) the Customer agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than pursuant to the express terms of this agreement.
4. INDEMNITY
4.1. The Developer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
a) the Developer's breach of or negligent performance of or non-performance of this agreement;
b) any claim made by a Customer or third party against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights by reason of the possession, use, development, modification, maintenance or distribution of the Plugin (or any part thereof);
c) any claim made by a Customer or a third party against the Supplier arising out of or in connection with the provision of the Hosting Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Developer; and
d) any claim made by a Customer or a third party against the Supplier for death, personal injury or damage to property arising out of or in connection with the Hosting Services, to the extent that such claim is attributable to the acts or omissions of the Developer.
4.2. If any Customer or third party makes a claim, or notifies an intention to make a claim, against the Supplier which may reasonably be considered likely to give rise to a liability under this indemnity (a Claim), the Supplier shall:
a) notify the Developer in writing, as soon as reasonably practicable, of any Claim of which it has notice;
b) provide reasonable co-operation to the Developer in the defence and settlement of the Claim, at the Developer's expense; and
c) give the Developer sole authority to defend and settle the Claim.
4.3. Nothing in this clause shall restrict or limit the Supplier's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
5. Intellectual property rights IN THE SOFTWARE
5.1. The Customer acknowledges that all Intellectual Property Rights in the Software and any Modifications belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement (additionally, the Customer acknowledges that the monitoring agent is licensed separately and excluded from this agreement).
5.2. The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this agreement infringes the US (DE) Intellectual Property Rights of a third party (Software Infringement Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Software Infringement Claim (but, for the avoidance of doubt, this clause 5.2 shall not apply where the Software Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Customer other than in accordance with the terms of this agreement or use of a non-current release of the Software), this sub clause (b) being conditional on:
a) the Customer notifying the Supplier in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
b) the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of the Supplier, which consent shall not be unreasonably withheld or delayed; and
c) the Supplier having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving the Supplier all reasonable assistance in connection with those negotiations and such litigation at the Supplier's request and expense.
5.3. If any Software Infringement Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
a) procure for the Customer the right to continue using the Software (or any part thereof) in accordance with the terms of this agreement; or
b) modify the Software so that it ceases to be infringing; or
c) replace the Software with non-infringing software; or
d) terminate this agreement immediately by notice in writing to the Customer and refund any of the Software Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination),
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 5 above and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this agreement been references to the date on which such modification or replacement was made.
6. INTELLECTUAL PROPERTY RIGHTS IN THE PLUGINS
6.1. The Supplier and the Plugin User acknowledges that all Intellectual Property Rights in the Plugin and any Modification belong and shall belong to the Developer, and the Supplier and the Plugin User shall have no other rights in or to the Plugin other than the right to use it in accordance with the terms of this agreement.
6.2. The Plugin User shall access and download the Plugin and any Modification through the Hosting Service and use the Plugin and any Modification solely in relation to the Software Services.
7. Interpretation
7.1. The definitions and rules of interpretation in this clause apply in this agreement.
Customer: a Software User, a Plugin User or a Developer.
Developer: a Customer that uploads a Plugin to the Hosting Services.
Hosted Material: a Plugin uploaded by a Developer to be distributed using the Hosting Services, as further described on the website www.vezinet.com.
Hosting Services: the services that the Supplier provides to allow the Developer to upload and the Plugin User to access, download and use the Plugin, as further described on the website www.Vezinet.com.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Maintenance Release: release of the Software (or of the Plugin) which corrects faults, adds functionality or otherwise amends or upgrades the Software (or the Plugin), but which does not constitute a New Version.
Modification: any Maintenance Release.
New Version: any new version of the Software (or of the Plugin) which from time to time is publicly marketed and offered for purchase (or use) by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Open Source Licence: a licence for open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
Plugin: a software component created by the Developer that adds a feature or component to the Software through the use of an application programming interface (API), as further described on the website www.Vezinet.com, and any Modifications made to the Plugin during the subsistence of this agreement
Plugin User: a Customer that accesses, downloads and uses Hosted Material in accordance with the terms of this agreement, excluding the Developer of the Plugin.
Services: the Software Services and the Hosting Services.
Specification: the server monitoring application, Vezinet, with features as described on the website www.Vezinet.com, excluding the monitoring agent (which is provided under a separate licence).
Software: the server monitoring application, Vezinet, with features as described on the website www.Vezinet.com, excluding the monitoring agent (which is provided under a separate licence) and any Modification which is acquired by the Software User during the subsistence of this agreement.
Software Fee: the fee payable by the Software User to the Supplier under clause 11.1 below.
Software Services: the service further described in clause 8.1 below.
Software User: a Customer that uses the Software Services.
Virus: anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
7.2. In this agreement, unless the context otherwise requires, the headings are inserted for convenience only and shall not affect the construction of this agreement.
7.3. In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained on the product website www.Vezinet.com, the provision in the body of this agreement shall take precedence.
8. Licence and term
8.1. The Supplier, subject to the terms and conditions of this agreement, grants to the Software User a non-exclusive and non-transferable licence to use the Software (Software Services);
8.2. The Developer, subject to the terms and conditions of this agreement, grants to the Supplier a non-exclusive licence to distribute (including, without limitation, to sub-licence) the Plugin in accordance with the terms of this agreement.
8.3. The Supplier, subject to the terms and conditions of this agreement, grants to the Plugin User a non-exclsive and non-transferable licence to use the Plugin in accordance with the terms of this agreement.
8.4. The initial term of this agreement will commence on the date the Customer accepted the terms of the agreement by subscribing to vezinet and shall continue indefinitely unless terminated in accordance with the terms of this agreement.
8.5. In relation to assignment and sub-licensing:
a) the Customer has no right to sub-licence or to assign the benefit or burden of this agreement in whole or in part, or to allow the Software or Plugin to become the subject of any charge, lien or encumbrance without the prior written consent of the Supplier.
b) the Supplier may sub-licence, assign, charge or otherwise transfer any of its rights or obligations under this agreement, provided it gives written notice to the Customer of any sub-licence, assignment, charge or other transfer (except that the Supplier shall not be required to give written notice to the Developer in exercising its right to sub-licence pursuant to clause 2.2 above).
9. Hosting Services
9.1. The Supplier shall provide the Hosting Services in accordance with this agreement with reasonable care and skill.
9.2. The Supplier reserves the right to remove any content (including without limitation Hosted Material) from the website www.vezinet.com where it suspects that such Hosted Material is in contravention of the terms of this agreement.
9.3. The Developer shall not store, distribute or transmit any Viruses through the Hosting Services, and shall ensure that the Hosted Material do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights).
9.4. The Plugin User shall not:
a) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Hosted Material except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Hosted Material, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
c) access all or any part of the Hosted Material or Hosting Services in order to build a product or service which competes with the Hosting Services.
9.5. Notwithstanding sub clauses 3.4(a) and (b) above, this agreement shall not prevent a Plugin User from using free Hosted Material developed by a Developer under an Open Source Licence in any way that the Open Source Licence licensing the particular Hosted Material permits.
10. Fees and payment
10.1. In relation to the Software:
where the Software User opts to use the non-free Software Services, the Supplier will invoice the Software User monthly in arrears each month for the use of the Software
10.2. The Customer shall pay the invoices received from the Supplier within 5 days from the date of the invoice.
10.3. All fees are exclusive of Tax, which shall be charged at the applicable rate at the time of invoicing.
10.4. If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled (but not obliged) to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 4% per annum above the base rate.
11. Termination
11.1. Either party may terminate this agreement at any time on written notice to the other if the other:
a) is in material or persistent breach of any of the terms of this agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
b) is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
11.2. Notwithstanding clause 11.1 above, the Supplier may at any time terminate this agreement for any reason by giving written notice to the Customer, whereas the Customer may terminate this agreement by giving 7 days' notice in writing to the Supplier if it wishes to stop using the Software.
11.3. Termination by either party in accordance with the rights contained in this clause 11 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
11.4. On termination for any reason:
a) All rights granted to the Customer under this agreement shall cease;
b) The Customer shall cease all activities authorised by this agreement;
c) The Supplier shall remove any content (including without limitation the Hosted Material) uploaded by the Developer to the Hosting Services;
d) The Customer shall immediately pay to the Supplier any sums due to the Supplier under this agreement;
e) the Supplier shall within 60 days pay to the Developer any sums due to the Developer from the Supplier under this agreement; and
f) the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software and the Plugin(s) then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
12. Force majeure
12.1. No party shall be liable to the other for any delay or non-performance of its obligations under this agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 12 shall excuse the Customer from any payment obligations under this agreement.
13. Data Protection
13.1. The Customer acknowledges that the Supplier processes personal data, as defined under the relevant data protection laws, of the users of the Services (Users) for the purpose of complying with its obligations under this agreement.
13.2. The Customer hereby warrants that it has the consent of the Users to disclose their personal data to the Supplier for the purpose of using the Services and that for the same purpose the Users have agreed that their personal data may be transferred to territories outside the USA.
13.3. The Supplier will take all steps reasonably necessary to ensure that personal data is treated securely.
13.4. The Supplier shall not disclose any data to third parties, but may process such data in duly anonymised and aggregate form for purposes such as internal statistics, commercial sale and promotion, including but not limited to blog posts.
14. Confidentiality and publicity
14.1. Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes (unless in accordance with clause 13.4 above) nor without the prior written consent of the other disclose to any third party, any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.
14.2. The provisions of this clause 14 shall remain in full force and effect for 1 year after the termination of this agreement for any reason.
15. Waiver
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
16. Severability
If any provision of this agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
17. Amendments
The Supplier may amend this agreement from time to time and shall notify such amendments to the Customer when the Customer logs in. The Customer will be able to accept the amendments when logged in to the Service.
18. Third party rights
No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement.
19. Notices
Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party by first-class mail or e-mail.
20. Entire agreement
This agreement and the website www.Vezinet.com, in so far as it describes the Specification, the Software, the Hosting Services and the Hosted Material, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
21. Governing law and jurisdiction
This agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with DE law and submitted to the non-exclusive jurisdiction of the DE courts.