ACCEPTANCE OF TERMS OF SERVICE, USE AND AMENDMENTS:
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on May 23rd, 2018. It is effective between You and Us as of the date of You accepting this Agreement.
Any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
This, Hope terms of service agreement.
Information obtained by Omtio from publicly available sources or third party content providers and made available to You, through the Services or pursuant to an Order Form.
The name of Our online case management system / Service, that this Agreement is for.
A licence, that is associated to login details, which are assigned to a User, during the Subscribed Term
Any form of ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.
Services that You or Your Affiliate purchase under an Order Form.
An annual subscription to Hope (by purchase of an available package) and any additional items purchased at that time or duing the Subscribed Term, for example, extra Licences, extra Custom Reports, extra User Training and onsite training.
Support includes diagnosis and resolution of problems or performance deficiencies of the Services. Questions answered in relation to the provided Services that are not documented, continued help / guidance either by email, phone or by Skype, given to Your Users (main license Users only). Support is initiated by the receipt of an email from You or named Users to which we will respond (within 1 business day) either by email or by phone, whatever is the most appropriate. Support is available Monday to Friday 9am to 5pm excluding UK bank holidays unless otherwise agreed.
Standard Training is either one to one, or one to group via Skype using shared desktop.
The usage of Hope for a Subscribed Term, for a variable number of licences.
A period of 1 year starting as of an agreed date.
An individual who is authorized by You to use or receive a Service, of which You have assigned login details for that User, against an unassigned licence. Users may include, for example, Your employees, consultants and contractors that You wish to be able to use the Services for which you have a valid unassigned Licence and who is not under the age of 16. Nb. because licences are transferable between Users, We give Standard Support and User Training based on the licences purchased, not to every person that could possibly use those Licences. Users that have not been assigned a licence, may attend Skype sessions with the named license User or group, that a training session is being held for.
Training of named Users on supplied Services using Standard Training, total number of named Users not exceeding the number of licences held for that Service, unless additional training is purchased. Each Hope licence is provisioned with an initial 2 Hour training session.
Omtio, as described in Section 10 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
The company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
Any text and/or files uploaded or entered into Hope, by Your Users, which is then stored within a dedicated Microsoft SQL Database. Nb. this data EXCLUDES logon details (such as email addresses and passwords that you may have entered).
(a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms.
(b) provide Standard Support at no additional charge.
(c) provide the agreed number of Custom Reports, if requested, as of the applicable Order Form within the Subscribed Term (at least 1 month must be remaining in the Subscribed Term for US to complete the request). We will advise of alternative solutions if the requested report is not technically possibe to produce in a reasonable amount of time (maximum allotted time 2 days per report), We will not be held liable, if for any reason the report cannot be produced.
(d) provide the agreed number of User Training hours, if requested, as of the applicable Order Form within the Subscribed Term (at least 1 month must be remaining in the Subscribed Term for US to complete the request).
(d) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, act of terror, strike or other labour problem, Internet service provider failure, Microsoft Azure Service failure or denial of service attack.
(e) provide the services on an "AS IS" basis to you pursuant to this agreement and the relevant Order Forms and are not contingent on the delivery of any future functionality that we may have commented on.
(f) reserve the right to modify or discontinue provision of Our services at any time, without notice and without any liability towards You.
(g) not be held responsible or liable for timeliness, removal of information, failure to store information, inaccuracy of information, or improper delivery of information.
(h) allow additional licences to be added to the Subscribed Term, at the same pricing level as of Your current Subscription. Minimum price of 1 * Month Licence price or ((12 x Month Licence price) / 365) * full days left in Subscribed Term, whichever is the greater. Terms and conditions that were in effect at the time of Your Subscription will be be applicable to the new Licences / Users as well.
(i) NOT REFUND for cancellation by YOU, please read see our refund policy later in this document.
(j) provide periodic storage usage details regarding Your Microsoft SQL Database.
(k) at the end of Your Subscription Term, create and provide access to a downloadable unencrypted copy of the database containing Your Data, in the Microsoft SQL bacpac file / format. This file will be available to download, by You, for up to 15 working days after the end date of Your Subscription Term, after this 15 Days has expired this copy along with the original database will be permanently deleted, followed by the deletion of all backup files, approximately 10 to 15 working days later.
We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except:
(a) to provide the Purchased Services and prevent or address service or technical problems.
(b) if We are compelled by law in accordance with Section 6.3 (Compelled Disclosure) below.
We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
Access to Services are only possible by way of Licences purchased through a Subscription for a Subscribed Term. Additional licences may be added during a Subscribed Term at the pricing level as of Your current Subscription. Minimum price of 1 * Month Licence price or ((12 x Month Licence price) / 365) * full days left in Subscribed Term, whichever is the greater. All licences will be invalid after the Subscription Term has expired, unless a new Subscription Term (plus the cost of any additional Licences) is purchased, with monies received by Us before the end of the current Subscribed Term.
Your Users must be at least 16 years of age in order for Us to support and/or provide them with User Training.
Currently all Subscriptions are limited to a Microsoft SQL database that has a maximum size of 250 Gigabytes in size, all of Your Data is stored within this database. Once that limit is reached no additional information will be storable, irrespective of the number of Subscription Terms, We will periodically advise You of the current size of this database. Maximum database size refers to the maximum size of the data files and does not include the space used by log files.
We have placed a restriction on the size of a single file that can be uploaded to be no more than 5 Megabytes, research suggests the average size of a Microsoft Office document or Adobe PDF file be much less than this limit. We recommend that Your Users use the upload facility to store relevant and important case related files only, although Your Users are free to upload any file of their choosing. It is possible for Us to increase this limit, but that would require exceptional reasons, as such We cannot guarantee to do so.
Any use of the Services in breach of this Agreement, or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
Unless specifically permitted by You, You own the data created or stored by You. We shall not modify Your Data , disclose Your Data except as compelled by law in accordance with section 6.3 (Compelled Disclosure). You grant us permission to access, store, solely as required for the purpose of providing the services to You.
We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
If You terminate the contract or do not wish to renew Your Subscription, it is Your responsibility to request and download a backup copy of the database where Your Data resides. All data will be permanently deleted after 28 days of either Your termination date or the end date of Your Subscribed Term. There is NO REFUND for any cancellations made by You, please read our Refund Policy.
(a) be responsible for Users compliance with this Agreement, any documentation associated with this agreement and Order Forms.
(b) be responsible for the legality of Your Data and the means by which You acquired Your Data.
(c) be responsible for all content stored via the Service which may be made available publicly or privately.
(d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use.
(e) use Services and Content only in accordance with this Agreement, any documentation associated with this agreement, Order Forms and applicable laws and government regulations.
You will not
(a) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering.
(b) interfere with or disrupt the integrity or performance of any Service.
(c) attempt to gain unauthorized access to any Service or Content or its related systems or networks.
(d) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement or Order Form.
(e) copy a Service or any part, feature, function or user interface thereof.
(f) frame or mirror any part of any Service or Content.
(g) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-Omtio product or service.
(h) reverse engineer any Service (to the extent such restriction is permitted by law).
(i) provide any data that may be construed as: unlawful; illegal; threatening; harmful; abusive; harassing; stalking; tortious; defamatory; libellous; vulgar; obscene; offensive; objectionable; pornographic; designed to interfere with or disrupt the operation of service provided; infected with a virus or other destructive or deleterious programming routine; giving rise to civil or criminal liability; or in violation of an applicable local, national or international law.
(j) impersonate or misrepresent your association with any person or entity.
(k) provide any data that may give rise to us being held civilly or criminally liable.
Our Services are available on a yearly subscription basis or additional to a purchased Subscription. Your Subscription will not automatically renew, We will contact You during the period of 30 days before the end of Your Subscribed Term to discuss renewals. The paid subscription is NOT REFUNDED if You terminate your Subscription. We reserve the right to change the Subscription fee and renewal terms. You will pay all fees specified in any Order Forms.
You will provide Us with a valid purchase order or alternative document reasonably acceptable to Us. We presently do not use onsite payment gateways or store credit card details. We expect payment to be made either by using a one time direct debit, by way of Our chosen offsite payment gateway providers, by Cheque or by Bank Transfer.
Services will not be available to Your until Our bank is in receipt of the appropriate payments.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.3, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
There is NO REFUND. Omtio does not offer any refunds on its products and/or subscriptions
Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You have the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement.
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates services.
"Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Omtio Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
We warrant that during an applicable subscription term that
(a) this Agreement, the Order Forms and any documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. (b) We will not materially decrease the overall security of the Services. (c) the Services will perform materially in accordance with any demonstrations and applicable documentation.
For any breach of a warranty above, Your exclusive remedies are those described in the "Termination" and "Refund or Payment upon Termination" sections below.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF OUR SERVICES OR CONTENT PROVIDED (THE "SERVICE") IS AT YOUR OWN RISK. SERVICES AND CONTENT ARE PROVIDED TO YOU "AS IS", AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKES NO WARRANTY, EITHER IMPLIED OR EXPRESS, THAT ANY PART OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OR OF ANY QUALITY, NOR IS IT WARRANTED EITHER IMPLICITLY OR EXPRESSLY THAT ANY CONTENT IS SAFE IN ANY MANNER. YOU UNDERSTAND AND AGREE THAT OUR PROFESSIONAL ADVICE OF ANY KIND AND THAT ANY ADVICE OR ANY OTHER INFORMATION OBTAINED VIA OUR SERVICES MAY BE USED SOLELY AT YOUR OWN RISK, AND THAT WE WILL NOT BE HELD LIABLE IN ANY WAY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Some jurisdictions may not allow disclaimers of implied warranties, and certain statements in the above disclaimer may not apply to You as regards implied warranties; the other terms and conditions remain enforceable notwithstanding.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; THIS INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (I) THE USE OF SERVICES OR THE INABILITY TO USE SERVICES, (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA TRANSMISSIONS, (III) ANY OTHER MATTER RELATING TO SERVICES.
In some jurisdictions, it is not permitted to limit liability and, therefore, such limitations may not apply to You
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
The term of a subscription shall be as specified in the applicable Order Form.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
If this Agreement is terminated by You in accordance with Section 9.3 (Termination), We will NOT REFUND You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.
We will make Your Data available for download as described in Section 2.1(k), thereafter deleting all of Your Data under Our control, unless legally prohibited.
The sections titled "Fees and Payment", "Proprietary Rights and Licenses", "Confidentiality", "Disclaimers", "Limitation of Liability", "Refund or Payment upon Termination", "Customer Data Portability and Deletion", "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement.
Who You are contracting with under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement. You are contracting with Omtio, an English run business, soley owned by Paul Andrew Kent; this Agreemnt will be governed by and construed in accordance with the laws of Enland and Wales.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 11.2, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will NOT REFUND to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
(iii) You agree that any claim or cause in respect of our services must be filed within three months after such claim or cause arose, or the said claim or cause will be forever barred, without regard to any contrary legislation.