Terms And conditions
Thank you for using Opinew
Opinew is : Opinew Ltd. We have our registered
office at 220 Wallace Street, Glasgow G5 8AL, United Kingdom. Our registration number is
SC515918.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms hereof, Company
will provide Customer with reasonable technical support services in accordance with
Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer
will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise
attempt to discover the source code, object code or underlying structure, ideas, know-how or
algorithms relevant to the Services or any software, documentation or data related to the
Services (“Software”); modify, translate, or create derivative works based on the Services
or any Software (except to the extent expressly permitted by Company or authorized within
the Services); use the Services or any Software for timesharing or service bureau purposes
or otherwise for the benefit of a third; or remove any proprietary notices or labels. With
respect to any Software that is distributed or provided to Customer for use on Customer
premises or devices, Company hereby grants Customer a non-exclusive, non-transferable,
non-sublicensable license to use such Software during the Term only in connection with the
Services.
2.2 Subject to the terms of this Agreement, Company will use commercially
reasonable efforts to provide Customer the Services in accordance with the Service Level
Terms attached hereto as Exhibit B. As part of the registration process, Customer will
identify an administrative user name and password for Customer’s Company account. Company
reserves the right to refuse registration of, or cancel passwords it deems
inappropriate.
2.3 Customer represents, covenants, and warrants that Customer will use
the Services only in compliance with Company’s standard published policies then in effect
(the “Policy”) and all applicable laws and regulations. Although Company has no obligation
to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the
Services it believes may be (or alleged to be) in violation of the foregoing.
2.5
Customer shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, hardware, servers, software, operating systems, networking, web servers
and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining
the security of the Equipment, Customer account, passwords (including but not limited to
administrative and user passwords) and files, and for all uses of Customer account or the
Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY;
PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other
party (the “Disclosing Party”) has disclosed or may disclose business, technical or
financial information relating to the Disclosing Party’s business (hereinafter referred to
as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company
includes non-public information regarding features, functionality and performance of the
Service. Proprietary Information of Customer includes non-public data provided by Customer
to Company to enable the provision of the Services (“Customer Data”). The Receiving Party
agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii)
not to use (except in performance of the Services or as otherwise permitted herein) or
divulge to any third person any such Proprietary Information. The Disclosing Party agrees
that the foregoing shall not apply with respect to any information after five (5) years
following the disclosure thereof or any information that the Receiving Party can document
(a) is or becomes generally available to the public, or (b) was in its possession or known
by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it
without restriction by a third party, or (d) was independently developed without use of any
Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data.
Company shall own and retain all right, title and interest in and to (a) the Services and
Software, all improvements, enhancements or modifications thereto, (b) any software,
applications, inventions or other technology developed in connection with Implementation
Services or support, and (c) all intellectual property rights related to any of the
foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right
collect and analyze data and other information relating to the provision, use and
performance of various aspects of the Services and related systems and technologies
(including, without limitation, information concerning Customer Data and data derived
therefrom), and Company will be free (during and after the term hereof) to (i) use such
information and data to improve and enhance the Services and for other development,
diagnostic and corrective purposes in connection with the Services and other Company
offerings, and (ii) disclose such data solely in aggregate or other de-identified form in
connection with its business.[Note: it is important to determine what data rights are
necessary for the company going forward and adjust this language as appropriate] No rights
or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1
Customer will pay Company the then applicable fees described in the Order Form for the
Services and Implementation Services in accordance with the terms therein (the “Fees”). If
Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or
otherwise requires the payment of additional fees (per the terms of this Agreement),
Customer shall be billed for such usage and Customer agrees to pay the additional fees in
the manner provided herein. Company reserves the right to change the Fees or applicable
charges and to institute new charges and Fees at the end of the Initial Service Term or
then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent
by email). If Customer believes that Company has billed Customer incorrectly, Customer must
contact Company no later than 60 days after the closing date on the first billing statement
in which the error or problem appeared, in order to receive an adjustment or credit.
Inquiries should be directed to Company’s customer support department.
4.2 Company may
choose to bill through an invoice, in which case, full payment for invoices issued in any
given month must be received by Company thirty (30) days after the mailing date of the
invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding
balance, or the maximum permitted by law, whichever is lower, plus all expenses of
collection and may result in immediate termination of Service. Customer shall be responsible
for all taxes associated with Services other than UK taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below,
this Agreement is for the Initial Service Term as specified in the Order Form, and shall be
automatically renewed for additional periods of the same duration as the Initial Service
Term (collectively, the “Term”), unless either party requests termination at least thirty
(30) days prior to the end of the then-current term.
5.2 In addition to any other
remedies it may have, either party may also terminate this Agreement upon thirty (30) days’
notice (or without notice in the case of nonpayment), if the other party materially breaches
any of the terms or conditions of this Agreement. Customer will pay in full for the Services
up to and including the last day on which the Services are provided. Upon any termination,
Company will make all Customer Data available to Customer for electronic retrieval for a
period of thirty (30) days, but thereafter Company may, but is not obligated to, delete
stored Customer Data. All sections of this Agreement which by their nature should survive
termination will survive termination, including, without limitation, accrued rights to
payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with
prevailing industry standards to maintain the Services in a manner which minimizes errors
and interruptions in the Services and shall perform the Implementation Services in a
professional and workmanlike manner. Services may be temporarily unavailable for scheduled
maintenance or for unscheduled emergency maintenance, either by Company or by third-party
providers, or because of other causes beyond Company’s reasonable control, but Company shall
use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled
service disruption. However, Company does not warrant that the Services will be
uninterrupted or error free; nor does it make any warranty as to the results that may be
obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE
SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY
INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT
AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES
SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION
OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF
BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)
FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER
WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY
FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO
THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
8. MISCELLANEOUS
If any provision of this Agreement is found to be
unenforceable or invalid, that provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full force and effect and
enforceable. This Agreement is not assignable, transferable or sublicensable by Customer
except with Company’s prior written consent. Company may transfer and assign any of its
rights and obligations under this Agreement without consent. This Agreement is the complete
and exclusive statement of the mutual understanding of the parties and supersedes and
cancels all previous written and oral agreements, communications and other understandings
relating to the subject matter of this Agreement, and that all waivers and modifications
must be in a writing signed by both parties, except as otherwise provided herein. No agency,
partnership, joint venture, or employment is created as a result of this Agreement and
Customer does not have any authority of any kind to bind Company in any respect whatsoever.
In any action or proceeding to enforce rights under this Agreement, the prevailing party
will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will
be in writing and will be deemed to have been duly given when received, if personally
delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
the day after it is sent, if sent for next day delivery by recognized overnight delivery
service; and upon receipt, if sent by certified or registered mail, return receipt
requested. This Agreement shall be governed by the laws of Scotland without regard to its
conflict of laws provisions. The parties shall work together in good faith to issue at least
one mutually agreed upon press release within 90 days of the Effective Date, and Customer
otherwise agrees to reasonably cooperate with Company to serve as a reference account upon
request.
EXHIBIT B
Service Level Terms
The Services shall be available
99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If
Customer requests maintenance during these hours, any uptime or downtime calculation will
exclude periods affected by such maintenance. Further, any downtime resulting from outages
of third party connections or utilities or other reasons beyond Company’s control will also
be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's
entire liability, in connection with Service availability shall be that for each period of
downtime lasting longer than [one hour], Company will credit Customer 5% of Service fees for
each period of 30 or more consecutive minutes of downtime; provided that no more than one
such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with
notice to Company) recognizes that downtime is taking place, and continues until the
availability of the Services is restored. In order to receive downtime credit, Customer must
notify Company in writing within 24 hours from the time of downtime, and failure to provide
such notice will forfeit the right to receive downtime credit. Such credits may not be
redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of
Service Fees in any one (1) calendar month in any event. Company will only apply a credit to
the month in which the incident occurred. Company’s blocking of data communications or other
Service in accordance with its policies shall not be deemed to be a failure of Company to
provide adequate service levels under this Agreement