This Agreement (“the Agreement”) governs the acquisition and use of our Products, Services, Website and Content whether procured from Us via online or offline means. If you register for a Free Trial (e.g. Live Demo), this Agreement together with any “Access Request” disclaimer as may be applicable, will also govern your use of that Free Trial. By executing and returning to Us an Order Form (online or offline), or by clicking the check-box during the registration and/or checkout process (“I agree to / accept the Terms of Service”) or otherwise using the Products, Services, Website or Content You expressly agree to be bound by this Agreement.
If You do not agree to be bound by any term or condition contained in this Agreement, You may not install, copy, or otherwise use the Products, Services, Website or Content. If You do not agree to all of the terms of this Agreement, You are not authorised to use the Products, Services, Website or Content. This Agreement is effective as between You and Us from the earliest date on which You either returned to Us an executed Order Form (online or offline), clicked the check-box during the registration and/or checkout process or otherwise started to use the Products, Services, Website or Content.
We reserve the right to amend this Agreement at any time by notifying You as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If we substantively amend this Agreement, we will post the updated Agreement on the Website at least 10 days notice before the changes take effect, during which period of time you may reject the changes by terminating your account. If You do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Products, Services, Website or Content.
Every effort has been made to make these Terms of Service comprehensive and correct, but there may still be errors, therefore errors and omissions are excepted (e&oe). If you find or suspect any such errors or omissions please let us know at open4mgt.
1.0 Definitions & Interpretations
1.1 “Content” means all documents, files, electronic media, calendar dates, discussions, tasks, meetings, telephone and web conference details and whiteboards, visual, written or audible data, information or material including, without limitation: any hyperlink, application, graphic, artwork, video, music, text, image, logo, word, sound avatar, document, spreadsheet, text message, form entry, web page, and any other file or data or any similar material, including but not limited to each of the foregoing that is uploaded to, transferred through, publicly posted, processed or entered into the Products or Services.
1.2 “Free Trial” means Your limited right to use the Products, Services, Website or Content free from any payment obligation, from the date of Your registration to use the Products, Services, Website or Content until 30 days thereafter. If at the end of a Free Trial, You do not wish to purchase the Products, Services, Website or Content from Us, please notify us by sending an email to: open4mgt. In the event that You do not notify Us of Your intention to cancel or pay for the Products, Services, Website or Content We reserve the right to deny You access to Your account and the Products, Services and Website and delete any Content associated with your account.
1.3 “Intellectual Property Rights” means all right, title, and interest in and to any copyright, database, design, logo, trademark, service mark, patent, invention, trade secret, domain name, confidential and proprietary information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), and any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations in part, divisionals, reissues, re-examinations, and revivals thereof and existing anywhere in the world.
1.4 “Order Form” means the document for placing online and/or offline orders for the Products or Services (“Order(s)”), including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed to incorporate all of the Terms & Conditions contained herein, unless expressly amended by way of wording to this effect appended to the Order Form. Fees stated on Order Forms are exclusive of VAT and any other sales taxes unless otherwise indicated. The Order Form will describe all of the Products and Services that We agree to make available to You.
1.5 “Products” means provision of clearly bounded and predefined packages of software, configurations and interfaces (e.g. Advanced Solution), and any other included services related thereto (e.g. Backup-Restore) provided to You by Us in accordance with these Terms of Service and with the characteristics and features as described at www.kz-a.net/open4mgt from time to time.
1.6 “Services” means provision of the Website, Subscriber Area, other web services that can be generically, but not precisely bounded and defined in advance (e.g. Advanced Setup Support), and any other services of a more bespoke or ad hoc nature (e.g. Consulting Help Desk) related thereto provided to You by Us in accordance with these Terms of Service and with the characteristics and features as described at www.kz-a.net/open4mgt from time to time.
1.7 “The Parties” means You and Us collectively.
1.8 “User” means an individual who has completed the User registration and/or checkout process and created a User account with open4mgt. This includes Your User account, any individual that We create a User account for on Your behalf and any individual invited by You to become a User; whether accomplished online or offline.
1.9 “Website” means the website at https://www.kz-a.net/open4mgt and any other officially associated domains.
1.10 “We/Us/Our/open4mgt” means the open4mgt organisation described in Section 22.0 “Who You are Contracting With, Governing Law and Jurisdiction”.
1.11 “Subscriber Area” means a secure, private online service only open to registered Users who are paying subscribers to one or more of our Products or Services. In this area of our Website subscribers can access Content such as documents, files, notices and other important information relating to and/or supplementing their chosen Products or Services.
1.12 “You” or “Your” means the company or other legal entity for which You are accepting this Agreement and any other party that You have authorised to use the Products, Services, Website or Content on Your behalf.
1.13 In these Terms of Service, unless the context requires otherwise:
- Any reference to a “person” includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same shall include a reference to the others;
- References to any legislation, statute or statutory provisions includes a reference to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision;
- Any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and
- References to the singular include the plural and in each case vice versa.
1.14 The headings and sub headings in these Terms of Service are inserted for convenience only and shall not affect the meaning of these Terms of Service.
1.15 If You are agreeing to these Terms of Service on behalf of other individual Users under your control, You shall procure that such other individuals comply with these Terms of Service and You shall be responsible and liable where such other individual users breach these Terms of Service.
2.0 Grant of License
2.1 Subject to the terms of this Agreement, We hereby grant to You a non-transferable, non-exclusive, non-sublicensable limited term right and license to access and use the Products, Services, Website and Content solely for the purpose of conducting your legal, reasonable and legitimate business activities.
2.2 Except for the rights specifically granted under this Agreement, You are not given any right, title or interest in or to the Products, Services, Website or Content, and We expressly reserve all such rights, title and interests subject only to the covenants and limitations of the GPL / AGPL licenses that apply to the underlying open source software we employ in our Software Solution Products and to the Creative Commons (cc-by-nc-sa) Unported License v3.0 that applies to the published Content of our Website.
2.3 The license granted to You by Us under Clause 2.1 above depends upon Your compliance with the terms of this Agreement.
2.4 The Products, Services, Website and Content provided by Us to You and any copies thereof made by You are and shall remain our exclusive property subject only to the exceptions noted in Clause 2.2 above.
2.5 You agree that You shall not, without our explicit permission and agreement, do any of the following acts:
- Redistribute, encumber, sell, rent, lease, transfer or otherwise offer as your own external saleable product or service offerings any Products, Services, Websites or Content provided by Us to You, provided by Us to You in a timeshare or service bureau relationship; or
- Remove, alter, or destroy from Products, Services, Websites or Content provided by Us to You any logo, copyright or proprietary notices, legends, symbols, labels, watermarks, signatures or any other like marks affixed to or embedded in said Products, Services, Websites or Content.
2.6 Any breach of Clause 2.5 entitles Us to immediately terminate this Agreement, without prejudice to any other rights or remedies We may have against You.
2.7 You may grant other Users access to Your Products and Services, and such other Users will be bound by the terms of this Agreement.
3.0 Products, Services, Website, Content and Access There To
3.1 We reserve the right at any time and from time to time to reasonably modify or discontinue, temporarily or permanently, the Products, Services, Website or Content (or any part thereof), including but not limited to modifications to the design, operational method, technical specifications, systems, and other functions. You agree that We shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Products, Services, Website or Content.
3.2 Our normal UK office hours are defined as being Monday to Friday, 1000-1600 GMT/UTC and do not include UK bank holidays.
3.3 The Products (i.e. Software Solutions), Website and Content are normally available over the Internet 7 days per week in our core operating hours extending from 0700 to 1900 UK GMT/UTC. Outside of this time the Products (i.e. Software Solutions), Website and Content may be available but their operation may be slow, interrupted or become inaccessible without notice. The Services (i.e. Software Support, Consulting Help Desk), where applicable, are normally available over the Internet only during normal UK office hours.
We shall be entitled to take measures that affect the aforementioned accessibility, publishing advanced notice where possible via our Website, when We deem such to be necessary for technical, maintenance, upgrade, operational or security reasons. You are hereby aware and acknowledge that Your access to the Products, Services, Website or Content via the Internet cannot be guaranteed and that We shall not be liable for deficiencies in Your own Internet connections or equipment.
3.4 We shall be entitled to retain subcontractors for the performance of obligations in accordance with this Agreement.
3.5 In the event that You create a User account using an email address belonging to a third party, such User account may be from time to time or may later become subject to additional terms and conditions. You are aware of and acknowledge that such third party could impose access restrictions on Your access to the Services. We will not be liable to You for such lack or curtailment of access.
3.6 The Products, Services, Website or Content may contain links to third party websites that are not owned or controlled by Us. These links are provided solely for Your convenience. We have no control over any linked third party sites, are not responsible for the content of such sites, and make no representations or warranties with respect to such sites.
If You click through to a third party’s site, You do so at our own risk. You acknowledge and agree that under no circumstances will We be liable in any way for any third party Content posted, displayed, linked to or otherwise transmitted via our Products, Services, Website or Content.
3.7 We guarantee You at least a 97.5% total uptime availability of the Products, Website and Content during our core operating hours, as measured over a rolling 3 month (90 day) period as measured by Us. We also guarantee to take reasonable steps to ensure that our Products, Services, Website and Content are secure, and to make reasonable efforts if a security flaw is detected and to provide immediate notification to You as soon as is practicable after detection, if such a flaw is detected. This excludes any planned maintenance or upgrade periods as described below.
Availability is currently measured as continuous availability, within our core Product, Website and Content operating hours, of the open4mgt login pages for its Software Solution Products and Website Subscriber Area. We will make available the official uptime reports to You on request. open4mgt will notify You at least 10 days in advance, via publication of the details on our Website, of any planned maintenance or upgrade periods that exceed 15 minutes in length planned to take place within our core operating hours. We will endeavour to carry out the majority of any such planned maintenance or upgrades outside of core operating hours. There will be a maximum of 1 such planned maintenance / upgrade period during core operating hours in any 2 week period.
We will automatically backup Your data stored on our systems, including configurations, files and information stored in our Software Solution Products. Full backups of Your open4mgt Software Solution Product database(s) are carried out weekly by Us, with incremental backups performed daily. All backups are held by Us for a 30 day period.
Any problems experienced by You in accessing the Products, Services, Website or Content should be reported via our online support system whose access details are provided in our Welcoming / Joining email to You when You purchase one of our Products and/or Services. A support ticket will be raised automatically by Us on our system which You can use to track progress of the reported problem and resolution against it. The service levels as described above are compensated by Us as follows: If We fail to meet the described service levels for the Products, Website and Content availability, We will compensate you by reimbursing you one day of your monthly fee (or pro-rata portion of an annual fee) for each one hour of downtime above that allowed by our service level. If availability of the Products, Website or Content as described in this clause is lower than 75% in any 3 month (90 day) period You shall be able to terminate Your open4mgt account and contract with immediate effect.
3.8 We undertake to make a first response to any query You may raise through defined communication channels in relation to our Products, Services, Website or Content within 1 business day of Your initial contact, subject to normal UK office hours. Our primary means of communication with You shall be via telephone / VoIP and email although other communications tools and channels (e.g. Fax, IM, Web-Conferencing, Remote Access, etc) may be used at our discretion on a case by case basis. All of Your communication with Us must be initiated via one of our primary channels using contact details We provide You. In specific terms as regards some of our Services:
- We will deliver all Solution Help Desk Services to You from offsite at our offices via electronic means during normal UK office hours;
- We will attempt to deliver the majority of our Advanced Setup Services to You from offsite at our offices via electronic means during normal UK office hours to keep costs and disruptions to Your operation at a minimum. However, in some instances it may be both necessary and appropriate for Us to work with You at your site. If so this will be agreed with You in advance and the reasonable costs of travel and accommodation will be charged to You at cost in addition to the charges for our services. Any round trip travel time to Your onsite premises (or equivalent) above 3.0 hours per day must assume overnight stay(s) are required by Us. Any round trip travel time to Your onsite premises (or equivalent) above 1.5 hours per day must be charged by Us at our normal Advanced Setup Service rate.
- We will attempt to deliver as much as feasible of our Consulting Help Desk Services to You from offsite at our offices via electronic means during normal UK office hours to keep costs and disruptions to Your operation at a minimum. However, due its nature, in a number of instances it may be both necessary and appropriate for Us to work with You at your site. If so this will be agreed with You in advance and the reasonable costs of travel and accommodation will be charged to You at cost in addition to the charges for our services. Any round trip travel time to Your onsite premises (or equivalent) above 3.0 hours per day must assume overnight stay(s) are required by Us. Any round trip travel time to Your onsite premises (or equivalent) above 1.5 hours per day must be charged by Us at our normal Consulting Help Desk Service rate.
- The standard productivity tools We employ, and in which We deliver electronic outputs (format chosen by suitability for the task) to You, are the MS Office suite (including Word, Excel, PowerPoint, Access, Project and Visio) their LibreOffice equivalents (where they exist) and Adobe Reader (PDF).
4.0 Your Obligations
4.1 You shall comply with the security and administrative regulations as notified by Us in conjunction with registration and/or checkout, by email or in any other manner from time to time made available on the Website.
4.2 By using the Products, Services, Website or Content, You represent that You are authorised to receive the Products, Services, Website or Content under the laws of the geographical jurisdiction in which You are located, and specifically that You can form a binding contract with Us, and You may use the Products, Services, Website or Content only in compliance with this Agreement and all applicable local, county, provincial/state, national/federal, regional and international laws, rules and regulations.
By your use of the Products, Services, Website and Content, You affirm that You are at least 18 years of age, have attained the legal age of majority in your geographical location, or possess legal parental or guardian consent if required, and are fully able and competent to enter into the terms, conditions, and obligations, set forth in this Agreement.
In any case, You affirm that you are 16 years old or older, as the Products, Services, Website and Content are not intended for children under the age of 16. If You are under 16 years of age, DO NOT use the Products, Services, Website and Content.
4.3 You agree to reasonably:
- Provide true, accurate, current and complete information about Users as prompted by the registration and/or checkout process, including Users’ identity and a correct and legitimate email address (the “Registration Data”);
- Maintain and promptly update the Registration Data to keep it true, accurate, current and complete;
- Maintain the security of Your password and identification; and
- Consent and authorise Us to verify Your Registration Data.
If You provide any information that is untrue, inaccurate, not current or incomplete, or We have a reasonable belief that such information is untrue, inaccurate, not current, or incomplete, We have the right to suspend or terminate a User account and refuse any and all current or future use of the Products, Services, Website or Content (or any portion thereof).
4.4 You acknowledge, consent, and agree that We may access, preserve and disclose Your account information and Content if required to do so by law or in good faith belief that such access, preservation, or disclosure is reasonably necessary to:
- Respond to Your requests for Your service;
- Comply with legal process;
- Enforce this Agreement;
- Respond to claims that Your Content violates the rights of third parties; or
- Protect the rights, property, or personal safety of Us, other Users, or the public.
4.5 You are responsible for maintaining the confidentiality of Your password and Registration Data. You agree to notify Us immediately of any unauthorised use of Your account, password, or any other breach of security. You may be held liable for losses incurred by Us or any other user of the Products, Services, Website or Content due to someone else using Your Registration Data.
4.6 You shall be responsible for the activities You conduct through use of the Products, Services, Website and Content and shall ensure compliance with international, regional, national/federal, provincial/state, county and local laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into our Software Solution Products, Free Trials or Website by You shall be Your sole responsibility.
You understand that you shall be solely responsible, unless other arrangements are made between Us in writing, for the appropriate coding and classification, cleansing, accuracy, upload/transfer and User testing of Your data onto Your selected Software Solution Product(s) as provisioned by Us. You further agree that You understand the importance of good data as well as the implications of poor data, and that You are solely responsible for the appropriateness, accuracy, timeliness and quality of the data You load, enter or maintain in Your chosen Software Solution Product(s).
You also agree that our responsibility to You is only for the backup-restore of said data and for keeping it safe in both physical and Data Protection Act terms on our nominated servers and storage facilities.
4.7 You agree that We may use Your company name and/or logo on our marketing materials, including the Website, collateral and press releases.
4.8 You agree not to:
- Use or launch any automated system, including without limitation, “robots”, “spiders” or “offline readers” that accesses the Products, Services, Website or Content in a manner that sends more request messages to our servers in a given period of time than a single human can reasonably produce in the same period by using a conventional online web browser;
- Collect or harvest any personally identifiable information, including names, from the Products, Services, Website or Content;
- Use any information provided in the Products, Services, Website or Content for the sending of spam, bulk email messages, bulk instant messages, MP3 files, music files, video files or executable program files, any bulky files, or any other file that has a disproportionate number of hits for the number of pages or network transfers;
- Use any part of the Products, Services, Website or Content to upload, post, email, or transmit viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other software, files or programs that may interrupt, damage, destroy or limit the functionality of any computer software or hardware or network equipment;
- Use any part of the Products, Services, Website or Content to pretend to be open4mgt or someone else or otherwise misrepresent your identity or affiliation or attempt to disguise the origin of any Content;
- Use the Products, Services, Website or Content or any part thereof to violate or infringe anyone’s Intellectual Property Rights;
- “Stalk” or otherwise harass another;
- Interfere with or disrupt the Products, Services, Website, Content, servers, or networks connected to the Products, Free Trials or Website, or disobey any requirements, procedures, policies, or regulations of networks connected to the Products, Free Trials or Website;
- Upload, enter, post, email, transmit, or otherwise make available any Content that We, in our sole discretion, deem to be unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, inflammatory, hateful, or racially, religiously, ethnically, or otherwise objectionable, or harmful to minors;
- Attempt to gain unauthorised access to the Products (including Free Trials), Services, Website, Content or any portion or feature of thereof, or any other systems or networks connected to the Products (including Free Trials) or Website or to any of our servers;
- Probe, scan, or test the vulnerability of the Products (including Free Trials), Website or any network connected to the Products (including Free Trials) or Website, nor breach the security or authentication measures on the Products (including Free Trials) or Website or any network connected to the Products (including Free Trials) or Website;
- Take any action that imposes an unreasonable load on the Products, Services, Website or Content or on our infrastructure or networks or any networks connected to the Products (including Free Trials) or Website;
- Use the Products, Services, Website or Content in order to obtain material which per se or if sent to another party might injure the reputation of a third party, or in any manner which may result in the infringement of any third party’s Intellectual Property Rights, or which constitutes a dissemination of business secrets, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Products, Services, Website or Content in any other manner incompatible with the purpose thereof;
- Register, operate or otherwise control more than one User account; or
- Provide access to the Products, Services, Website or Content to anyone else other than Users.
4.9 You represent and warrant to Us that You shall be responsible for monitoring Your Products, Services, and Content and shall be liable to Us for ensuring that Content transferred to or handled within the Products, Services or Website which is processed by You and/or individuals invited by You to do so does not infringe any third party rights nor in any other manner violates governing legislation or regulation, and that You possess such necessary licenses from third parties as may be required in order to process the Content and/or use the Products, Services and Website.
4.10 You understand that Your Content, whether publicly posted or privately transmitted, is the sole responsibility of You and/or the person from whom such content originated. This means that You, and not Us, are entirely responsible for all Content that You upload, enter, post, email, transmit or otherwise make available via the Products, Services or Website. We do not control the Content uploaded, downloaded or entered by Users, and do not guarantee the accuracy, integrity, or quality of such Content.
You agree that You must evaluate, and bear all risks, associated with, the use of any third party Content, including any reliance on the accuracy, completeness, or usefulness of such Content. Additionally, We do not represent, warrant, or guarantee the truthfulness, accuracy, quality or reliability of any of the third party Content entered, displayed, linked to or otherwise transmitted via the Products, Services or Website.
Under no circumstances will We be liable in any way for any third party Content, including, but not limited to, any errors or omissions in any third party Content, or any loss or damage of any kind incurred as a result of the use of any third party Content entered, emailed, transmitted or otherwise made available via the Products, Services or Website.
4.11 You are aware and hereby acknowledge that You are not permitted to use the Products, Services, Website or Content in order to gain material in violation of any law or material which in any manner contravenes generally accepted practices.
4.12 Any breach of the obligations set forth in this Section 4.0 entitles Us to immediately terminate this Agreement, without prejudice to any other rights or remedies We may have against You.
You agree to indemnify and hold Us and our subsidiaries, affiliates, officers, agents, and employees harmless from any losses, expenses, costs or damages (including reasonable legal fees, expert fees, and other costs of litigation) suffered or incurred by Us arising directly or indirectly from, as a result of, or in any manner related to any claim, demand, or action based upon Content You submit, enter, transmit, or otherwise make available through Your use of the Products, Services, Website or Content, Your violation of this Agreement, or Your violation of any rights of another.
6.0 Notification of Unauthorised Acts
6.1 You are obligated to notify Us in writing regarding any actual or perceived breach of this Agreement.
6.2 In the event that You notify Us in accordance with Clause 6.1 above, You shall co-operate fully with Us by providing Us with all information that is reasonably requested by Us from You.
7.0 Proprietary Rights
7.1 We shall hold title to all Intellectual Property Rights or, in the alternative, shall possess a sole right to use the same other than as mitigated by the GPL/AGPL license of the open source software employed in our Software Solution Products and the Creative Commons (cc-by-nc-sa) Unported License v3.0 covering our Website and its Content.
Such Intellectual Property Rights may only be used by You in the manner stated in this Agreement. Under no circumstances shall You or a third party acquire any Intellectual Property Rights to the Products, Services, Website or Content. NOTE that access to the Products, Services, Website and Content is licensed, and not sold, on the terms set out in this Agreement.
7.2 All Content uploaded to, transferred through, publicly posted, processed or entered into the Products, Services or Website by You shall remain Your sole property or the property of its respective legal owner(s). We shall have no liability for such Content. We do not claim any rights to your Content. We do not have access to Your Content save by express approval by You, allowing Us access to Your Content through methods such as, but not limited to, use of one of our Services (e.g. Solution Help Desk) that may require access to your Content in its performance.
By uploading third party content, You represent and warrant that you have obtained all necessary licenses, permissions, consents and agreements necessary for the lawful use of such third party content by Us and by third parties in accordance with this Agreement and in order for Us to provide the Products (including Free Trials), Services and Website. You agree to indemnify and hold open4mgt and our subsidiaries, affiliates, officers, agents, and employees, harmless from any claim or demand, including but not limited to reasonable attorneys’ fees, made by any third party due to or arising out of Your Content.
8.0 Digital Millennium Copyright Act
(Applicable ONLY if You are domiciled in the United States of America)
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing:
- A physical or electronic signature of a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
9.1 You are responsible for any and all activity made by You or anyone You allow to use the Products, Services, Website or Content.
9.2 You are responsible for ensuring that Your Internet connections, networks, computer units, installed software, telephone services and any associated firewall/anti-virus/anti-spyware defences are compatible with the Products, Services, Website and Content and for any damage that may be caused to such items by anything You access or obtain using them. We shall not be liable for any losses suffered by You as a result of any such incompatibility or damage. You are responsible for paying any and all charges in relation to Your internet connections, networks, computer units installed software, telephone services and any associated firewall/anti-virus/anti-spyware defences.
9.3 You are responsible for ensuring that all Content uploaded, posted or entered by You is lawfully used and furthermore You are responsible for ensuring that any and all use of whatever nature is lawful.
9.4 We neither endorse nor are We responsible for the accuracy, reliability or veracity of any opinions, advice, or statements including but not limited to the pricing or other information on products or other services offered for sale or license or otherwise marketed via one of our open4mgt Products by its Users and We are further not responsible and nor shall the You deem Us to be responsible for any defamatory, obscene, racist, sexist, or other derogatory Content even where such Content is in breach of any rule imposed by Us.
We shall not be liable for any loss suffered by You in reliance on any statements, opinions or advice given via one of our open4mgt Products by its Users. It is entirely incumbent on You to verify the accuracy of such opinions, advice or statements offered or other Content provided through use of one of our open4mgt Products by its Users prior to Your reliance upon it.
Wherever possible You should obtain the advice of a recognised professional in the relevant field in which the opinions, advice or statements are offered. In this regard, You shall indemnify Us and our employees and hold Us and our employees harmless from any and all claims, expenses, legal fees and all other costs and disbursements incurred by You as a result of Your using the Products, Services, Website or Content or of You entering into any third party relationships.
9.5 We are under no obligation to provide You with, apart from what You have specifically contracted with Us for, any technical support under these Terms of Service. We also provide You with no assurance that, apart from what You have specifically contracted with Us for, any specific errors, software bugs, problems, discrepancies or other matters raised by You will be rectified.
10.0 Limited Guarantees, Warranties and Presentations
10.1 We warrant only that the Products, Services, Website and Content shall perform substantially in accordance with their descriptions as contained in printed materials produced by Us and/or appearing on the Internet on the open4mgt website, an open4mgt sponsored site or advertisement.
10.2 We do guarantee all our work in connection with our Software Solutions, Solution Help Desk and Advanced Setup Services and will correct any mis-configurations, errors or omissions in their connection free of charge. However, You must identify these to Us, including informing Us of the specific issues in writing, within 90 days of the relevant original work being delivered. Otherwise claims made by You after this time will be treated by Us as new or additional requirements and will be subject to our usual charges for that type of work.
NOTE that none of the Software Solutions, Solution Help Desk or Advanced Setup Product or Service guarantees provides any guarantee or warranty by Us to You as relates to the error-free operation of the open source component of our Software Solutions (e.g. OpenERP software), non-standard software modules or bespoke software code. This is subject to individual Software Publisher Warranties or our open4mgt Own Warranty as applicable and whose respective purposes and terms are defined as follows:
- The Software Publisher Warranty is the standard warranty, where available, that is supplied by the publisher(s) of the open source software that we use (as applicable) in our Products, Services, Website and Content offerings. We cannot therefore offer guarantees on their software beyond their own, certify the quality of their work or the veracity of their warranty. The relevant Software Publisher’s Terms of Service or equivalent shall apply in addition to ours should You purchase this warranty through Us.
- The open4mgt Own Warranty is in addition to the normal guarantees that apply to the quality of our work and is mainly aimed at going beyond the software publishers warranty in situations where high degrees of customisation (i.e. as opposed to configuration) and bespoke coding apply. Its terms are governed by these Terms of Service and any further agreements made between You and Us when the warranty is drawn up.
10.3 You agree that You understand that any changes on Your part, or by others on Your behalf, to the Software Solution as We have delivered it to You, without our explicit knowledge and permission, especially if said changes relate to untested software modules, bespoke coding or interfaces to other systems, may invalidate any guarantee or warranty supplied by Us or others to You. You also agree that You understand that to ensure the ongoing validity of any guarantees or warranties that You must undertake to discuss and document in writing any proposed changes with Us to our mutual agreement and satisfaction.
We also provide notice here that all of our Software Support Services are offered ONLY in the context of the software, systems and capabilities in your chosen Software Solution Product(s). We cannot, unless explicitly agreed otherwise in writing, provide business or technical support for software, hardware, networks or data outside of this context.
10.4 The entire and exclusive remedy for breach of this Limited Warranty shall be, at our option, either (i) the return of the relevant license fee(s) paid for the offending Product(s) or Service(s) since their initial setup (or most recent anniversary date if more than 12 months old), or (ii) to repair, upgrade, or otherwise enhance the performance of open4mgt to address the failure of performance.
EXCEPT AS SET FORTH IN THE CLAUSES ABOVE, THERE ARE NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF MERCHANTABILITY.
THE AFORESAID WARRANTIES AND DISCLAIMER SHALL SURVIVE ACCEPTANCE, PAYMENT AND TERMINATION.
YOU EXPRESSLY CONFIRM THAT YOU UNDERSTAND AND AGREE THAT WE PROVIDE REASONABLE EFFORTS TO ENSURE THE AVAILABLILITY AND SECURITY OF OUR PRODUCTS, SERVICES, WEBSITE AND CONTENT BUT YOUR USE OF THE PRODUCTS, SERVICES, WEBSITE AND CONTENT IS AT YOUR SOLE RISK. THE PRODUCTS, SERVICES, WEBSITE AND CONTENT ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND COULD CONTAIN DEFECTS, FAULTS, MISTAKES, AND OTHER DEFICIENCIES. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
OTHER THAN THE UNDERTAKINGS SET OUT IN THIS DOCUMENT ABOUT SERVICE LEVELS, WE MAKE NO WARRANTY THAT (i) ACCESS TO OUR PRODUCTS, SERVICES, WEBSITE OR CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE, OR WILL OPERATE AT ANY PARTICULAR SPEED OR FREQUENCY; (ii) OUR PRODUCTS, SERVICES, WEBSITE OR CONTENT WILL MEET YOUR REQUIREMENTS; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR PRODUCTS, SERVICES, WEBSITE OR CONTENT WILL BE ACCURATE OR RELIABLE. YOU AGREE THAT ANY AND ALL LIABILITIES, HOW SO EVER CAUSED OR ARISING, BY EITHER US OR YOU, UNDER THESE TERMS AND CONDITIONS ARE ULTIMATELY CAPPED AT THE AMOUNT PAID IN THE PREVIOUS 12 MONTHS BY YOU TO US.
THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCTS, SERVICES, WEBSITE OR CONTENT IS AUTHORISED HEREUNDER EXCEPT PURSUANT TO THESE DISCLAIMERS.
11.0 Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT 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 THE USE OR THE INABILITY TO USE THE PRODUCTS, SERVICES, WEBSITE OR CONTENT.
THE FOREGOING LIMITATION SHALL NOT APPLY TO OUR LIABILITY FOR DAMAGES ARISING FROM A THIRD PARTY CLAIM FOR GROSS FRAUD OR PERSONAL INJURY (INCLUDING DEATH) TO THE EXTENT SUCH INJURY IS CAUSED IN WHOLE OR IN PART BY OUR NEGLIGENCE.
The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose. You agree that any breach of this Agreement may cause Us substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, We shall have the right to seek specific performance and other injunctive and equitable relief. In the event that You use the Products, Services, Website or Content for commercial purposes in breach of this Agreement, You agree that We shall be entitled to any proceeds that You have obtained from such activity, without prejudice to other rights or remedies We may have against You.
13.0 Term & Termination
13.1 We may terminate these Terms of Service forthwith on giving notice in writing to You if You commit any material breach of any term of these Terms of Service and, in the case of a breach capable of being remedied, You have failed, within 30 days after the receipt of a request in writing from Us to do so, to remedy the breach. This is without prejudice to our right to terminate these Terms of Service immediately where this is expressly provided as in cases of gross infringement against any term.
We shall be able to terminate these Terms of Service and Your use of the Products, Services, Website and Content for any reason on 30 days notice at any time. At the end of this period You agree to our suspending Your use of the Products, Services, Website and Content and that You will have made alternate arrangements as appropriate. In such circumstances We shall refund to You any fees You have paid in advance for Products and/or Services You have not received from Us. We do however undertake not to take these actions unreasonably.
13.2 You may terminate these Terms of Service by giving Us 30 days notice of Your intention to terminate a Product and/or Service as notified from Your email address of record to our email address as provided to You by Us. If We materially breach any term hereof and fail to remedy such breach within 30 days of written notice from You, You may terminate these Terms of Service forthwith on giving notice in writing to Us.
Otherwise Your contract, whether entered into online or offline, shall automatically renew at the end of each fixed-term time period for a further similar period or shall automatically renew on the contract end date as indicated on Your Order Form, unless stated otherwise on the Order Form and/or in these Terms of Service or unless You give us notice in writing that You wish the contract to expire at the end of the current pre-arranged fixed-term period, not less than 30 days before the end of such fixed-term period. We will endeavour to provide You notice of such automatic annual renewal at least 30 days before the end of such fixed-term period by emailing You at the email address You have provided to Us.
13.3 Save as expressly provided in this Section 13 these Terms of Service may not be terminated by You for any reason. Furthermore, You are not able to terminate Your monthly, annual or any other pre-arranged fixed term contract for any reason, save as expressly referred to in this Agreement.
13.4 Upon termination of these Terms of Service, You shall cease all use of the Products, Services, Website and all Content, and We shall cease to have any obligation or responsibility with respect to the Content.
13.5 Any termination of these Terms of Service (how-so-ever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in these Terms of Service which is expressly or by implication intended to come into or continue in force on or after such termination.
14.0 Fees, Charges, Payments for Services and Refunds
14.1 All fees and charges for Products, Services, Website and Content, whether purchased online or offline, are payable in advance, either monthly or annually in advance or in accordance with any different payment terms as stated in the applicable Order Form. You shall pay all fees specified in all Order Forms hereunder. All prices published, stated, estimated or quoted by Us to You shall be assumed by You to be net of VAT (i.e. ex-VAT) unless otherwise indicated. VAT will be charged at the normal prevailing UK rate.
14.2 Once an Order Form is executed by You and accepted by Us the Order and payment obligations thereunder are non-cancellable except as allowed for under these Terms of Service, including as follows:
- For paid monthly Products and Services You agree that We may continue to automatically bill the relevant amount, plus any data surcharges that may apply (Software Solution Product data allowance overages charged at the rate of £2 per additional 50/GB*month), every month until We receive notice of Your intention to terminate. Our minimum service provision calculation unit for all Products and Services billed monthly or annually is by the month so You agree that We will stop billing You after payment of the last full month of service provision post having received Your notice of termination. The Products and/or Services You have elected to terminate will be suspended at the end of the last full month paid for.
- Our delivery of any Education & Training Products purchased online by You at our Website is subject to minimum attendance conditions. The conduct of any course, unless otherwise agreed, is at our discretion subject to a minimum number of attendees being registered. Should it be necessary to cancel a course We will notify You by email, as sent to the email address You provided Us when You booked the course, not later than 10 days before the planned course date and offer You a choice of alternative course date or a full refund. In the event that You must cancel a course booking You must do so not later than 15 days before the planned course date, by sending Us an email to the email address We used to confirm Your booking or no refund can be made. If Your cancellation is made more than 15 days prior to a planned course date We will make You a full refund less a £50 administration charge per attendee cancelling.
- The unused portion of any Services (i.e. Solution Help Desk, Advanced Setup, Consulting Help Desk) time blocks, purchased online by You at our Website, are subject to expiry if not used by You within one year of purchase.
- For paid annually Products and Services (apart from the Software Publishers Warranty and open4mgt Own Warranty) You agree that We may bill the relevant amount annually, except for any data surcharges that may apply (Software Solution Product data allowance overages charged at the rate of £2 per additional 50/GB*month), which You agree We will bill You monthly in the month after it occurs as necessary. You also agree to Us automatically renewing Your annual Product or Service subscription at its renewal anniversary date and continuing to do so until We receive notice of Your intention to terminate. Our minimum service provision calculation unit for all Products and Services billed monthly or annually is by the month so You agree that We will suspend provision of Your relevant Products and/or Services after the last full month of service provision post having received your notice of termination. We will then refund You a pro-rata amount, if any is due, being calculated as the value of the number of full service provision months between the end of the last full month of service provision and Your renewal anniversary date.
- The availability and payment terms of the Software Publishers Warranty, only available via Us on a paid annual basis, will be subject to review and NON-AUTOMATIC renewal by Us with You at the warranties renewal anniversary date. We are not responsible to You for the uninterrupted and ongoing availability of this warranty as it is offered at the sole discretion and on the terms of the Software Publisher in question, if at all. Once purchased this warranty cannot be cancelled by You or payment refunded. In event of early termination or non-performance of a Software Publishers Warranty to You by the Software Publisher their terms shall apply to what rights, if any, to remedies or a refund you may have.
- The open4mgt Own Warranty is only available on a paid annual basis and will be subject to AUTOMATIC renewal on its anniversary date unless you have given us notice to terminate it in accordance with these Terms of Service. Once purchased this warranty cannot be cancelled by You or payment refunded. In event of early termination or non-performance of our open4mgt Own Warranty to You by Us Your rights are as detailed in these Terms of Service. This shall include our making a refund to You on the same full month calculation basis as for other paid annually Products and Services as detailed in Clause 14.2(b) above
Failure to pay Us the agreed amount within the agreed payment terms may result in legal action being taken to secure any outstanding fees. You shall also be liable for any additional costs, including legal costs, incurred by Us to secure such fees.
We reserve the right to automatically apply changes in our paid monthly or paid annually fees to Your account as at Your renewal anniversary date. We will not apply such price changes, where they occur, more than once a year per account and then only to services that have been operating for 12 months or more. We will also give You at least 30 days notice of planned price changes as published via our Website.
14.3 Orders can be paid by bank transfer, check/cheque, PayPal account or credit or debit card. Orders for £1,000 or less are payable by PayPal account or a valid credit or debit card only, and Your PayPal account or credit or debit card details are required to be entered on the Order Form. Your PayPal account or credit or debit card details will be stored securely. We reserve the right, at our discretion, to add a 5% handling fee to the Order value for Orders paid for by PayPal account or credit or debit card. If you provide us with PayPal account or credit or debit card details, you authorise Us to charge such PayPal account or credit or debit card for all fees listed in the Order Form as soon as practicable by Us.
14.4 Unless paid for by PayPal account or credit or debit card, fees are payable 30 days from invoice date, unless alternative, agreed terms are stated on the Order Form. You are responsible for providing Us with complete and accurate billing and contact information and notifying Us of any changes to such information.
14.5 We will provision Your account with access to Your selected Products and/or Services, along with access to the Website and Content, as soon as payment has been successfully received. For purchases made online by You via PayPal account or credit or debit card this will normally be within 24 hours of Your successful online payment, subject to normal UK office hours. For purchases made by You offline, or if online by You by bank transfer or check/cheque, provisioning of Your selected Products and/or Services will normally be within 24 hours of Your payment being cleared by our bank, subject to normal UK office hours.
14.6 If any amount owing by You under an Order is 30 or more days overdue (or 10 or more days overdue in the case of Orders You have authorised Us to charge Your PayPal account or credit or debit card), We may, without limiting our other rights and remedies, suspend Your account and Your access to the Products, Services, Website and Content until such amounts owing are paid to Us in full.
Neither this Agreement nor any rights, licenses or obligations under it, may be assigned by You. Any attempt by You to assign, transfer or delegate this Agreement shall be null and void. We may assign this Agreement or any rights, licenses or obligations under it at our sole discretion.
16.0 Entire Agreement
This Agreement supersedes all prior or contemporaneous agreements, arrangements and undertakings, whether oral or written, between the Parties. It, together with the relevant descriptions of those Products and/or Services You are considering purchasing, any GPL / AGPL licences governing our use of the open source software employed in our Software Solution Products, any disclaimers relating to Free Trials You may be accessing and the “Legal” page of our Website covering the Creative Commons licensing terms of our published Content constitutes the entire agreement between the Parties relating to its subject matter.
Notwithstanding the foregoing, the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
17.0 Force Majeure
17.1 Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance which result from circumstances beyond the reasonable control of that Party. If such circumstances continue for a continuous period of more than 30 days, either Party may terminate the Agreement by written notice to the other Party.
17.2 Any costs arising from such delay shall be borne by the Party incurring the same.
Any notice to be given under this Agreement shall be by post to Your address as notified to us on Your Order Form, or by email via the email address You provide to Us, or such other working email address for You as You may notify to Us from time to time. Any notice to Us should be to the email address We provided to You when You began Your subscription for Your chosen Products and Services and should be addressed to the relevant company described in Section 22.0.
If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law. If any remedy set forth in this Agreement is determined to have failed of its essential purpose, then all other provisions of this Agreement, including the limitations of liability and exclusion of damages, shall remain in full force and effect.
No delay, neglect or forbearance on our part in enforcing against You any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of Us under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for Us is exclusive of any other right, power or remedy available to Us.
21.0 Third Parties
This agreement shall not confer any rights on third parties.
22.0 Who You are Contracting With, Governing Law and Jurisdiction
Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit are as follow:
You are contracting with: Kerzman Associates – KzA – (trading as open4mgt), with offices at Suite #6537, Monomark House, 27 Old Gloucester Street, London, WC1N 3AX, UK and the governing jurisdiction and law is that of England and Wales.
Unported License v3.0. open4mgt®. All Rights Reserved.