Terms of Service (Draft - Not finalised)
Parties1 Legal Square (the "Provider"); and
2 You, the user of this Site (the "Client").
1. Definitions1.1 Except to the extent expressly provided otherwise, in this Agreement: "Account" means an account enabling a person to access and use the Hosted Services [, including both administrator accounts and user accounts];
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in Australia];
"Business Hours" means the hours of [09:00 to 17:00 AEDT] on a Business Day;
"Charges" means the following amounts:
(a) [the amounts specified in Part 3 of Schedule 1 (Hosted Services particulars);]
(b) [such amounts as may be agreed in writing by the parties from time to time; and]
(c) [amounts calculated by multiplying the Provider's [standard time-based charging rates (as notified by the Provider to the Client before the date of this Agreement)] by the time spent by the Provider's personnel performing [the Support Services] (rounded [down by the Provider to the nearest quarter hour]);]
"Client" means the person or entity identified as such in Part 1 of Schedule 1 (Hosted Services particulars);
"Client Confidential Information" means:
(a) any information disclosed by [or on behalf of] the Client to the Provider [during the Term / at any time before the termination of this Agreement] (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) [the Client Data; and]
"Client Data" means all data, works and materials: uploaded to or stored on the Platform by the Client; transmitted by the Platform at the instigation of the Client; supplied by the Client to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Client;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Client;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Permitted Purpose" means the use of the services provided by Legal Square only;
"Personal Data" has the meaning given to it in the Privacy Act 1988;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Legal Square
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Client, or has an obligation to provide to the Client, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2. Term2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17.
3. Hosted Services3.1 The Provider shall create an Account for the Client and shall provide to the Client login details for that Account on or promptly following their signing up to the Website.
3.2 The Provider hereby grants to the Client a non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Client during the Term.
3.3 The licence granted by the Provider to the Client under Clause 3.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Client;
3.4 The Client shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
3.5 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Client at the gateway between the public internet and the network of the hosting services provider for the Hosted Services but does not guarantee 100% availability.
3.6 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event; (b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Client's computer systems or networks;
(d) any breach by the Client of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
3.7 The Client must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.8 The Client must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.9 The Provider does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy or reliability of any content or communications posted via the services or endorse any opinions expressed via the services provided. The Client understands that by using the services, you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabelled or are otherwise deceptive. Under no circumstances will the Provider be liable in any way for any content including, but not limited to, any errors or omissions in any content posted, emailed, transmitted or otherwise made available via the services or broadcast elsewhere.
3.10 For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Client to the Provider under this Agreement is overdue, and the Provider has given to the Client at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Support Services4.1 The Provider shall provide the Support Services to the Client during the Term.
4.2 The Provider shall make available to the Client a helpdesk in accordance with the provisions of this main body of this Agreement.
4.3 The Provider shall provide the Support Services with reasonable skill and care.
4.4 The Client may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Client must not use the helpdesk for any other purpose.
4.5 The Provider shall respond promptly to all requests for Support Services made by the Client through the helpdesk.
5. Client Data5.1 The Client hereby grants to the Provider a non-exclusive licence to the Client Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.
5.2 Once an account has been created, the Client will be able to modify their data at any time. The Client can do this by logging into their account and modifying their profile. The Client can un-register at any time and thereby delete their account and all related registered information, however, the data may be kept in an archive for an additional period of up to ten days to allow the recovery of mistakenly deleted accounts and request that accounts are deleted or made invisible to other users.
6. Marketing6.1 By using the Site the Client gives the Provider the right to contact the Client’s registered businesses for the purposes of marketing the Site.
7. No assignment of Intellectual Property Rights7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Client, or from the Client to the Provider.
8. Charges8.1 The Client shall pay the Charges to the Provider in accordance with this Agreement.
8.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes and payable by the Client to the Provider.
8.3 The Provider may elect to vary any element of the Charges by giving to the Client not less than 30 days' written notice of the variation.
9. Provider's confidentiality obligations9.1 The Provider must:
(a) keep the Client Confidential Information strictly confidential;
(b) not disclose the Client Confidential Information to any person without the Client's prior written consent, and then only under conditions of confidentiality;
(c) use the same degree of care to protect the confidentiality of the Client Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Client Confidential Information.
9.2 Notwithstanding Clause 8.1, the Provider may disclose the Client Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
9.3 This Clause 8 imposes no obligations upon the Provider with respect to Client Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
9.4 The restrictions in this Clause 8 do not apply to the extent that any Client Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
9.5 The provisions of this Clause 8 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.
10. Data protection10.1 The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Privacy Act 1988).
10.2 To the extent that the Provider processes Personal Data disclosed by the Client, the Provider warrants that:
(a) it will act only on instructions from the Client in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
11. Warranties11.1 The Provider warrants to the Client that:
(a) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
(b) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
(c) the Hosted Services will be free from Hosted Services Defects;
(d) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
(e) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(f) the Platform will incorporate security features reflecting the requirements of good industry practice.
11.2 The Provider warrants to the Client that the Hosted Services, when used by the Client in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
11.3 The Provider warrants to the Client that the Hosted Services, when used by the Client in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.
11.4 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Client in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Client the right to use the Hosted Services in accordance with this Agreement.
11.5 The Client warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement.
11.6 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into the Agreement or any related contract.
12. Acknowledgements and warranty limitations12.1 The Client acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
12.2 The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
12.3 The Client acknowledges that the Hosted Services are designed to be compatible only with that software and those systems; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
12.4 The Client acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Client will not give rise to any legal liability on the part of the Client or any other person.
13. Limitations and exclusions of liability13.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this Agreement:
(a) are subject to Clause 12.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
13.3 The Provider shall not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
13.4 The liability of the Provider to the Client under this Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) £250 ; and
(b) the total amount paid and payable by the Client to the Provider under the Agreement in the 12-month period preceding the commencement of the event or events.
14. Force Majeure Event14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
14.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
15. General15.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
15.4 This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.5 This Agreement shall be governed by and construed in accordance with Australian law.
15.6 The court of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
16. Termination16.1 The Client may cancel their subscription with the Provider at any time but will be charged for the charged for the month in which they cancel.
17. Interpretation17.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
17.2 The Clause headings do not affect the interpretation of this Agreement.
17.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
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