These Terms are binding on any use of the Service and apply to You from the time that ExcluServ provides You with access to the Service.
By registering to use the Service You acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
In these Terms, unless the context requires otherwise, the capitalised words and expressions set out below shall have the following meaning:
“Beneficial Client” means the Subscriber, unless, in relation to a System Integration, the Subscriber has registered to use the Service on behalf of, or to provide services to, another person (“A”) (whether A is a body corporate or otherwise), in which case the Beneficial Client is A in relation to such System Integration.
“ExcluServ” means ExcluServ Limited, a UK private limited company with registration number 5633814, and any future subsidiaries of ExcluServ Limited. “We”, “Us” and “Our” shall also refer to ExcluServ.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party, or other information that is anonymised and/or amalgamated.
“Data” means any data inputted by You or with Your authority into the Website or into the various software solutions that are integrated between by the Service at any time.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time including, for the avoidance of doubt, the Beneficial Client.
“Systems Integration” means any two or more systems whose data is synchronised through the use of the Service
“Service” means the synchronisation services made available (as may be changed or updated from time to time by ExcluServ) via the Website.
“Services Fee” means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which ExcluServ may change from time to time on notice to You).
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“Website” means the Internet site at the domain www.ExcluServ.co.uk or any other site operated by ExcluServ.
“You” means the Subscriber, and where the context permits, an Invited User and/or the Beneficial User. “Your” has a corresponding meaning.
Words and defined terms importing the singular shall be treated as importing the plural and vice versa. The clause and paragraph headings used in these Terms are inserted for ease of reference only.
2. USE OF SOFTWARE
ExcluServ grants You the right to access and use the Service via the Website with the particular user roles, size and access available to You according to Your Services Fee category. This is a non-exclusive right that is limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be; and
- if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the Service that Invited User shall have, if any.
3. YOUR OBLIGATIONS
3.1 GENERAL OBLIGATIONS
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Us or condition posted on the Website. You may use the Service and Website on behalf of any Beneficial Client or in order to provide services to any Beneficial Client(s) but if You do so you must ensure that You are authorised to do so and that all Beneficial Clients for whom or to whom services are provided comply with and accept all the provisions of the Terms that apply to You.
3.2 ACCESS CONDITIONS
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security and We will reset Your password and You must take all other actions that We reasonably deem necessary to maintain or enhance the security of Our computing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of ExcluServ’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.3 COMMUNICATION CONDITIONS
As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to) offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication on the Website, You represent that You are permitted to make such communication. ExcluServ is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, ExcluServ does reserve the right to remove any communication at any time in its sole discretion.
You will on demand indemnify ExcluServ against all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to ExcluServ, including (but not limited to) any costs relating to the recovery of any Services Fees that are due but have not been paid by You.
4. CONFIDENTIALITY AND PRIVACY
- Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each party’s obligations under this clause will survive termination of these Terms.
- The provisions of paragraphs (i) and (ii) above shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
5. INTELLECTUAL PROPERTY
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of ExcluServ (or its licensors).
5.2 OWNERSHIP OF DATA
Title to, and all Intellectual Property Rights in, the Data is the property of the Beneficial Client. Where you are not the Beneficial Client, You warrant that You are authorised and/or licensed to use, copy, modify, upload and transmit the information and Data. However, Your access to the Data is contingent on full payment of the ExcluServ Services Fee when due. You also grant ExcluServ a licence to use, copy, transmit, modify, store, and back-up the information and Data to the extent necessary for enabling You to access and use the Services and for any other purpose related to any services it makes available to You.
5.3 BACKUP OF DATA
You must maintain copies of all Data in software systems using the Service. ExcluServ adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. ExcluServ expressly excludes liability for any loss of Data no matter how caused. You will ensure that where you are not the Beneficial Client, that the Beneficial Client is aware of acknowledges ExcluServ’s exclusion of liability under this clause 5.3.
6. WARRANTIES AND ACKNOWLEDGEMENTS
You warrant that where You have registered to use the Service on behalf of a Beneficial Client, You have the authority to agree to these Terms on behalf of that Beneficial Client and agree that by registering to use the Service in relation to the relevant system integration You bind the Beneficial Client on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- ExcluServ has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You (including, where you are not the Beneficial Client, the Beneficial Client). If You use the Services or access the Website on behalf of or for the benefit of any Beneficial Client you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and You agree that ExcluServ has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own, the relevant Beneficial Client’s or that of anyone else).
- You will indemnify ExcluServ against any claims or loss relating to:
- ExcluServ’s refusal to provide any person access to Your information or Data in accordance with these Terms;
- ExcluServ’s making available information or Data to any person with Your authorisation; and
- any enforcement by the Beneficial Client of their Intellectual Property Rights to the Data.
- The provision of, access to, and use of, the Services is on an “as is” basis and at Your own risk.
- ExcluServ does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. ExcluServ is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and any Beneficial Client and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to the Data via the Services and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
6.3 NO WARRANTIES
ExcluServ gives no warranty about the Services. Without limiting the foregoing, ExcluServ does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.4 CONSUMER GUARANTEES
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
7. LIMITATION OF LIABILITY
- To the maximum extent permitted by law, ExcluServ excludes all liability and responsibility to You (or any other person, including the Beneficial Client) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of ExcluServ’s negligence or failure to comply with these Terms, any claim by You against ExcluServ arising from ExcluServ’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Services Fees paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
8.1 PREPAID SUBSCRIPTIONS
ExcluServ will not provide any refund for any remaining prepaid period for a prepaid Services Fee subscription.
8.2 NO-FAULT TERMINATION
These Terms will continue for the period covered by the Services Fee paid. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Services Fee when due, unless either party terminates these Terms by giving notice to the other party before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Services Fees for the then current period.
- breach any of these Terms (including, without limitation, by non-payment of any Services Fees or amounts due under clause 3.4) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied, which includes (without limitation) any breach of payment of Service Fees or amounts due under clause 3.4 that are more than 30 days overdue; or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets or if You make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
then ExcluServ may take any or all of the following actions, at its sole discretion:
- terminate this Agreement and Your use of the Services and the Website;
- suspend for any definite or indefinite period of time, Your use of the Services and the Website;
- suspend or terminate access to all or any Data; or
- take any of the actions in sub-clauses (i), (ii) and (iii) of this clause 8.4 in respect of any or all other persons whom You have authorised to have access to the Data, Services and Website.
8.4 ACCRUED RIGHTS
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
8.5 EXPIRY OR TERMINATION
Clauses 3.3, 3.4, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. HELP DESK
9.1 TECHNICAL PROBLEMS
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting ExcluServ. If You still need technical help, please check the support provided online by ExcluServ on the Website or failing that email us at support@ExcluServ.com. In the case that any technical problems appear to be as a result of a fault or error on the Website, you will use reasonable endeavours to notify ExcluServ as soon as possible by either emailing us at support@ExcluServ.com or using any other technical support notification portal made available on the Website.
9.2 SERVICE AVAILABILITY
Whilst ExcluServ intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason ExcluServ has to interrupt the Services for longer periods than ExcluServ would normally expect, ExcluServ will use reasonable endeavours to publish in advance details of such activity on the Website.
10.1 ENTIRE AGREEMENT
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10.4 NO ASSIGNMENT
You may not assign or transfer any rights to any other person without ExcluServ’s prior written consent.
10.5 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of England and Wales and You hereby submit to the exclusive jurisdiction of the courts of England and Wales for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to ExcluServ must be sent to support@ExcluServ.com or to any other email address notified by email to You by ExcluServ. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
10.8 RIGHTS OF THIRD PARTIES
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.