Application Service Provider Agreement
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
means the selected software applications provided by the ASP which shall be available to the Customer, as set out in Schedule 2 of this Agreement;
means the Service Provider’s computer hardware, firmware, software and communications infrastructure which is used to facilitate access to the Applications by the Customer;
means any day other than Saturday or Sunday that is not a bank or public holiday;
means any time between 09:00 and 17:00 on a Business Day, during which the Service Provider is open for business;
means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Agreement;
“Customer Computer Systems”
means the Customer’s computer hardware, firmware, software and communications infrastructure through and on which the Applications are to be used;
means any data belonging to the Customer or to third parties and used by the Customer under licence which is created using the Applications or otherwise stored in the ASP Infrastructure;
means the sums payable by the Customer in return for access to the Applications, the ASP Infrastructure and support services provided by the Service Provider in accordance with Clauses 4 and 12 and Schedule 1 of this Agreement;
“Intellectual Property Rights”
means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
means a non-employee of the Customer who may not use the Service in the absence of written consent from the Service Provider as per sub-Clause 10.4;
means, collectively, the Applications, ASP Infrastructure and support services provided by the Service Provider to the Customer; and
means an employee of the Customer who shall, from time to time, access the Applications through the ASP Infrastructure.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement; and
1.2.5 a Clause, sub-Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
2. The Service
2.1 The Service Provider shall, with effect from the Commencement Date, provide the Service to the Customer on a non-exclusive basis for the duration of the Term of this Agreement and in accordance with the terms and conditions of this Agreement.
2.2 The Service Provider shall provide access to the Applications through the ASP Infrastructure and shall use its best and reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in Clauses 4, 12, 18 and 19 of this Agreement.
3.1 The Service will be provided by the Service Provider during the term of this agreement (the “Term”), which shall commence on the Commencement Date and will continue until otherwise terminated in accordance with Clause 19 of this Agreement.
3.2 The Term may be renewed on the same terms and conditions as set out in this Agreement for a further period of 12 months upon the mutual consent of both Parties.
4. Fees and Payment
4.1 The Customer shall pay to the Service Provider all Fees due within 15 days of receipt of an invoice from the Service Provider for the same.
4.2 In the event that the Customer does not pay all Fees due within the time period specified in sub-Clause 4.1 above, the Service Provider shall suspend the Customer’s use of the Service by whatever means it deems appropriate, subject to the requirement that such shall not disrupt any other of the Customer’s operations.
4.3 In the event that the Customer fails to pay under sub-Clause 4.2 then, without prejudice to sub-Clause 4.2, the user will have their account terminated.
4.4 The Service Provider reserves the right to vary the Fees from time to time as it may deem appropriate. The Customer shall receive 30 days’ written notice of any such variation. Such variations shall take effect upon expiry of such notice.
4.5 Subscription charges commence on the date that the User activates their subscription. The User’s credit / debit card / bank account will be billed on activation and every 30 days thereafter.
4.6 HipVUE, Inc reserves the right to change Subscription Fees from time to time and any such changes may affect Users’ subscription rates.
4.7 If a User terminates their subscription or Account they will continue to have access to the Services for the remainder of the prevailing Subscription Period up until the renewal date whereupon access will cease unless the User chooses to pay the Subscription Fee to reactivate their subscription.
5. The Applications
5.1 The Application to which the Customer shall have access is the Real Estate Mobile Marketing System..
5.2 The Customer is free during the term of this Agreement to either add to or remove from the selection of Applications, subject to availability of required applications from the Service Provider. [The Fees shall be amended accordingly in the event of such modification.]
In the event that any Users require training in order to use the Applications, it shall be the responsibility of the Customer to ensure that all Users are appropriately trained and to bear any costs associated with such training. .
7.1 The Service Provider shall be responsible for all maintenance and upgrades to the ASP Infrastructure which may from time to time be required.
7.2 Subject to the provisions of Clause 10, the Customer shall be responsible for all maintenance and upgrades to the Customer Computer Systems which may from time to time be required.
7.3 Unless maintenance is corrective in nature, the Service Provider shall provide at least 5 Business Days’ notice of any maintenance which may affect the Customer’s use of the Service. The Service Provider shall use it’s best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.
7.4 Where maintenance will disrupt the Service, the Service Provider shall aim to complete all necessary work within 24 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
7.5 Whenever possible, the Service Provider shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
8. Software Licences
8.1 The Customer shall use all Applications under a non-exclusive, non-transferrable licence, as set out in this Agreement. This licence permits a maximum number of 5 Users from one office location to access the Applications at any given time and such access is only permitted through the client login screen and website.
8.2 All Applications provided by the Service Provider are the property of the Service Provider unless otherwise stated and shall be covered by the terms of the licence included in this Agreement. Where Applications are the property of a third party, the relevant licences for those Applications shall be annexed to this Agreement.
8.3 Where Applications are the property of a third party, the Service Provider warrants that they have all requisite authority to sub-licence such applications to the customer for the purposes of this Agreement and for use under its terms.
9.1 Under this Agreement, as indicated in sub-Clause 8.1 above, a maximum number of 5 Users from one office location may access the Applications through the ASP Infrastructure at any given time.
9.2 Users’ access to the Applications and the ASP Infrastructure shall be controlled by means of username and password.
9.3 Should the Customer require an increased maximum number of Users, such an increase shall be permitted at the exclusive discretion of the Service Provider. The Service Provider reserves the right to increase Fees proportionately, in accordance with Schedule 1, in the event of an increase in the maximum number of Users.
9.4 Use by Non-Customer Users is not permitted under this Agreement in the absence of express written consent from the Service Provider, such consent not to be unreasonably withheld. The Service Provider may require such details as the reason that access to the Applications and ASP Infrastructure is required by the Non-Customer User, details of the Non-Customer User and other information which may be specified from time to time.
9.5 The Customer shall use the Service exclusively for the purposes of carrying on its business of a real estate agency or car dealership.
9.6 The Customer may only access the Application detailed in this Agreement. No access to other parts of the ASP Infrastructure shall be permitted in the absence of express written permission from the Service Provider.
9.7 The Customer is exclusively responsible for it’s use of the Service, including the conduct of individual Users (Users to include any authorised Non-Customer Users) and must ensure that all use is in accordance with this Agreement. The Customer shall notify the Service Provider immediately of any breaches of this Agreement by any Users or Non-Customer Users.
9.8 Access to the Applications is only permitted through username and password entry to the supplied client URL (web address) via the ASP Infrastructure. Under no circumstances may the Customer download, store, reproduce or redistribute the Applications or any other part of the ASP Infrastructure, without first obtaining the express written permission of the Service Provider.
9.9 The Customer’s use of the Applications and ASP Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Agreement. It shall be the Customer’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.
9.10 The Customer’s use of the Service shall be subject to the following limitations, any of which may be waived by the Service Provider giving their express written consent:
9.10.1 The Customer may not use or redistribute the Applications or the ASP Infrastructure for the purpose of conducting the business of an Application Service Provider;
9.10.2 The Customer may not redistribute or reproduce the Applications or the ASP Infrastructure through any network; and
9.10.3 The Customer may not allow any unauthorised third party to access the Applications or the ASP Infrastructure.
9.11 Neither the Customer, nor anyone on their behalf may, in the absence of written consent from the Service Provider:
9.11.1 Make changes of any kind to the Applications or the ASP Infrastructure; or
9.11.2 Attempt to correct any fault or perceived fault in the Applications or the ASP Infrastructure.
10. Customer Computer Systems
10.1 Where, in the opinion of the Service Provider, Customer Computer Systems are likely to cause disruption to the ASP Infrastructure, the Service Provider may request that the Customer disconnects from the ASP Infrastructure until advised that reconnection is possible. The Service Provider may require changes such as upgrades or equipment replacement to be made to the Customer Computer Systems prior to reconnection.
10.2 In the event of any unauthorised access by the Customer of Applications or the ASP Infrastructure, in breach of sub-Clause 10.3 or otherwise the Service Provider shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate this Agreement in accordance with Clause 18 below.
10.3 The Customer shall ensure that no Customer Computer Systems are connected to a third party ASP system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third parties.
11.1 The Service Provider shall provide support through it’s online support ticket system. The support provided by the Service Provider shall relate only to the Applications and ASP Infrastructure. Any problems which are related to Customer Computer Systems must be resolved by the Customer’s own support staff.
11.2 When seeking support the Customer shall use its best and reasonable endeavours to provide the fullest information possible to aid the Service Provider in diagnosing any faults in either the Applications or the ASP Infrastructure.
11.3 Whenever possible, the Service Provider shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
12. Intellectual Property
12.1 Subject to sub-Clause 12.2 all Intellectual Property Rights subsisting in the Applications and the ASP Infrastructure, including any supporting software and documentation are the property of the Service Provider. For the purposes of this Clause 12 ‘Applications’ and ‘ASP Infrastructure’ along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.
12.2 Where expressly indicated, the Intellectual Property Rights subsisting in certain Applications including any supporting software and documentation may be the property of named third parties.
12.3 The Customer shall not either during the term or after the expiry of this Agreement permit or cause to occur any infringement of any Intellectual Property Rights covered by this Clause 12. Use by the Customer and its employees of the Service shall be only within the terms of this Agreement.
12.4 The Customer shall not, in the absence of the Service Provider’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Applications, any part of the ASP Infrastructure, or any other material associated with this Agreement where such activity goes beyond the scope of actions permitted by the terms and conditions of this Agreement.
12.5 Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 12 it shall be under a duty to inform the Service Provider of such breach immediately.
13. Customer Data
13.1 Subject to sub-Clause 13.2 all Intellectual Property Rights subsisting in Customer Data are and shall remain the property of the Customer.
13.2 Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third parties.
14.1 During the Term of this Agreement and after the termination or expiration of this Agreement for any reason, the Service Provider shall use its best and reasonable endeavours to ensure that all Customer Data is kept secure and confidential. The Service Provider shall not, in the absence of express written consent from the Customer, disclose Customer Data to any third party unless such disclosure is required by law in which case the Customer shall be notified in writing of the disclosure.
14.2 During the Term of this Agreement the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).
14.3 Subject to sub-Clause 15.4, the Receiving Party:
14.3.1 may not use any Confidential Information for any purpose other than the performance of their obligations under this Agreement;
14.3.2 may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
14.3.3 shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
14.4 The obligations of confidence referred to in this Clause 14 (excluding sub-Clause 14.1) shall not apply to any Confidential Information that:
14.4.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
14.4.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
14.4.3 is required to be disclosed by any applicable law or regulation; or
14.4.4 is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
14.5 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which they may be entitled.
14.6 The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of this Agreement irrespective of the reason for such expiry or termination.
15.1 Subject to Clause 15 of this Agreement, the Service Provider shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer even if such loss is reasonably foreseeable or if the Service Provider has been advised of the possibility of the Customer incurring it.
15.2 The Service Provider’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to £100.
15.3 Notwithstanding any other provision in this Agreement, the Service Provider’s liability to the Customer for death or injury resulting from the Service Provider’s own negligence or that of their employees, agents or sub-contractors shall not be limited.
16.1 The Customer will fully indemnify the Service Provider against all costs, expenses, liabilities, losses, damages and judgments that the Service Provider may incur or be subject to as a result of any of the following:
16.1.1 The Customer’s misuse of the Applications, ASP Infrastructure or any other element of the Service;
16.1.2 The Customer’s breach of this Agreement; or
16.1.3 The Customer’s negligence or other act of default.
16.2 The Service Provider shall be under no obligation to indemnify the Customer against any costs, expenses, liabilities, losses, damages and judgments that the Customer may incur or be subject to arising out of any matter covered by this Agreement.
17. Force Majeure
17.1 Neither the Service Provider nor the Customer shall be liable for breaching this Agreement where that breach results from Force Majeure.
17.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
18.1 The Service Provider reserves the right to terminate this Agreement or to suspend the Service in the following circumstances:
18.1.1 If the Customer fails to pay Fees due under Clause 4 of this Agreement;
18.1.2 If the Customer is in breach of the terms of this Agreement;
18.1.3 If the Customer becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.1.4 If the Customer is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.1.5 If the Customer has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.2 The Customer reserves the right to terminate this Agreement in the following circumstances:
18.2.1 If the Service Provider is in breach of the terms of this Agreement;
18.2.2 If the Service Provider becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.2.3 If the Service Provider is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.2.4 If the Service Provider has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.3 Within 7 Business Days of the termination of this Agreement in accordance with this Clause 18 or the expiry of this Agreement, the Customer shall uninstall or otherwise remove any means of access to the Applications and ASP Infrastructure including, but not limited to, client software supplied by the Service Provider for that sole purpose. Immediately following taking such action, the Customer shall inform the Service Provider in writing that such action has been taken. The Service Provider shall have the right to dispatch a representative to the Customer’s premises for verification purposes.
18.4 This agreement can be terminated by both the User or Service provider by providing the other with 30 days written notice.
19.1 All notices under this Agreement shall be in writing..
19.2 Notices shall be deemed to have been duly given:
19.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
19.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
19.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
19.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
19.3 In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
20. User Content and Intellectual Property
20.1 When using the Services to create Content, Users should do so in accordance with the following rules:
20.1.1 Users must not submit Content that is unlawful or otherwise objectionable. This includes, but is not limited to, Content that is abusive, threatening, harassing, defamatory or fraudulent;
20.1.2 Users must not submit Content that is intended to promote or incite violence;
20.1.3 Users must not submit Content that may contain viruses or any other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
20.1.4 Users must not post links to other websites containing any of the above types of Content;
20.1.5 Users must not impersonate other people, particularly employees and representatives of HipVUE, Inc or our affiliates;
20.1.6 Users must not use the Services for unauthorised mass-communication such as “spam” or “junk mail”.
20.2 HipVUE, Inc has the right, but not the obligation to pre or post-screen Content submitted or created by Users and may flag or filter any Content that it deems appropriate.
20.3 If any Content is found to be in breach of these terms and conditions, HipVUE, Inc reserves the right to remove it without notice and may, at its sole discretion, terminate the responsible User’s access to the Services.
20.4 Users are solely responsible for any and all Content that they submit or create. HipVUE, Inc does not endorse, support, represent or otherwise guarantee the accuracy or reliability of such Content.
20.5 By submitting or creating Content Users warrant and represent that they are the author of such Content and / or that they have acquired all of the appropriate rights and / or permissions to use the Content in this fashion. HipVUE, Inc accepts no responsibility or liability for any infringement of third party rights by such Content.
21. Relationship of Parties
Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Customer.
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
24. Entire Agreement
24.1 This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
24.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.
25. No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
27. Law and Jurisdiction
27.1 This Agreement shall be governed by the laws of The State Of Florida.
27.2 Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of USA.