Web Maintenance Terms
Please read these Web Maintenance Terms carefully, as they set out
our and your legal rights and obligations in relation to our web
maintenance services.
You should print a copy of these Web Maintenance Terms for future
reference. We will not file a copy specifically in relation to you, and
they may not be accessible on our Website in future.
These Web Maintenance Terms are available in the English language
only.
If you have any questions or complaints about these Web
Maintenance Terms or our Services, please contact us by writing to Aress
Software and Education Technologies P. Ltd, L13, MIDC Ambad, Nasik,
422010, India, by fax to +91 253 2344998 or by email to legal@sumow.com.
Agreement
1.
Definitions and Interpretations
1.1
In the Agreement:
“Agreement” means the agreement
between the Company and the Customer incorporating these Web
Maintenance Terms and the Registration Form and any amendments to it
from time to time;
“Back-up Services” means the Services
described in Clause 3.4;
“Business Day” means any week day, other than a
bank or public holiday in India;
“Business Hours” means between [09:00] and
[17:30] on a Business Day;
“Charges” means the Monthly, Quarterly or
Annual Charges and any set-up charges;
“Company” means Aress Software and
Education Technologies P. Ltd, a private limited company
incorporated in India having its registered office at L13, MIDC Ambad,
Nasik, 422010, India.
“Company Materials” means all works and
materials (including text, images, video material, audio material,
software, scripts, mark-ups, style sheets and databases) created by the
Company and incorporated by the Company into the Website pursuant to
the Agreement;
“Confidential Information” means any
information supplied (whether supplied in writing, orally or otherwise)
by one party to the other party marked as “confidential”, described as
“confidential” or reasonably understood to be confidential;
“Customer” means the customer for Services
under the Agreement specified on the Registration Form;
“Effective Date” means the date when the
Agreement comes into force in accordance with Clause 2.3;
“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 or problems with the internet or
a part of the internet, failures of any third party internet service
provider, hacker 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);
“Helpdesk Services” means the Services
described in Clause 3.1;
“Intellectual Property Rights” means all
intellectual property rights wherever in the world, whether registered
or unregistered, including any application or right of application for
such rights (and the “intellectual property rights” referred to above
include copyright and related rights, moral rights, database rights,
confidential information, trade secrets, know-how, business names,
trade names, domain names, trade marks, 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 Services
described in Clause 3.4;
“Minimum Term” means the periods set out in
the Registration Form starting from the Effective Date;
“Registration Form” means the form on the
Company's website enabling users to sign up as Customers for the
Services;
“Services” means the Support Services, Update
Services and Maintenance Services and other services as detailed in
Clause 3;
“Support Services” means the Services
described in Clause 3.2;
“Term” means the term of the Agreement;
“Update Services” means the Services described
in Clause 3.3;
“Website” means the website specified on the
Registration Form; and
“Year” means a period of 365 days (or 366 days
if there is a 29 February during the relevant period) starting on the
Effective Date or on any anniversary of the Effective Date.
1.2
In the 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.
1.3
The Clause headings do not affect the
interpretation of the Agreement.
2
This Agreement
2.1
In order to apply to become a Customer, the
applicant must complete and submit the Registration Form.
2.2
If the applicant makes any input errors
during the order process, these may be identified and corrected by the
applicant before the Registration Form is submitted by altering the
information entered..
2.3
This Agreement will come into force if and
when the Company sends to the Customer an acceptance email, following
the submission of a completed Registration Form by the Customer and
payment of the initial payment.
2.4
This Agreement will continue in force
indefinitely, unless and until terminated in accordance with Clause 12.
3.
Services
3.1
The Company will make available a number of
Website Forms to enable the Customer to contact the Company in relation
to Service Requests for Support Services, Update Services and
Maintenance Services. The Company will use reasonable endeavours to
respond to requests for support made through these forms within 8 hours.
Subject to Clause 3.5, upon the request of the Customer through the
Website Forms, the Company will provide the following Services to the
Customer during the Term in relation to the Website:
3.2
Support Services
3.2.1
Add Home page meta tags –
The Customer will be able to specify title tag, description tag and
keywords for the Website home page which the Company will add to the
home page.
3.2.2
Add XML site map – the
Customer may request that an XML site map be generated and added to the
Website and the Company will generate and add the site map to the
Website.
3.2.3
Site Submission – the
Customer may request that the Website be submitted to one or more of
the search engines known as Google, Yahoo and/or Bing and to
directories as selected by the Customer and the Company will submit the
Website to the chosen search engines and directories.
3.2.4
Monthly traffic report – the
Customer may request that he gets a monthly traffic report of visitors
to the Website home page and the Company will organise that such a
monthly report is produced and emailed to the Customer.
3.3
Update Services
3.3.1
Content changes - changing
content on existing Website pages where new content is supplied by the
Customer.
3.3.2
Image changes - changing
images on existing Website pages where new images are supplied by the
Customer.
3.3.3
Add/remove pages – adding or
removing pages on the Website. Any new pages must be specified in full
by the Customer. All content must be supplied including any images.
Links to the new pages from within the Website must be specified by the
Customer including any changes to Website navigation menus. Any pages
to be removed must be specified including any changes to existing links
to those pages and any changes to Website navigation menus. Such
requests will be implemented by the Company.
3.3.4
Add/change/remove forms –
The Customer may request Forms on the Website to be added, changed or
removed. For new or changed forms, the Customer must specify all fields
on the forms that the Company should change. Any forms to be removed
must be specified including any changes to existing links to those
forms and any changes to Website navigation menus. Such requests will
be implemented by the Company.
3.4
Maintenance Services
3.4.1
Link Checking - Check
quarterly that any links within the Website whether to other points
within the site or to external websites function correctly. Any links
not functioning correctly will be reported to the Customer.
3.4.2
Browser Checking - Check
quarterly that the home page of the Website works correctly in the
current and two previous versions of the following internet browsers
(a) Internet Explorer (versions 6, 7 and 8)
(b) Mozilla Firefox
(c) Opera
(d) Google Chrome
(E) Safari
If it is found that the Website does not function correctly in
any of the above browsers then such malfunction will be reported to
the Customer and, where applicable, a quotation will be given for
resolving such malfunctions.
3.4.3
Site Backup - The Company
will make back-ups of the Website when the Website is first contracted
for maintenance and subsequently every three months. At least
once every 4 weeks, the Company will arrange for the storage of a
then-current back-up of the Website at a location away from the location
of the server hosting the website (which back-up will be over-written
on the following off-site back-up date).
3.5
The Company may refuse to provide Maintenance
Services and/or Support Services to the Customer during a calendar
month where the combined total number of person-hours spent providing
the Maintenance Services and Support Services exceeds two hours. The
Company will enforce this limit flexibly but retains the right to do so
if it considers appropriate. When the Company does decide to enforce
this limit, it may contact the Customer and provide a quote to do the
work which caused the Company to decide to enforce this limit.
3.6
For the avoidance of doubt, where the
Customer does not utilise Maintenance Services and Support Services up
to the limit of the contracted number of pages divided by ten during a
calendar month, then the unused Services capacity will not be carried
over to the next period and will be permanently lost to the Customer.
4
Customer Responsibilities
4.1
The Customer will provide to the Company:
(a) the ability to access and make changes to the Website; and
(b) all other co-operation, information and documentation
reasonably required by the Company to enable or facilitate the provision
of the Services..
4.2
The Customer will be responsible for
procuring any third party co-operation reasonably required for the
provision of the Services.
5
Intellectual Property Rights
5.1
The Company hereby grants to the Customer a
non-exclusive royalty-free worldwide licence to use the Company
Materials.
5.2
The Company warrants the Company Materials
will not:
(a) infringe any person's Intellectual Property Rights or
other legal rights;
(b) breach any applicable laws, regulations or legally binding
codes; or
(c) give rise to any form of legal action against the Company
or the Customer or any third party.
5.3
The Customer hereby grants to the Company a
non-exclusive royalty-free worldwide licence to use the Website for the
purposes of exercising the Company's rights and fulfilling the
Company's obligations under the Agreement.
5.4
The Customer warrants the Website (excluding
the Company Materials) will not
(a) infringe any person's Intellectual Property Rights or
other legal rights;
(b breach any applicable laws, regulations or legally binding
codes; or
(c) give rise to any form of legal action against the Company
or the Customer or any third party.
5.5
The Customer hereby indemnifies and
undertakes to keep indemnified the Company against any losses, damages,
claims, obligations, liabilities, costs and expenses (including legal
fees and costs and expenses incurred in investigating, preparing,
defending or prosecuting any litigation, claim, proceeding or demand)
arising out of or in connection with any breach of Clause 5.4.
6.
Charges and Payment
6.1
The Customer may select to pay the Charges
monthly, which selection will incur an initial set-up charge, quarterly
or annually. When the Customer signs up, his or her Sumow account will
be enabled with autorenewal which means that the Sumow account will be
renewed at the end of the selected billing period. When it is time for
renewal, the credit or debit card on file with the Company’s chosen
payment service will also be charged. If the Customer wishes not to have
this happen, and does not want to renew the account, then the account
must be cancelled 14 days prior to the renewal date.
The renewal date can be seen by logging into www.sumow.com and
clicking on accounts/billing or by contacting the Company using the
contact form provided. If the account is not cancelled 14 days prior to
renewal, the account will be renewed for a new term.
If more than 14 days pass from the date on which any invoice for the
account is issued to the Customer and the Company has not received
payment in full, the Company will suspend the account, which means that
no more Services will be provided until payment has been made. If in the
following 14 days the Customer pays all amounts due, bringing the
account up to date, the Company will take the account out of suspension
and the Services will be available again immediately. There must be
active method of payment upon the account for the autorenewal at all
times, failure to do so can result in the account being suspended or
cancelled automatically.
If, however, 30 days pass from the date on which the account is
suspended and payment in full has not been made, the Company shall have
the right to delete all backup data which has been stored by the
Company. To summarize, if the Customer gets 44 days behind in making
payments, backup data stored by the Company data will be deleted. The
Customer hereby acknowledges that this is the Company’s policy when it
comes to data retention, and waives all rights in and to its data in
these situations.
6.2
The Company will issue invoices to the
Customer :
(a) for the Monthly Charges, monthly in advance, including,
for the first such payment, the charge for set up, and
(b) for the Quarterly Charges, quarterly in advance, and
(C) for the Annual Charges, yearly in advance
6.3
All Charges stated in or in relation to the
Agreement are stated exclusive of VAT which will not be charged.
6.4
The Company may vary the Charges by giving to
the Customer at least 60 days' notice of variation expiring at any
time after the end of the Minimum Term.
7.
Warranties
7.1
The Customer warrants to the Company that it
has the legal right and authority to enter into and perform its
obligations under the Agreement.
7.2
The Company warrants to the Customer:
(a) that it has the legal right and authority to enter into and
perform its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement
with reasonable care and skill.
7.3
All of the parties' liabilities and
obligations in respect of the subject matter of the Agreement are
expressly set out in the terms of the Agreement. To the maximum
extent permitted by applicable law, no other terms concerning the
subject matter of the Agreement will be implied into the Agreement or
any related contract.
8.
Limitations and exclusions of
liability
8.1
Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or
personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or
fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not
permitted under applicable law; or
(d) exclude any liability of a party that may not be
excluded under applicable law.
8.2
The limitations and exclusions of liability
set out in this Clause 8:
(a) are subject to Clause 8.1;
(b) govern all liabilities arising under the Agreement or in
relation to the subject matter of the Agreement, including liabilities
arising in contract, in tort (including negligence) and for breach of
statutory duty; and
8.3
The Company will not be liable in respect of
any loss of profits, income, revenue, use, production or anticipated
savings.
8.4
The Company will not be liable for any loss
of business, contracts or commercial opportunities.
8.5
The Company will not be liable for any loss
of or damage to goodwill or reputation.
8.6
The Company will not be liable in respect of
any loss or corruption of any data, database or software.
8.7
The Company will not be liable in respect of
any special, indirect or consequential loss or damage.
8.8
The Company will not be liable for any
losses arising out of a Force Majeure Event.
8.9
The Company's liability in relation to any
event or series of related events will not exceed the greater of:
(a) $100; and
(b) the total amount paid or (if greater) payable by the
Customer to the Company under the Agreement during the one month period
immediately preceding the event or events giving rise to the claim.
8.10
The Company's aggregate liability under the
Agreement will not exceed the greater of:
(a) $500; and
(b) the total amount paid or (if greater) payable by the
Customer to the Company under the Agreement.
9.
Data protection
9.1
The Customer warrants that it has the legal
right to disclose all Personal Data that it does in fact disclose to the
Company under the Agreement, and that the processing of that Personal
Data by the Company for the purposes of and in accordance with the terms
of the Agreement will not breach any applicable laws.
9.2
The Company warrants that:
(a) it will act only on instructions from the Customer in
relation to the processing of any Personal Data performed by the
Company on behalf of the Customer; and
(b) it has in place appropriate security measures (both
technical and organisational) against unlawful or unauthorised
processing of Personal Data and against loss or corruption of Personal
Data processed by the Company on behalf of the Customer.
10.
Confidentiality
10.1
Each party will keep confidential the
Confidential Information of the other party, and will not disclose that
Confidential Information except as expressly permitted by this Clause.
10.2
Each party will protect the confidentiality
of the Confidential Information of the other party using at least
reasonable security measures.
10.3
The Confidential Information of a party may
be disclosed by the other party to its employees and professional
advisers, provided that each recipient is legally bound to protect the
confidentiality of the Confidential Information.
10.4
These obligations of confidentiality will not
apply to Confidential Information that:
(a) has been published or is known to the public (other than as
a result of a breach of the Agreement);
(b) is known to the receiving party, and can be shown by the
receiving party to have been known to it, before disclosure by the other
party; or
(c) is required to be disclosed by law, or by an order
(binding upon the relevant party) of a competent governmental authority,
regulatory body or stock exchange.
11.
Force Majeure Events
11.1
Where a Force Majeure Event gives rise to a
failure or delay in either party performing its obligations under the
Agreement, those obligations will be suspended for the duration of the
Force Majeure Event.
11.2
A party who becomes aware of a Force Majeure
Event which gives rise to, or which is likely to give rise to, any
failure or delay in performing its obligations under the Agreement,
will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is
estimated that such failure or delay will continue.
12.
Termination
12.1
Either party may terminate the Agreement at
any time by giving at least 30 days' written notice to the other party
expiring at any time after the end of the Minimum Term.
12.2
Either party may terminate the Agreement
immediately by giving written notice to the other party if the other
party:
(a) commits any material breach of any term of the Agreement,
and: (i) the breach is not remediable; or (ii) the breach is
remediable, but the other party fails to remedy the breach within 30
days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement.
12.3
Either party may terminate the Agreement
immediately by giving written notice to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct
all (or substantially all) of its business; (iii) is or becomes unable
to pay its debts as they fall due; (iv) is or becomes insolvent or is
declared insolvent; or (v) convenes a meeting or makes or proposes to
make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator,
receiver, trustee, manager or similar is appointed over any of the
assets of the other party;
(c) an order is made for the winding up of the other party,
or the other party passes a resolution for its winding up (other than
for the purpose of a solvent company reorganisation where the resulting
entity will assume all the obligations of the other party under the
Agreement);
(d) (where that other party is an individual) that other
party dies, or as a result of illness or incapacity becomes incapable of
managing his or her own affairs, or is the subject of a bankruptcy
petition or order.
13.
Effects of termination
13.1
Upon termination all the provisions of the
Agreement will cease to have effect, save that the following provisions
of the Agreement will survive and continue to have effect (in accordance
with their terms or otherwise indefinitely): Clauses 1, 5.1, 5.5, 6.5,
8, 10, 13 and 14.3 to 14.12.
13.2
Termination of the Agreement will not affect
either party’s accrued rights (including accrued the date of
termination.rights to be paid) as at the date of termination.
13.3
If the Agreement is terminated under Clause
12.1, or by the Customer under Clause 12.2 or 12.3 (but not in any other
case), the Customer will be entitled to a refund of any Charges paid by
the Customer to the Company in respect of any Services which were to be
performed after the date of effective termination, and will be released
from any obligation to pay such Charges to the Company (such amount to
be calculated by the Company using any reasonable methodology).
13.4
Save as provided in Clause 13.3, the Customer
will not be entitled to any refund of Charges on termination, and will
not be released from any obligation to pay Charges to the Company.
14.
General
14.1
Any notice given under the Agreement must be
in writing (whether or not described as “written notice” in the
Agreement) and must be delivered personally, sent by air mail, or sent
by fax or email, for the attention of the relevant person, and to the
relevant address, fax number or email address given below in the case of
the Company or specified in the Registration form in the case of the
Customer (or as notified by one party to the other in accordance with
this Clause).
The Company: Legal Department, Aress Software and Education
Technologies P. Ltd, L13, MIDC Ambad, Nasik, 422010, India, Fax +91 253
2344998 or by email to legal@sumow.com
14.2
A notice will be deemed to have been received
at the relevant time set out below (or where such time is not within
Business Hours, when Business Hours next begin after the relevant time
set out below):
(a) where the notice is delivered personally, at the time of
delivery;
(b) where the notice sent by airmail, 96 hours after posting;
and
(c) where the notice sent by fax or email, at the time of the
transmission (providing the sending party retains written evidence of
the transmission).
14.3
No breach of any provision of the Agreement
will be waived except with the express written consent of the party not
in breach.
14.4
If a Clause of the Agreement is determined by
any court or other competent authority to be unlawful and/or
unenforceable, the other Clauses of the Agreement will continue in
effect. If any unlawful and/or unenforceable Clause would be lawful or
enforceable if part of it were deleted, that part will be deemed to be
deleted, and the rest of the Clause will continue in effect (unless that
would contradict the clear intention of the parties, in which case the
entirety of the relevant Clause will be deemed to be deleted).
14.5
Nothing in the Agreement will constitute a
partnership, agency relationship or contract of employment between the
parties.
14.6
The Agreement may not be varied except by a
written document signed by or on behalf of each of the parties.
14.7
The Company may freely assign its rights and
obligations under the Agreement without the Customer's consent. Save as
expressly provided in this Clause or elsewhere in the Agreement,
neither party may without the prior written consent of the other party
assign, transfer, charge, license or otherwise dispose of or deal in the
Agreement or any rights or obligations under the Agreement.
14.8
The Company may subcontract any of its
obligations under the Agreement to any third party.
14.9
Each party agrees to execute (and arrange for
the execution of) any documents and do (and arrange for the doing of)
any things reasonably within that party’s power, which are necessary to
enable the parties to exercise their rights and fulfil their obligations
under the Agreement.
14.10
The 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 the Agreement are not subject to the consent of any third
party.
14.11
Subject to Clause 8.1:
(a) the Agreement will constitute the entire agreement between
the parties in relation to the subject matter of the Agreement, and
supersedes all previous agreements, arrangements and understandings
between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any
misrepresentation (whether written or oral) made to it upon which it
relied in entering into the Agreement; and
(c) neither party will have any liability other than pursuant
to the express terms of the Agreement.
14.12
The Agreement will be governed by and
construed in accordance with the laws of India; and the courts of India
will have exclusive jurisdiction to adjudicate any dispute arising under
or in connection with the Agreement.
