TERMS OF SERVICE AGREEMENT (between
Click IT Solutions, Customers and Partners)
Last updated Nov 20th, 2008 – 2300 hrs
This Terms of Service
Agreement ("Agreement") between Click IT Solutions, a Caribbean business
with main offices in
1.1. General. This Agreement governs Client’s (Customer) or Partnership account holder
hereon referred to as (Customer) usage
of the following Click IT Solutions services (the " Services"), which may be amended from time to time:
a.
Click Partner Eco-System
b.
Hosting of Websites
c.
Hosting of e-Commerce applications
d.
Hosting of Internet applications
e.
Hosting of Emails
f.
Hosting of Domains
g.
Rental or usage of Websites
and Application interfaces
h.
Rental of usage of the Application Back Ends
i.
Click IT Solutions’ Website Development and Programming
ii.
Click IT Solutions’ Back End Tools
iii.
Click IT Solutions’ Directory Services
iv.
Click IT Solutions’ Store-Front Builder
v.
Click Partners Virtual Infrastructure
The Services specifically do not include any analysis, review or other
substantive use of Customer data.
2.1. License;
Authorized User.
Customer is hereby granted a revocable, non-transferable and non-exclusive
license to use the Services. Click
IT Solutions will issue to one Customer employee ("Designee") an individual logon identifier and password. Only
the Designee shall be authorized to
legally act on behalf of Customer in connection with the Services. The Designee
shall assign any other authorized Customer users ("Authorized User")
and be responsible for such Authorized User's access to the Services. Customers shall require the Designee and all Authorized Users to
execute appropriate Nondisclosure Agreements and use its reasonable efforts to
ensure that each Authorized User will: (a) not disclose such logon identifier
to any person or entity; (b) be responsible for the security of his or her
logon identifier; and (c) use the Services without notice in accordance with
the terms and conditions of this Agreement. Customer will be responsible for
advising each Authorized User of his or her obligations under this Agreement
and all costs related thereto. Click IT Solutions reserves the right to deny or
revoke access to the Services
without notice if it reasonably believes Customer or its Authorized Users are
in breach of this Agreement. Customer will be responsible for procuring, at
Customer's sole expense, all equipment or other software, if any, required in
using the Services.
2.2. Rights and
Limitations on Use of the Services. The Customer shall comply with Click IT Solutions’ rules
(as may be in effect during the term of this Agreement) appropriate to any
network to which Click IT Solutions provides access. The Customer is not
permitted to post any material that is illegal, libelous, tortuous or indecent
or is likely to directly or indirectly cause harm to Click IT Solutions. Click
IT Solutions reserves the right to refuse or terminate service at any time for
violation of this Section.
Customer agrees that the Customer
and its Authorized Users will not: (a) sell, lease, license or sublicense the Services, except where privileged through
our Click Partners program, where each Customer is authorized to resell or
distribute without any modification of the Services authorized as resalable
services; (b) modify, change, alter, translate, create derivative works from,
reverse engineer, disassemble or decompile the Services; (c) disclose or make
available the Services to any third
party; (d) copy any part of the Services;
(e) engage in spamming, mail-bombing, spoofing or any other illegal or
unauthorized use of the Services;
(f) knowingly introduce into or transmit through the Services any virus, worm, trap door, back door, timer, clock,
counter or other limiting routine, instruction or design; (g) alter any
copyright notice, trademarks or other proprietary rights notices affixed to or
contained within the Services; or
(h) engage in or permit any action involving the Services that is inconsistent with the terms and conditions of this
Agreement.
Click IT Solutions and the
Customer acknowledge that, Customer shall have the right to post files
including but not limited to JPEG, PNG, GIF, MP3, PDF and DOC, provided that
Click IT Solutions shall assume no liability for any copyright or other
infringement related thereto. Customer acknowledges that any such infringement
shall result in immediate termination of access to the Services, without notice.
2.3. Audit Rights. Click IT Solutions shall have the
right, during the term of this Agreement and for a period of nine (9) months
thereafter, to inspect Customer's use of the Services, including its computers and equipment.
2.4. Availability. Click IT Solutions shall use
commercially reasonable efforts to keep Click IT Solutions Services available
on a continuous basis, subject to scheduled downtime for maintenance purposes,
unscheduled maintenance and systems outages. The parties acknowledge that the
Internet is neither owned nor controlled by any one entity and Click IT
Solutions makes no guarantees that any particular user will be able to access the
Services at all times. Click IT
Solutions shall not be liable to Customer for failure of access to the Services.
2.5. Click IT
Solutions’ Licensors. Customer agrees that Click IT Solutions Services may be provided by
third party licensors to Click IT Solutions. For all Services provided by third party licensors, Customer agrees to
abide by any third party licensor terms and conditions which are available upon
request and shall be incorporated by reference into this Agreement.
2.6. Changes to the
Services.
Customer acknowledges that Click IT Solutions may, at its sole discretion,
change any third party licensors, or add or delete services from the Services provided it uses reasonable
efforts to prevent service interruptions.
3.1. Fees and
Taxes.
Customer shall be responsible for all sales, use, transfer, privilege, excise
and all other taxes and duties relating to this Agreement. Customer shall pay
all amounts due under any invoice to Click IT Solutions in advance via credit
card, PayPal or other stated payment processes including any application fees
or user fees according to Click IT Solutions’ then applicable fee schedule.
Many of Click IT Solutions services such as hosting and application rental are renewable
services that require periodic payments. Customer authorizes Click IT Solutions
to charge a recurring payment for such services until contract termination.
Automatic payment to a Customer credit card or other account may be authorized
on a monthly, quarterly, or annual basis, unless terminated by Customer
according to the termination provision of 9.3. In the case of failure to pay or
a late payment, Click IT Solutions may without notice suspend access to the Services or terminate this Agreement.
Any such suspension or termination will not relieve Customer from paying any
outstanding fees plus interest and late charges. Customer will be responsible
for any costs associated with collecting such fees including attorneys' fees
and court costs.
4.1.
Representations and Warranties. Customer represents and warrants to Click IT Solutions
that: (a) it has the authority to enter into this Agreement and perform its
obligations under this Agreement; (b) Customer and its Authorized Users will
not violate any law or the intellectual property rights of Click IT Solutions
or any third party; and (c) Customer is not located in a country where export
or re-export of the contents of information received via the Internet is
prohibited. Should Customer receive notice of any claim regarding the Services, Customer shall promptly
provide Click IT Solutions with a written notice of such claim. Click IT
Solutions warrants that: (a) Click IT Solutions has the authority to enter into
this Agreement and perform its obligations under this Agreement; and (b) Click
IT Solutions will perform the services required under this Agreement in a
professional and workmanlike manner.
5.1. Disclaimer of Service Warranties. CUSTOMER
EXPRESSLY UNDERSTANDS AND AGREES THAT:
a.
CUSTOMER'S USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK.
CLICK IT SOLUTIONS AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL
CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR
ACCESSED THROUGH THE SERVICE, AND THE CUSTOMER SITE(S) "AS IS" AND
WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b.
CLICK IT SOLUTIONS AND ITS SUPPLIERS MAKE NO WARRANTY THAT
(i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS,
(ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii)
THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED
OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S EXPECTATIONS.
c.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE
USE OF THE SERVICE, OR CUSTOMER SITES IS DONE AT CUSTOMER'S OWN DISCRETION AND
RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH
MATERIAL.
5.2 Limitation of Liability. IN NO EVENT SHALL
CLICK IT SOLUTIONS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT
NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING,
INCLUDING NEGLIGENCE) EVEN IF CLICK IT SOLUTIONS OR ANY OF ITS SUPPLIERS HAS
BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH
a.
THE USE OR INABILITY TO USE THE SERVICES,
b.
THE PROVISION OF OR FAILURE TO PROVIDE SERVICES,
c.
FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND
RELATED GRAPHICS OBTAINED THROUGH THE SERVICES OR OTHERWISE ARISING OUT OF THE
USE OF THE SERVICES,
d.
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES,
OR
e.
ANY OTHER MATTER RELATING TO THE SERVICES. SOME STATES DO
NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT
APPLY TO CUSTOMER. IN NO EVENT SHALL CLICK IT SOLUTIONS'S AGGREGATE LIABILITY
TO CUSTOMER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT
EXCEED THE AMOUNT CUSTOMER ACTUALLY PAYS TO CLICK IT SOLUTIONS UNDER THIS
AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR
$500.00, WHICHEVER IS LESS.
Without limiting the
foregoing, neither Click IT Solutions nor its suppliers is responsible for any
of Customer's data residing on the Services
or Click IT Solutions’ suppliers' hardware. Customer is responsible for
backing-up Customer's data and information that may reside on the Services or Click IT Solutions’
suppliers' hardware, whether or not such information is produced through the
use of the Services. It is
Customer's responsibility to take the necessary steps to ensure that Customer's
primary means of business is maintained (if applicable).
6.1.
Indemnification. Customer
agrees to indemnify, defend and hold harmless Click IT Solutions, its managers,
directors, officers, employees, independent contractors and agents, and defend
any action brought against same with respect to any claim, including reasonable
attorneys' fees and court costs, to the extent that such claim arises out of
Customer's direct or indirect use of the Services.
7.1. Protection of
Confidential Information. The term "Confidential Information" includes any
software, data, information written or verbal provided by Click IT Solutions,
the logon identifiers and/or passwords provided to Customer, the prices
charged, or information delivered under this Agreement. Customer acknowledges
and agrees that: (a) the Confidential Information constitutes valuable trade
secrets; and (b) it will not disclose, or permit to be disclosed, the
Confidential Information without prior written consent. Customer will safeguard
the confidentiality of the Confidential Information including, at a minimum,
those precautions taken to protect its own Confidential Information.
Confidential Information will not include information that is: publicly
available; already in the other party's possession and not subject to a
confidentiality obligation; independently developed by the other party without
reference to the disclosing party's Confidential Information; or required to be
disclosed by order of a court or other governmental entity.
8.1. Proprietary
Rights.
"Proprietary Rights" mean all interests of the Services in source code, know-how, business information and any and
all rights that are protectable by law and the courts in any and all
jurisdictions including, without limitation, copyrights, invention
registrations, patents, designs, trade secrets, trademarks, service marks and
trade dress. All proprietary rights not expressly granted in the License of 2.1
are reserved to the Services,
Customer shall use the proprietary rights granted under the License of 2.1
solely for the purpose of accessing and using the Services, and any proprietary rights granted in the License of 2.1
are automatically terminated upon the termination of this Agreement. Customer
shall not, directly or indirectly, reverse engineer, decompile, disassemble or
otherwise attempt to derive source code or other Proprietary Rights of the
Services during the term of this Agreement and for period not less than five
(5) years after the termination of this Agreement.
8.2. Trademarks. Click IT Solutions Services
trademarks, trade names, service marks, logos, trade dress, other names, marks
and domain names, and other related products and service names, design marks
and slogans, are the sole and exclusive property of the Services, and Customer
shall not use any of the foregoing in any advertising, publicity or in any
other commercial manner, except with express written permission of Click IT
Solutions.
8.3. Internet
Protocol Addresses. The Services shall maintain
and control the allocation of its internet protocol addresses, in whatever form
provided and whether assigned to Customer or otherwise, and reserves the right
to change, cancel or remove any and all such internet protocol addresses at any
time and at Click IT Solutions sole discretion.
8.4. Copyrights. All works of authorship of the Services that are fixed in a tangible
medium of expression are copyrighted upon publication. Customer shall not use
any of the Services copyrighted materials, except as permitted under the
License or 2.1, and Customer shall not copy, reproduce, distribute or make
derivative works of any copyrighted materials of Services or Products, without
the express written permission of Click IT Solutions.
8.5. Suggestions. Any and all feedback, data,
questions, survey responses, ideas or other types of suggestion and the like
(collectively "Suggestions") that are made by Customer to Click IT
Solutions Services, whether solicited or unsolicited, shall be the sole
property of Click IT Solutions, and Click IT Solutions shall not be obligated
to pay Customer anything in return for the Suggestions, even if Click IT
Solutions decides to use the Suggestions to improve the Services offered to other customers.
8.6. Customer
Content.
"Customer Content" means text and images of the Customer that are
uploaded to Click IT Solutions’ server or otherwise posted to Customer's
website. Customer Content belongs to the Customer, and Click IT Solutions has
no obligation to review Customer Content prior to Customer posting Customer
Content on Customer's website, however Click IT Solutions has all obligations
to review Customer Content prior to Customer posting Customer Content on/via
the Services unto Click IT Solutions
websites. Customer will not upload any content not owned by Customer or
licensed by Customer for use on Customer's website.
8.7. Copyright Infringement
- Software P
9.1. Term. This Agreement will commence on the
day the Customer initially makes use of the Services and shall continue thereafter on the periodic notation
upon registration for the Services,
such as a month to month, quarterly, or annual basis unless terminated in
writing or as otherwise provided herein, it being agreed that email and fax are
only acceptable means of notice for termination hereunder when verified by CLICK
IT SOLUTIONS with Customer, without such verification Services will not be
terminated and all applicable fees will continue.
9.2. Termination by
Click IT Solutions. Except as otherwise provided herein, Click IT
Solutions shall have the right, upon thirty (30) days written notice to
Customer, to terminate this Agreement without cause. Click IT Solutions
shall have the right to terminate this Agreement immediately for cause if: (a)
Customer fails to timely pay Click IT Solutions any amount due hereunder; (b)
Customer materially breaches any term or condition of this Agreement, provided
such breach is not cured by Customer within twenty (20) calendar days following
Click IT Solutions’ notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii)
becomes insolvent, makes an assignment for the benefit of creditors, or becomes
subject to direct control of a trustee, receiver or similar authority; or (iii)
becomes subject to any bankruptcy or insolvency proceeding under federal or
state statutes.
9.3. Termination by
Customer.
Customer has a right to terminate service this Agreement, and Click IT
Solutions will terminate the service within thirty (30) days of a request for
termination.
9.4. Obligations
upon Termination.
Upon termination of this Agreement: (a) Customer's access to and use of the Services shall terminate; (b) Customer
shall return all Click IT Solutions, equipment, software, documentation or
other deliverables including any copies; and (c) each party shall return or
destroy all Confidential Information.
9.5. Survival. Sections 2.3, 6, 7, 8, 9 and 10.6
shall survive termination of this Agreement.
10.1. Assignment. This Agreement is not assignable by
Customer without Click IT Solutions’ prior written consent. Click IT Solutions
may assign this Agreement at any time upon written notice to Customer.
10.2. Acts of God. Events of Force Majeure shall
excuse performance hereunder specifically including terrorism and power,
communications, satellite or network failures.
10.3. Waiver. Waiver or modification of this
Agreement shall not be effective unless executed in writing and signed by an
authorized representative of Click IT Solutions and Customer.
10.4. Severability. If any provision of this Agreement
is held to be unenforceable, in whole or in part, such holding will not affect
the validity of the other provisions of this Agreement.
10.5. Press
Releases.
Click IT Solutions shall have the right to use Customer's name in press
releases and similar items.
10.6. Legal
Matters. This
Agreement shall be governed by the laws of
10.7.
Non-solicitation.
Customer agrees that, during the term of this Agreement and for twenty-four
(24) months after the termination, Customer will not directly or indirectly
solicit any Click IT Solutions personnel or consultants.
10.8. Security. Unless Click IT Solutions is
contracted by service to provide any layer of security, the Customer is solely
responsible for any breaches of security affecting its servers or website. In
the event of a virus, attack or similar issue, Customer shall be responsible
for the cost of damage to the Customer's server or website. Click IT Solutions
shall not be responsible for the security of information transmitted over Click
IT Solutions’ facilities unless expressed in a Service Level Agreement.
10.9. Network
Responsibility; Bulk Email. Click IT Solutions reserves the right to cancel service to
any Customer using Click IT Solutions Services to adversely affect other Click
IT Solutions customers, including hacking or similar activities harmful to Click
IT Solutions or other customers. Click IT Solutions will cooperate fully with
any civil or criminal litigation arising from the violation of this policy,
including violation of the Child Protection Act. Customer understands and
agrees that it is responsible for the actions of its clients, and will be
liable for illegal material posted by Customer or Customer's clients. Use of the
Services to transmit unsolicited
commercial or bulk-e-mail is expressly prohibited, including the hosting of web
sites or services on a server, advertised therein. Click IT Solutions also
prohibits the sending of any fraudulent, malicious, harassing, false or
misleading electronic communications, including chain letters, pyramid schemes,
or e-mails with forged headers.
10.10. Guidelines
for Permission-Based Email. Click IT Solutions prohibits the use of its systems or
network to send unsolicited email, however Customers may send permission-based
email marketing, subject to the guidelines provided herein. All recipient
information for such marketing conducted by Customer must be documented and
cataloged by the Customer including date, time, origination and the location
from which the email address or other recipient information was obtained.
Additionally, Customer must comply with the following guidelines and any
additional guidelines established by Click IT Solutions from time to time in
its sole discretion:
a.
Customers must have a prominently posted working abuse@domain.com
and opt-out@domain.com addresses from every domain associated with the email
campaign.
b.
Customers must have a working unsubscribe link and must
honour all unsubscribe requests immediately upon receipt.
i.
Customers must clearly list the intended recipient's email
address in the body of the message or in the "To:" line of the email.
ii.
All commercial or bulk email must describe where the email
address was obtained in the body of the email. For example: "You opted-in
to receive this email promotion from our web site or from one of our partner
sites."
iii.
Customers must have up-to-date contact information on file
with their registrar for any domain hosted on Click IT Solutions network.
iv.
Click IT Solutions reserves the right to determine in its
sole discretion the validity of Customer's email list and, must remove
immediately any violations. Customer's failure will be subject to immediate
suspension or termination without notice.
v.
Click IT Solutions reserves the right to test portions of
Customers' email lists in response to complaints and to request opt-in
information from a random sample of that list at any time.
10.11. Suspension. If Click IT Solutions in its sole
discretion determines that a Customer's server has become the source or target
of any violation hereunder, Click IT Solutions reserves the right to suspend
network access to that server. Click IT Solutions will use its best efforts to
contact the Customer before suspending network access to the Customer's server.
Click IT Solutions may, at its discretion, contact law enforcement and other agencies
regarding these activities. Customers are responsible for all costs relating to
such investigation, suspension, administration and handling of their servers
before, during and after the suspension period.
10.12. Release. Customer consents to Click IT
Solutions’ displaying of a link to Customer's content on its website and other,
third-party websites, and customer grants Click IT Solutions the right to
display ads, links and other information of Click IT Solutions ("Click IT
Solutions Content") on Customer's website areas or to make any Click IT
Solutions Content viewable to a person, when viewing Customer's Content,
without any payment to Customer. Click IT Solutions may use Customer's Content
for the purposes of commercial advertising, and Customer consents to such use
for any advertising and promotional purposes without payment to customer. Such
commercial use may be used to reduce the cost of providing the Services and for generating profit.
10.13. Customer
Contact Information. Customer must keep Contact Information, including email, fax and
mailing address, current using the self-updating procedures provided by Click
IT Solutions for Customer's account. Click IT Solutions is not responsible for
attempting to keep Customer Contact Information current by any other method,
and
FAILURE OF CUSTOMER TO
UPDATE CONTACT INFORMATION MAY DELAY OR PREVENT CUSTOMER FROM RECEIVING
IMPORTANT NOTICES AND AMENDMENTS TO THIS AGREEMENT. NOTICE SHALL BE DEEMED
DELIVERED BY EMAIL TRANSMISSION, FAX TRANSMISSION INDICATING RECEIPT OK,
DELIVERY BY CERTIFIED MAIL WITH RETURN RECEIPT OR INDICATION OF ATTEMPTED
DELIVERY TO THE ADDRESS PROVIDED IN THE CURRENT CONTACT INFORMATION ANY SUCH
DELIVERY SERVICE PROVIDER, WHICHEVER METHOD IS CHOSEN BY CLICK IT SOLUTIONS, AT
CLICK IT SOLUTIONS'S SOLE DISCRETION.
10.14 AMENDMENTS. AMENDMENTS TO THIS AGREEMENT MAY BE
MADE BY CLICK IT SOLUTIONS AT ANY TIME AND WILL BECOME EFFECTIVE THIRTY (30)
DAYS AFTER NOTICE IS GIVEN TO CUSTOMER, UNLESS CUSTOMER OBJECTS IN WRITING
PRIOR TO THE EXPIRATION OF THIS THIRTY (30) DAY NOTICE PERIOD. IF ACTUAL NOTICE
OCCURS AFTER THIS THIRTY (30) DAY NOTICE PERIOD, THEN CUSTOMER MAY OBJECT
WITHIN TEN (10) DAYS OF ACTUAL RECIEPT OF NOTICE AND THE TERMS OF THE PREVIOUS
AGREEMENT WILL BE REINSTATED EFFECTIVE TEN (10) DAYS AFTER RECEIPT OF THE
OBJECTION BY CLICK IT SOLUTIONS.
10.15 Entire
Agreement.
This Agreement contains the entire agreement of the parties with respect to the
subject matter of this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties with respect to said subject matter. Any modification of this
Agreement shall only be valid if in writing properly executed by authorized
representatives of the parties hereto.
Last modified Nov 20th, 2008