Terms & Conditions
SOFTWARE AS A SERVICE AGREEMENT – October 2012
Scurri is operated by Scurri Web Services Ltd.
Scurri Web Services Ltd, Registered in Ireland Reg. No. 483417
Registered address Common Quay Street, Wexford, Ireland, Y35 EK88
IMPORTANT – PLEASE READ CAREFULLY THE TERMS & CONDITIONS AS OUTLINED BY SCURRI WEB SERVICES LTD.
THE FOLLOWING TERMS AND CONDITIONS IS A LEGAL AGREEMENT AND CONSTITUTES THE TERMS AND CONDITIONS GOVERNING THE PROVISION OF ONLINE AND OFFLINE SERVICES (AS DEFINED BELOW) BY SCURRI WEB SERVICES LTD (“SCURRI”). BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF ACTIVATION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF THE SERVICES AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.
– “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
– “Received Data” means any data, information or material provided or submitted by the Licencee, or any End User to Scurri in the course of using the Service;
– “Effective Date” means the date of acceptance of this Agreement;
– “End Users” means any customer / client or authorised end users of the Licensee who have been authorized to use the Services by the Licensee and have been supplied user identifications and passwords by you (or by Scurri at your request);
– “Fees” means the fees payable by the Licensee for the provision of the Services as set out in the client order. The Fees are based on the Scurri Standard Tariffs. The Fees payable by a Licensee are generally variable and will vary depending on the extent of the Licensee’s usage of the Services. The basis upon which the Fees will be charged will be set out in each case by your Scurri Account Manager.
– “Intellectual Property Rights” means all intellectual property rights including patents, trade marks, service marks, design rights, copyright, database rights, moral rights (whether or not any of these are registered and including any applications for registration of any such rights), inventions, know how, confidential information and trade secrets, together with all goodwill attaching or relating thereto, and all rights or forms of protection of a similar nature or having similar effect to any of these which may exist or come into existence in the future anywhere in the world;
– “Licensee” means the party that has accepted this Agreement;
– “License Administrator(s)” means those Vendor Users designated by you who are authorized to execute written, verbal service orders and to create Vendor User accounts and otherwise administer your use of the Service;
– “Scurri Standard Tariffs” means the standard charges for the Services which are available to you from your Scurri Account Manager.
– “Orders” means the communications evidencing the initial subscription for the Service and any subsequent order submitted, in written or email form, specifying, among other things, the number of licenses and other services contracted for, restrictions on users, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such Order to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order, the terms of this Agreement shall prevail). The definition of “Order” shall include a Revised Order/email or an Addendum Order/email where applicable;
– “Scurri ” means all of Scurri’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Scurri in providing the Service;
– “Service(s)” means the right to use of the specific edition of Scurri’s current software and consultancy services as identified in an order as more specifically described in the Services Schedule attached to this Agreement and / or ancillary online or offline products and services provided to you by Scurri, to which you are being granted access under this Agreement, including the Scurri Site and the Content;
– “Services Schedule” means the schedule attached to this Agreement describing the Services to be provided to the Licensee.
– “Term” means a period of months as specified on each Purchase Order commencing on the Effective Date.
– “Vendor User(s)” means your employees, representatives, consultants, contractors or agents who are authorised to use the Service and have been supplied user identifications and passwords by you (or by Scurri at your request).
– “you” or “your” means the Licensee.
2. Scope of agreement
Scurri will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your acceptance of this Agreement and / or registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the www.scurri.com website incorporated by reference herein, including but not limited to Scurri’s privacy and security policies.
3. License Grant
Scurri hereby grants you a fee paying, non-exclusive, worldwide, non-assignable license to use the Services for the Term. You are restricted to use of the Services for internal business purposes only. Use of the Services for any other purpose is subject to the prior written consent of Scurri and you acknowledge that additional fees may be payable for additional Services on Scurri’s approval of a change of use.
The rights granted by way of this clause are restricted to the number of Vendor Users and End Users as may be specified in the Services Schedule and/or Order. In the event that the Licensee wishes to increase the maximum permitted number of Vendor Users, and/or End Users then it must inform Scurri and a revised Order will be agreed and will form part of this Agreement.
4. License Restrictions
You may not
(i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content or the Scurri Site in any way;
(ii) modify or make derivative works based upon the Service or the Content or the Scurri Site;
(iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device;
(iv) reverse engineer or access the Service or the Scurri Site in order to
(a) build a competitive product or service,
(b) build a product using similar ideas, features, functions or graphics of the Service, or
(c) copy any ideas, features, functions or graphics of the Service;
(v) use the Services for any number of Vendor Users or End Users in excess of the maximum number of Vendor Users and End Users as set out in the Services Schedule and/or Order Form; or
(vi) publish or distribute externally any results of any use of the Services for any form of benchmarking or software comparison purposes.
You may not:
(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
(iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
5. Service and Network Availability
The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Scurri is not responsible for any delays, delivery failures, or other damage resulting from such problems, however, Scurri will endeavour to keep such delays to a minimum. Periodically Scurri may also need to schedule maintenance periods outside of the weekly scheduled time and during such periods the Services will not be available to the Licensee.
Scurri will provide the Licensee with reasonable notice of any downtime due to non-routine maintenance and will endeavour to ensure that any non-routine maintenance periods take place outside of the Licensee’s normal business hours.
Scurri does not guarantee network availability between the Licensee and the Scurri hosting servers as network availability can involve numerous third parties and is beyond the control of Scurri. Scurri will not be liable for any downtime caused by its internet provider nor for any downtime that you experience as a result of your own network connectivity issues.
If you experience a Service outage and are unable to access the Services, you must immediately contact Scurri’s help desk and notify Scurri of the service outage, providing any/all necessary information that may assist Scurri’s technical support in determining the cause of the outage.
Support is provided via email at the following email address: email@example.com
7. Service Fees & Billing
The Fees for use of the Services and billing and payment terms are as set out in your Order and you agree to pay the Fees. All payment obligations are non-cancelable and all amounts paid are non-refundable.
Scurri reserves the right to modify the Scurri Standard Tariffs and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by Email. Any changes to the Scurri Standard Tariffs will lead to consequential changes to the Fees payable by you for the Services. In the event of any changes to the Fees based on a change to the Scurri Standard Tariffs you will receive an email with setting out the new Fees.
The Fees will also increase in the event that the Licensee requests any enhanced or additional Services from Scurri.
All pricing terms are confidential, and you agree not to disclose them to any third party.
You agree to provide Scurri with complete and accurate billing and contact information. This information includes your legal company name, street address, Email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Scurri reserves the right to terminate your access to the Services in addition to any other legal remedies.
8. Account Information & Data
Scurri does not own any data, information or material that you submit to the Service in the course of using the Service (“Received Data”). You, not Scurri, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Received Data, and Scurri shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Received Data. In the event this Agreement is terminated (other than by reason of your breach), Scurri will make available to you a file of the Received Data within 30 days of termination if you so request at the time of termination. In the event that, within 30 days of termination of this Agreement, the Licensee does not make a request for the return of any Received Date, or does not make arrangements for the retrieval of such Received Date then Scurri reserves the right to remove and/or discard Received Data without notice to the Licensee. In the event of any breach of this Agreement by the Licensee, including, without limitation, your non-payment then Scurri reserves the right to withhold any Received Date until the breach has been remedied.
As an essential part of the delivery of our service it is necessary for us to periodically email our subscribers at the address provided at registration. By accepting these terms and conditions you accept that Scurri can contact you by email on an ongoing basis.
9. Intellectual Property & Infringement Claims
You acknowledge that all Intellectual Property Rights in the Services, Content and Scurri Technology belong and shall belong to Scurri. You have no rights in or to the Services, Content and Scurri Technology other than the right to use it in accordance with the terms of this Agreement.
At Scurri’s sole expense, Scurri shall defend you or, at its option, settle any Infringement Claim or action brought against you alleging that the use of the Services, Content and Scurri in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party (an “Infringement Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against as a result of or in connection with any such Infringement Claim.
For the avoidance of doubt, this clause shall not apply where the Infringement Claim in question arises from the use of the Services, Content or Scurri other than in accordance with the terms of this Agreement.< br />
For the purpose of any legal action, contracts for our service are deemed to have been created in at Strand Road, Duncannon, Co. Wexford.
As a condition of obtaining an indemnity in the circumstances set out above you agree to immediately:
a) fully and promptly notify Scurri of any Infringement Claim, or threatened Infringement Claim,;
b) not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of Scurri, which consent shall not be unreasonably withheld or delayed;
c) permit Scurri to take full control of such Infringement Claim, including settling it at Scurri’s expense; and
d) give reasonable assistance in the investigation and defence of such Infringement Claim.
If any Infringement Claim is made, or in Scurri’s reasonable opinion is likely to be made, against you, Scurri may at its sole option and expense:
a) procure for you the right to continue using the Services in accordance with the terms of this Agreement;
b) modify the Services so that they ceases to be infringing; or
c) replace the Services.
d) terminate this agreement on 7 days notice.
10. Limited Warranty
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
11. Disclaimer of Warranties
DATASCAN AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. DATASCAN AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT
(A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,
(C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,
(E) ERRORS OR DEFECTS WILL BE CORRECTED, OR
(F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DATASCAN AND ITS LICENSORS.
12. Limitation of Liability
THE TOTAL LIABILITY OF DATASCAN, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER IN CONNECTION WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT, SHALL IN NO CIRCUMSTANCES EXCEED A SUM EQUAL TO THE FEES RECEIVED BY DATASCAN FROM THE LICENSEE IN THE 12 MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM BY THE LICENSEE .
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Licensee Indemnity
You shall indemnify and hold Scurri, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
(i) a claim alleging that use of the Received Data infringes the rights of, or has caused harm to, the party that supplied the Received Data or a third party;
(ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or any Vendor User or any End User of this Agreement, provided in any such case that Scurri
(a) gives written notice of the claim promptly to you;
(b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Scurri of all liability and such settlement does not affect Scurri’s business or Service);
(c) provides to you all available information and assistance; and
(d) has not compromised or settled such claim;
(iv) any claim made by users of any payment services provided by the licensee using supporting technology provided by Scurri. The licensee agrees to indemnify Scurri from any liability, covering fraud, refunds, or any other deliberate or negligent act arising from accepting or processing payments that may occur whilst using underlying technology, infrastructure and processes provided in good faith by Scurri to the licensee.
(v) the licensee confirms that no fraudulent, illegal or inappropriate activity is conducted either by itself, employees, associates, customers and suppliers and indemnifies Scurri from any related liability should this subsequently be proved to be the case.
Either party may terminate this Licence at any time on written notice to the other if:
1) the other is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach;
2) the other is deemed to be unable to pay its debts within the meaning of section 214 of the Companies Act 1963, is unable to pay its debts as they fall due, commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of or composition with its creditors;
3) the other ceases carrying on, threatens to cease carrying on, or disposes of its business or a material part of its business;
4) the other takes any corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution, examinership or re-organisation or for the appointment of a liquidator, receiver, examiner, conservator, custodian, trustee or similar officer of it or of any or all of its revenues and assets; or
5) any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertakings or assets of the other or any event occurs which under the laws of any jurisdiction has a similar or analogous effect.
Scurri may suspend or terminate this Agreement and your access to the Service immediately if you fail to pay any Fees when due.
Overdue Fees are subject to interest of 3.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
Either party may terminate this Agreement on 30 days written notice to the other.
On termination of this Agreement for any reason:
1) all licences granted to you under this Agreement shall cease;
2) you shall cease all activities authorised by this Agreement;
3) you shall immediately pay to Scurri any sums due under this Agreement.
Should any subscriber wish to cancel their subscription, he/she must may also log in to their Company Account in Scurri accounts and use the cancellation feature upon selecting the company to cancel in the “My Account” section. Upon receipt of the subscriber’s instructions to cancel their subscription, Scurri Webservices Ltd. will cancel all scheduled payments and discontinue making any charges to the subscriber’s credit card or bank account.
When you become a monthly subscriber, Scurri Webservices Ltd. provides the Scurri Accounts service to you and the provision of services begin from the moment your payment has been accepted. Because of this, we cannot offer a cancellation or ‘cooling off’ period. This is in accordance with the EC (Protection of Consumers in respect of contracts made by means of distance communication) Regulations 2001 (Statutory Instrument 207 of 2001). We will, of course, cancel all future payments. For more information on this subject visit http://www.citizensinformation.ie/.
Scurri Webservices Ltd. will endeavour to continuously improve its software for better usage by the subscribers. As such, we may remotely update any version of our software with or without a prior notice to the subscribers or users. The updates may occur automatically or may be caused to occur through operation of prompts that appear on the subscribers’ interface. The updated version will be subject to the current terms of service and any other additional terms that may also be included in the current terms with or without notice. Scurri Webservices Ltd. may send emails to subscribers explaining the new features of the updated version of the software or may simply post such updates on the most appropriate portion of its website.
Credit Card Information
Scurri Webservices Ltd. does not store the credit card information of users. All credit card related information is stored with Realex.
15. Miscellaneous Provisions
During the term of this Agreement, and for a period of 5 years after its expiry or termination, each party shall keep confidential, and not use for its own purposes nor without the prior written consent of the other disclose to any third party any, all and any information of a confidential nature, including trade secrets and information of commercial value, which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party.
Without prejudice to the provisions of this clause, for marketing purpose, the Licensee hereby grants Scurri the right to identify the Licensee as a customer of Scurri,( prior consent of the Licensee will be sought in this case.)
This Agreement may not be assigned by you without the prior written approval of Scurri but may be assigned without your consent by Scurri to:
(i) a parent or subsidiary,
(ii) an acquirer of assets,
or (iii) a successor by merger.
Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Scurri directly or indirectly owning or controlling 50% or more of you shall entitle Scurri to terminate this Agreement for cause immediately upon written notice.
Neither party shall be liable for failure or delay in the performance of any of its obligations under this Agreement if such failure or delay results from Force Majeure, but any such failure or delay shall be remedied as soon as practicable.
Any notice or other communication whether required or permitted to be given under this Agreement shall be given in writing or by email and shall be deemed to have been duly given if delivered by hand to the addressee or sent by registered post to the addressee at the address set out for such party in this Agreement or sent by email to the addressee’s email address, as provided when agreeing to this contract at the outset, (or such other address as that party may from time to time designate in writing to the other parties in accordance with the provisions of this Clause). Any such notice shall be deemed to have been duly given if delivered, at the time of delivery, if sent by registered post, forty-eight hours after posting or if delivered by email when confirmation of its transmission to the above-referenced email address has been recorded by the sender’s computer/server.
If any provision in this Agreement is deemed to be or becomes invalid, illegal, void or unenforceable under applicable laws, such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the parties, it will be deleted, but the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.
This Agreement shall be binding upon and run for the benefit of the parties, their successors and permitted assigns.
This Agreement constitutes the entire agreement and understanding between the parties with respect to their subject matter, and except as expressly provided, supersede all prior representations, writings, negotiations or understandings with respect to that subject matter.
Each party shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably within its power to implement this Agreement.
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.
Waivers and Variations.
A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
No variation of this Agreement shall be effective unless it is made in writing and signed by each of the parties.
Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the exclusive jurisdiction of the Irish courts.
For futher information please refer to our contact us page.