Terms and Conditions.
Agreed Upon 31st July 2010 till the time of 2nd Feburary 2015 or until it ceases to perform or is cancelled. (Clause #3)
These terms and conditions form a legal contract between any copyright infringments with any 3rd, or 1st party source and ArtifexNet Ltd] (“Licensor”). Licensor is a licensee and authorised agent of the [ArtifexNet Direct Service (the “ArtifexNet Service”)], a proprietary product of Artifex (GB) Plc, a company registered in England and Wales (company number 4624355) with its registered office at Ebenezer House, 5a Poole Road, Bournemouth, Dorset BH2 5QJ.
NOW, THEREFORE, it is agreed:
1. Term of Agreement: This Agreement shall commence as of 31st July 2010, for annual use of the ArtifexNet service.
2. Grant of License: The Licensor, in consideration of the payment by you of the license fee, hereby licenses you with access during the Term to the ArtifexNet Service.
3. License Fee: The licence fee shall be as set out in the payment plan which you have signed up to and excludes all taxes, which shall be payable by you in addition as prescribed by law.Neither the licence fee nor any part thereof shall be refundable in the event that you terminate the Agreement prior to fully utilising the services purchased. The licence fee is inclusive of the technical support. We will give you three (3) month’s advance notice by email of any increases to the applicable licence fee. However, this fee will not increase more than once in any 12 month period.
4. Intellectual Property: All copyright, patents, trade marks (both registered and unregistered), registered and unregistered design rights, database rights and other intellectual property rights (including moral rights) in and to the ArtifexNet Service are the exclusive property of Artifex GB and you are permitted to use the ArtifexNet Service only as expressly authorised. Accordingly, you acknowledge that any other use of the ArtifexNet Service is strictly prohibited and you agree not to (and agree not to assist or facilitate any third party to) copy, reproduce, transmit, publish, display, distribute, commercially exploit or create derivative works of the ArtifexNet Service.
In addition, you shall take all such steps as shall be necessary to ensure compliance by your personnel with these restrictions and shall be liable for any breach by them. You acknowledges that the Site and the ArtifexNet Service are proprietary to Artifex GB and of great value to Artifex GB and you recognise that money damages may not be a sufficient remedy for breach of this clause. In the event of a breach (threatened or actual) of this clause, Artifex GB shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
5. Access to the ArtifexNet Service: Once payment has been received in cleared funds, you shall be given access to the ArtifexNet Service.
6. Warranties: The Licensor warrants that it has the authority to grant this sub-licence and further warrants that the ArtifexNet Service shall be provided with reasonable skill and care. The Licensor does not warrant that the use of the Site or the ArtifexNet Service will be uninterrupted or error free. All conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the ArtifexNet Service are to the fullest extent permitted by law hereby excluded. The Licensor does not warrant that the ArtifexNet Service is compatible with your computer equipment or that it is free of errors, viruses, cancel bots, worms, "Trojan Horses" or other such destructive features. AAP fundraising Limited will need no specialist computer equipment other than standard PC’s with internet access.
7. Limitation of Liability: The following provisions set out the Licensor’s entire liability whether in contract, tort (including negligence), misrepresentation (excluding fraudulent misrepresentation) or otherwise howsoever arising. Save as otherwise expressly provided, the Licensor’s entire aggregate liability for all claims made during the Term shall not exceed the licence fee paid The Licensor’s’s liability for death or injury resulting from its own or that of its employees', agents' or sub contractors' negligence shall not be limited. To the maximum extent permitted by law, the Licensor shall not be liable for any economic losses (including without limitation, loss of profits, loss of revenues, data, contracts, business or anticipated savings), or loss of goodwill or reputation, or any type of special, indirect or consequential loss (including loss or damage suffered by you as a result of any claim made by a third party) even if such loss was reasonably foreseeable or the Licensor had been advised of the possibility of the same being incurred.
8. Data Protection: Each party shall comply with their respective obligations under the applicable data protection laws and regulations governing any personal data processed by the Site or the ArtifexNet Service (including, the Data Protection Act 1998 to be construed in accordance with Directive of the European Parliament of the Council 95/46/EC (or equivalent enabling national legislation as applicable in the relevant EEA State) (collectively the “DPA”)). You shall be the data controller in respect of any personal data that is processed pursuant to this Agreement and accordingly you warrant that you fulfil and shall continue to fulfil all of your obligations under the DPA in respect of the processing of personal data in connection with the provision of the ArtifexNet Service. Personal data provided by you shall be processed solely for the proper performance by it of this Agreement.
9 Obligation: You are expressly prohibited from using your access to the ArtifexNet Service, or information gathered from it, to:
send unsolicited (or ‘junk’ / ‘spam’) ArtifexNets to any third party;
send, publish, distribute or otherwise communicate any material to any other person which is threatening, obscene, abusive, defamatory, indecent, pornographic or which would otherwise infringe the privacy and other rights of third parties or which contains any other form of illegal content;
send, publish, distribute or otherwise communicate any material which infringes third party intellectual rights; or
impersonate any third party or misrepresent your affiliation with any other party (including with Artifex GB).
10. Sending ArtifexNets: In order to enable the ArtifexNets to be sent to their intended recipients, you agree to allow the Licensor and/or Artifex GB (and where applicable their agents) to modify your ArtifexNets. Under no circumstances will the Licensor or Artifex GB modify the content of your ArtifexNets. However, the Licensor and/or Artifex GB may on occasion need to modify the technical specifications of your ArtifexNets, where for instance, you have created your own template and its dimensions are the wrong size, and without modification, it would not be possible to send it. Whilst the Licensor and Artifex GB shall use their reasonable endeavours to minimise any delivery failures or delays, due to the nature of communications over the Internet and the inherent risks of the transfer of information over it, the Licensor and Artifex GB shall have no liability whatsoever for any damages or losses suffered by you as the result of the corruption, failure of delivery or receipt of any ArtifexNet.
The Licensor and Artifex GB do not and cannot possibly review all of the content posted via the ArtifexNet Service and you accept that you have sole responsibility for the content of any of ArtifexNets provided by or on your behalf. Accordingly, you accept that neither the Licensor nor Artifex GB can be held responsible for the content of, or the breach of any law arising from your use of, the ArtifexNet Service . You therefore undertake to indemnify the Licensor and Artifex GB in full for any loss (including consequential loss), expense or damage (including costs on a full indemnity basis) which the Licensor and/or Artifex GB may suffer and which arises out of your use of the ArtifexNet Service The Licensor shall have the right to terminate this Agreement in the event that your use of the ArtifexNet Service causes Artifex GB and/or the Licensor, any loss or damage in any respect. No compensation shall be payable by to you in the event of such termination.
11. Confidentiality: Each party undertakes to the other to keep confidential all information concerning the business and affairs of the other that it shall have obtained or received as a result of entering into or the performance of this Agreement. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of confidentiality by its personnel. You acknowledge that the Licensor shall share confidential information that it receives from you with Artifex GB, such sharing to be subject to confidentiality provisions. Artifex GB has no affiliations with any of AAP Limited’s competitors.
12. Termination: This Agreement may be terminated forthwith by either party if the other:
a. commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within fourteen (14) days of a written request to remedy the same; or
b. shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction), or upon the occurrence of an equivalent event in any jurisdiction other than England.
Should Artifex GB cancel the ArtifexNet Service for a reason that is unrelated to any breach of these terms committed by you, the Licensor (or Artifex GB) will refund you an appropriate amount of the licence fee paid, taking into consideration how much use you have had of the ArtifexNet Service up to the point of cancellation. Artifex GB reserves the right to suspend the ArtifexNet Service for any reason whatsoever, subject to using all reasonable efforts to give you at least seven (7) days’ advance notice by emailing you at the most recent email address that you have supplied. Should you wish to cancel your subscription, then you may do so at any point by contacting the Licensor in such manner as has been notified to you for the service of
Any termination of this Agreement pursuant to this clause 12 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party, nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Within seven (7) days of the termination of this Agreement (howsoever and by whomsoever occasioned) you shall delete all copies of the ArtifexNet software application installed on your computer system and a duly authorised officer of your organisation shall certify in writing to Artifex GB that you have complied with such obligation as aforesaid. You acknowledge that, following termination of this Agreement, your username and password will be revoked.
13. Force Majeure: Save for the obligation to pay money when due, neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including, but not limited to, failures or delays due to the nature of communications over the Internet and the inherent risks of the transfer of information over it (an "Event of Force Majeure"). Each party agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than three (3) weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
14. Waiver: The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party. Any waiver must be in writing to be effective.
15. Service Suspension:You acknowledge that on occasion Artifex GB may need to suspend the availability of the ArtifexNet Service in order to carry out routine maintenance, to perform upgrades and nightly backups and so on. Availability may also be suspended due to circumstances beyond Artifex GB’s control. You accept that Artifex GB has the right to suspend availability and to change the format or technical specifications of the ArtifexNet Service at any time at Artifex GB’s sole discretion. In such circumstances, Artifex GB will be liaible for the cost of these changes. If at any time you experience difficulties in accessing the ArtifexNet Service and/or the Site, please contact: [david.baker@Artifexplc.com] The Licensor does not guarantee that it will be able to rectify the problem within any particular time-frame or at all.
16. ArtifexNet Messages: When you upload your video file onto the ArtifexNet Service it will be automatically stored on a server before it is sent onto the intended recipient. This video file shall be retained for such period of time as is reasonable. However, you acknowledge that Artifex GB will automatically delete any ArtifexNet, including the video file, that has not been delivered to or accessed by its intended recipient within a period of twenty-eight (28) days. Occasionally ArtifexNets may fail to reach their recipients for reasons beyond the Licensor’s or Artifex GB’s control (including for instance, where the recipient’s email address is not valid. You agree that neither the Licensor nor Artifex GB is liable for any deletion of your ArtifexNets in accordance with these terms.
17. Notices: The Licensor will send all notices for your attention to the most recent email address that you have supplied, or otherwise by publishing them prominently on the ArtifexNet website. if you wish to cancel your subscription, you may email: [ HYPERLINK "mailto:michael.kaufman@Artifexplc.com" michael.kaufman@Artifexplc.com], but if you suspect that someone has had unauthorised access to your account you should email: [david.baker@Artifexplc.com]. All other notices should be sent to [michael.kaufman@Artifexplc.com] Notice by email will be deemed received when an email is received in full (or else on the next business day if it is received on a weekend or public holiday in the place of receipt). Please do not send anything to the Licensor through the post unless you have a complaint, in which case you can address your complaint to Michael Kaufman.
18. Invalidity and Severability: If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
19. Third Party Rights: Save as set out in this clause, a person who is not a party to these terms has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce or enjoy the benefit of any provision of these terms but this shall not effect any right or remedy of a third party which exists or is available apart from that Act. The End User agrees, however, that Artifex GB may enforce these Terms against the End User, subject to clause 21 and in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999.
20. Assignment And Sub-Licencing: You shall not be entitled to assign this Agreement nor any of your rights or obligations hereunder nor sub license the use (in whole or in part) of the ArtifexNet Service without the prior consent of Artifex GB (which shall not be unreasonably withheld). You agree that the Licensor may assign any of our rights and/or transfer, sub-contract or delegate any of our obligations under this Agreement to a third party.
21. Changes To This Agreement: These terms may only be amended between the parties by agreement in writing. The parties agree not to rescind or vary these Terms to Artifex GB’s detriment without obtaining Artifex GB’s prior written consent.
22. Entire Agreement: Save with respect to fraudulent misinterpretation this Agreement supersedes all prior oral or written agreements and understandings between the parties relating to the subject matter hereof, constitutes the entire agreement between the parties.
23. Law: The parties agree that this Agreement will be interpreted in accordance with the internal laws of England and the exclusive jurisdiction of the English Courts, save that nothing shall prevent the Licensor or Artifex GB from bringing a claim in any jurisdiction in which you are situated. Save with respect to a claim for breach of an intellectual property right or the breach of a confidentiality obligation, in which case the claimant shall be entitled to seek an injunction, the parties shall first attempt in good faith to resolve any dispute internally prior to taking any legal action.
Agreed for ArtifexNet Ltd Agreed for AAP Fundraising Limited
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Name ………………………………. …………………………………………………..
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Schedule 1
Fees Payable by you To the Licensor
You will pay the following fees (plus VAT) on or before the Licensors Invoice Due Date:
The Annual Licence fee for the Multi-client annual Licence £2495
50,000 credits at £0.01 each - £500
Total fee(Including the above)
Total= £2995 + VAT
PART 2
SERVICE LEVEL AGREEMENT
Introduction
This Service Level Agreement (“SLA”) is intended to identify the features and define the processes involved with Artifex Plc delivery of various support functions to the Charity for the software acquired by the Charity in relation to the Licensed Programs.
Service Availability
Uptime
Artifex Plc undertakes to use its reasonable endeavours to offer access to the ArtifexNet Infrastructure 24 hours a day, 7 days a week (“Total Time”).
The ArtifexNet Infrastructure will be operational and fully functional in all material respects (i.e. capable of sending dispatches, measuring and displaying tracking and reporting information) at least 95% of the time during any 30 day period, excluding reasonable scheduled down time.
Uptime is determined by the following equation:
ArtifexNet Infrastructure Availability = Total Time – Minus Interruption Time (outside of scheduled down time) divided by Total Time
Scheduled Downtime
Notwithstanding the aforementioned, Artifex Plc reserves the right to suspend access to the ArtifexNet Infrastructure from time to time for maintenance or upgrading of services. Artifex Plc will notify Charity of such scheduled interruption with 1 weeks notice and all effort will be taken to do this outside the working hours of 9-5pm, Monday to Friday. ArtifexNet will use its best efforts to ensure minimal effect due to these circumstances.
The parties acknowledge that such scheduled downtime shall not be included in the downtime permitted each month. Artifex Plc agrees that (a) Artifex Plc will use commercially reasonable efforts to minimize the adverse impact of such scheduled downtime on the Charity and the delivery of the Dispatches, (b) Artifex Plc will use commercially reasonable efforts to notify the Charity in writing five (5) business days prior to such scheduled downtime, and (c) in no event shall the total uptime for the ArtifexNet Infrastructure be less than 95% in a given month. In the event of any interruption of the ArtifexNet Infrastructure within the control of Artifex Plc, Artifex Plc will promptly notify the Charity of such interruption and shall use commercially reasonable efforts to restore the ArtifexNet Infrastructure services within four (4) hours.
Support Services
Daily Communication
Artifex Plc office hours for all UK staff are 9am until 5pm local time. The offices are open from 9am until 5pm. Between 8.30am and 5pm Artifex Plc receptionists are able to advise of a person’s availability or whereabouts at any given time.
Support staff include:
Michael Kaufman, ArtifexNet VP Business Development, Office Telephone number 020 8731 5131, Mobile 07940 738124
Stephanie De Simone ArtifexNet account Manager, Office telephone number 020 8731 5853
Richard Bednall, Chief technical officer, Office Telephone number 01202 30 40 50
David Baker, IT Manager, Telephone number 01202 443333
Email
Any email requesting feedback / output will be acknowledged with a return email or telephone call as soon as possible. This will let the sender know that an email has been received and will suggest an expected time to resolution / action. All email should be responded to within 0.5 working days of receipt. For more urgent requests it is best to copy more than one contact into the communication should a particular contact be out of the office or temporarily unavailable.
Email Address: ArtifexNet_support@Artifexplc.com
Telephone
Artifex Plc team is equipped with voicemail systems and mobile phones and should therefore be contactable at all times. When in the office, calls should be returned within a reasonable timeframe at the discretion of the individual. Most importantly, a voicemail message should be replied to in order to confirm acknowledgement of an issue and to propose a realistic response and / or time to resolution. Again, for urgent requests, it is best to leave messages for more than one person.
There could be several reasons for a person being unavailable, including:
Away from desk
In a meeting
Out of office all day
On holiday
Off sick
If a named contact is not available there are several options open to the Charity:
Be passed on to another contact
Leave a message to call back
Leave a voicemail message
It is recommended that the most effective way to contact Artifex Plc staff members is to go through the main switchboard/s to find out the availability of a particular contact.
Prioritisation Procedure
The response times outlined below indicate the time it will take Artifex Plc to respond to a support issue or query. The timeframe for resolving an issue is dependent on whether the issue is ArtifexNet related or ISP/Internet related. Issues can normally be resolved within 60 minutes. Should an Internet/ISP issue arise, the Charity will be notified of progress regularly until resolved. ‘Business Hour” means an hour between 8.30am and 6pm during the Working Day.
Level
Criteria
Response/Resolution Time
Service Agreement
A:
Mission Critical (any failure that results in a total or partial loss of use of Licensed Programs which seriously compromises the ability of the Charity to create and send emails)
1 Business Hour
100%
B:
High Impact (any failure that results in a significant and partial failure or material under performance of the Licensed Programs)
2 Business Hours
100%
C:
Low Impact (minor faults which do not affect the operation of the Licensed Programs but require fixing for full operational capability)
Four Business hours
100%
D:
Question (general fault/bus that need including on the fault log for prioritisation and solution in agreement with the Charity)
Four Business hours
100%
In the event that Artifex Plc fails to resolve an issue within the times set out in the table above (commencing from the time that Charity notifies Artifex Plc of the issue) then where such issue is related to the ArtifexNet Infrastructure (as opposed to an ISP/internet issue then Artifex Plc will pay as a service credit 10% of the applicable part of the Initial Batch Fee relating to the batch of email to be sent.
ArtifexNet Terms, Copyright ArtifexNet Ltd 2007-10-18
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