Black ICE CRM Master Service Agreement (last updated 13th April 2016)
This agreement covers the purchase and use of the Service provided by the Company
By accepting this agreement via the Online Order Form or via an Order Form that references this agreement, the Customer agrees to the terms and conditions of this agreement.
In this Agreement the following words and expressions shall have the following meanings.
“Agreement” means this Black ICE CRM Master Services Agreement as amended from time to time in accordance with the terms in this Agreement
“Company” means Open by Nature Limited (company registered number 6863835) of 112-114 High Street, Rickmansworth, Hertfordshire, WD3 1AQ, United Kingdom
“Customer” means any person or organisation with whom the Company enters into an Agreement subject to these Conditions
“Customer Data” means electronic data or information submitted by the Customer to the Service.
“Downtime” means any service interruption in the availability to the Customer of the Service
“Effective Date” means the date of the Customer accepting this Agreement between the Company and the Customer
“Intellectual Property Rights” means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registerable or not in any country.
“Password” means the alphanumeric characters chosen and used exclusively by the Customer at his own risk for the purpose of securing and maintaining the exclusivity of his access to the Company’s Service
“Server” means the computer server equipment operated by the Company or an approved 3rd Party in connection with the provision of the Service.
“Service” means the services described in the current Company literature and/or website www.blackicecrm.com to be provided by the Company to the Customer
“Subscription Term” means one calendar month from the receipt of payment of a subscription to the Service.
“Spam” means sending unsolicited and/or bulk emails
“Third-Party Applications” means software products that are provided by third parties that interoperate with the Company Services, and are identified as third-party applications.
“Virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as worms or Trojan horses.
“Users” means individuals who are authorised by the Customer to use the Service, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by the Company.
1.1 In these Conditions and an Agreement, unless the context otherwise requires or is otherwise specified:
- reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re‑enacted;
- words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
- any reference to a party includes a reference to its successors in title and permitted assigns;
- references to clauses and schedules are to be construed as references to the clauses of, and schedules to, these Conditions or the Agreement;
- the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of these Conditions or the Agreement.
1.2 In the event of any conflict (whether as to interpretation or otherwise) between the provisions of an Accepted Order, the Agreement, these Conditions and the provisions of any other agreement or document referred to in this Agreement the following order of precedence shall apply:
- the Accepted Order;
- the Agreement;
- these Conditions; and
- that other agreement or document
1.3 A third party who is not a party to the Agreement has no right to enforce any term of it.
2.0 Acceptance of Orders
2.1 The Company reserves the right to refuse any Order for subscription, services or goods.
2.2 Subject to the Conditions and the terms of this Agreement, the Company shall provide the either the Standard Service or Enhanced Service as chosen by the Customer on the Order Form during a Subscription Term.
3.0 Users Subscriptions
3.1 Services are purchased as User subscriptions and may be accessed by no more than the number of Users purchased. However Users may be reassigned to new Users replacing former Users who no longer require use of the Service.
3.2 User subscriptions may be added at any time during the Subscription Term at the price advertised on the website (www.blackicecrm.com), and are effective from the Order date and are subject to these terms and conditions.
3.3 User subscriptions can not be decreased below the number of users originally ordered within the initial term.
4.0 The Service
4.1 The Company shall provide to the Customer the Services specified in this Agreement subject to the following terms and conditions.
4.2 The Company will use reasonable endeavours to provide the Service 24 hours a day 7 days a week, except for (i) planned downtime of which we shall notify you at least 7 day in advance and where practical schedule for between Saturday 20:00 to Sunday 23:00 GMT, (ii) unavailability due to circumstances beyond the Companies reasonable control
4.3 Our Service Desk is available for support 24 hours a day 7 days a week for access to the community pages and for raising new tickets. Our support department monitor raised tickets during standard Working Hours and aim to respond within 4 Working Hours to the Customer.
4.4 The Customer acknowledges that the Service may take up to 48 hours from the date of payment until it is fully operational.
4.5 The Company shall provision the Service to the Customer as soon as reasonably possible. Any date/time indicated by the Company as a date/time for the Service to be fully operational is an estimate only and may be liable to change without prior notification to the Customer. Accordingly the Company will not be responsible for any delay in activating the Service beyond such a date/time.
4.6 It shall be the responsibility of the Customer to ensure that the contact, billing and other email addresses, mail address, telephone and fax numbers held by the Company are correct and up to date. Customers must ensure that email and other addresses etc. are updated within 5 days of the change becoming effective. The Company will not be held liable for any failure to contact Customers via addresses held within records but not updated by Customers.
4.7 The Service has a 1GB disk storage limit per User. This limit can be raised but is subject to additional charges.
4.8 The Service may be subject to other Usage Limits, please refer to the Community Pages for more information.
4.8 It shall be the sole responsibility of the Customer to ensure:
- Users compliance with the Agreement
- the accuracy, integrity and legality of the Customer Data
- the Service is used in the way it was designed to in accordance with the Black ICE CRM User Guide.
- the service is not to sold, re-sold, rented or leased
- Users and the Customer use reasonable endeavours to prevent un-authorised access to the Service, and inform us immediately if such breach occurs
- no attempt is made to gain unauthorised access to the Service or related servers, systems and networks.
4.9 The Company shall have the right from time to time to change the Customers username and password for the purpose of essential network maintenance, enhancement, modernisation or other work deemed necessary to the operation of the Service. Any such changes to be notified by email.
5.1 Charges for the Service shall be paid by the Customer to the Company in advance monthly unless any other payment method has been agreed in writing between the Company and the Customer or as detailed on any Accepted Order.
5.2 The Company reserves the right to vary from time to time all charges with one months’ notice to the Customer by email.
5.3 Any Service upgrade charges detailed in any of the Company’s published tariffs shall be paid by the Customer to the Company in advance, covering the period to the next payment date for the Subscription Term and thereafter simultaneously with the original Service payment.
5.4 If this agreement is upgraded to provide a higher level of Service, then the Service will continue at the higher rate for the remainder of the Subscription Term.
5.5 Account Data Storage is monitored on a monthly basis. If usage exceeds agreed commitment then an additional invoice will be presented to the Customer for the difference between usage and commitment. The uncommitted Account Data Storage will be charged at a rate as may from time to time be amended and advertised by the Company on its web site.
5.6 Itemised details of excess usage and any other relevant charges may be made available to the Customer if ordered in advance and the Company reserves the right to make an additional charge for this service.
5.7 All payments shall be due to the Company on presentation of invoice unless otherwise specified on the invoice via PayPal or as shown on the Accepted Order.
5.8 Interest payable on demand whether before or after judgement shall accrue from day to day on overdue amounts at the rate of 8% above the Bank of England base rate together with VAT if applicable.
5.9 Customers who make duplicate payments for services or who overpay invoices will be refunded the difference subject to an administration charge of 25 GBP (+VAT) being deducted from the refund. If the refund amount is less than 25 GBP (+VAT) then no refund will be made.
6.0 Customer Data
6.1 The Company shall store Customer Data within the Black ICE CRM application and servers only.
6.2 The Company shall not access the Customer Data other than required to provide the Service.
6.3 The Customer Data remains the property of the Customer and on request to the Company can be removed from the Black ICE CRM application and servers with 7 days notice at any point during this agreement.
6.4 The Customer may export Customer Data using the standard functions provided at any time of this agreement.
7.1 The Customer hereby agrees to Accept and abide by the Open by Nature Limited this Agreement as may from time to time be changed.
7.2 The Customer hereby agrees to refrain from transferring any illegal material (including but not limited to material which may be deemed to be offensive, abusive, indecent, defamatory, obscene, menacing or in breach of copyright, privacy or other rights) to or from other users of the Service or 3rd Party Application or Services.
7.3 The Customer hereby agrees to refrain from sending menacing, offensive, abusive or annoying messages (commonly referred to as, but not exclusively, ‘spam’ or Unsolicited Commercial Email ‘UCE’), whilst using the Service.
7.4 The Customer hereby agrees to not divulge their Password to any third party and use all reasonable endeavours to keep the same confidential and inaccessible to third parties
7.5 The Customer hereby agrees to keep the Company informed of any change to the Customer’s address as set out on the order form and other such information as may effect the payment of charges due
7.6 The Customer hereby agrees to immediately cease to use the Service on termination of this Agreement
7.7 The Customer hereby agrees not to use or permit the usage of the Service in an unlawful manner or in contradiction of published legislation and regulations governing the Internet.
7.8 The Company reserves the right to restrict or block access to the Service in the event of a failure to abide by this Agreement. This may include, but not exclusively, the transmission of unsolicited email.
7.9 The Company reserves the right to make an administrative charge as a result of abuse of the Agreement.
7.10 The Company does not tolerate abusive behaviour from anyone and reserves the right to terminate, without further notice or refund, the Services of any customer or user who demonstrates abusive, intolerant, violent, verbally abusive or threatening behaviour towards Open by Nature Limited, its staff, contractors, customers or other users.
8.1 The Company shall not be liable for the following to the extent permitted by the applicable law:
- indirect damages, loss of profits, business revenue, goodwill or any economic loss
- any claim made against the Customer by another third party that does not follow a breach of these Conditions by the Company
- any loss or damage to the Customer caused by or arising from any act or omission of the Customer or any act caused as a result of force majeure or beyond the Company’s control.
8.2 The Company’s total liability for any loss or damage suffered by the Customer shall not exceed the aggregate of all charges paid by the Customer for the Service supplied in the last three calendar months.
8.3 Neither party excludes or limits its liability to the other for death or personal injury resulting from the proven negligence of either party, its employees or agents.
9.0 Changes to the Service
9.1 The Company shall be entitled to discontinue, alter, modify, expand, improve, maintain, repair, suspend, disconnect or otherwise change the Services as necessary given 30 days notice to the Customer via the email address provided by the Customer.
10.1 The Service may be suspended or part suspended by the Company without notice and without prejudice to the company’s rights of termination under clause 11 in the event of the following:
- Failure by the Customer to make any payment to be made to the Company on its due date for payment.
- If the Customer does or suffers anything to be done which jeopardises the Service or any network to which the Customer is from time to time connected.
- If the Customer’s credit limit has been exceeded or if the Customer is otherwise in breach of these Conditions.
10.2 No such suspension shall affect the liability of the Customer to pay charges and other amounts to the Company, and without limitation, the monthly subscription charge will continue to accrue. During suspension the Company reserves the right to refuse to release the Customer Data.
11.1 This Agreement shall remain in force for a minimum period of 1 month, or unless as shown otherwise on the Order Form, from the date of an Accepted Order. Termination can be effected as follows:
11.2 By the Customer
The Customer may terminate this Agreement by giving written notice to the Company, which may expire at any time at the end of the current Subscription Term.
Some services, for example 3rd Party Applications/Services, have alternative minimum periods and are subject to alternative terms which are shown to the Customer during the ordering process.
11.3 By the Company
The Company may terminate this Agreement:
- at any time and without notice if the Customer commits any breach of this Agreement including, but without limitation, non-payment of any subscription charges;
- or by at least 14 days written notice by email to the Customer;
- or with immediate effect if bankruptcy or insolvency proceedings are brought against the Customer, or an arrangement with creditors is made, or a receiver or administrator is appointed over any of the Customer’s assets, or the Customer goes into liquidation.
11.4 The Company reserves the right to delete the Customers Data following termination of this Agreement.
11.5 No refund of subscription charges will be made to the Customer upon termination of the Agreement by either the Company or the Customer.
11.6 The Company has the right to terminate the Agreement immediately if the Customer any of its employees or agents engages in any conduct that is prejudicial to the Company or in the event of non-payment of the Fees by the Customer within seven (7) days of the due date for payment.
11.7 Upon receipt by the Company of Notice of Termination, all invoices, including the termination invoice, will become due for immediate payment.
11.8 Upon termination, the provision of the Services shall immediately cease and the Customer shall:
- pay all outstanding Fees and charges due under the Agreement
- within seven (7) days export at the Customers own cost any Customer Data from the Service using the provided functionality.
- return to the Company any materials and Restricted information belonging to the Company.
12.0 Rights on Termination
12.1 Termination of the Agreement shall not affect any pre-existing liability of the Customer or affect any right of the Company to recover damages or pursue any other remedy in respect of any breach by the Customer of the Agreement.
13.1 Any notices under or in connection with this Agreement shall be in writing and shall be delivered by post to the relevant address given in the Agreement or to such address as the recipient may have notified to the other party via e-mail for that purpose.
14.0 Expenses of the Company
14.1 The Customer shall pay to the Company all costs and expenses (so that any legal fees shall be based on an indemnity basis) incurred by the Company in enforcing any of these Conditions, or exercising any of its other rights and remedies under the Agreement, including (without prejudice to the generality) all costs incurred in tracing the Customer in the event that legal processes cannot be enforced at the address last notified to the Company.
15.1 The allowance of time to pay or any other indulgence by the Company in respect of payments due to it shall in no manner affect or prejudice its right to payment together with interest provided under these Conditions.
16.1 If these Conditions or the Agreement or any part thereof shall be adjudged for any reason to be void, unenforceable or ineffective but would be adjudged to be valid effective and enforceable if part of the wording were deleted or a provision were reduced in scope these Conditions of the Agreement shall continue with such modifications as may be necessary to make its provisions (or if such be the case its remaining provisions) valid effective and enforceable.
17.1 Each party hereto undertakes to the other that it shall keep, and shall procure that its directors and employees shall keep secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the first party may receive or obtain in connection with or incidental to performance of the Agreement, provided that:
- the first party shall not be prevented from using any general knowledge, experience and skills not treated by the other party as confidential or which do not properly belong to the other party and which the first party may have acquired or developed at any time during the Agreement;
- the first party shall not be prevented from using the information or material referred to above to the extent such information or material comes into the public domain otherwise than through the default or negligence of the second party; and
- notwithstanding the above, either party shall have the right to communicate any information concerning the other party to any Government department or body or other authority established by statute or under subordinate legislation, where such information is required by law.
18.1 Neither party shall assign or transfer any of its rights or obligations under an Agreement save that the Company may assign to an associated company within the meaning of Section 416 of the Income and Corporation Taxes Act 1988, on notice.
19.1 The Company and the Customer acknowledge and agree that this Agreement shall not establish or constitute any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other without the other’s prior written consent.
19.2 Any typographical, clerical or other error in any sales literature, marketing materials, quotation, price list or other document issued by the company or contained on any page of the company website shall be subject to correction without any liability on the part of the company. For the avoidance of doubt, the company brochure and other sales literature or marketing materials (either appearing on the company website or in printed form) are not incorporated into and do not form part of this contract.
19.3 The customer agrees that the company may refer to the customer (with relevant description of the customer’s business) in any of the company’s marketing materials or on the company website. The customer hereby grants the company a limited licence to use any customer trade names and trademarks solely in connection with such marketing.
19.4 Except as expressly provided, the parties do not intend any term of this Contract to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.5 The failure or delay of the Company to enforce any part of the Contract shall not affect or waive the Company’s rights to enforce it at a later date.
20.0 Other Printed or Standard Conditions
20.1 All Services are provided on the foregoing conditions which, together with any special terms set out on an Order Form or in the Agreement, constitute the entire agreement to the exclusion of any other terms and conditions and no agreement terms and conditions contained in any document sent by the Customer to the Company shall be of any effect with respect to the Agreement unless expressly accepted by a duly authorised officer of the Company in writing.
20.2 The Customer acknowledges that the Customer has not relied on and shall not be entitled to rescind the Agreement or to claim damages or any other remedy on the basis of any representation, warranty, undertaking or statement which is not set out in these Conditions, the Agreement or an Accepted Order, including any representation made by or on behalf of the Company in relation to the Service which has induced the Customer to enter into the Agreement with the Company.
20.3 The Services are provided “AS IS.” THE COMPANY MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND TO YOU OR ANY THIRD PARTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR THE ACCURACY OF ANY INFORMATION CONTAINED IN THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USABILITY, INTEGRATION OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY THE COMPANY AND WAIVED BY YOU.
21.1 The Company reserves the right to vary these Conditions as a result of changes required by its insurers, new legislation, statutory instruments, Government regulations or licences.
22.0 Law and Arbitration
22.1 These Conditions and all Agreements are subject to the laws of England.
22.2 These Conditions incorporate the provisions for arbitration if any are available. Any dispute which may arise between the parties concerning this Agreement shall be determined either in accordance with such arbitration procedure, if any, or by the High Court of Justice in England and the parties hereby submit to the exclusive jurisdiction of that court for such purpose.