Terms and Conditions of Supply of EveryClient Product
The Agreement ("this Agreement") governs the provision of Software and Services between EveryClient ("EveryClient") and any user who agrees to its terms ("Customer") (together "the parties").
"EveryClient Product" means EveryClient Software and Services "End-user" means a customer licensed to use EveryClient Software under this Agreement.
Monthly Subscription Requirements
As a Monthly Subscription user, the Customer's licensing is refreshed on a month-by-month basis. The Customer agrees to maintain an active Internet connection when using EveryClient Software, to ensure the validity of your Monthly Lease License.
- The Customer agrees that after 30 days of using EveryClient without an Internet connection, the Customer's use of EveryClient MAY be limited.
- The Customer agrees that after 90 days of using EveryClient without an Internet connection, the Customer's use of EveryClient WILL be disabled.
Charges and Payment
The Customer shall pay the charges to EveryClient prior to the release by EveryClient of the Seed Key for a copy of the Software. For the avoidance of doubt, EveryClient shall have no obligations under this Agreement until it has received cleared funds to cover the agreed charges.
EveryClient shall be entitled to charge the Customer interest on all overdue payments for software and services at a rate of 5% per annum above the base rate of Barclays Bank plc, compounded monthly, on the outstanding balance.
EveryClient shall have the right to increase charges from time to time.
Use of EveryClient Product
The Customer agrees to use software for lawful purposes only. The Customer shall not copy, use, modify, transmit, distribute, reverse engineer, or in anyway exploit copyrighted or proprietary software available in EveryClient Product, except as expressly permitted by the respective owner(s) thereof. Use of any software is governed by the terms of this agreement. All trademarks, service marks, and trade names in this software are the marks of the respective owner(s), and any unauthorized use thereof is strictly prohibited.
The Customer shall treat as confidential the Documentation, Software, Specification and all other information relating to EveryClient Product supplied by EveryClient.
Intellectual Property Rights
EveryClient and the Customer agree that all Intellectual Property Rights in the Documentation and the Software and all other materials in connection with any services provided by EveryClient shall remain vested absolutely in EveryClient.
All use of the Trade Marks by the Customer shall be for the benefit of EveryClient and the goodwill accrued to the Customer arising from their use shall accrue to and be held in trust for EveryClient.
The Customer shall promptly bring to the attention of EveryClient any improper or wrongful use of any trade mark owned or claimed to be owned by EveryClient in relation to the Software which may come to its notice and shall assist EveryClient in taking all necessary steps to protect and defend such rights (without thereby implying any obligation on the part of the EveryClient to take such steps).
Limitation of Liability
Notwithstanding anything to the contrary in this Agreement, EveryClient’s liability to the Customer for death or injury resulting from its own or its employees’ negligence shall not be limited.
Subject to the above the following provisions set out EveryClient’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer in respect of: any breach of its contractual obligations arising under this Agreement; and any mis-representation, mis-statement or tortious act or omission including negligence arising under or in connection with this Agreement. Any act or omission on the part of EveryClient or its employees, agents or sub-contractors shall for the purposes of this be known as an "Event of Default".
EveryClient’s entire liability from time to time in respect of all Events of Default shall be limited to damages of an amount equal to 50% the amount of the Charges (exclusive of VAT) paid by the Customer under this Agreement in the immediately preceding twelve month period.
The Customer acknowledges and accepts that computers need routine maintenance and sometimes break down, and that the Software operates on an "as-is as-available" basis. As a result, EveryClient does not guarantee that the Customer or any third parties will be able to use the Software at any particular time and the Customer agrees that EveryClient shall have no liability to the Customer if any such persons are not able to use the Software for any given period of time.
EveryClient shall not be liable to the Customer in respect of any Event of Default for loss of profits, loss of data, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a Third Party) even if such loss was reasonably foreseeable or the EveryClient had been advised of the possibility of the Customer incurring the same.
Without prejudice to the generality of any other term of this Agreement EveryClient shall not be liable for any damage or losses or for any additional damage or losses arising from an Event of Default arising from any failure of the Customer to observe and perform any of its obligations, warranties, covenants and representations set out in this Agreement or otherwise.
If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under this Agreement.
The Customer hereby agrees to afford EveryClient not less than 30 Working Days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.
Subject to above, EveryClient shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon the EveryClient within two months of the date it became aware of the consequences of the Event of Default or the date when it ought reasonably to have become so aware.
Nothing in this Clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
Both parties undertake to comply with provisions of the Data Protection Act 1998 ("the Act") in relation to the disclosure, use and storage of any personal information as defined in the Act.
The Customer name, phone, fax number, address and email address and client references (“Customer Data”) will be put onto the EveryClient database and processed by us in servicing our relationship with the Customer, including disclosure to third party outsourcers and consultants. This may include, but is not limited to, EveryClient’s provision of information about EveryClient Products and updates, notification of changes to the Support or Payment and notification that this Agreement is about to expire. By submitting Customer Data to us the Customer agrees to our storage, use and disclosure of that data. Unless the Customer notifies us otherwise the Customer agrees that we may use and analyse Customer Data to give information about our services which may be of interest to the Customer. If the Customer does not wish to be contacted for marketing purposes by us or by third parties please send an email to the following address: support@EveryClient.net. The Customer agrees that for the purposes described above Customer Data may be transferred to countries outside Australia and the US.
Choice of Law Jurisdiction
This agreement shall be governed by and construed in accordance with Australian law and the parties hereby submit to the exclusive jurisdiction of the Australian Courts.
EveryClient is not responsible for the contents or performance of other software (e.g. third party databases) linked to any EveryClient Product and not maintained by EveryClient and the Customer assumes all risk with respect to its use.
Variation and Termination
EveryClient may vary the terms of this Agreement relating to Payment and Software and Services Content on one month’s written notice by email to the email address given on registration. Whenever such notice is given Customer shall have the right to terminate this Agreement if Customer has notified EveryClient in writing of the Customers intention to terminate before the end of the notice period. Except as set out above, no amendment or variation shall take effect unless it is in writing and signed by an authorised representative of each of the parties.
Without prejudice to any other rights, EveryClient may terminate this Agreement if the Customer fails to comply with the terms and conditions of this Agreement or if the Customer suffers from any insolvency or administration.