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.
“Accepted Order” means any order placed by a Customer which has been accepted by the Company
“Agreement” means this iPresent Master Service Agreement as amended from time to time in accordance with the terms of this Agreement together with the Accepted Order
“Company” means iPresent Ltd (company registered number 08048599 ) of Delta House, 7 Oriel Court, Alton, Hampshire, GU34 2YT, United Kingdom
“Consumer” means any natural person who enters into or is contemplating entering into an Agreement with the Company for purposes which are outside his business
“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 Company’s accepting an order placed by a Customer
“Force Majeure” means any acts, events, omissions or accidents beyond the reasonable control of the Company
“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
“In Writing” means in any permanent written form including email
“Password” means the alphanumeric characters chosen and used exclusively by the Customer at its 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 purchased by the Customer and provided by the Company
“Subscription Term” means the duration for which the Customer has ordered the Service, from the receipt of the first payment of a subscription to the Service, or in the case of Customers paying by invoice from the date identified as the start date on the invoice
“Spam” means sending unsolicited and/or bulk emails
“Third-Party Applications” means software products that are provided by third parties that interoperate with the Service, and are identified as Third-Party Applications
“Virus” means a computer programme that copies itself or is copied to 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 files or creates a nuisance or annoyance 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 the Service have been purchased, and who have been supplied user identifications and passwords for accessing the Service
“Working Day” means Mondays to Fridays except for public holidays
“Working Hours” means Mondays to Fridays 9am to 5:30pm except for public holidays
1.1. In this Agreement, unless the context otherwise requires or it is otherwise specified:
1.2. In the event of any conflict (whether as to interpretation or otherwise) between the provisions of an Accepted Order and this Agreement the following order of precedence shall apply:
1.3. A third party who is not a party to the Agreement has no right to enforce any term of it.
2.1. The Customer’s order constitutes an offer by the Customer to subscribe for the Service specified in it on the terms set out in this Agreement; accordingly, the return of the acknowledgement copy of the order form by the Company, or the Company’s commencement of the supply of the Service pursuant to the order, shall establish a contract for the supply and subscription for that Service on these terms. The Company shall be entitled to refuse any order for the Service.
2.2. Subject to the terms of this Agreement, the Company shall provide either the Standard Service or Pro Service as chosen by the Customer in the Accepted Order during a Subscription Term.
3.1. Services are purchased as iPad User slots and may be accessed by no more than the number of iPad Users purchased. However iPad User slots may be reassigned to new Users replacing former iPad Users who no longer require use of the Service.
3.2. iPad User slots may be added at any time during the Subscription Term at the price advertised on the website (www.ipresent.com), and are effective from the Order date and are subject to the terms of this Agreement. The Customer shall be charged the pro rated fee up to the renewal date of its existing subscription, after which subsequent invoices shall include the new User total.
3.3. If the iPad User slots are reduced during the subscription term, no monies shall be refunded. The existing number of iPad User slots shall remain available until the end of the subscription term, at which point the new subscription term shall commence for the reduced number of iPad User slots.
4.1. The Company shall provide to the Customer the Service 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 in respect of which the Company shall notify the Customer at least 1 day in advance and where practicable schedule such Downtime for between Saturday 20:00 and Sunday 23:00 GMT, (ii) unavailability due to circumstances beyond the Company’s reasonable control
4.3. There is a self-service support facility provided by the Company which is available 24 hours a day 7 days a week and gives access to the help pages and the opportunity to raise new support requests. The Company’s support department monitors raised requests during Working Hours and aims but does not undertake to respond within 4 Working Hours to the Customer.
4.4. All Intellectual Property Rights and all other rights utilised in the supply of the Service shall be owned by the Company. The Company hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Service as is envisaged by the parties. If this Agreement is terminated by either party for any reason this licence will automatically terminate.
4.5. The Customer acknowledges that the Service may take up to 24 hours from the date of payment until it is fully operational.
4.6. The Company shall provide 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 by such a date/time.
4.7. 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 are updated promptly. The Company will not be held liable for any failure to contact Customers as a result of using addresses held within records but not updated by Customers.
4.8. The Service has a 5GB disk storage limit per Customer for a Standard Service subscription. There is no disk storage limit for Pro Service Customers.
4.9. It shall be the sole responsibility of the Customer to ensure:
5.1. Charges for the Service shall be paid by the Customer to the Company in advance monthly or annually unless any other payment method has been agreed in writing between the Company and the Customer.
5.2. The Company reserves the right at any time to vary all charges by giving one month’s notice to the Customer by email.
5.3. 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.
5.4. 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.
5.5. All payments shall be due to the Company on presentation of invoice unless otherwise specified on the invoice.
5.6. Interest shall accrue from day to day whether before or after judgment on overdue amounts at the rate of 2% per month together with VAT if applicable. It shall be payable by the Customer to the Company upon demand.
5.7. Customers who make duplicate payments for services or who overpay invoices will be refunded the difference subject to an administration charge of £25 (+VAT) being deducted from the refund. If the refund amount is less than £25 (+VAT) then no refund will be made.
6.1. The Customer hereby agrees to refrain from uploading to the Service, or transferring to or receiving from other users of the Service, or transferring to any other 3rd party through the Service, 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).
6.2. The Customer hereby agrees to refrain from sending menacing, offensive, abusive or annoying messages (including, but not exclusively, ‘Spam’ or Unsolicited Commercial Email ‘UCE’), through the Service or whilst using the Service.
6.3. The Customer hereby agrees to not divulge its Passwords to any third party and use all reasonable endeavours to keep the same confidential and inaccessible to third parties.
6.4. The Customer hereby agrees immediately to cease to use the Service on termination of this Agreement.
6.5. The Customer hereby agrees not to use or permit the usage of the Service in an unlawful manner or otherwise in breach of any relevant legislation, regulations or codes of practice governing the use of the Internet.
6.6. 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.
6.7. 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 iPresent Ltd, its staff, contractors, customers or other users.
7.1. The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
7.2. All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from the Agreement save that nothing in this clause 7 shall be taken to affect the Customer’s statutory rights where the Customer is a Consumer.
7.3. Nothing in this Agreement excludes or limits the liability of the Company.
7.4. Subject to clauses 7.2 and 7.3:
8.1. The Company shall be entitled to discontinue, alter, modify, expand, improve, maintain, repair, suspend, disconnect or otherwise change the Service as necessary given 30 days’ notice to the Customer via the email address provided by the Customer.
9.1. 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 10 in the event of the following:
9.2. 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.
10.1. This Agreement shall remain in force for the duration of the Subscription Term, including any and all renewals. Termination can be effected as follows:
10.2. By the Customer
The Customer may terminate this Agreement at the end of any Subscription Term.
10.3. By the Company
The Company may terminate this Agreement in writing:
10.3.1. 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
10.3.2. by at least 30 days’ written notice to the customer ; or
10.3.3. 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, or a creditor takes possession of any of the Customer’s assets.
10.4. The Company reserves the right to delete the Customer Data following termination of this Agreement.
10.5. With the exception of termination under 10.3.2 above no refund of subscription charges will be made to the Customer upon termination of the Agreement. If the Company terminates the Agreement under 10.3.2 the Customer will be credited the amount of any unused subscription paid for by the Customer at the date on which the termination comes into effect.
10.6. Upon receipt by the Company of Notice of Termination, all invoices, including the termination invoice, will become due for immediate payment.
10.7. Upon termination, the provision of the Service shall immediately cease and the Customer shall:
10.8. Termination of the Agreement shall be without prejudice to any pre-existing liability of the Customer and shall not 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.
11.1. Any notice under or in connection with this Agreement shall be given in writing in the following manner:
unless in any case the evidence shows that such communication was not left or sent as claimed.
12.1. 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 the terms of this Agreement, or exercising any of its other rights and remedies under this 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.
13.1. If the terms of this Agreement or any of them 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 this 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.
14.1. 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:
15.1. Neither party shall assign or transfer any of its rights or obligations under this Agreement save that the Company may assign such rights or obligations to an associated company within the meaning of Section 25 of the Corporation Taxes Act 2010.
15.2. The Company shall be entitled to sub-contract all or part of its obligations to provide the Service [provided that the Company shall remain responsible to the Customer for performance of such obligations.]
16.1. 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 consent in writing.
16.2. 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’s website shall be subject to correction without any liability on the part of the Company. For the avoidance of doubt, the Company’s brochure and other sales literature or marketing materials (either appearing on the Company’s website or in printed form) are not incorporated into and do not form part of this contract.
16.3. 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.
16.4. 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.
16.5. The allowance of time or 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.
16.6. The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Company in connection with the Service.
16.7. The Customer acknowledges that in providing the Service, the Company may place cookies or other local shared objects on Users' devices.
17.1. The Company reserves the right to vary these Conditions as it sees fit from time to time or as a result of changes required by its insurers, new legislation, statutory instruments, Government regulations or licences.
18.1. This Agreement is to be construed in accordance with the laws of England to the jurisdiction of whose courts the parties agree to submit.
18.2. If any dispute arises in connection with this agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 5 Working Days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
18.3. If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CENTRE for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than  Working Days after the date of the ADR notice.
18.4. Neither party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
19.1. The Service is provided on the foregoing conditions which constitute the entire Agreement to the exclusion of any other terms and conditions and no 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.
19.2. 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 (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) which is not either set out in this Agreement or reduced to writing and expressly agreed by the Company in writing as forming part of this Agreement.
IMPORTANT NOTICE TO CONSUMERS
Where the Customer is a Consumer (but not otherwise) and in pursuance of its obligations under The Consumer Protection (Distance Selling) Regulations 2000 the Company gives notice to the Consumer of the following information: