*These terms and conditions apply to new or upgrading Customers from January 1st 2016*
IMPORTANT -- READ CAREFULLY: BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.
You have read and have agreed to the following:
1. The following general terms and conditions (the "Terms") will apply to all Compass Software Technology Limited Software Products (the "Products"). When signing up to the Products from Compass Software Technology Limited ("CST") you will be required to accept the Terms as well as any Product specific terms and conditions which relate specifically to the Products chosen by you, the Customer. Please read through these General Terms carefully.
2. These Terms together with any of the following which may be applicable:
- fair usage policy;
- Product specific terms and conditions;
- price plans; or promotions chosen by you,
constitute a legally binding agreement (the "Agreement") between CST and you. These terms and conditions can be found at http://www.compassafm.com/terms.html .Please note that various related CST products and Products including consultancy, data aquisition and Third Party Products may be subject to their own distinct terms and conditions which you should read as well.
3. CST reserves the right to refuse to accept any Customer application.
4. CST may vary or change the Agreement or any part of the Products for any commercial, technical or operational reason and any important changes will be notified to you in advance.
5. These terms apply to the Products which CST has agreed to provide you at the time of entering into this Agreement and will continue to provide over the duration of the Agreement. These Terms can only be changed by CST giving you 30 days notice. In the event of any such change, you will have the option to terminate the Agreement without penalty during that 30 day notice period, subject to payment by you of all Charges due to date. Your continued use of the Products after this 30 day notice period has expired represents your acceptance of any changes.
6. Please note that CST Agents are not authorised to change this Agreement or to agree any provision which is inconsistent with these terms.
7. License Grants.
Cloud / Network Hosted Multiple-Users License Grant: CST and its suppliers grant to Customer a nonexclusive and non-transferrable license to use, access, display and run the Software:
(i) from multiple locations on computers, tablets or other devices for which Customer has paid either a perpetual license fee or an annual license fee; or
(ii) provided the Software is configured for network / Internet usage, installed on a single file server for use on a local area network or Internet access:
Customer may only use the programs contained in the Software (i) for which Customer has paid an annual license fee (or in the case of an evaluation copy, those programs Customer is authorised to evaluate). At CST's option, CST may terminate this license for failure to pay the required license fee or for non-payment of other debts due to CST. A Termination Fee will apply in this instance.
If the version of the Software installed is NOT 'Stand Alone' then the Software is only to be used with authorised licensed copies of the FileMaker Pro software application.
Except as expressly permitted in this License Agreement, Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software, in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, sub license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for Product bureau purposes, or otherwise transfer the Software or Licensee's right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of CST affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this License Agreement.
You may link to third party sites through the use of the Software. The third party sites are not under the control of CST, and CST is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites.
These Terms apply to updates, supplements, add-on components, or Internet-based Products components, of the Software that CST may provide to you or make available to you after the date you obtain your initial access to / copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or Internet-based Products component.
THE SOFTWARE IS NOT INTENDED FOR USE IN ANY ENVIRONMENTS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
Customer agrees that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of CST. Customer agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of CST. Customer agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with CST.
9. NO WARRANTY. YOU ACKNOWLEDGE THAT THE SOFTWARE MAY NOT SATISFY YOUR REQUIREMENTS OR BE FREE FROM DEFECTS. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND CST EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS BY THE SOFTWARE.
10. Proprietary Rights. CST has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This License Agreement conveys a limited license to use the Software and shall not be construed to convey title to or ownership of the Software to Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by CST.
11. This Agreement is for the Minimum Term shown on your Quotation, or in the absence of any term on the quotation, for a period of 12 months. This Agreement will commence when CST receives your Purchase Order.
D: CONTRACT RENEWAL AND TERMINATION:
12. At the end of the Minimum Term, your Agreement will automatically renew for another 12 months, unless you, the Customer, provide notice of your desire to terminate this agreement.
13. This Agreement may be terminated by either party giving to the other at least 30 days notice.
14. Customers who terminate their agreement when they have entered a new contract period without having given notice of intent to terminate while in the previous contract term, will have to pay license fees up to the end date of their Agreement with CST.
15. If you exit out of the CST Product, you accept that usage charges for the immediate billing period prior to exiting out will be applicable, plus any other relevant charges or outstanding amounts on your account.
16. This Agreement is personal to your organisation. You may not transfer this Agreement without CST's written consent. We may freely transfer existing and/or future debts due to us without notice. You agree that we may contact any person named in any proof of identity and/or references provided by you in order to verify their accuracy (or continuing accuracy).
17. If you are a Customer concluding a 'distance contract' with us within the meaning of the EC (Consumer Information, Cancellation and Other Rights) Regulations 2013 you will have the right to cancel the Product within 14 days of commencing this Agreement. This right is subject to us receiving written notice.
E: PRODUCT AVAILABILITY:
18. CST will use reasonable efforts to connect you to the Product within 72 hours from when your purchase order is received or as soon as is practicable and to make the Product available to you at all times. Due to the nature of cloud hosted Products, CST is not in a position to guarantee or offer any minimum Product access levels. The quality and availability of the Product and related CST products and Products is subject to Third Party Hosting Companies and Internet Networks beyond CST's reasonable control.
19. Unless otherwise communicated to you, CST does not represent or warrant that the operation of the Product or related CST products and Products will be uninterrupted, timely, secure, error-free, or that it will meet any Customers specific requirements. In particular CST does not represent or warrant that connections will not be dropped, Data Sessions will not be lost, transmission of data calls will occur at any particular speed, or that all traffic can or will be transmitted by the network to which the customer / hosting company is connected.
20. CST does not accept responsibility for the security of Data Sessions. The Customer conducts any Data Session at its own risk and is solely responsible for adopting such appropriate security measures against unauthorised access to the Product and interference with equipment as may be necessary.
21. CST may modify or suspend access to the Product wholly or partially, with or without notice, if such action is deemed necessary by CST (e.g. for maintenance, security or other valid reasons); or if CST is requested by an authorised authority; or is required to do so by legislation; for other technical, maintenance, security reasons; or other valid reasons. All reasonable efforts will be made to minimise such Product disruptions.
22. CST reserves the right, without prejudice to any other provisions of this Agreement, to issue such reasonable instructions, either on the Product or on www.compassafm.com, concerning the use of the Products as may be necessary in the interests of safety, quality of Product, or for any other valid reason.
23. CST makes no representation and gives no warranty as to the content, quality, availability, suitability or timeliness of any Third Party Product accessed or included as part of the Product. CST reserves the right to suspend or withdraw access to all or any such third party Products on a temporary or permanent basis at any time. Third Party Products are used at your sole risk and we are not liable for any loss or damage suffered by you arising from the use of such Products. CST accepts no responsibility for same, their content or Products, and no endorsement or approval of such sites by CST may be implied.
24. Roaming: You may use the Product while located outside the Republic of Ireland. However, access to Internet networks will depend upon the arrangements between local operators and the Customer.
25. Fair Usage: We may publish an acceptable use policy and / or fair use policies which provide more details about the rules for use of the Product in order to ensure that use of the Product is not excessive to the detriment of other Customers. Our fair usage policy will specify any action we will put in place to manage your traffic (such as billing for additional Connections) to avoid denial of access by the Host Server.
26. CST monitors Host Server performance to ensure that the Product received by Customers is not impacted through a small number of users, placing high demand on Server resources (e.g. Excess of users over that provided for within the Quotation). Any such high-demand customers will receive an initial warning from CST and further infringements may result in billing for additional Connections.
27. From time to time CST may modify the features of any Product, price plan or package that we provide to you in order to offer additional value to the Product. The parties agree that such changes to the Product or package do not constitute modification in the conditions of the existing contract for that Product or package. If the Customer does not wish modifications to be made to their existing Product, then they will inform CST in writing of such requirements.
28. CST may have to change its Hosting Provider if CST is requested by an authorised authority; or is required to do so by legislation; for other technical, maintenance, security reasons; or other valid reasons. This may result in disruption of access to the Product. The Customer will be given all possible prior notice of such disruption and CST will endeavour to resume access to the Product in as timely manner as possible.
29. Access to the Product is reliant on third party software from FileMaker Inc. Such software is provided to the Customer on an AVLA License basis and may need to be upgraded from time to time to ensure access to the latest version of the Product. CST will assist the Customer where required in performing this upgrade.
F: CUSTOMER OBLIGATIONS:
You agree as follows:
30. That you are responsible for the acts and omissions of all persons using the Product under this Agreement. Without any prejudice to any provision of this Agreement, you agree:
(i) That use of the Product is subject to CST's fair usage, and any other terms and conditions which form part of, and are in addition to, these Terms and Conditions. Fair usage is specific to your particular Contract / Quotation. You understand the nature of, and agree to adhere to, your contract, and understand that failure to comply with it entitles CST to disconnect the Products in accordance with these Terms and Conditions.
(ii) It is your obligation to make yourself aware of the Products and any other Terms and Conditions related to these Products and all Third Party Products.
(iii) That you are responsible for the data content you add to the Product. That you will not use or permit the use of the Product for any improper, indecent, obscene, unlawful, harmful, unauthorised, defamatory or fraudulent purpose or to cause any injury, offence or annoyance to any person or to send unsolicited commercial messages to any person;
(iv) Not to use or permit the use of the Product, so as to cause the operation of the Host Server or the quality of Product to be jeopardised, impaired or interrupted or to interfere with the integrity or security of any telecommunications or IT network or system;
(v) Not to use or permit the use of the Product, so as to have a negative impact or interfere with the operation of another customer's account.
(vi) To comply with all reasonable instructions or requests of CST or an authorised authority;
(vii) To promptly pay all Invoices in accordance with the Clause on 'Payments' (below) and to promptly notify us of any change of name, address, other contact details.
(viii) To indemnify and hold us harmless against all liabilities, claims, damages, losses, expenses, costs and proceedings, howsoever arising from any breach of same arising out of (i) to (vi) above.
G: PAYMENT, CHARGES AND WHAT HAPPENS IF YOUR PAYMENTS ARE MISSED?
31. You are liable to pay for all charges incurred through the usage of the Product (including VAT arising on the charges), and for all costs incurred in enforcing this Agreement. The inability to use the Product does not automatically bring the Agreement or your liabilities under this Contract to an end.
32. CST offers a range of payment and discount plans with different rates and methods of charging. Payment plans and methods may vary depending on the size (building area) of your organisation, support requirements, Connections and additional service requirements. and Further information on your payment plan can be found at http://www.compassafm.com/pricing.html
33. CST, at our sole discretion, may from time to time vary the payment plans or methods of payment and the terms of same.
34. CST may require you to pay a deposit as security for payment of charges. Advance payments may also be required for additional services or for payments to Third Parties, which will be credited to your account. No interest will accrue on any deposit or advance payment. CST may choose the manner, time, and methods as to how all charges, deposits or advance payments payable will be paid.
35. Payment: All charges and other payments must be paid by the due date specified on the invoice. VAT at the appropriate rate will be added to all bills unless otherwise specified.
36. Credit - Third Party: CST does not offer credit terms whereby you need to purchase software etc., from third parties. These parties include FileMaker (FileMaker Pro Application), Hosting Company (Additional Connections, Storage). Where possible CST will act as a conduit between you and the third party. CST will invoice you for these products and payment must be received by CST from you before payment is made by CST to the third party.
37. Timeline of Charges: CST charges for your price plan in advance but cannot do this for consultancy or provision of some other services. Therefore, on your CST invoice, the Product charges are for the upcoming contract year and the usage charges are for the month just passed.
38. Compass ST reserves the right with prior notice, to suspend the Product wholly or partially for accounts that are 45 days or later overdue. See Suspension & Termination below.
39. Discount Withdrawal: Where payment for a customer's account falls overdue greater than 45 days for the first license payment due. Compass ST reserves the right to withdraw / reverse all discounts offered as part of the quotation that would have been applicable at the time of the first payment.
H: PROMOTIONS, SPECIAL OFFERS, THRID PARTY Products AND ADD ONS:
40. These terms and conditions will also apply generally to all Promotions, Special Offers and add-ons as may be released by CST from time to time (unless otherwise is explicitly stated in the Promotion, Special Offer or additional Product terms and conditions).
I: DATA PROTECTION:
41. We will comply with all of our legal obligations without limitation under the Data Protection Legislation. We will collect and process personal / company data for legitimate business purposes that are connected with the delivery of the Product to you. By entering this Agreement, you acknowledge that your personal / company data will be used for the legitimate business purposes of CST which may include the following:
i. processing your application,
ii. supplying you with our Products or additional services,
iii. administering your account,
iv. calculating usage, charges and invoicing,
v. Efficient management of data and analytics for training and quality purposes,
vii Customer record purposes and in order to track reported problems;
vii. to investigate improper use of the Product or the Host Server
42. The use of your company data for purposes other than those outlined in this Agreement will be subject to your written consent
43. CST, will as part of any dispute re Product usage, between itself and you, may disclose such company data as it deems reasonable and necessary, to the arbitrator / mediator in confidence.
J: SUSPENSION AND TERMINATION:
44. CST may, with prior notice, suspend or terminate the Product wholly or partially for any valid reason, including without limitation, where:
(i) You fail to pay CST any monies due under this Agreement or any other agreement with CST in excess of 45 days of the due date specified in any invoice;
(ii) CST reasonably believes that you are, or will be, unable to comply with payment obligations, or represent a credit risk;
(iiii) CST is unable to contact you following reasonable efforts;
(iv) You do not comply with, or CST in its reasonable opinion considers that you are not complying with, the terms of this Agreement;
(v) You breach any provision of the "Your Obligations" section (above) or any provision of the applicable fair usage policy of CST;
(vi) You engage in any activity (or permit any activity) which CST, in its sole discretion will determine, considers (a) to be contrary to this Contract, existing legislation or regulations applicable to provision of the Product or (b) is or is likely to have an adverse impact on the quality of the Product or the integrity of the CST Host Server.
(vii) If the CST Host Server requires modification or maintenance or for security or technical reasons it is not possible to provide the Products.
45.During any period of Product suspension you will remain liable for all Charges unless CST decides otherwise.
46. Aside from any other provision contained in these Terms, CST may, by written notice, terminate this Agreement with effect from the date set out in the notice, and cease to provide the Product, where:-
(i) there is a failure by you to observe or perform any term or obligation set out in these Terms or any relevant law;
(ii) you fail to rectify the reason which has given rise to a suspension of the Product under Clause 41 above, within 14 days of the suspension being imposed;
(iii) you are adjudicated bankrupt, become insolvent or make any composition or arrangement with or assignment for the benefit of creditors;
(iv) any meeting of the your creditors is called pursuant to section 587 of the Companies Act 2014 or if the Customer enters into liquidation, receivership or examinership or any steps are taken to appoint a liquidator, receiver or examiner to you.
(v) If for any reason CST is unable to provide the Product.
(vi) The Product is supplied for use only during the Contract Period. CST will not be obliged to release the Product for use on any other host during the Contract Period or if any sums due under the contract are outstanding. Where the Contract is terminated all charges will continue to accrue and be payable either until the end of the 30 day notice period or until the date of termination, depending on the circumstances.
47. CST will have no liability to you (or to anyone claiming through you) for any direct or indirect or consequential loss suffered (whether or not foreseen or foreseeable), WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, THAT STEM FROM ANY USE OR INABILITY TO USE THE SOFTWARE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE OR OTHERWISE ARISING FROM THIS LICENSE. CST WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR PRODUCTS, for any reason. Scenarios where this applies include, but are not limited to, the following:
(i) failure, interruption, delay, suspension or restriction in providing the Product which is due to any act of God, government control restrictions or prohibitions, any other act or omission of any public or regulatory authority (whether local, national or international), an act of default of any supplier, agent or other person, strikes, work stoppages or labour disputes or any other cause whatsoever which is beyond the reasonable control of CST or any other Product issue or cause whatsoever;
(ii) any unlawful or unauthorised use of or access to the Product, Host Server or Equipment by you or third parties;
(iii) any claim arising out of any act or omission by you, your servants, or agents, or arising out of any reliance placed by such persons on content;
(iv) any valid suspension of the Product or termination of the Agreement;
(v) any claim arising in relation to Third Party provision (or non-provision), maintenance or use of telecommunications lines, channels, equipment, networks or Products or arising out of transmissions being dropped or connections being lost for any reason;
(vi) any loss, theft or malfunction of the Product.
48. CST will not be liable for any indirect or consequential loss or damage whatsoever (whether it is foreseen or unforeseen) including but not limited to loss of profits, data, revenue, business, anticipated savings, or goodwill. Nothing in these terms will have the effect of excluding or limiting the liability of CST for death or personal injury resulting solely from its act or omission. Otherwise, any liability of CST to you under this Agreement will not exceed the sum of €500 per claim.
49. CST will exercise such reasonable skill and care in the provision of the Product as may be expected of a reasonably competent EAM / CAFM software provider. Except as expressly stated in this Agreement, all conditions, terms, warranties and representations (whether express or implied by law) in relation to the provision of the Product are excluded to the fullest extent permitted by the applicable law.
50. All the terms and provisions of this Agreement are distinct and severable, and if any term or provision is held unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority it will to that extent be deemed not to form part of this Agreement, and the enforceability, legality and validity of the remainder of this Agreement will not be affected; provided that, in any case where as a result of the operation of this clause the rights or obligations of a party are materially altered to the detriment of the party, that party may terminate this Agreement within 30 days from the date of the relevant decision of the relevant court, regulatory authority or other competent authority. Any waiver, concession or extra time we allow you is limited to the specific circumstances and case in which it was given and does not affect our rights under the Agreement in any other way.
M :SURVIVAL OF AGREEMENT:
51. Any provisions of this Agreement which are intended by their nature to continue, or to come into effect after termination or suspension, will Product termination or suspension of this Agreement and continue in full force and effect.
52. This Agreement (including all related terms and conditions of the Products) constitutes the entire understanding between the parties relating to the subject matter hereof.
53. This License and Terms shall be governed by and construed in accordance with the laws of the Republic of Ireland, as if performed wholly within the State and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this License and Terms shall remain in full force and effect.