These terms and conditions govern your access to and use of the Services provided by Estimo Technologies Limited (The “Supplier”) for use by you (the “Customer”) in your business operations.
The definitions and rules of interpretation in this clause apply to these terms and conditions.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Condition 10.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Services: the subscription services provided by the Supplier to the Customer under these terms and conditions via estimo.tech or any other website notified to the Customer by the Supplier from time to time.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions.
Subscription Term: the term of the subscription purchased by the Customer.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Subject to the Customer purchasing the User Subscriptions in accordance with these terms and conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services for the Subscription Term solely for the Customer’s internal business operations.
In relation to the Authorised Users, the Customer undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
- it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
- each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except
to the extent expressly permitted under this terms and conditions:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services in order to build a product or service which competes with the Services and/or the Documentation; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Condition 2; and
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this terms and conditions:
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
- The rights provided under this Condition 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
ADDITIONAL USER SUBSCRIPTIONS
- the Customer may, from time to time purchase additional User Subscriptions and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of terms and conditions.
- The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to these terms and conditions
- The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned and unscheduled maintenance. The Supplier will, where possible, provide the Customer with advanced notice of such maintenance if the planned downtime will exceed 15 minutes.
- The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under these terms and conditions, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
- the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under these terms and conditions ;
- the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with these terms and conditions on the Customer’s behalf;
- the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, or that the information obtained by the Customer through the Services will meet the Customer’s requirements; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms and conditions.
The Customer shall:
provide the Supplier with:
- all necessary co-operation in relation to these terms and conditions; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- comply with all applicable laws and regulations with respect to its activities under these terms and conditions;
- carry out all other Customer responsibilities set out in these terms and conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Services in accordance with these terms and conditions and shall be responsible for any Authorised User’s breach of these terms and conditions;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these terms and conditions, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
CHARGES AND PAYMENT
- The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this Condition 8.
- The Customer shall on signing up to the Services register and set up an account with Paypal, or have an existing Paypal account and provide Paypal with a current valid payment method (as determined by Paypal and as set out in its terms and conditions) as payments are processed by Paypal on behalf of the Supplier.
- If the Customer subscribes to the Services for a monthly subscription (“Monthly Subscription”) it will continue month to month and Paypal will, on behalf of the Supplier bill the monthly Subscription Fee to the Customer’s payment method, each month unless and until the customer cancels the User Subscription or it is terminated. The Customer’s payment method will be billed in accordance with Paypal’s terms and conditions.
- If the Customer subscribes to the Services for an annual subscription (“Annual Subscription”) it will continue year to year and Paypal will, on behalf of the Supplier bill the annual Subscription Fee to the Customer’s payment method, each year unless and until the customer cancels the User Subscription or it is terminated. The Customer’s payment method will be billed in accordance with Paypal’s terms and conditions.
- In the case of a Monthly Subscription, the Customer’s payment method will be billed each month on the first day of the each calendar month. In the case of an Annual Subscription, the Customer’s payment method will be billed each year on the first day of the calendar month after the Annual Subscription has been established. In the event that Paypal does not process payments on that day, the Customer’s payment method will be billed on the nearest possible calendar day.
- If the Subscription Fee is not successfully settled within the billing terms as set out at condition 8.5, the Supplier will notify the Customer immediately and provide the Customer with 14 days within which to settle the Subscription Fee. In the event that the Subscription Fee is not settled within this 14 day period the Supplier reserves the right to termination the User Subscription immediately.
- All Subscription Fees are non-refundable. To cancel the Subscription the Customer must use the cancellation features located within the setting interface on the Services. The Customer must provide the Supplier with 7 business days-notice that it is cancelling the Subscription.
- The Supplier shall be entitled to increase the Subscription Fees at any time upon 28 days’ prior notice to the Customer. Any change in the Subscription Fee will be applied to the next billing period immediately following the expiry of the notice period
- The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, these terms and conditions do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
- The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms and conditions.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms and conditions.
A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to Condition 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these terms and conditions.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms and conditions.
- A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 10.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Customer acknowledges that details of the Services constitute the Supplier’s Confidential Information.
- The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms and conditions. A party’s Confidential Information shall not be deemed to include information that:
- The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services.
LIMITATION OF LIABILITY
Except as expressly and specifically provided in these terms and conditions:
- the Customer assumes sole responsibility for results obtained from the use of the Services and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms and conditions; and
- the Services are provided to the Customer on an “as is” basis.
Nothing in these terms and conditions excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
Subject to Condition 12.2:
- the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms and conditions; and
- the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms and conditions shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
TERM AND TERMINATION
Without affecting any other right or remedy available to it, the Supplier may terminate the User Subscriptions with immediate effect by giving written notice to the Customer if the Customer breaches any terms of these terms and conditions.
The Supplier shall have no liability to the Customer under these terms and conditions if it is prevented from or delayed in performing its obligations under these terms and conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
RIGHTS AND REMEDIES
Except as expressly provided in these terms and conditions, the rights and remedies provided under this terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision (or part of a provision) of these terms and conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- These terms and conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this these terms and conditions.
- The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.
NO PARTNERSHIP OR AGENCY
- Nothing in these terms and conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- These terms and conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions (including non-contractual disputes or claims).