These are the General Terms and Conditions of Service (the "T&C's") on which KeepMe Ltd, a company registered in England and Wales under company no. 11714351, with registered address at 71-75 Shelton Street, Covent Garden, London WC2H 9JQ, United Kingdom ("KeepMe"; "we"; "us"; "our"), provide the Service (as herein defined) to customers (the "Customer").
Upon Customer accepting a commercial offer from KeepMe, KeepMe shall send an order confirmation (the "Order Confirmation") for the provision of the Service to the Customer. When Customer access the Service first time thereafter Customer is deemed to be accepting the Service Agreement (as herein defined).
(1) KeepMe hosts and provides access to the Applications described herein in its capacity as an Application Service Provider.
(2) The Customer wishes to access the Applications described herein as hosted by KeepMe under a non-exclusive Licence, from a remote location, in return for the payment of a periodic fee and subject to the conditions of the Service Agreement (as herein defined).
It IS AGREED as follows:-
1. Definitions and Interpretation
1.1 In the T&C's, unless the context otherwise requires, the following expressions have the following meanings:
"Applications" means the KeepMe software application and if applicable any other software applications which shall be available to the Customer, as set out in the Order Confirmation;
"ASP Infrastructure" means KeepMe's computer hardware, firmware, software and communications infrastructure which is used to facilitate access to the Applications by the Customer;
"Business Days" means week days other than Saturday or Sunday that is not bank or public holidays in London, England;
"Business Hours" means the time between 9am and 5pm on Business Days, during which KeepMe is open for business;
"Commencement Date" means the commencement date stipulated in the Order Confirmation;
"Confidential Information" means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of the Service Agreement;
"Customer Computer Systems" means the Customer's computer hardware, firmware, software and communications infrastructure through and on which the Applications are to be used;
"Customer Data" means any data belonging to the Customer or to third parties and used by the Customer under licence which is created using the Applications or otherwise stored in the ASP Infrastructure;
"Fees" means the sums payable by the Customer in return for access to the Applications, the ASP Infrastructure and support services provided by KeepMe in accordance with Clauses 4 and 12 of the T&C's;
"Intellectual Property Rights" means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
"Non-Customer User" means a non-employee of the Customer who may not use the Service in the absence of written consent from KeepMe as per sub-Clause 10.4;
"Service" means, collectively, the Applications, ASP Infrastructure and support services provided by KeepMe to the Customer; and
"Users" means an employee of the Customer who shall, from time to time, access the Applications through the ASP Infrastructure.
1.2 Unless the context otherwise requires, each reference in the T&C's to:
1.2.1 "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.4 a Clause, sub-Clause or paragraph is a reference to a Clause of the T&C's.
1.3 The headings used in the Service Agreement are for convenience only and shall have no effect upon the interpretation of the Service Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2. The Service
2.1 KeepMe shall, with effect from the Commencement Date, provide the Service to the Customer on a non-exclusive basis for the term of the Service Agreement (the "Term") and in accordance with the Service Agreement.
2.2 KeepMe shall provide access to the Applications through the ASP Infrastructure and shall use its best and reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in Clauses 4, 12, 18 and 19 of the T&C's.
The Service will be provided by KeepMe during the Term, which shall commence on the Commencement Date and will continue until terminated in accordance with Clause 19 of the Service Agreement and shall be automatically renewed for additional periods of the same as the Initial Service Term, unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
4. Fees and Payment
4.1 The Fees due for the Service are specified in the Order Confirmation.
4.2 The Customer shall pay to KeepMe all Fees due within 7 days of the invoicing date of an invoice from KeepMe for the same.
4.3 In the event that the Customer does not pay all Fees due within the time period specified in sub-Clause 4.2 above, KeepMe shall suspend the Customer's use of the Service by whatever means it deems appropriate.
4.4 In the event that the Customer fails to pay under sub-Clause 4.3 then, without prejudice to sub-Clause 4.3, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at 3% per annum over the Bank of England base rate obtaining at the time.
4.5 KeepMe reserves the right to vary the Fees from time to time as it may deem appropriate. The Customer shall receive 30 days' written notice of any such variation. Such variations shall take effect upon expiry of such notice.
4.6 KeepMe is not responsible for the payment processing provided by any third parties.
4.7 The Customer shall be liable and must pay all taxes applicable to the Customer's use of the Service under any applicable law.
5. The Applications
5.1 The Applications to which the Customer shall have access are detailed in the Order Confirmation.
5.2 The Customer is free during the Term to add to the selection of Applications, subject to availability of required applications from KeepMe. The Fees shall be amended accordingly in the event of such modification.
In the event that any Users require training in order to use the Applications, it shall be the responsibility of the Customer to ensure that all Users are appropriately trained and to bear any costs associated with such training. KeepMe shall not provide any training of any kind.
7.1 KeepMe shall ensure that at all times the ASP Infrastructure includes sufficient security measures to protect third party access to the Customer Data.
7.2 KeepMe shall make periodic backups of all data on the ASP server.
8.1 KeepMe shall be responsible for all maintenance and upgrades to the ASP Infrastructure which may from time to time be required.
8.2 Subject to the provisions of Clause 12, the Customer shall be responsible for all maintenance and upgrades to the Customer Computer Systems which may from time to time be required.
8.3 Unless maintenance is corrective in nature, maintenance shall only take place at scheduled times. The scheduled maintenance times under the Service Agreement shall be listed on KeepMe's website on www.keepme.ai. Corrective maintenance shall be undertaken as and when required.
8.4 Unless maintenance is corrective in nature, KeepMe shall provide at least two Business Days' notice of any maintenance which may affect the Customer's use of the Service. KeepMe shall use it's best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.
9. Software Licences
9.1 The Customer shall use all Applications under a non-exclusive, non-transferable licence, as set out in the Service Agreement. This licence permits Users to access the Applications and such access is only permitted through HTML web browser on the correct login screen on the Keepme.ai. domain.
9.2 All Applications provided by KeepMe are the property of KeepMe unless otherwise stated and shall be covered by the terms of the licence included in the Service Agreement.
9.3 Where Applications are the property of a third party, KeepMe warrants that they have all requisite authority to sub-licence such applications to the customer for the purposes of the Service Agreement and for use under its terms.
9.4 KeepMe shall have the right to stop temporarily or permanently providing the Service or any features within the Service to the Customer at KeepMe's sole discretion without prior notice to the Customer.
10.1 Under the Service Agreement, as indicated in sub-Clause 9.1 above, a maximum number of Users as specified in the Order Confirmation may access the Applications through the ASP Infrastructure at any given time.
10.2 Users' access to the Applications and the ASP Infrastructure shall be controlled by means username and password.
10.3 Should the Customer require an increased maximum number of Users, such an increase shall be permitted at the exclusive discretion of KeepMe. KeepMe reserves the right to increase Fees proportionately in the event of an increase in the maximum number of Users.
10.4 Use by Non-Customer Users is not permitted under the Service Agreement in the absence of express written consent from KeepMe. KeepMe may require such details as the reason that access to the Applications and ASP Infrastructure is required by the Non-Customer User, details of the Non-Customer User and other information which may be specified from time to time.
10.5 The Customer shall use the Service exclusively for the purposes of carrying on its business as specified in the Order Confirmation.
10.6 KeepMe shall monitor the Customer's use of the Applications and ASP Infrastructure from time to time to ensure compliance with the Service Agreement and with any reasonable usage policy as adopted by KeepMe from time to time. In the event that the Customer's use of the Service exceeds levels deemed reasonable by the reasonable usage policy, KeepMe reserves the right to increase Fees, as it deems appropriate, supplying thirty (30) days' written notice to the Customer of such an increase.
10.7 The Customer may only access the Applications detailed in the Order Confirmation. No access to other parts of the ASP Infrastructure shall be permitted in the absence of express written permission from KeepMe.
10.8 The Customer is exclusively responsible for it's use of the Service, including the conduct of individual Users (Users to include any authorised Non-Customer Users) and must ensure that all use is in accordance with the Service Agreement. The Customer shall notify KeepMe immediately of any breaches of the Service Agreement by any Users or Non-Customer Users.
10.9 Access to the Applications is only permitted through HTML website on the correct login screen within the Keepme.ai domain, via the ASP Infrastructure. Under no circumstances may the Customer download, store, reproduce or redistribute the Applications or any other part of the ASP Infrastructure, without first obtaining the express written permission of KeepMe.
10.10 The Customer's use of the Applications and ASP Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the T&C's and conditions of the Service Agreement. It shall be the Customer's exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.
10.11 The Customer's use of the Service shall be subject to the following limitations, any of which may be waived by KeepMe giving their express written consent:
10.11.1 The Customer may not use or redistribute the Applications or the ASP Infrastructure for the purpose of conducting the business of an Application Service Provider;
10.11.2 The Customer may not redistribute or reproduce the Applications or the ASP Infrastructure through any network; and
10.11.3 The Customer may not allow any unauthorised third party to access the Applications or the ASP Infrastructure.
10.12 Neither the Customer, nor anyone on their behalf may, in the absence of written consent from KeepMe:
10.12.1 Make changes of any kind to the Applications or the ASP Infrastructure; or
10.12.2 Attempt to correct any fault or perceived fault in the Applications or the ASP Infrastructure.
11. Customer Computer Systems
11.1 Where appropriate, KeepMe may offer recommendations for upgrades and other alterations of the Customer Computer Systems to ensure compatibility with the Applications and ASP Infrastructure.
11.2 Where, in the opinion of KeepMe, Customer Computer Systems are likely to cause disruption to the ASP Infrastructure, KeepMe may request that the Customer disconnects from the ASP Infrastructure until advised that reconnection is possible. KeepMe may require changes such as upgrades or equipment replacement to be made to the Customer Computer Systems prior to reconnection.
11.3 In the event of any unauthorised access by the Customer of Applications or the ASP Infrastructure, in breach of the Service Agreement or otherwise KeepMe shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate the Service Agreement in accordance with Clause 19 below.
11.4 The Customer shall ensure that no Customer Computer Systems are connected to a third party ASP system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third parties.
12.1 KeepMe shall provide telephone and email support services during Business Hours. The support provided by KeepMe shall relate only to the Applications and ASP Infrastructure. Any problems which are related to Customer Computer Systems must be resolved by the Customer's own support staff.
12.2 In addition to the standard support provided for in sub-Clause 12.1, KeepMe may also provide telephone and email support services outside of the Business Hours if specified in the Order Confirmation. Such additional support services shall be available at additional cost to the Customer at the rates set out in the Order Confirmation.
12.3 When seeking support the Customer shall use its best and reasonable endeavours to provide the fullest information possible to aid KeepMe in diagnosing any faults in either the Applications or the ASP Infrastructure.
12.4 KeepMe shall aim to resolve all support problems as soon as possible.
12.5 Whenever possible, KeepMe shall provide a workaround solution to the Customer to enable the Customer's continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
13. Intellectual Property
13.1 Subject to sub-Clause 13.2 all Intellectual Property Rights subsisting in the Applications and the ASP Infrastructure, including any supporting software and documentation are the property of KeepMe and/or legal entities associated with KeepMe. For the purposes of this Clause 13, 'Applications' and 'ASP Infrastructure' along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.
13.2 Where expressly indicated, the Intellectual Property Rights subsisting in certain Applications including any supporting software and documentation may be the property of named third parties.
13.3 The Customer shall not either during the term or after the expiry of the Service Agreement permit or cause to occur any infringement of any Intellectual Property Rights covered by this Clause 13. Use by the Customer and its employees of the Service shall be only within the terms of the Service Agreement.
13.4 The Customer shall not, in the absence of KeepMe's written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Applications, any part of the ASP Infrastructure, or any other material associated with the Service Agreement where such activity goes beyond the scope of actions permitted by the Service Agreement.
13.5 Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 13 it shall be under a duty to inform KeepMe of such breach immediately.
14. Customer Data
14.1 Subject to sub-Clause 14.2 all Intellectual Property Rights subsisting in Customer Data are and shall remain the property of the Customer.
14.2 Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third parties.
15.1 During the Term of the Service Agreement and after the termination or expiration of the Service Agreement for any reason, KeepMe shall use its best and reasonable endeavours to ensure that all Customer Data is kept secure and confidential. KeepMe shall not, in the absence of express written consent from the Customer, disclose Customer Data to any third party unless such disclosure is required by law in which case the Customer shall be notified in writing of the disclosure.
15.2 During the Term of the Service Agreement and after termination or expiration of the Service Agreement for any reason for a period of five (5) years from the termination of the Service Agreement for whatever reason, the following obligations shall apply to the Party receiving Confidential Information (the "Receiving Party") from the other Party (the "Disclosing Party").
15.3 Subject to sub-Clause 15.4, the Receiving Party:
15.3.1 may not use any Confidential Information for any purpose other than the performance of their obligations under the Service Agreement;
15.3.2 may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
15.3.3 shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
15.4 The obligations of confidence referred to in this Clause 15 (excluding sub-Clause 15.1) shall not apply to any Confidential Information that:
15.4.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
15.4.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
15.4.3 is required to be disclosed by any applicable law or regulation; or
15.4.4 is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
15.5 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which they may be entitled.
15.6 Both parties acknowledge the commercial terms provided to the Customer are preferential and commercially sensitive. The Customers agrees to deem these terms and all communications relating to them as Confidential Information.
15.7 The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of the Service Agreement irrespective of the reason for such termination.
16.1 KeepMe shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer even if such loss is reasonably foreseeable or if KeepMe has been advised of the possibility of the Customer incurring it.
16.2 KeepMe's entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with the Service Agreement shall be limited to one thousand £ (GBP1,000).
16.3 Notwithstanding any other provision in the Service Agreement, KeepMe's liability to the Customer for death or injury resulting from KeepMe's own negligence or that of their employees, agents or sub-contractors shall not be limited.
17.1 The Customer will fully indemnify KeepMe against all costs, expenses, liabilities, losses, damages and judgments that KeepMe may incur or be subject to as a result of any of the following:
17.1.1 The Customer's misuse of the Applications, ASP Infrastructure or any other element of the Service;
17.1.2 The Customer's breach of the Service Agreement; or
17.1.3 The Customer's negligence or other act of default.
17.2 KeepMe shall be under no obligation to indemnify the Customer against any costs, expenses, liabilities, losses, damages and judgments that the Customer may incur or be subject to arising out of any matter covered by the Service Agreement.
18. Force Majeure
18.1 Neither KeepMe nor the Customer shall be liable for breaching the Service Agreement where that breach results from Force Majeure.
18.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
19.1 Either party can terminate this Service Agreement with sixty (60) days' notice to the end of a subscription period.
19.2 Either party may suspend performance or terminate this Service Agreement if the other party:
19.2.1 Is in material breach of this Service Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or
19.2.2 Ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
19.3 If Keepme makes a change to the Services resulting in an overall material decrease in functionality of the Services, the Customer may terminate this Service Agreement immediately by providing thirty (30) days notice to Keepme.
19.4 Keepme may terminate this Service Agreement if any payment owed by the Customer to Keepme is more than thirty (30) days overdue.
19.5 If this Service Agreement is terminated by Keepme due to breach by the Customer, we will bill the Customer, and they will pay, for any accrued but un-billed fees, and the Customer will remain liable to pay any invoices outstanding on the termination date. In no event will expiration or termination of this Service Agreement relieve the Customer of any fees payable for the period prior to the date of termination.
19.6 Upon termination of the Service Agreement in accordance with this Clause 19, KeepMe shall have the right to immediately suspend the Customer's use of the Service by whatever means it deems appropriate and the Customer shall uninstall or otherwise remove any means of access to the Applications and ASP Infrastructure including, but not limited to, client software supplied by KeepMe for that sole purpose.
20.1 All notices under the Service Agreement shall be in writing.
20.2 Notices shall be deemed to have been duly given:
20.2.1 when delivered, if delivered by courier or other messenger (including registered mail); or
20.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
20.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
20.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
20.3 In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
21. Relationship of Parties
Nothing in the Service Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between KeepMe and the Customer.
22.1 The Customer shall not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of the Service Agreement without the prior written consent of KeepMe.
22.2 KeepMe shall have the right to assign, transfer and/or sub-contract the Service Agreement upon notice to the Customer.
The Parties agree that, in the event that one or more of the provisions of the Service Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of the Service Agreement. The remainder of the Service Agreement shall be valid and enforceable.
24. Entire Agreement
24.1 The Service Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of the Service Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in the Service Agreement, save for any representation made fraudulently.
24.2 Unless otherwise expressly provided elsewhere in the Service Agreement, the Service Agreement may be varied only by a document signed by both of the Parties.
25. No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in the Service Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of the Service Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties under the Service Agreement is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
Unless the Customer specifically withdraws consent to this clause by sending an email to firstname.lastname@example.org, the Customer hereby acknowledges and consents to Keepme making use of any of the Customer's marks, logos and trade names to identify the Customer as Keepme’s user/customer on Keepme's Site and/or Services, in addition to any other marketing material.
28. Dispute Resolution (Arbitration)
28.1 It is agreed that where any dispute or difference relating to the Service Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
28.2 The arbitrator shall be agreed by the Parties or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales.
28.3 The arbitration shall take place in London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.
28.4 The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
28.5 The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within thirty (30) days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable. The Parties shall co-operate fully with the arbitrator to achieve this objective.
28.6 The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both Parties.
28.7 The Parties agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.
29. Law and Jurisdiction
This Service Agreement and the interpretation of the terms herein shall be governed by the laws of England and Wales and both parties agree to the exclusive jurisdiction of the courts of England and Wales.