TERMS AND CONDITIONS of ERPLY LIMITED, a company incorporated and registered in ENGLAND AND WALES with number 07043823 whose registered office is at 9th Floor, 107 CHEAPSIDE, LONDON EC2V 6DN (“Erply” or “THE SUPPLIER“).
THIS PAGE EXPLAINS THE TERMS BY WHICH YOU MAY USE OUR ONLINE SERVICES, WEBSITE, AND SOFTWARE PROVIDED ON OR IN CONNECTION WITH THE SERVICE (COLLECTIVELY THE “SERVICE”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. BY CLICKING THE CHECK BOX ON THE SIGN-UP FORM YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THESE TERMS AND CONDITIONS, DO NOT USE OR ACCESS (OR CONTINUE TO ACCESS) THE SERVICE. THIS AGREEMENT APPLIES TO ALL VISITORS, USERS, AND OTHERS WHO ACCESS THE SERVICE. (“THE CUSTOMER”)
Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Maintenance Release: release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Modification: any Maintenance Release.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Software: the business software applications provided by the Supplier with features as described on the website www.erply.com , excluding any Modification which is acquired by the Customer during the term of this agreement.
Plan: the level of Content purchased by the Customer, as described on the website www.erply.com . Different prices are charged for different plans.
Content: all text, information, data, Software, executable code, images, audio or video material in whatever medium or form provided by the Supplier to the Customer
Delivery Materials: the materials comprising the Content associated with the Plan purchased in any electronic or physical form to be delivered by the Supplier to the Customer.
1.2 In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained on the website www.erply.com, the provision in the body of this agreement shall take precedence.
Licence and term
1.3 The Supplier, subject to the terms and conditions of this agreement, grants to the Customer a non-exclusive and non-transferable licence to use the Software included in the Plan purchased.
1.4 The initial term of this agreement will commence on the date the Customer accepts the terms of the agreement by clicking the check box and shall continue indefinitely, unless terminated in accordance with the terms of this agreement.
1.5 In relation to assignment and sub-licensing:
(a) the Customer has no right to sub-license or to assign the benefit or burden of this agreement in whole or in part, or to allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of the Supplier.
(b) the Supplier may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this agreement, provided it gives written notice to the Customer of any sub-licence, assignment, charge or other transfer.
Customer undertaking
1.6 The Customer must be a person. (Accounts registered or run through automated means are not permitted.) The Customer’s account gives the Customer access to the services and functionality that the Supplier may establish and maintain from time to time in the Supplier’s sole discretion. The Supplier may maintain different types of accounts for different types of Customers. If the Customer opens an account on behalf of a company, organisation, or other entity, then (a) “the Customer” includes the person opening the account and that entity and (b) the person opening the account represents and warrants that they are an authorised representative of the entity with the authority to bind the entity to this Agreement, and that they agree to this Agreement on the entity’s behalf.
1.7 The Customer may never use another user’s account without permission. When creating an account, the Customer must provide accurate and complete information. This must include the Customer’s full legal name, their business name, a valid email address and phone number for the business, the country where the business is located and any other information requested by the Supplier in order to complete the signup process and licence.
1.8 The Customer is solely responsible for the activity that occurs on their account, and must keep their account password secure. The Supplier encourages the Customer to use “strong” passwords (passwords that are a combination of upper and lower case letters, numbers and symbols) with your account. The Customer must notify the Supplier immediately of any breach of security or unauthorised use of their account. The Supplier cannot and will not be liable for any loss or damage caused by any unauthorised use of the Customer’s account.
1.9 The Customer must not modify, adapt or hack the service or modify another website so as to falsely imply that it is associated with any product or service provided by the Supplier.
1.10 The Customer may not use their account for any illegal or unauthorised purpose. The Customer must not, in use of this service, violate any laws in their jurisdiction (including, but not limited to copyright laws). Uploading any restricted content may result in immediate account termination. The Customer must not upload, post, host or transmit the following items to or from the service including but not limited to: a) Unsolicited email, SMSs’, or “Spam” messages, b) Worms, viruses or code of a destructive nature, c) Questionable or Illegal material (including copyrighted material).
DELIVERY AND Fees
1.11 Upon completion of the sign up process, the Supplier shall deliver the Delivery Materials to the Customer immediately.
1.12 Where the Customer opts to use a non-free Plan, the Customer agrees to the pricing associated with the Plan purchased, as described on www.erply.com. The Supplier may update these prices from time to time and reserves the right to increase prices. The Supplier may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. , Payment is due in advance at the start of each billing cycle. The Customer’s billing cycle starts on the day that the Customer creates an Account, so if the customer signs up on the 14th, their next bill is due on the 14th of the next month. Payment is to be made by credit or debit card. Late payments may result in account suspension and possible cancellation.
1.13 Notice will be given at least 30 days in advance of any price changes. Any changes to the pricing or payment terms shall become effective in the billing cycle following notice of such change to the Customer as provided for in this Agreement.
1.14 The Supplier has the right to accept or decline trial and paid accounts requests at will.
Supplier’s warranties and limits of liability
1.15 The Supplier does not warrant that the use of the Service and the delivery of the Services will be uninterrupted, without delay or error-free. The Customer uses the service at their sole risk and the service is provided on a “as is” or “as available” basis. The Customer acknowledges that the Software may not be free of bugs and erroers, and agree that the existence of minor errors shall not constitute a breach of this licence.
1.16 The Customer acknowledges that the Software has not been developed to meet their individual requirements, and accepts responsibility for the selection of the Software to achieve its intended results.
1.17 The Supplier reserves the right at any time to modify or discontinue the service (or any part thereof) with or without notice. In this case sufficient notice will be given and data made available.
1.18 The Supplier is committed to providing excellent customer service, and aims to answer most support issues within a few hours however the Supplier makes no guarantee on the period of time before support is provided.
1.19 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
1.20 Except as expressly stated in clause 5.7:
(a) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of income;
(iii) loss of profits or contracts;
(iv) business interruptions;
(v) loss of the use of money or anticipated savings;
(vi) loss of information;
(vii) loss of business opportunity;
(viii) loss of goodwill or reputation;
(ix) loss of, damage to or corruption of data;
(x) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence) breach of contract or otherwise;
provided that this clause a shall not prevent claims for direct financial loss that are not excluded by any of categories (i) to (x) inclusive of this clause a;
(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed a sum equal to the amount paid by the Customer to the Supplier in the previous 12 months; and
1.21 The exclusions in clause 4.6 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or for any other liability which may not be excluded by law.
Intellectual property rights
1.22 The Customer acknowledges that all Intellectual Property Rights in the Software and any Modification belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement.
1.23 The Customer acknowledges that they have no right to have access to the Software in source code form or in unlocked coding or with comments. Any and all code, including the look and feel is owned by the Supplier. The Customer may not duplicate, copy or reuse any portion of the HTML, CSS or visual design elements of the code without express written permission by the Supplier.
1.24 The Supplier houses all the software on their owned/rented services. Unauthorised distribution without prior consent is strictly prohibited and includes placing the Supplier’s software on any physical or virtual servers or mediums without special agreement or written consent from the Supplier.
Termination
1.25 The Customer may cancel this agreement at any time, however there are no refunds for cancellation or for upgrading or downgrading the Plan purchased by the Customer. In the event that the Supplier suspends or terminates the Customer’s account or this Agreement for the Customer’s breach of this agreement, the Customer understands and agrees that they shall receive no refund or exchange for any Erply property, any unused time on a subscription, any license or subscription fees for any portion of the Service or any Plan, any content or data associated with your account, or for anything else.
1.26 Upon cancellation of an account, payment by the Customer must be made up to the end of the billing period that they are in, no refunds will be given.
1.27 Either party may terminate this agreement at any time on written notice to the other if the other:
(a) is in material or persistent breach of any of the terms of this agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
1.28 Notwithstanding clause 7.4, the Supplier may at any time terminate accounts (Trial and Paid) for any reason. Discretion will be used, and action may be taken if needed to ensure server integrity for other customers.
1.29 Verbal, physical, written or other abuse (including threats of abuse or retribution) directed towards any of the Supplier’s customers or employees will result in immediate account termination.
1.30 Termination by either party in accordance with the rights contained in clause 7 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
1.31 On termination for any reason:
(a) all rights granted to the Customer under this agreement shall cease;
(b) the Customer shall cease all activities authorised by this agreement;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this agreement; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
Force majeure
No party shall be liable to the other for any delay or non-performance of its obligations under this agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause 8 shall excuse the Customer from any payment obligations under this agreement.
Data Protection
1.32 The Customer acknowledges that the Supplier processes personal data, as defined under the relevant data protection laws, of the users of the Services (Users) for the purpose of complying with its obligations under this agreement.
1.33 The Customer hereby warrants that it has the consent of the Users to disclose their personal data to the Supplier for the purpose of using the Services and that for the same purpose the Users have agreed that their personal data may be transferred to territories outside the EEA.
1.34 The Supplier will take all steps reasonably necessary to ensure that personal data is treated securely.
1.35 The Supplier shall not disclose personal data to third parties, but may process such data in duly anonymised and aggregate form for purposes such as internal statistics, commercial sale and promotion, including but not limited to blog posts.
1.36 Any data entered by the Customer into their live account database or uploaded to the service remain theirs and can be supplied if needed as a digital file upon request.
1.37 The Supplier does not pre-screen any content, but reserves the right (but not the obligation) to refuse or remove any content made available via the service.
1.38 The Supplier has no obligation to monitor and access customer accounts, but may do so if for any reason it believes that there is just cause. (Reasons could include illegal activity, uploading of virus infected files, questionable material or for general customer support).
1.39 Cancelled accounts will have their data archived in a secure backup facility for 2 months. This data can be deleted or supplied within this timeframe upon the request of the Customer.
Confidentiality and publicity
1.40 Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.
1.41 The provisions of clause 9 shall remain in full force and effect for one year after the termination of this agreement for any reason.
Waiver
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
Severability
If any provision of this agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Amendments
1.42 The Supplier may amend this agreement from time to time and shall notify such amendments to the Customer when the Customer logs in to the Services. The Customer will be able to accept the amendments by clicking on the check box when logged in to the Services. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this agreement.
1.43 The Supplier reserves the right at any time to modify or discontinue the service (or any part thereof) with or without notice. In this case, sufficient notice would be given and data made available.
1.44 The Customer must not modify, adapt or hack the service or modify another website so as to falsely imply that it is associated with the service, Erply or any Erply product.
Third party rights
No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement.
Notices
Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party by first-class mail, e-mail or fax.
Entire agreement
This agreement and the website www.erply.com , in so far as it describes the Service and prices, contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
Governing law and jurisdiction
This agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.
