netBin HUB Terms of Use
1 DEFINITIONS
1.1 ‘FarSite’ means FarSite Communications Limited, the provider of the netBin Service;
1.2 ‘The Customer’ means the corporate, governmental body, non-governmental organisation or charitable organisation that engages FarSite in the provision of the netBin Service;
1.3 ‘A Contract’ means an agreement between FarSite and The Customer to use The Service pursuant to these terms of use;
1.4 ‘Commencement Date’ means the date that the netBin Service is handed over to The Customer;
1.5 ‘Contract Period’ means the period of time from the Commencement Date that the netBin Service is provided under an agreed contract;
1.6 ‘Intellectual Property Rights means copyrights, trademarks, designs, patents, or other proprietary, intellectual or industrial property rights whether registered or not;
1.7 ‘Payment’ means the monthly payments due to FarSite for the provision of the netBin Services;
1.8 ‘The Service’ means the provision of the netBin system including any components as listed in a provided schedule;
1.9 ‘Software’ means the firmware running on Devices and software provided with the netBin product running on other machines including in the Cloud and on Smartphones to be supported by FarSite as listed in a provided schedule;
1.10 ‘Support Services’ means the maintenance and support services to be provided by FarSite as detailed in Clause 4;
1.11 ‘Third Party’ means any party not directly subject to these terms;
1.12 ‘Users’ means users of the Service provided by FarSite
1.13 ‘Working Hours’ means 09.00 to 17.30 UK time (GMT or BST when in force) on Monday to Friday excluding UK Public Holidays
2 PROVISION OF SERVICE
2.1 FarSite will provide the Service to The Customer for the duration agreed for the netBin Products as listed in a provided schedule.
2.2 FarSite will maintain the software required for the provision of the Service for the duration of an agreed contract.
2.3 Technical Support will be provided by FarSite for the duration of the contract for the products as listed in a provided schedule.
2.4 FarSite hereby agrees to provide the Services detailed in Section 2 for the duration of the contract.
2.5 Data gathered by the netBin system shall be retained for online access for a minimum of 3 years from the time when recorded.
3 TERM AND TERMINATION
3.1 The contract period will be agreed between FarSite and The Customer.
3.2 Within the final three (3) months of the end of the Contract or another period as agreed, FarSite shall offer The Customer the option to extend the operation of the Service for an agreed period and a price for providing such a Service extension. If The Customer chooses not to extend the Service the Service will cease operation on the last day of the Contract Period.
3.3 Notwithstanding Clause 3.1, either party may terminate A Contract:
3.3.1 forthwith on written notice if the other party commits any material breach of its obligations under A Contract and, in the event of a breach capable of being remedied, fails to remedy such breach within 30 days of receipt of notice thereof;
3.3.2 forthwith on written notice if the other party becomes insolvent or bankrupt or makes an arrangement with its creditors or goes into liquidation or has a receiver appointed of its assets or any part thereof;
3.4 Any termination of A Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the enforceability of any provision hereof which is expressly or by implication intended to come into force on or after such termination.
3.5 On termination (in whole or in part) or expiry of A Contract for any reason, The Customer shall immediately cease to make use of the Service.
4 SUPPORTING THE SERVICE
4.1 Account Management: A single point of contact within FarSite will be nominated as the Account Manager for The Customer. It is the responsibility of the Account Manager to co-ordinate/delegate FarSite resources, monitor and progress all support requests from The Customer.
4.2 Technical Support: FarSite will supply a Technical Support for the Service that shall include the following:
4.2.1 Technical Support: FarSite’s Technical Support personnel will be available during normal Working Hours to provide telephone and email technical assistance. English is the preferred language for handling support queries.
4.2.2 Query Tracking: All support queries will be logged on a Query Tracking database. This provides an active record of software reports from The Customer and FarSite quality assurance staff. FarSite’s development, quality assurance, support and commercial staff have on-line access to the Query Tracking system. All entries are identified by means of a unique reference number.
4.2.3 Method of Problem Reporting: The preferred method of reporting a problem is by completion of a Problem Report Form on FarSite’s web site www.farsite.com. An alternative is by e-mail to support@farsite.com. All reported problems whether proven or not will be acknowledged by email within the same working day or in the case of a problem reports at the end of a working day the following working day.
Should a service affecting critical fault occur the problem should also be reported by telephone in the first instance to the UK office by calling +44 (0) 1256 330461.
4.2.4 Problem Prioritisation and Escalation Procedure: If, after analysis by FarSite, a query is confirmed as a fault, it will be categorised into one of three levels, which will be agreed between FarSite and The Customer. All problems will be logged within one Working Hour. The priority for undertaking corrective action will be agreed for each particular problem:
4.2.4.1 Priority A: These are considered the most urgent problems and will result in immediate investigative and corrective action. Example problems in this category could be (but are not limited to):
Regular non-functioning of the Software
Non-functioning of a significant part of the Software
Data corruption
Response Time: FarSite will endeavour to provide a work round or corrective action within a working day of the problem being logged and if necessary followed at high priority by a more permanent fix.
4.2.4.2 Priority B: Problems that give rise to significant deficiencies in the netBin system are classified as Priority B. A corrected special release of the software will be issued if there is no acceptable avoidance action, The activation of the special release will be a time agreed with The Customer.
Response Time: FarSite will endeavour to provide within one week an urgent update to the software if it is required.
4.2.4.3 Priority C: Problems which do not significantly affect the Software function but are deemed deficiencies will be classed as Priority C. Examples are:
Minor errors in documentation, manuals, etc.
Unclear error messages
Response Time: These problems will be fixed at the next release of the software.
4.3 Software Delivery Mechanism: Where a new Software release is required to correct a problem, or to provide enhancements to the existing Software.
4.3.1 New releases of the netBin HUB software will be updated by FarSite with the written agreement of The Customer and applied at a time agreed with The Customer.
4.3.2 New releases of netBin Smart phone apps will be made available for download from the netBin HUB Support section for installation by The Customer or at The Customer’s discretion, or by the User if The Customer is not the User.
4.3.3 All related documentation will be provided in electronic form downloadable from the support sections of the netBin HUB.
4.4 FarSite will provide the Support Services with care, skill and diligence and, where applicable, will employ procedures which follow ISO9000 Quality Standard guidelines.
5 THE CUSTOMER’S MAIN OBLIGATIONS
5.1 The customer shall nominate a Technical Contact as the first point of contact for all enquiries;
5.2 The customer shall make available appropriate personnel to liaise with FarSite to enable FarSite to supply and perform the Services in accordance with these terms of use;
5.3 The customer shall make all reasonable efforts to supply any diagnostic information requested by FarSite to assist in diagnosis and correction of any problems notified by The Customer. This includes emailing technical details confirming any technical details provided over the telephone.
6 INDEMNITY AND LIABILITY
6.1 The parties shall not be liable under any circumstances for loss of The Customer’s data, loss of the Customers data, loss of profits or contracts, or any other indirect or consequential loss.
6.2 The Customer shall indemnify and hold FarSite harmless from and against all losses, damages, costs, expenses, claims, proceedings and liabilities (including reasonable legal costs) (“Relevant Losses”) incurred by FarSite or any of either of their respective group companies arising out of or in connection with any claim by a third party in relation to the Services to the extent that such Relevant Losses have not been caused by any act, omission (negligent, reckless or otherwise) of FarSite or any of either of their respective group companies.
7 FORCE MAJEURE
7.1 Neither party shall be liable for any delay or failure to meet its obligations due to any cause outside its reasonable control.
7.2 Neither Party shall be deemed to be in breach of the terms by reason of any delay in performance or non-performance of any of its obligations to the extent that such delay or non-performance is caused by a Force Majeure Event.
7.3 The Party affected by any Force Majeure Event shall immediately give the other Party written notification of the nature and extent of the Force Majeure Event and the Parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
7.4 If FarSite is affected by the Force Majeure Event and the written notice in relation to the Force Majeure Event has not been withdrawn within one hundred and eighty (180) days, The Customer shall be at liberty to terminate A Contract with immediate effect by serving a written notice on FarSite. The service of such notice shall be without prejudice to any rights or obligations which have accrued prior to such termination.
8 WAIVER
8.1 No delay, neglect or forbearance on the part of either party in enforcing against the other any term or condition of A Contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under A Contract.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 All property and Intellectual Property Rights in the Services including without limitation all right, title and interest in and to all documents, data, specifications or other items relating to the Services, shall vest in and shall remain the exclusive property of FarSite, or its third party licensors, as applicable.
9.2 All Intellectual Property Rights owned by The Customer or provided by The Customer to FarSite (including any The Customer material provided by The Customer to FarSite and all Intellectual Property Rights embodied in that material) remains vested with, or in the control of, The Customer.
9.3 The Customer shall not claim ownership of any Intellectual Property Rights in relation to or created pursuant to the Service and shall not take any action which might infringe any Intellectual Property Rights or other form of protection for any invention, discovery, improvement, design, mark or logo in relation to the Products and Services and The Customer shall indemnify FarSite and keep it indemnified from and against all costs claims liabilities proceedings damages and expenses arising directly or indirectly as a result of any breach of the foregoing obligation by The Customer.
9.4 Any data, documents, Intellectual Property Rights or other information belonging to FarSite which is supplied or otherwise furnished to The Customer in connection with the performance of A Contract or otherwise shall remain the sole property of FarSite.
9.5 The customer acknowledges that it shall have no express or implied right to use, modify, adapt or otherwise exploit FarSite’s, or any other Third Parties’ Intellectual Property Rights, except for the right to use such Intellectual Property Rights for the exclusive purpose of using the Services under these terms.
9.6 The customer shall indemnify and hold FarSite harmless against any claims that the use of the Services in combination with services, software or equipment not supplied by FarSite infringes any other third party's Intellectual Property Rights.
9.7 The customer grants FarSite a non-exclusive licence to use those trademarks provided by The Customer to FarSite solely for the purposes of the customisation of the netBin Products and Services for The Customer, and to enable FarSite to fulfill its obligations under A Contract. FarSite will discontinue using The Customer Intellectual Property Rights at the conclusion of A Contract or if instructed to do so in writing by The Customer. FarSite agrees that it does not have any claim to, or right to use, any The Customer Intellectual Property Rights except as expressly set out in these terms.
9.8 The parties warrant that the Intellectual Property Rights provided by each to the other user these terms does not infringe the Intellectual Property Rights of any third party and further indemnify each other to the extent that the other party suffers loss or damage as a result of breach of this warranty.
9.9 The Customer shall notify FarSite immediately of any infringement or apparent or threatened infringement of or any actions, claims or demands in relation to any Intellectual Property Rights or other form of protection for any invention, discovery, improvement, design, mark or logo in relation to the SIM Cards and/or the Services and The Customer shall provide FarSite with all assistance which FarSite may reasonably require in connection therewith including but not limited to the prosecution of any actions which FarSite may deem necessary for the protection of any rights in relation to the SIM Cards and/or the Services and if so requested by FarSite in relation to any claim or action brought against The Customer, The Customer shall authorise the conduct of the same and all negotiations for the settlement of the same by FarSite if directed by FarSite in its sole and absolute discretion.
10 DATA PROTECTION
10.1 FarSite acknowledges that any Customer Personal Data belongs to The Customer and/or The Customer's Users and undertakes that it shall not be used or accessed by FarSite for any purpose other than as necessary to provide the Services provided always that The Customer consents to (and shall procure that its Users consent to).
10.2 Where applicable the Parties shall each comply with their respective obligations under the Data Protection Act 1998 and other applicable statutory or European Community provisions in respect of any Customer Personal Data.
10.3 The customer acknowledges that it is the controller of the content of any communication via the Services and any personal data of it or the Users stored in connection with the Services (“Customer Personal Data”).
10.4 FarSite shall, in respect of all Customer Personal Data that it processes on a Customer behalf, and in accordance with any applicable data protection or privacy laws, maintain appropriate and sufficient technical and organisational security measures to protect such Customer Personal Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
10.5 The customer acknowledges and agrees that FarSite may receive legally binding demands from a law enforcement authority for the disclosure of, or other assistance in respect of, Customer Personal Data, or be required by law, court order, warrant, subpoena, or other legal judicial process to disclose any Customer Personal Data to any person other than you and that FarSite will not be in breach of the terms for complying with such obligations to the extent they are legally bound. FarSite shall notify The Customer as soon as reasonably practicable of any such demand unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation.
10.6 The customer warrants to FarSite that it will use all reasonable endeavours to ensure that:
10.6.1 it complies with applicable data protection laws as a data controller in relation to Customer Personal Data; and
10.6.2 if required by applicable data protection law to notify The Customer, or as required procure The Customer’s properly informed consent required for, the processing by FarSite (or any appointed sub-processor) of any Customer personal data for the purpose of providing the Services.
10.6.3 In the event that The Customer’s consent is required by the applicable data protection law and in the case that such consent is not provided and/or withdrawn and The Customer cannot otherwise justify the disclosure to and processing by FarSite of Personal Data pursuant to the Services as being in compliance with applicable data protection laws in respect of one or more Users, The Customer shall promptly notify FarSite thereof and The Customer hereby acknowledges and agrees that, notwithstanding any other provision of these terms, FarSite shall not be obliged to continue to provide the Services in respect of such affected Users.
10.7 For the purpose of these clauses in 10, the terms ‘controller’, ‘personal data’ and ‘processor’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
10.8 Data collected by the Service remains the property of FarSite and is made available to The Customer for use under these terms of use. The Customer has the right to download data in the standard formats provided by the Service using Interfaces included as part of the service. FarSite will not distribute the data or otherwise supply to third parties. The Customer has a permanent fee-free licence to use any data downloaded from the Service.
10.9 The parties acknowledge and agree that:
10.9.1 The customer is only entitled to access and/or download data from the Service during the term of the contract but, during the term, and after the expiry, of this Contract, is entitled to store and use all data previously accessed and/or downloaded from the Service.
11 SUSPENSION
11.1 FarSite may suspend the Services, if any one or more of the following occur:
11.1.1 FarSite does not receive full payment of any Payments due from The Customer in accordance with the payment terms set out duly reviewed signed and accepted order. If the Services are suspended as a result of enactment of this clause and The Customer requests resumption, FarSite reserves the right to charge an administration fee in addition to all arrears in Payments, at FarSite’s discretion, as a pre-condition to such resumption.
11.1.2 FarSite believes or has reasonable grounds to suspect that equipment, Products or Service supplied by FarSite is being used fraudulently or illegally or if they have been lost or stolen (in which case the Payments remain payable until we are notified of such fraudulent or illegal use);
11.1.2.1 At its discretion in relation to the Service if it suspects that they have been tampered with, in any way which could render billing information inaccurate.
12 CONFIDENTIALITY
12.1 “Confidential Information” shall mean any information, other than information which is generally available in the public domain (otherwise than by any breach of these terms), obtained under or in connection with A Contract under these terms. The Customer and FarSite will not disclose any Confidential Information of the other to any third party without the prior written consent of the other party, except to any person having a legal right or duty to obtain the Confidential Information or to any professional adviser or other third party to whom it is essential that the Confidential Information is disclosed in or for the purpose of any legal proceedings or professional services involving either party, or performance of A Contract under these terms.