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WebBooks Terms & Conditions WebBooks Software Web Services Terms & Conditions. IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. IT CONTAINS RESTRICTIONS ON YOUR USE OF THE WEB SERVICES, DISCLAIMERS, LIMITATIONS OF LIABILITY, GOVERNING LAW AND OTHER IMPORTANT TERMS. IF YOU DO NOT READ THIS AGREEMENT BUT YOU STILL LOG ONTO OR USE THE WEB SERVICES, THIS AGREEMENT WILL STILL BIND YOU. This WebBooks Software Web Services License Agreement is a legal agreement between you or the entity that you are authorized to represent ('You' or 'Your') and WebBooks Software for the Web Services (as defined herein). You acknowledge and accept the terms and conditions of this Agreement by clicking the 'Accept' button prior to purchase and proceeding with the registration of the Web Services. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD IMMEDIATELY CANCEL THE PURCHASE PROCESS. ANY FEES PAID UPON COMPLETION OF THE PURCHASE AND REGISTRATION PROCESS ARE NOT REFUNDABLE UNLESS OTHERWISE INDICATED IN THIS AGREEMENT. This Agreement applies to the following Web Services: * WebBooks Online Accounting System WebBooks Software reserves the right to change the terms and conditions of this Agreement at any time, effective upon making the modified provisions available on the Web site You use to access the Web Services (the 'Site'). You are responsible for regularly reviewing these terms and conditions. Continued use of the Web Services after any such changes shall constitute Your consent to such changes. WebBooks Software does not and will not assume any obligation to notify You of any changes to this Agreement. 1. GRANT OF LICENSE.
WebBooks Software provides the
services and online documentation You are granted a non-transferable, non-exclusive license to use the Web Services under the terms stated in this Agreement for use in Your business or profession. The grant of rights hereunder to the Web Services is not a sale of the Web Services or any portion thereof and does not convey any rights or ownership in the Web Services. WebBooks Software reserves all rights not expressly granted by this Agreement and You hereby acknowledge that all title and ownership of the Web Services and all associated intellectual property rights are and shall remain with WebBooks Software.
2. LICENSE RESTRICTIONS.
a. You may not sell, distribute, lease, rent, sublicense, modify, alter or transfer the Web Services or this license. You may not sell, distribute, lease, rent, sublicense or otherwise offer access to or use of, the Web Services via the Internet or via any other network that is accessible by third parties. You may not reverse-engineer, reverse-translate, disassemble or decompile the Web Services or any portion thereof, or otherwise attempt to discover the source code or structural framework of the Web Services. b. WebBooks Software reserves all rights not expressly granted to You in this Agreement. 3. FEES; PAYMENT TERMS. Your use of the Web Services will result in fees as set forth on the WebBooks Software Web site, applicable taxes and any other charges incurred in order to access the Web Services (the 'Fees'). The Fees may be changed from time to time by providing you with thirty (30) days notice of such changes via a posting on the Site or via an e-mail to Your account. a. You must provide WebBooks Software with a valid credit card number for billing purposes and agree to allow WebBooks Software to automatically charge the Fees directly to Your credit card prior to each billing cycle as You indicated in the purchase and registration process. Fees are charged in advance of Your being allowed access to the Web Services, are not refundable except as otherwise indicated in this Agreement and are charged to Your credit card each billing cycle until You terminate the Agreement pursuant to the terms herein. In the event WebBooks Software cannot charge Your account, WebBooks Software reserves the right to terminate Your access to the Web Services. Cancellations must occur within the first two (2) weeks after the Fees are billed in order to receive a pro-rated refund. After the first two (2) weeks of service, refunds will not be granted. b. In addition to the charges set forth above, You are responsible for all expenses and charges associated with accessing the Internet and connecting to the Site, any service fees associated with such access and connection, and for providing all equipment necessary for You to make such connection, including, without limitation, computer and modem. c. WebBooks Software may require You to register for non-chargeable services, and requires You to register before choosing any part of the Web Services for which WebBooks Software or third party providers charge Fees. In addition, for purposes of identification and billing, You agree to provide WebBooks Software with accurate, current and complete information required by Site registration for the Web Services, including, without limitation, Your legal name, address, telephone number(s), e-mail address, and applicable payment data (e.g. credit card number and expiration date) and to maintain and update this information to keep it accurate, current and complete. Failure to provide and maintain accurate, current and complete information may, at WebBooks Software's option, result in immediate suspension or termination of Your right to use the Web Services.
4. PASSWORD.
As part of the registration process for the Web Services, You will be required to select a password. You are solely responsible for maintaining the confidentiality of any password You use to access the Web Services, and agree that WebBooks Software will have no obligations with regard to the use by third parties of such password. You are entirely responsible for any and all activities that occur under Your account and password. You agree to notify WebBooks Software immediately if You have any reason to believe that the security of Your account has been compromised. 5. SECURITY. WebBooks Software agrees to exercise reasonable care to prevent any unauthorized access to Your data. Each party hereto agrees to notify the other promptly of any unauthorized access to or use of the Web Services or Your data. Each party agrees to use all reasonable efforts to take remedial measures to rectify any such unauthorized access. WebBooks Software shall not be liable for any damages incurred by You in connection with any unauthorized access to or disclosure of Your data resulting from actions of You, any third party or from the failure of electronic or other security measures. 6. CONFIDENTIALITY. The Web Services constitute the confidential and trade secret information of WebBooks Software. You agree that You will use the Web Services solely as permitted under this Agreement and the exercise of Your rights hereunder and shall not disclose or permit any unauthorized access to the Web Services. You shall take reasonable precautions, at least as great as the precautions You take to protect Your own confidential information, to maintain the Web Services in strict confidence. The foregoing obligations shall survive (a) as to the Web Services materials that constitute a trade secret, for so long as such information remains a trade secret under applicable law; and (b) for all other Web Services materials, for a period of five (5) years from the date of termination or expiration of this Agreement. You shall indemnify and hold harmless WebBooks Software and its affiliates, directors, officers, employees, agents, successors and assigns, against any and all claims, expenses, judgments, liabilities, damages or losses, including reasonable legal fees and expenses, and, at WebBooks Software's option, shall defend all actions and proceedings, at Your sole expense, arising from Your breach of this Section. WebBooks Software may be irreparably damaged if the obligations under this Section are not specifically enforced and WebBooks Software may not have an adequate remedy at law in the event of an actual or threatened violation by You of Your obligations under this Section. You agree, therefore, that WebBooks Software shall be entitled, in addition to other available remedies, to seek an injunction restraining any actual, threatened or further breaches of Your obligations under this Section or any other appropriate equitable order or decree.
7. MODIFICATIONS TO WEB SERVICES.
WebBooks Software reserves the right to modify the Web Services or any portion thereof at any time, including the availability of any functional area of the Web Services. WebBooks Software may also impose limits on certain features and services or restrict Your access to parts of the Web Services without notice or liability. 8. SERVER AVAILABILITY AND SCHEDULED DOWN TIMES. Should WebBooks Software need to perform maintenance on the hardware needed to access the Web Services, WebBooks Software will do so during the hours of 1:00 -1:45 am CST Monday through Friday; Thursday 3:00 - 5:00 am CST; and Sunday 1:00am - 6:00 am CST. In the event a mission critical maintenance situation arises, WebBooks Software may be required to perform emergency maintenance at any time. During these scheduled and emergency maintenance periods, You may be unable to transmit and receive data. You agree to cooperate with WebBooks Software during the scheduled and emergency maintenance periods. In addition, WebBooks Software partners with industry leading Internet data centers to provide the maximum bandwidth and performance levels for the Web Services. However, the true performance and speed of Internet access depends on many factors that are outside of WebBooks Software's control. WebBooks Software does not give any warranties or undertakings as to the performance or quality of the Web Services in this regard. 9. LIMITED WARRANTY. The following limited warranty applies to You only if You are the original licensor of the Web Services. WebBooks Software warrants that the Web Services substantially conform to the specifications contained in WebBooks Software's current user and technical documentation (the 'Documentation') for a period of sixty (60) days from Your payment of the applicable license fee, as evidenced by Your receipt, provided that the Web Services are used on the computer operating system for which they were designed. WebBooks Software further warrants that the Web Services shall be provided with due care. WebBooks Software's sole obligation and liability for the breach of the foregoing warranties shall be to correct the Web Services so that the Web Services substantially conform to the specifications.
10. DISCLAIMER OF WARRANTIES.
The foregoing warranties and remedies are exclusive. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, AND EXCEPT AS MAY BE EXPRESSLY MANDATED BY APPLICABLE LAW, WebBooks SOFTWARE, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE FURNISHED IN CONNECTION WITH THIS AGREEMENT. WebBooks SOFTWARE DOES NOT WARRANT THAT THIS SOFTWARE IS FREE OF BUGS, VIRUSES, IMPERFECTIONS, ERRORS OR OMISSIONS. WebBooks SOFTWARE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (a) OF MERCHANTABILITY; (b) FITNESS FOR A PARTICULAR PURPOSE; (c) OF NON-INFRINGEMENT; (d) ACCURACY OR COMPLETENESS; OR (e) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Some jurisdictions do not allow limitations on implied warranties, so the limitations and exclusions in this section may not apply to You. This Agreement gives You specific legal rights. You may also have other rights which vary from jurisdiction to jurisdiction. WebBooks SOFTWARE SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE OPERATION OF THE SERVICE ON OTHER THAN THE COMPUTER AND OPERATING SYSTEM IDENTIFIED IN THE DOCUMENTATION, ACTS OF ABUSE OR MISUSE, MODIFICATION OR UNAUTHORIZED REPAIRS, WHETHER BY YOU, YOUR AGENTS OR THIRD PARTIES. WebBooks SOFTWARE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE PROGRAM OR ANY OTHER ITEMS OR SERVICES PROVIDED BY WebBooks SOFTWARE. 11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, WebBooks SOFTWARE'S AND ITS AGENTS' LIABILITY TO YOU FOR ANY DAMAGES OR LOSSES ARISING HEREUNDER, WHETHER BASED IN CONTRACT, TORT, DELICT OR OTHERWISE, SHALL BE LIMITED TO AND NOT EXCEED THE AMOUNT OF THE LICENSE AND SUPPORT FEES PAID BY YOU TO WebBooks SOFTWARE FOR THE USE OF THE WEB SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, WebBooks SOFTWARE SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES, INCUDING BUT NOT LIMITED TO, LOSS OF PROFITS, SAVINGS, REVENUE OR DATA, EVEN IF WebBooks SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. This limitation of liability shall be applicable only to the extent permitted by law in the event of the gross negligence or willful misconduct of WebBooks Software or in the event of personal injury or death. Claims not made within six (6) months after the first event giving rise to a claim shall be deemed waived. WebBooks Software reserves the right to remove any information WebBooks Software deems to be in breach of any of these terms and conditions without warning and/or to make available such information, when required to do so by law or when requested, to regulatory bodies or law enforcement organizations.
12. INDEMNIFICATION.
You agree to indemnify and hold harmless WebBooks Software and its affiliates, employees, agents, licensors, successors and assigns from all damages and liability, including reasonable attorneys' fees, incurred by: (a) Your violation of Your obligations under this Agreement, (b) the negligence or willful acts of You, or (c) the violation by You of WebBooks Software's or any third party's rights, including, but not limited to, privacy rights, other property rights, trade secret, proprietary information, trademark, copyright or patent rights and claims for libel and slander or unfair trade practices in connection with the use or operation of the Web Services. Your obligation to indemnify shall survive the expiration or termination of this Agreement by either party for any reason. 13. TERMINATION. a. WebBooks Software may cancel or terminate this Agreement at any time: (i) by providing You with ninety (90) days notice of such action; (ii) for Your material breach of any of the terms and conditions set forth herein.; or (iii) if:
(a) There is a regulatory or statutory
change limiting WebBooks Software's ability to provide the Web
Services; b. You may cancel or terminate this Agreement at any time by following the cancellation procedure found on the My Account Page on the WebBooks site. Cancellations must be received five (5) business days prior to the next billing cycle in order to prevent future billing from occurring. If You choose to cancel a subscription, You should be aware that cancellation of any Web Service will result in the cancellation of all users that are accessing the Web Service within Your organization. In addition, cancellation of any Web Service authorizes WebBooks Software to destroy all data entered through the use of the service. c. The following obligations will survive termination of this Agreement: (a) indemnification; (b) obligations to make payments of amounts that become due under this Agreement before termination; and (c) any other provision herein where the context of such provision indicates an intent that it shall survive the termination of this Agreement. d. If the Agreement is terminated for reasons other than Your breach, Your WebBooks data will be made available to You either through a third party offsite vault storage provider or directly from WebBooks Software for up to ninety (90) days after termination. Additional charges may apply. Effective immediately upon termination of this Agreement, WebBooks Software will destroy any of Your WebBooks data that resides within the Web Services.
14. SUPPORT.
Except as set forth herein and in the WebBooks Software Obsolescence Policy located on the WebBooks Web site, WebBooks Software has no obligation to support the Program. Support requires the purchase of a support option, as outlined in the package or on the WebBooks Software Web site. 15. ACCOUNTING DATA ESCROW. WebBooks Software will produce regular backups of Your WebBooks data and will escrow these backups according to the Backup/Restore Service Levels defined on the Site. If all Fees owed by You are current and have been paid, You may request that Your WebBooks accounting data be copied on to physical media (CD) and mailed to You so You can store it at Your place of business. Additional charges will apply for this service. You may request backups of Your WebBooks data while You are actively using the Web Services AND within the three (3) months following the termination of Your Web Services. Backup data is in a readily usable format only for users who are current subscribers to the WebBooks Web Service. After three (3) months following the termination of the Web Services Your WebBooks accounting data will be destroyed and will not be available to You on physical media (CD). 16. RECOMMENDED ENVIRONMENT These Web Services have been designed to work optimally in the environment documented within the system requirements. Any defects, inconsistencies, or issues arising out of operating outside the parameters set forth therein may require You to pay additional maintenance/upgrade costs to WebBooks Software to support and/or rectify.
17. MISCELLANEOUS.
a. This Agreement constitutes the entire agreement between WebBooks Software and You, and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any unilateral offer, purchase order or other similar instrument in writing. This Agreement may not be amended, altered or changed except by a written agreement signed by both parties. b. In the event that any court having jurisdiction shall determine that any provision contained in this Agreement is unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect. c. Your rights in this Agreement are personal and are not assignable. WebBooks Software may assign its rights and obligations under this Agreement to third parties. d. This Agreement will be governed by and construed in accordance with the laws of the State of South Australia, excluding (i) its principles of conflict laws; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; (iv) the Protocol amending the 1874 Convention, done at Vienna April 11, 1980; and (v) the Uniform Computer Information Transactions Act (UCITA). To the fullest extent permitted by law and consistent with valid entry into a binding agreement, the controlling language of this Agreement is English and any translation you have received has been provided solely for your convenience. In the event You have entered into this Agreement by means of the display of a translated version of this Agreement in a language other than English, You may request a English language version of this Agreement by notice to WebBooks Software. To the fullest extent permitted by law, all correspondence and communication between You and WebBooks Software under this Agreement must be in the English language. e. The parties agree that any claim, controversy or dispute arising out of or relating to this Agreement shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in Adelaide, South Australia, and the decision of the arbitrator(s) shall be binding; provided that WebBooks Software may bring or defend an action: (i) involving allegations of personal injury to a third party; or (ii) for injunctive or other equitable or extraordinary relief, in a court of law. f. The remedies provided in this Agreement and otherwise at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy. g. No person or entity who is not a party to this Agreement shall derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
18. ACCEPTANCE.
You acknowledge that You have read the
terms and conditions of this Agreement and hereby agree to be bound
by the terms hereof. Your acknowledgement of this Agreement will
also serves as acknowledgement and agreement to be bound by the
terms enumerated in Section 3 (Fees and Charges) of this Agreement
regarding Fees, such Fees having been made known and agreed upon
prior to the acceptance of this Agreement. This Agreement will
become effective upon Your acceptance by electronic acknowledgment
on the Web Services Web site. Each time You log into the Web
Services, You are reaffirming continued acceptance of this Agreement
and the Fees. |
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