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The following terms of service, together with the documents referred to in them, set out all of the terms of the agreement (this “Agreement“) between:
(1) Ebsta Limited, a company registered in England and Wales with registered number 8093261 (“Ebsta“); and
(2) the person who indicates their acceptance of this Agreement (if that person is a sole trader) or the entity or organisation that person works for, owns or otherwise represents or purports to represent, whether that acceptance is in the context of a paid service, a free service, a trial or otherwise (the “Customer“).
Ebsta’s main place of business and correspondence address is Congress House, 23-28 Great Russell Street, London, WC1B 3LS. It can be contacted by email to firstname.lastname@example.org. Ebsta’s VAT number is 141 2037 64.
Ebsta trades with businesses only. It does not provide any services suitable for consumers. The Customer therefore represents, warrants and agrees that it enters into this Agreement in the course of a business or profession. Where the Customer is not a natural person, the natural person who indicates his or her acceptance of this Agreement on the Customer’s behalf represents, warrants and agrees that he or she has all the required powers, authorities and consents to bind the Customer.
This Agreement governs all use by the Customer (and by its officers, employees and agents on its behalf) of all Ebsta products and services described from time to time on our website at https://www.ebsta.com (collectively the “Services”). Ebsta does not make the Services available on any other terms. If the Customer does not agree to all of the terms of this Agreement, it may not use the Services.
Ebsta may make changes to these terms of service from time to time, for example (without limitation) in order to reflect changes or additions to the Services, changes in law, changes in market conditions or changes in best practice. Ebsta will use reasonable endeavours to draw significant changes to the Customers’ attention, but it remains the Customer’s responsibility to review this page for changes from time to time. The Customer will be deemed to have agreed to any changes to the terms of this Agreement by continuing to use the Services after the effective date of the change.
1 Access to the Services
1.1 In consideration for payment by the Customer of the subscription fees (where applicable) and the performance by the Customer of its obligations under this Agreement, Ebsta will grant to the Customer access to those Services which the Customer indicates from time to time that it wishes to receive, on and subject to the terms of this Agreement. The Customer’s access to each of the Services may be limited to a particular number of users for which it has subscribed, or it may be unlimited, depending on the Service and pricing model subscribed for. In this Agreement, each user of a Service is referred to as a “User”.
1.2 As a condition of access to the Services, the Customer acknowledges and agrees that Ebsta provides the Services on an off-the-peg, as-is basis, and does not customise the Services to the needs of any particular customer. It is the Customer’s responsibility to evaluate and keep under review the Services’ continuing suitability to the Customer’s needs. The Customer further acknowledges that it is in the nature of SaaS products such as the Services to develop, change and evolve, and Ebsta therefore gives no warranty and makes no representation that:
1.2.1 any particular feature or function of the Services will continue to be available throughout the term of this Agreement;
1.2.2 that the Services will be continuously operational and accessible;
1.2.3 that the Services are free from errors or defects; or
1.2.4 that the Services do not infringe the rights of any third party,
and except as expressly stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
1.3 Ebsta reserves the right to suspend access to all or any of the Services in order to perform maintenance or address security problems. Ebsta will make available information about scheduled maintenance where reasonably practicable.
2 Acceptable use of the Services
2.1 The Customer will not, and will procure that each of its Users does not:
2.1.1 upload to or make available to be displayed through any of the Services any material which:
(a) is obscene, defamatory, or which tends to promote discrimination on the basis of any characteristic protected by applicable law;
(b) infringes the rights (including but not limited to intellectual property rights) of others;
(c) is uploaded or displayed in breach of a legal duty to any other person (including but not limited to duties of confidence);
(d) contains the personal data of minors; or
(e) otherwise breaches any applicable law or regulation;
2.1.2 use any of the Services:
(b) for any criminal or dishonest purpose, or in a manner which is capable of resulting in the commission of any criminal offence;
(c) to transmit knowingly or recklessly any malicious software or payload; or
(d) to send unsolicited commercial emails unlawfully;
2.1.3 resell or repackage any of the Services without Ebsta’s prior written consent;
2.1.4 interfere with, disrupt or attempt to interfere with or disrupt the operation of the Services;
2.1.5 access or attempt to access the confidential data of Ebsta or any other Ebsta customer;
2.1.6 reverse engineer or decompile any aspect of the Services, or attempt to do so, unless permitted to do so by applicable law without the possibility of contractual waiver; or
2.1.7 perform any penetration, load or other security testing of the Services without Ebsta’s prior written consent.
2.2 The Customer will indemnify Ebsta against all claims, losses, damages, fines, costs and expenses (including legal fees) which Ebsta may incur or face as a result of the Customer’s breach of clause 2.1.
3 Subscription Fees
3.1 The Customer will pay, monthly, quarterly or annually in advance (as Ebsta and the Customer may agree), such subscription fees as may be applicable to the Services which the Customer subscribes to, as specified on Ebsta’s website from time to time.
3.2 Ebsta may offer to the Customer a free trial of one or more Services. If the Customer then chooses to subscribe to one or more of the Services for which it has had a trial, the period of the trial will not be included in the first subscription year for the purposes of determining the renewal date; instead, the subscription year for those Services will begin on the date on which the Customer pays the relevant subscription fees.
3.3 The Customer may at any point subscribe to additional Services, or add additional Users to a Service it already subscribes for (if the Customer’s subscription to that Service is limited by User count). In order to ensure that all Service subscriptions have the same renewal date, Ebsta will charge the Customer (and the Customer will pay) a pro rata amount for the partial year of additional Services or additional Users (as the case may be), rounded up to the nearest calendar month.
3.4 The Customer may request that Ebsta discontinue the Customer’s subscription to any Service (either entirely or in respect of specified Users), in which case Ebsta will do so, but the Customer will not thereby be entitled to any refund or credit.
3.5 All subscription fees are exclusive of VAT. Customers based in the UK will pay to Ebsta any VAT chargeable on the supply of the Services at the then-applicable rate, subject to receipt from Ebsta of a valid VAT invoice.
3.6 Ebsta will be entitled to charge, and the Customer will pay, late payment interest at the then-prevailing statutory rate from the date on which any payment becomes overdue until the date of payment (whether before or after judgment).
4 Customer Dependencies and Consents
4.1 As well as payment by the Customer of the subscription fees, Ebsta’s provision of the Services to the Customer is also dependent on the Customer doing or permitting certain things. The Customer therefore agrees that it will:
4.1.3 procure that its arrangements with its Users make clear that the Customer’s IT systems (therefore including Ebsta’s services) are provided by the Customer for business use and that the User cannot therefore have any expectation of personal privacy in respect of data stored in or processed using those systems;
4.1.4 keep (and procure that each User will keep) all access credentials for the Services secure and confidential, and will promptly notify Ebsta if any such credentials are or may have been compromised;
4.1.5 configure the Services correctly, using the facilities provided, to ensure that Users cannot access data held within the Services that they should not have access to;
4.1.6 ensure that the information collected by Ebsta during the registration process is accurate, complete and not misleading;
4.1.7 ensure that the Customer’s systems and Internet connections are suitable for use with the Services; and
4.1.8 ensure that the Customer’s use of the Services does not violate any laws, regulations or codes of conduct specific to the business of the Customer.
5 Customer Representations and Warranties
5.1 Ebsta enters into this Agreement with the Customer at a distance, often in an entirely automated way, and it is not practicable for Ebsta to undertake due diligence on each of its customers, so Ebsta must be entitled to rely on certain assurances of fact by the Customer. Therefore, the Customer represents and warrants that:
5.1.1 it is not insolvent or trading wrongfully, or subject to any of the other events or circumstances described in clause 7.3.2;
5.1.2 if it is a body corporate, it is duly incorporated and validly existing;
5.1.3 if it is a natural person, it is of capacity;
5.1.4 it has all of the required rights to store, process and use the information, data and other materials held in the Customer’s systems (including all email and data held within Salesforce) (the “Customer Data”), including the right to use the Services with the Customer Data;
5.1.5 it has all of the required powers, authorities and consents to enter into and perform this Agreement and, if the Customer is not itself the natural person who indicates their acceptance of this Agreement, the person who does so on its behalf has all the required powers, authorities and consents to bind it to this Agreement; and
6 Ebsta warranties
6.1 Ebsta warrants that:
6.1.1 it is not insolvent or trading wrongfully;
6.1.2 it is duly incorporated and validly existing;
6.1.3 it will use commercially reasonable efforts to ensure that the Services perform materially in accordance with their description from time to time on Ebsta’s website; and
6.1.4 it will in providing the Services comply with its security statement as updated from time to time.
7 Term and Termination
7.1 This Agreement will have effect from the date on which the Customer subscribes for or accepts a free trial of any Service, until the date on which the Customer’s last subscription period or free trial expires. Each subscription to a Service will run for successive periods corresponding to the relevant billing period (as contemplated by clause 1), renewing automatically at the end of each such period unless cancelled by the Customer in accordance with clause 7.2.
7.2 At any point before the date on which a subscription for Services is due to renew, the Customer may cancel that subscription by means of the relevant feature of the Ebsta console application, in which case such subscription will not renew automatically.
7.3 Ebsta may immediately (and without refund) cancel or suspend the Customer’s subscriptions to any or all of the Services, or terminate this Agreement in its entirety, if:
7.3.1 the Customer materially or persistently breaches any provision of this Agreement;
7.3.2 provision of the Services becomes, by virtue of a change in law or the adverse ruling of a court or regulator of competent jurisdiction, unlawful; or
7.3.3 the Customer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the Customer’s assets or the Customer enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
7.4 Rights and obligations which have accrued prior to the date on which this Agreement expires or is terminated will survive such expiry or termination.
7.5 The provisions of clauses 2.2 and 9.2 in particular will survive termination of this Agreement.
8 Data Processing
8.1 Words and phrases which have defined meanings in the Data Protection Act 1998 (as amended, re-enacted or replaced from time to time) have the same meanings when used in this clause 8.
8.3 Where Ebsta, or a subcontractor of Ebsta, processes personal data as data processor on behalf of the Customer as data controller:
8.3.1 Ebsta will, and will procure that its relevant subcontractors will:
(a) take appropriate technical and organisational measures to protect those data against unauthorised or unlawful processing and accidental loss, destruction or damage;
(b) ensure that, having regard to the state of technological development and their cost of implementation, those measures ensure a level of security appropriate to (1) the harm that might result from such processing, loss, destruction or damage; and (2) the nature of the data; and
(c) not process those data, and in particular (but without limitation) not disclose them to any person (other than a subcontractor subject to obligations equivalent to those set out in this clause 8.3.1), except on the instructions of the Customer or as required by law or regulation;
(d) promptly inform the Customer if it receives a request or notice from a data subject seeking to exercising his or her rights in respect of those data, and (at the Customer’s cost) comply with the Customer’s reasonable instructions with respect to that request or notice; and
8.3.2 the Customer:
(a) instructs Ebsta to take such steps in the processing of personal data on its behalf as Ebsta reasonably considers necessary to the performance of its obligations under this Agreement;
(b) irrevocably authorises Ebsta to give equivalent instructions to any subcontractor on its behalf; and
(c) warrants that it is and will remain entitled to give the instruction and authorisation in clauses 8.3.2(a) and (b).
9 Intellectual Property
9.1 Nothing in this Agreement changes the ownership of either party’s intellectual property rights. In particular, all intellectual property rights in the Customer Data remain as between the Customer and Ebsta the sole property of the Customer.
9.2 As such, the Customer will fully indemnify and hold harmless Ebsta from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Ebsta as a result of, or in connection with, any claim or action that Ebsta’s use of the Customer Data in providing the Services infringes the intellectual property rights of a third party.
9.3 Each of the Customer and Ebsta grants to the other a non-exclusive, non-transferable, revocable, royalty-free licence for the term of this Agreement to use such of its intellectual property rights as the other requires for the sole purpose of performing its obligations and exercising its rights under this Agreement.
9.4 Additionally, the Customer grants to Ebsta a non-exclusive, royalty-free licence to derive statistical data from the Customer Data, and to use and distribute such statistical data for any purpose, provided that none of the Customer Data itself will be contained in such statistical data.
10.1 Nothing in this Agreement limits Ebsta’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation.
10.2 Subject to clause 10.1, Ebsta will not have any liability to the Customer arising out of or in connection with this Agreement for any:
10.2.1 loss or damage caused by misuse or misconfiguration of any aspect of the Services by the Customer;
10.2.2 loss of profits or account of profits;
10.2.3 loss of revenue;
10.2.4 loss of contracts, sales or business;
10.2.5 loss of opportunity;
10.2.6 loss of anticipated savings;
10.2.7 loss of or damage to goodwill;
10.2.8 loss of or damage to data or information (the Customer acknowledging that Ebsta does not operate a backup or disaster recovery service, and that the Customer is responsible for backing up and recovering its own data); or
10.2.9 any indirect or consequential loss.
10.3 Subject to clauses 10.1 and 10.2, Ebsta’s maximum total liability to the Customer arising out of or in connection with this Agreement:
10.3.1 in respect of any one claim or series of related claims is limited to an amount equal to the subscription fees paid by the Customer to Ebsta during the 12 months preceding the event (or last in a sequence of events) giving rise to such claim or series of claims; and
10.3.2 in respect of any and all claims (taken together in aggregate) is limited to the lower of: (i) £25,000; and (ii) an amount equal to the subscription fees paid by the Customer to Ebsta during the term of this Agreement.
11 Force Majeure
11.1 If Ebsta is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by any circumstance or event beyond its reasonable control, it will not thereby be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
12.1 Any notice or other communication given to be given to a party under or in connection with this Agreement (a “Notice”) must be in writing (which includes email but not fax) and addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case). A Notice will be deemed to have been received:
12.1.1 if delivered personally, when left at the address referred to above;
12.1.2 if sent by first-class post, two business days after posting;
12.1.3 if sent by airmail, seven business days after posting; and
12.1.4 if sent by e-mail, within 24 hours from sending if no notice of delivery failure is received.
12.2 The provisions of clause 12.1 will not apply to the service of any proceedings or other documents in any legal action.
12.3 Except as expressly provided in this Agreement, no variation of this Agreement will be effective unless it is made in writing, explicitly references this clause 12.3 and is signed by an officer of Ebsta.
12.4 No failure or delay by Ebsta to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
12.5 This Agreement and the documents referred to in it:
12.5.1 contain the entire agreement between the Customer and Ebsta in relation to the Services; and
12.5.2 supersede and replace any and all agreements, promises, assurances, warranties, representations and understandings between Ebsta and the Customer, whether written or oral, relating to the Services.
12.6 Save in the case of fraud, each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this Agreement.
12.7 No one other than a party to this Agreement will have any right to enforce any of its terms.
12.8 The provisions of article 10 of Directive 2000/31/EC (and the relevant national implementations thereof) will not apply to this Agreement.
12.9 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.8 will not affect the validity and enforceability of the rest of this Agreement.
12.10 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without Ebsta’s prior written consent (which Ebsta will not unreasonably withhold or delay). Ebsta may assign or transfer its rights or obligations under this Agreement without restriction.
12.11 This Agreement and all non-contractual obligations arising out of or in connection with it will be governed by English law and subject to the exclusive jurisdiction of the English courts.
These terms of service were last updated on 31st October 2015.