Exelsys Online Services Terms of Use

Version 2018-3

General License Terms. You may access and use the online service as described below.

1. This Agreement (the “Agreement”) is entered into by and between Exelsys Limited (“Exelsys” or “We”), a company registered in the United Kingdom, with registration number 6807312 and having its registered office at 21 Aylmer Parade, Aylmer Road, London N2 0AT, United Kingdom which shall include all or any of its subsidiaries, affiliates, agents, successors or assigns and the entity agreeing to the terms herein (“You” or “Customer”). This Agreement will be effective as of the date you click the “I Accept” button as part of the ordering/registration process, or when you have signed an order form for the Service directly with Exelsys or with any one of the Exelsys Authorised resellers or when you have first used the Service, whichever is earlier (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these terms and conditions of this Agreement; (ii) you have read and understand the terms and conditions of this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. This Agreement governs the Customer's access to and use of the Service (as defined below).

License grant — what Customer is licensed to use.


2. General

Exelsys hereby grants to the Customer a non-exclusive, non-transferable, worldwide Licence to use the Service, solely for the Customer’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to the Customer are reserved by Exelsys and its licensors. This License is non-exclusive, non-perpetual, and is not transferable. The License granted is for a specific and limited number of Active Employees, number of Users, number of Mobile Only Users and the Licensed Modules included in the Subscription.

3. License Term

The duration of a Subscription is usually annual unless specified otherwise on the Customer Order.

4. Definitions:

The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" ‘‘Processor” and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

5. Limitations on use

The Customer shall not (i) license, sublicense, sell, resell, transfer, assign, or otherwise commercially exploit or make available to any third party the Online Service in any way; (ii) modify or make derivative works based upon the Online Service; (iii) create Internet "links" to the Service, or "frame", or "mirror" any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Online Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Online Service. User licenses cannot be shared or used by more than one User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. The Customer may use the Online Service only for the Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

6. “Customer Software” 

In some cases, the Customer may need to install Exelsys supplied Software to be able to access and use the Online Service as described in this Agreement. The Customer may make copies of the Software solely to support the applicable Online Service for its Users and under the provisions of this Agreement. Copies must be true and complete copies (including copyright and trademark notices) and be made from an Exelsys approved media or a network source.

7. License Terms Updates

We may update these license terms from time to time. If We do, your use of the Online Service under any existing license type during the greater of either 12 months from the time you first use it or the length of your committed term will be governed by these license terms without those updates. Despite this commitment on use rights, if We are required by law to change the license terms, those new terms will apply immediately. We will endeavour to notify you of updates at least 30 days before they are generally effective. You agree to the new terms by using the Online Service after We publish them in these Online Services use rights or send you an email notice about the updates.

8. Online Service Updates

We may modify the functionality or features or release a new version of the Online Service from time to time. After an update, some functionality or features may not be available.

9. Online Service Suspension or Termination. We may suspend or terminate the Online Service if:

  1. We believe that your use of the Online Service represents a direct or indirect threat to our network function or integrity or anyone else’s use of the Online Service;
  2. We believe you have violated this Agreement;
  3. Customers use exceeds any quotas specified in the documentation for that Online Service;
  4. We are otherwise required by law to do so, or; 
  5. the subscription remains unpaid for more than 30 days.

10. Online Service Expiration or Termination

This Agreement will remain in effect unless it is cancelled by the Customer or terminated by Exelsys in accordance with clause 4 above. The Customer may cancel the Agreement by informing in writing Exelsys or the Exelsys Authorised Business Partner at least 90 days before the end date of the subscription, otherwise the subscription will automatically be renewed and the Customer will be invoiced. All payment obligations are non-cancellable and all amounts paid are non-refundable.

Upon expiration or termination of Your Online Service subscription, You must contact Exelsys and tell us whether to:

  1. disable your account and then delete your Customer Data; 
  2. will make available to you a file of your Customer Data within 30 days of termination if you so request at the time of termination.

No Liability for Deletion of Customer Data. In the event that you do not contact Exelsys within 30 days of the termination of Your Online Service Subscription You agree that, other than as described in this Agreement or subject to any Applicable Law, , We have no obligation to continue to hold, export or return your Customer Data and will therefore, delete it. Furthermore, You agree that Exelsys will have no liability whatsoever for deletion of your Customer Data pursuant to this Agreement.


11. Subscription Payments

Exelsys subscriptions for using the Service are payable yearly and in advance and  payment must be made to Exelsys or to the Exelsys Authorised Business Partner, from which You have procured the Online Service. All payment obligations are non-cancellable and all amounts paid are non-refundable. Customer is responsible for paying for all User licenses ordered for the entire License Term, whether such User licenses are actively used. The Customer must provide Exelsys or the Exelsys Authorised Business Partner, a signed purchase order as a condition to signing up for the Online Service. Customer may request to add additional modules of the Service by sending an additional written Order directly to Exelsys or through an Exelsys Authorised Business Partner “Added Licenses“ and will be subject to the following:

  1. Added Licenses will be coterminous with the pre-existing License Term (either initial Term or renewal term)
  2. the fee for the Added Licenses will be the then current, generally applicable License fee; and
  3. Any Added Licenses acquired in the middle of a billing period will be charged on a pro-rata basis to the nearest quarter, for the length of time the Additional Licenses will be used until the expiration of the billing period in effect. Exelsys reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to the Customer, which notice may be provided by e-mail or posted on the Exelsys website. All pricing terms are confidential, and the Customer agrees not to disclose them to any third party.


12. Responsibility for Your Accounts

You are responsible for your passwords, if any, and all activity with Your Online Service Accounts including that of users you provision and dealings with third parties that take place through your Account or associated Accounts. You must keep Your Accounts and passwords confidential. You must inform us immediately if You suspect any possible misuse of your Accounts or any security incident related to the Online Service.

13. Use of other websites and services

You may need to use certain Exelsys websites or services to access and use the Online Services. If so, the terms of use associated with those websites or services, as applicable, apply to your use of them.

14. Your Customer Data

You may be able to submit Customer Data for use regarding the Online Service. Except for materials we license to you we do not claim ownership of Customer Data you submit for use with the Online Service.
It is your responsibility to make use of that functionality as appropriate for your intended use of your Customer Data.

15. Privacy


16. Exelsys Use of Customer Data

We will not monitor your use of the Online Service, nor will we track, view, censor, edit, remove or disclose your Customer Data that are processed or accessed by the Online Service except to:

We may also monitor your use of the Online Service, and track and view your Customer Data that are processed or accessed by the Online Service in order to improve the Service.

17. Intellectual Property rights

Exelsys alone (and its licensors, where applicable) shall own all rights, titles and interest, including all related Intellectual Property Rights, in and to the Exelsys Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to the Customer any rights of ownership whatsoever in or related to the Service, the Exelsys Technology or to any Intellectual Property Rights owned by Exelsys. The Exelsys name, the Exelsys logo, and the product names associated with the Service are trademarks of Exelsys or third parties, and no right or license is granted to use them.

18. Disclaimer of Warranties

EXELSYS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE ONLINE SERVICE OR ANY CONTENT. EXELSYS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE ONLINE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE ONLINE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE ONLINE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY EXELSYS AND ITS LICENSORS.

19. Internet Delays

EXELSYS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXELSYS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

20. Limitation of Liabilities

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

21. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Exelsys represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Exelsys help documentation under normal use and circumstances. The Customer represents and warrants that it has not provided any false information to gain access to the Service and that the Customer’s billing information is correct.

22. Indemnification

  1. The Customer shall indemnify and hold Exelsys, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Personal Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the Customer of the Customer’s representations and warranties; or (iii) a claim arising from the breach by the Customer or by the Customer’s Users of this Agreement, provided in any such case that Exelsys (a) gives to the Customer written notice of the claim promptly; (b) gives the Customer sole control of the defence and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Exelsys of all liability and such settlement does not affect Exelsys business or Online Service); (c) provides Customer all available information and assistance; and (d) has not compromised or settled such claim.
  2. Exelsys shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Online Service directly infringes a copyright, or patent, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Exelsys of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Exelsys; provided that Customer (a) promptly gives written notice of the claim to Exelsys; (b) gives Exelsys sole control of the defence and settlement of the claim (provided that Exelsys may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Exelsys all available information and assistance; and (d) have not compromised or settled such claim. Exelsys shall have no indemnification obligation, and you shall indemnify Exelsys pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Online Service with any of the Customer products, service, and hardware or business process.

23. Confidentiality


a) Exelsys and the Customer shall keep confidential all information relating to the other party its operations systems processes any of its customers, associates, agents, employees or other howsoever connected parties, obtained under or in connection with the Agreement or as a result thereof or as a result of the presence of Exelsys or its subcontractor(s) at the premises of the Customer and shall not divulge same to any third party without the written consent of the other party.

The provisions of this clause shall not apply to:

  1. Any information in the public domain otherwise than by breach of the Agreement.
  2. Information obtained from a third party who is free to divulge same.

b) Exelsys shall disclose confidential information only to those employees who are directly involved in the Agreement or use of the Software and shall ensure that such employees are aware of and comply with these obligations as to confidentiality.
c) Exelsys shall ensure that its Sub-contractors and any other persons, the services of whom have been obtained by Exelsys in the course of providing the Service, are bound by the requirements of this Clause, and shall be directly responsible towards the Customer for any breach or negligence by such Sub-contractors.
d) Exelsys affirms that:
a. Its employees, agents and/or representatives shall execute their duties in accordance with the highest industry standards and will comply with all provisions and requirements of this Agreement.
b. It is understood and agreed by both parties that confidentiality, good faith and trustworthiness extends to any trademarks and/or trade secrets and/or other intellectual property and/or skills that the Customer owns and/or
e) retains and Exelsys undertakes that, its employees, agents, representatives and subcontractors shall treat these as confidential and not disclose and/or make use of same in any way for their purpose and/or to their benefit and/or to any third person, legal or natural.
f) The provisions of this Clause shall continue in force without time limit notwithstanding the termination of the Agreement.

24. Security of Customer Data.

Exelsys taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, will implement reasonable and appropriate technical and organizational measures, such as encrypting data in transit and at rest, applicable to the Online Service to help secure your Customer Data processed or accessed by the Online Service against accidental or unlawful destruction, loss, alteration, unauthorized access or disclosure. You agree that these measures are:

  1. our only responsibility with respect to the security and handling of Customer Data; and
  2. in place of any confidentiality obligation contained in the Agreement or any other non-disclosure or confidentiality agreement.

Exelsys is hosted on Microsoft Windows Azure PaaS (Platform as a Service). Microsoft conducts ongoing security testing of the Azure platform. Microsoft maintains security certifications for Azure, including ISO 27001, SOC 1 & 2 Type 2, FedRAMP, and PCI Level 1 and ISO 22301:2012 (Business Continuity Management System).

25. Data Backup

Exelsys backs up the encrypted data daily, going back 30 days using the Azure Point-in-time restore mechanism. In addition, Exelsys uses Active Geo-replication. Using Active Geo-Replication, a separate readable secondary database in a separate region to that of the primary data center is used and can be switched over in the case a disaster happens in the primary data center.

26. Scope of Use.

You may not:

  1. use the Online Service in a way that is prohibited by any law, regulation or governmental order or decree in any relevant jurisdiction, or that violates others’ legal rights;
  2. use the Online Service in a way that could harm it or impair anyone else’s use of it;
  3. use the Online Service to try to gain unauthorized access to any service, data, account or network by any means;
  4. falsify any protocol or email header information (e.g., “spoofing”);
  5. use the Online Service to send “spam” (i.e., unsolicited bulk or commercial messages) or otherwise make available any offering designed to violate these terms (e.g., denial of service attacks, etc.); or
  6. remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Online Service.

27. Personal Data Breaches

In the case that Exelsys becomes aware that a Personal Data Breach has occurred, it undertakes to notify the Personal Data Breach to the Customer, without undue delay and, where feasible, not later than 72 hours after having become aware of it. Where such notification cannot be achieved within 72 hours, the reasons for the delay will accompany the notification and information may be provided in phases without undue further delay.

The Notice shall include:


28. Regulatory

We may modify or terminate the Online Service in any country where there is any current or future government requirement or obligation that subjects Exelsys to any regulation or requirement not generally applicable to businesses operating there, presents a hardship for Exelsys to continue operating the Online Service without modification, and/or causes Exelsys to believe these terms or the Online Service may be in conflict with any such requirement or obligation.

29. Electronic Notices

We may provide you with information about the Online Service in electronic form. It may be via email to the address you provide when you sign up for the Online Service, or through a web site that we identify. Notice via email is given as of the transmission date. As long as you use the Online Service, you have the software and hardware needed to receive these notices. Please note that these Electronic Notices are not for marketing purposes and therefore, if you have an account with us, you will continue to receive these communications.

30. Technical Support Services

Should you determine that the Online Service includes a defect, you shall notify us by contacting us and submit a Support Ticket through the Exelsys on-line service Support Tickets function. If this is not available then you can send a message to the following email:
E-mail: SupportTickets@exelsys.net, or in urgent cases call us on +357 22375034, +44 20 3514 7594 SkypeId: exelsys.support.

We shall accept web form-based incident submittal by You 24 hours a day, seven days a week, subject to Priority 1 and Priority 2 events as set out in the table below. We shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to You. We shall use reasonable endeavours to respond to all support requests from You within the time periods specified below, according to priority. We shall determine the priority of any fault in accordance with the following table.


If no progress has been made on a Priority 1 or Priority 2 incident, as per the table below, within the target resolution time, the incident shall be escalated to, and reported to top management.


31. Service Availability

Priority Description Response time Target resolution time

    Priority 

Description

Response time

Target resolution time

1.

The entire Service is completely inaccessible. Priority 1 incidents shall be reported by telephone only.

Within two Normal Business Hours.

Four Normal Business Hours. Continuous effort during Normal Business Hours after initial response and with your co-operation.

2.

Operation of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. Priority 2 incidents shall be reported by telephone only.

Within four Normal Business Hours.

Within two Business Days after initial response.

3.

Certain non-essential features of the Service are impaired while most major components of the Service remain functional.

Within 4 Normal Business Days.

Within ten Business Days after initial response.

4.

Errors that are, non-disabling or cosmetic and clearly have little or no impact on the normal operation of the Services.

Within 10 Normal Business Days.

When reasonably possible



 

 

 

 

 

 

 

 


We shall provide at least a 99.5% uptime Service availability level

The Service will be considered as unavailable only:

  1. during periods of Priority 1 or Priority 2 faults described in the table above; and
  2. during periods of Unplanned Maintenance (periods when the system is unavailable without prior notification to the Customer)

The Service will not be considered unavailable if the Down Time is due:

  1. to interruption of Internet connectivity between your site and the hosting facility and
  2. to Planned Maintenance Events or Emergency Maintenance unless, in respect of the latter, the emergency situation has been created by us or as a result of our actions.
  3. In the remote event of a prolonged downtime of more than 1-day Exelsys shall provide access to the service through a disaster recovery backup site.

32. Force Majeure:

Exelsys will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by Agreement as a result of any cause or condition beyond Exelsys’ reasonable control.

33. Severability:

Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain shall remain valid and in full force. The invalid or unenforceable provision shall be amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible. If this is not possible, it will be construed in a manner as if the invalid or unenforceable part had never been contained therein.

34. Governing Law:

If a Customer is a company or organization registered in Cyprus, this Agreement will be governed by the laws of the Republic of Cyprus and the Courts of the Republic of Cyprus will have exclusive jurisdiction for any dispute arising out of, or relating to this Agreement.

For all other Customers, then this Agreement will be governed by the laws of England and Wales whose Courts will have exclusive jurisdiction for any dispute arising out of, or relating to this Agreement.