Terms of Service - Updated 24/01/2013
KOMMAND CMS IS ONLY WILLING TO PROVIDE THE SERVICES TO YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES.
1. Overview.
The following agreement ("Agreement") is entered into between you ("Customer" or "you") and Kommand CMS a trading name of Dexterous Software, Ltd. ("Dexterous Software"), a Private Limited Company, registration number SC406523 having a business at 5 Newton Terrace, Glasgow G3 7PJ and is made effective on the date of electronic acceptance. This agreement sets forth the terms and conditions that govern your use of this website and the products and services (collectively, the "Services") found at this site, and is in addition to and not in lieu of any specific terms and conditions that apply to your purchase of a particular Service.
Your electronic acceptance and/or use of the Services signifies that you have read, understood and agreed to be bound by the terms and conditions of this Agreement as well as any policies posted on this website and that by such acceptance and/or use of the Services you agree that any previous agreements between you and Dexterous Software will be terminated and superseded by this Agreement. You acknowledge and agree that Dexterous Software's acceptance of this Agreement and the provision of Services are performed at Dexterous Software's offices in Glasgow, Scotland. Dexterous Software, in its sole discretion, may refuse to provide the Services to any one at any time and for any reason. If Dexterous Software exercises this right, Dexterous Software will not charge you for the Services and/or refund you for the amounts paid for the Services during the month that Dexterous Software invokes its right to deny Service. In the event that you provide a purchase order or other ordering document to facilitate your purchase, the document is incorporated by reference only to the extent that it identifies the Services to be purchased, and all other terms and conditions included in such document are hereby rejected by Dexterous Software.
Dexterous Software, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or Service Specific Terms which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Last Revised" date at the top of this page or (iii) your continued use of the Services after Dexterous Software posts the amended Agreement to Dexterous Software.com.
2. Eligibility, Point of Contact, Account Ownership
The Services found at this Site are available only to Customers who can form legally binding contracts under applicable law. By using the Services found at this Site, you represent and warrant that you are (i) at least eighteen (18) years of age and/or (ii) otherwise recognised as being able to form legally binding contracts under applicable law. You further represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Dexterous Software is legally prohibited to provide the Services.
Customer shall designate a single "Point of Contact" in the accompanying Order Form. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that Dexterous Software may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to Dexterous Software in accordance with the notice provisions of this Agreement. Dexterous Software is under no obligation to accept instructions from anyone other than the Point of Contact. Notwithstanding the foregoing, Dexterous Software shall not be liable for any loss or damage resulting from Dexterous Software's reliance on any instruction, notice, document or communication reasonably believed by Dexterous Software to be genuine and originating from an authorised representative of Customer's corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Dexterous Software reserves the right (but not the obligation) to require additional authentication from Customer. In order to permit Dexterous Software to protect the quality of its products and services, you hereby consent to Dexterous Software staff being able to access your account and records on a case by case basis to investigate complaints or other allegations or abuse.
3. Dispute of Site or Account Ownership
The entity or person creating the account and designated as the owner shall be deemed the account owner. For security reasons, only the account owner or Point of Contact designated by the account owner shall be allowed to make changes, cancellations, or designate a new Point of Contact. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store or account. Dexterous Software is not obligated to and will not resolve any such disputes. If multiple persons are claiming ownership of or rights in a site, store or account, and, in Dexterous Software's sole judgment, there is no certainty as to the ownership of or rights in said site or account, then Dexterous Software will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves Dexterous Software of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what Dexterous Software, in its sole judgment, deems to be a reasonable time, then Dexterous Software, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve said dispute and reach certainty regarding ownership of or rights in said site, store and/or account. The person or persons conclusively and finally determined by court order or settlement agreement to be the rightful owner(s) or interest holder(s) of said site, store and/or account shall be obligated to pay all amounts due and comply with the Transfer Policy, if required, to transfer ownership of the site, store and/or account to the rightful owner. Failure of the rightful owner of said site, store and/or account timely pay in full all of said amounts shall be deemed a breach of these Terms and shall subject the account to immediate termination.
To transfer ownership of an account, Customer must contact Dexterous Software and comply with the Transfer Policy.
4. Recommendations
Dexterous Software personnel may from time to time recommend third party software or other products and services for your consideration. DEXTEROUS SOFTWARE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM DEXTEROUS SOFTWARE, INCLUDING THE COMPATIBILITY OF SUCH PRODCUTS AND SERVICES WITH DEXTEROUS SOFTWARE. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
5. Software Updates
From time to time, Dexterous Software may update the software associated with a Service for many reasons, including but not limited to, (a) to maintain PCI compliance; (b) to fix bugs or problems in previous versions; and/or (c) to enhance functionality or features. Dexterous Software makes no warranty that such updates will not affect your use of the Services or introduce new but unknown bugs into the software. Further, Dexterous Software shall not be responsible for the effect an update has on any code not provided by Dexterous Software and any modifications to such code to restore functionality shall be Customer's sole responsibility and cost.
Where support is provided by Dexterous Software, Dexterous Software will provide technical support for the most recent update or version of the Software associated with a Service. From time to time, Dexterous Software may provide support for an older version(s), however Dexterous Software reserves the right to suspend or terminate such support at any time, with or without notice.
6. Use of Customer's Name and Trademarks
Customer hereby grants Dexterous Software a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks (collectively, "Customer's Marks") as are listed on Customer's Content or otherwise provided to Dexterous Software in connection with this Agreement (a) on Dexterous Software's own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Dexterous Software's Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use Dexterous Software's trade name, trademarks, and service marks (collectively, "Dexterous Software's Marks") in advertising and publicity in conjunction with the offering of Customer's Content via Dexterous Software, provided that Customer shall submit copy to Dexterous Software for its prior written approval, and provided further that under no circumstances shall such use imply that Dexterous Software endorses, sponsors, certifies, approves or is responsible for Customer's Content. Notwithstanding the foregoing, Customer need not obtain Dexterous Software's prior written approval where use of Dexterous Software's Marks is limited to inclusion in a list of systems via which Customer's Content is available.
7. Use of Customer's User Content
Some of the features of this website or the Services found at this website may allow Customer to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice ("User Submissions"), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, "User Content"). By providing User Content to Dexterous Software via any method (e.g. site submission, email, survey responses, etc.), you represent and warrant to Dexterous Software that (i) you have all necessary rights to distribute User Content via this website or via the Services found at this website, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) you do not violate the rights of any third party.
The provisions in this Section apply specifically to Dexterous Software's use of User Content posted to Dexterous Software's corporate websites or submitted directly to Dexterous Software. The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) you may have in content posted to your hosted websites.
You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
You acknowledge and agree that:
- Your User Submissions are entirely voluntary.
- Your User Submissions do not establish a confidential relationship or obligate Dexterous Software to treat your User Submissions as confidential or secret.
- Dexterous Software has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions.
- Dexterous Software may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
Dexterous Software shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions provided to Dexterous Software by any method, and shall be entitled to the unrestricted use and dissemination of any User Submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
8. Sublicense
Customer may not sublicense or resell any of Dexterous Software's Services to any third parties without the prior written permission of Dexterous Software. By way of example and not limitation, Customer may not provide Web Hosting services through its Dexterous Software Services to any third party without Dexterous Software's prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
9. Fees and Payment
A. Fees. In consideration of the Services, Customer will pay to Dexterous Software all fees due according to the prices and terms listed on the website. Customers in EU member states that have enacted Directive 97/7/EC may cancel their Services within seven (7) days from order (the "Refund Period") provided that Dexterous Software has not begun performance of the Services. Customer agrees that Dexterous Software may delay beginning performance of any Service for this Refund Period and that any performance begun prior to the expiration of the Refund Period will only be done with Customer's agreement to waive such Refund Period. All sales are final and Dexterous Software offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if your Services are suspended, terminated or transferred before the end of the Services. Dexterous Software expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal. Dexterous Software may, at its sole option, extend payment terms to You. Should Dexterous Software extend payment terms, You agree that Your obligation to pay Dexterous Software for the Services ordered begins on the date of purchase and does not end until paid in full, even if the Services are abandoned, suspended, terminated or transferred prior to such time.
B. Payment. Unless otherwise agreed to by Dexterous Software, all payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due on the monthly anniversary date of your initial signup. It is Customer's obligation to review all monthly charges for accuracy. Failure to dispute a charge within six (6) months following such charge shall constitute Customer's agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge. If a payment is returned or rejected by Dexterous Software's bank, or incurs additional costs for Dexterous Software (e.g., bank fees) for any reason, then Customer may be charged a service fee of £30 and be required reimburse all such fees and costs incurred by Dexterous Software, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay Dexterous Software its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.
C. Billing Policies and Cycles. We offer billing via credit card or debit card charge only. All initial fees must be paid prior to service setup. These fees may include service setup fees and first month service charge. Our billing cycle begins on the day we setup your account, and is due on that day each month thereafter. Dexterous Software attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts. Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the plan you choose. To cancel your account, you must follow the procedure in Section 18. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date.
Note: All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that you maintain a current email address with us.
D. Taxes. All fees charged by Dexterous Software for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Dexterous Software's net income. If Dexterous Software is required to pay directly any such taxes, Customer will, upon receipt of Dexterous Software's invoice, promptly reimburse Dexterous Software for any such taxes paid by Dexterous Software.
10. Acceptable Use Policy
A. Acceptable Use Policy. Dexterous Software maintains on its Web site Dexterous Software's then-current Acceptable Use Policy ("AUP"). Customer agrees to abide by the AUP. Dexterous Software may modify its AUP at any time, and shall post the then-current AUP on Dexterous Software's Web site, which will be effective upon posting.
B. End Users to Comply with AUP. Customer acknowledges that Dexterous Software may terminate an end user's access to Customer's Web Site for noncompliance with Dexterous Software's AUP. Dexterous Software may thus terminate such end user's access to Customer's Content even if the end user has not violated Customer's own terms and conditions of use of its Web Site. Dexterous Software acknowledges that Customer may terminate a User's access to Customer's Content for noncompliance with Customer's terms and conditions.
11. Security
Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Services is to allow end users easy access to Customer's Content. Dexterous Software will take those precautions Dexterous Software deems reasonable in its sole discretion to secure Customer's Web Site from attack, but Dexterous Software makes no warranty that there will be no outages or interruptions of service, or that Customer's Content will be secure against attack of any form by end users or other third parties.
12. PCI Guidelines
Dexterous Software provides a framework to its customers which is CISP certified under optimal security settings. However, if a Dexterous Software customer chooses to utilize the software other than as intended, utilize third party services or software, fail to install a SSL Certificate, or otherwise combine the software with software not approved by Dexterous Software (each a “Customer Fail Point”), Customer may fail to comply with the minimum PCI standards regardless of Dexterous Software’s certification.
Therefore, if a Dexterous Software customer chooses to engage in one or more Customer Fail Points, that customer assumes all liability for their actions and the inherent risk associated with viewing, processing, storing or transmitting credit card information and agrees to indemnify Dexterous Software of any costs, claims or damages associated with such risk. Dexterous Software will not be responsible for any such risk or liability regardless of the security settings.
Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all PCI guidelines for viewing credit card information. These guidelines can be found at Visa's website: PCI Overview
If a merchant does not follow all of the PCI guidelines when viewing credit card information, that merchant is in breach of its contract with Dexterous Software and possibly Visa/Mastercard/Discover/American Express. You agree to indemnify and hold Dexterous Software harmless from any and all claims, costs or damages associated with your failure to follow PCI guidelines.
Regardless of any Customer Fail Point, a customer must comply with the PCI DSS and assume liability applicable to PCI DSS. In addition, per PCI guidelines, stores must use a strong security protocol such as SSL to safeguard sensitive cardholder data over networks.
At its discretion, Dexterous Software reserves the right to change the security settings of any merchant at any time with or without warning. Dexterous Software further reserves the right, but not the obligation, to suspend or terminate any merchant that is suspected or proven to be in violation of minimum PCI guidelines.
13. Prohibited Practices
Dexterous Software shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and Dexterous Software shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, Dexterous Software may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that Dexterous Software deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement; or (iv) claims made by third parties against Dexterous Software that Customer or any of its end users has engaged in one or more of the above practices.
14. No Solicitation
Customer agrees Customer will NOT approach any employees of Dexterous Software and its affiliates with proposals to hire them as its own employees or contractors. If you were to hire any of Dexterous Software's employees, you agree to pay Dexterous Software for each employee hired the greater amount of three (3) years' salary for that employee as you are to pay such employee, or £150,000.
15. Customer's Indemnification
Customer shall indemnify and hold harmless Dexterous Software from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees and fees attributable to in house legal personnel, arising from or relating to Customer's provision, or an end user's use, of Customer's Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
16. DISCLAIMER OF WARRANTIES
CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". DEXTEROUS SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DEXTEROUS SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ABILITY OF THE SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (III) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (IV) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND DEXTEROUS SOFTWARE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY DEXTEROUS SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.