TERMS AND CONDITIONS OF USE The following terms and conditions outline the obligations between Vinsight Software ( Us ) and you the customer ( You ), that is to say Our obligations to You and Your obligations to Us. These terms form the legal agreement between You and Us, so please read them carefully.By registering to and/or using the Service: You agree to be bound by the terms and conditions in this agreement; You acknowledge that You are authorized to act on behalf of any entity which you claim to represent or on whose behalf you are using the Service. If you do not understand these terms or do not agree with them then do not use the Service. PREAMBLE Vinsight Software supplies a service to You that allows planning, recording, and reporting on wine business activities including but not limited to activities from the vineyard into the winery, and through to the despatch of packaged or bulk wine from the winery.
- Subscription means the licence to use the Service commencing on the Subscription Date and expiring after a specified Subscription Period.
- Subscription Date means the date which You created Your Service subscription with Us.
- Subscription Period means the length period after the Subscription Date for which the licence is valid.
- Subscription Fee means the licence fee paid for the duration of the Subscription.
- Service(s) means any business management or related service(s) made available to You by Us at Our Website.
- Software means the software and modules developed by Us providing the Service.
- Upgrades means enhancements and new versions of the Service released by the Us after the commencement of the Subscription. Upgrades may include new features and/or services which provide new or additional functionality as enhancements to existing services or replacement services designed to operate with new technology. Upgrades also do not include third-party software such as “Operating Systems”, “Database Management Systems”, and other third-party products with which the Service has been written to make use of.
- Support Schedule means a schedule notified to You by Us from time to time which specifies the Support Services provided by Us in terms of this agreement and the fees to be charged for those Support Services.
- Support Services means the services, described in the Support Schedule relating to the Service, to be performed by Us under this agreement.
- We agree to license, maintain and support the Service and any addendum thereto according to the terms and conditions of this Agreement.
We grant You a non-transferable and non-exclusive Licence to use the Service for
Your own operational purposes:
- For the Subscription Period; and
- Not exceeding the number of concurrent users for the Service paid for with the Subscription Fee.
- You may not use the Service for commercial time-sharing, rental or service bureau use without prior written agreement from Us.
- We may configure the Service to prevent use if the number of licensed concurrent users is exceeded.
- We grant You a non-transferable and non-exclusive Licence to use the Service for Your own operational purposes:
- You shall pay the Subscription Fee in one sum on the Subscription Date or by prior arrangement with Us using an agreed payment plan.
- You can notify us by email at anytime to cancel your subscription. Your cancellation will take effect at the end of your current subscription period and your subscription will not be renewed for the next period. No refund will be given for the current period.
Duration of Licence
- The Licence will commence on the Subscription Date and will continue until the end of the Subscription Period or until this Agreement is otherwise terminated. The licence will expire at the end of the Subscription Period unless otherwise renewed by payment of another Subscription Fee or unless otherwise terminated.
- Copyright and other intellectual property in the Service and all associated documentation shall remain the property of Us.
- Any software, know how, techniques or ideas which may be developed by Us at the request of You during the term of this Agreement, will belong to Us.
Copying and Modifications
- You will not permit the Software providing the Service (in whole or in part) to be copied except as reasonably required for backup purposes.
- You will ensure that the Service or the Software providing the Service is protected at all times from unauthorised access or use by a third party.
- You may not modify or attempt to modify the Service or the Software providing the Service or cause or permit the disassembly, or decompilation of the Software or any part thereof.
- You will not try to circumvent any security of the Service or the infrastructure and systems the service is based or hosted on.
- You will not try to access any services or data that you not expressly entitled to under Your Subscription.
- We provide a service where Your data is stored on secure servers and those servers are backed up to prevent data loss, However we do NOT warrant that there will be no data loss. You must maintain copies of the data and source information used to create the data stored in the Service.
- We do not warrant that the Service will be free of disruptions. There may be planned outages for maintenance and upgrades of the Service. While we make best endeavours, there may also be unexpected outages.
- You represent to the Us that You are using the Service for the purposes of a business and that You have not relied on any representation made by Us which has not been stated expressly in this agreement.
- The guarantees, warranties and conditions implied on the part of Us or any other supplier or sub-contractor, to the fullest extent permitted by law, do not include any legislation or statutory consumer guarantees or protection of non-business consumers.
- Subject only to the express warranties contained in this agreement, the Service and the Support Services are supplied “as is”. We do not warrant that the Service will meet Your expectations or requirements or that its operation will be uninterrupted or error free.
Limitation of Liability
- We will not be liable for indirect or consequential damage or for any loss of business, property, profit or data, however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Service, the Support Services or the failure or omission on the part of Us to comply with its obligations under this agreement, even if We had been advised of the possibility of such damages or loss, and whether such claim is made in contract, negligence or under any other legal claim.
Our total liability for damages under this agreement whether in contract,
negligence or under any other legal claim shall be limited at Our option to any
one or more of the following, as may be appropriate.
- Rectification or replacement of the Service;
- Supply of Support Services again;
- Refund of all or part of money paid by You to Us within the 12 months preceding notification of the claim.
- Any claim for damages under this agreement must be notified to Us within 12 months of the cause of action arising.
- We may out our discretion, provide additional Support Services outside the outside the scope of our normal support for an additional charge, but subject to availability of personnel and resources.
Support services do not include:
- Correction of errors caused by alterations, modifications or use of the Software not authorised by Us.
- Correction of errors caused by use of the Service other than in an operating environment recommended by Us.
- Correction of errors caused by any defects in the product which was used to create or run the Service.
- Support in respect of issues where You are not using an up-to-date internet browser as deemed by Us.
- Correction of errors which are not reproducible.
Fees and Charges
- We may make an additional charges for Support Services requested by You which are not required to be performed by Us under this agreement. Any such additional charge may be deducted by the Us from any support time purchased by You in advance according to the terms of this agreement or may be separately billed by Us and payable under the same payment terms as Your Subscription. We will inform You before hand if the Support Services You are requesting are billable.
- All fees and charges appearing in this agreement or quoted by Us are exclusive of any applicable sales or other taxes in any relevant jurisdiction.
- You shall pay interest at two (2%) percent above the Our bank overdraft rate on all overdue amounts from the due date until payment is made.
- If any payment owing to Us is not made on or before the due date, We may withhold or suspend access to the Service(s) without further notice to You. You shall have no right to set-off payment of any money due under this agreement against any other claim or matter, whether related or not.
Confidentiality and Privacy
- You shall treat as confidential Our intellectual and industrial property rights in the Service. We shall treat as confidential, information relating to You and Your business which comes into Our possession in the performance of this agreement.
- Neither party, without the consent of the other party, shall disclose the other’s confidential information to a third party.
- The operation of this clause shall survive the termination of this agreement.
- The provisions of 14.a and 14.b shall not apply if the information becomes public knowledge without a breach of this clause, or the receiving party is already in possession of the information prior to the disclosure, or if the information was developed without access to the confidential information.
- We may terminate this agreement immediately by notice in writing if You breach any clause of this agreement and such breach is not remedied within thirty (30) days of written notice by Us.
- On termination of the Subscription granted by this agreement, You shall cease using the Service and We may prevent You accessing the Service and Your Data.
- Termination of the Licence granted by this agreement shall not affect Your obligation to pay all fees and charges which became payable under this agreement before such termination and shall not affect any right at law or equity relating to any obligation under this agreement and which accrued to either party before such termination.
- If you have prepaid for a service, no refund is payable to you on termination unless we agree otherwise.
- Neither party will be liable for any delay or failure to perform its obligations under this agreement if such failure or delay is due to an event or events over which that party could not reasonably have exercised control.
- You may not assign or otherwise dispose of the Subscription or the benefit of this agreement without Our prior written consent.
- No right under this agreement shall be deemed to be waived except by written notice. A waiver by either party in any instance will not prejudice its rights in respect of any subsequent breach of this agreement by the other party.
If this agreement is entered into in respect of a Service already by Us to You
and You have paid the Subscription fee stipulated by Us, then this agreement
shall apply to such Service with effect from the Subscription Date, but with the
- You shall not be required to pay any further Subscription fee in respect of such Service (but may be required to pay for Service to be brought up to the appropriate Subscription Level);
- This clause shall take priority over any other conflicting clause in this agreement.
- If this agreement is entered into in respect of a Service already by Us to You and You have paid the Subscription fee stipulated by Us, then this agreement shall apply to such Service with effect from the Subscription Date, but with the following modifications:
- Except as provided herein this agreement constitutes the entire agreement between the parties for the subject matter referred to herein. Any prior arrangements, agreements, representations or undertakings are superseded.
- The terms of this agreement shall include any addendum to this Agreement and any Support Schedule notified to You by Us from time to time.
- If any clause in this agreement is for whatever reason held to be unenforceable, illegal or invalid then this shall not affect any other clauses in this agreement.
Extension of Agreement
- The terms of this agreement shall include any addendum to this agreement consented to in writing by both parties. Terms defined in this agreement shall have the same meaning in any addendum to this agreement and in any Support Schedule notified to You by Us from time to time.