OnSuite Hosting Agreement

These terms and conditions set out the agreement (“the Agreement”) between Business Professional and you for the provision of the Service. Your access to and use of the Service constitutes your acceptance of this Agreement.

A. Definitions in this agreement

1. "Charges" means any or all charges to you, whether for access to hosted applications and/or for Customer Support and any other services or goods that you purchase from Business Professional from time to time;
2. "the Internet" means the global data network comprising interconnected networks using Transmission Control Protocol/Internet Protocol;
3. "Service" means the service provided by Business Professional whereby you gain access to and use a hosted service via the Internet, and, where applicable, any services and facilities provided by Business Professional for you in connection with the Service including associated websites;
4. "Business Professional", “we”, "us" or "our" means Business Professional Ltd, the company registered in Scotland under Company Number SC211632 whose registered office is at Law House, Fairbairn Place, Livingston, West Lothian, EH54 6TN;
5. "You" and "your" means the company or other legal entity, and its affiliates, for which you are accepting this Agreement. You hereby represent and warrant to us that you are duly authorised to execute and deliver this Agreement on behalf of the company or legal entity to whom the benefit of the Service is being conferred, and that the entity will comply with and be bound by the terms and conditions of this Agreement.
6. "Users" means all users that are registered within the Community Manager provided as part of the Service.

B. We will:

1. provide you with access to the Service via a website address that is specific to your use of the service;
2. provide a service as defined in the Business Professional Service Offer, which is published separately on the Business Professional website;
3. invoice you monthly in arrears for the Charges incurred through the use of the Service by your Users and require payment for the charges within ten days of the invoice date;
4. regularly update the Service;
5. handle any personal information you might supply to us when you use the Service in accordance with the Business Professional Privacy Policy, which is published separately on the Business Professional website.

C. You will:

1. be responsible for interoperability between your equipment and the Service;
2. pay on demand the Charges by cheque or direct payment to a nominated bank account.

D. Your Users will:

1. only use the Service for legitimate personal or business use;
2. not use the Service to commit or encourage a criminal offence;
3. not use the Service to send, receive, upload, download, use or re-use any information or material which is offensive, abusive, indecent, defamatory, obscene or menacing, harmful to minors or in breach of confidence, copyright, privacy or any other rights;
4. not use the Service to do anything which is contrary to the acceptable use policies of any connected networks and Internet standards;
5. not use the Service to insert or knowingly or recklessly transmit or distribute a virus;
6. not seek unauthorised entry into the Service;
7. not hack into any aspect of the Service;
8. not knowingly corrupt data;
9. not circumvent, or attempt to seek to circumvent, any of the security safeguards of Business Professional or any of its service partners;
10. not use any domain name or mailbox name within the Service so as to infringe upon the rights of any other person whether in statute or common law, in a corresponding trade mark or name;
11. not use the Service to send or provide any unsolicited advertising or other promotional material, commonly referred to as "spam" by email or by any other electronic means;
12. not use the Service to send email or any other type of electronic message with the intention or result of affecting the performance or functionality of any computer facilities;
13. not use the Service in a way that does not comply with the terms of any legislation or any licence applicable to you or that is in any way unlawful;
14. not use the Service in any way that, in Business Professional's opinion, is, or is likely to be, detrimental to the provision of the Service to any other Business Professional customer. This includes, but is not limited to, using any application or program in a way that places excessive bandwidth demands on the Service;
15. not employ a misleading email address or name or falsify information in the header, footer, return path or any part of any communication, including without limitation any email transmitted through the Service;
16. not modify, translate, reverse engineer, decompile, disassemble (except to the extent that applicable laws specifically prohibit such restriction) or create derivative works based on any software supplied by Business Professional or its licensor or other content owner or any documentation accompanying such software.

E. Reservation of rights

1. Subject to the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Service, including all intellectual property rights. You will comply with the terms of any agreement required by the owner of intellectual property rights in all software and content supplied to you as notified to you.

F. Confidentiality and security

1. You agree that neither Business Professional nor its service partners shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Service are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Business Professional at the time) which may exist in the Service. Electronic communications as provided within the Service are private, and only under situations where explicitly required or allowed by law will such communications be accessed, intercepted, disclosed, or used without the consent of at least one of the parties to the communication.
2. Although we will not systematically monitor the content that is submitted to, stored on or disseminated via the Service, we reserve the right, at our sole discretion, to edit or delete any information or other content that we believe violates the standards for content laid out in the User obligations in Clause D.

G. Customer content

1. All information and material submitted by you and accepted by us via the Service by way of any contribution to the Service shall be deemed to be and shall remain your property.
2. You hereby grant us the rights to copy and distribute such information and material solely to the extent necessary to allow us to make the same available via the Service.

H. Mutual disclaimer

1. Except as expressly provided in this Agreement, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.

I. Mutual limitation of liability

1. Nothing in this Agreement excludes or limits either party's liability for any death or personal injury caused by negligence or the consequences of any fraud by either party.
2. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, delict or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
3. In no event shall either party's aggregate liability arising out of or related to this Agreement, whether in contract, delict or any other theory of liability, exceed the total amount paid by you hereunder or, for a single incident, the amount paid by you hereunder in the 12 months preceding the incident. The foregoing shall not limit your payment obligations in Clause L.

J. Mutual indemnity

1. We shall defend you against any claim, demand, suit, or proceeding (" Claim") made or brought against you by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against you, and for reasonable solicitor’s fees incurred by you, in connection with any such Claim; provided, that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defence and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at your expense.
2. You shall defend us against any Claim made or brought against us by a third party alleging that your data, or your use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against us, and for reasonable solicitor’s fees incurred by us, in connection with any such Claim; provided, that we (a) promptly give you written notice of the Claim; (b) give you sole control of the defence and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.
3. This mutual indemnity clause states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this clause.

K. Variation of the terms of this Agreement

1. We reserve the right at our absolute discretion at any time and without notice to remove, amend or vary any of the software or content supplied in connection with the Service provided such alteration or amendment does not require any material change to this Agreement.
2. We reserve the right at our absolute discretion at any time to alter and/or amend this Agreement upon giving you 30 days notice in advance of any such amendment taking effect.
3. If, upon receiving any such notice, you do not wish to continue with the Service, you may terminate the Agreement as defined in Clause M below.
4. You will be deemed to have accepted any alteration and/or amendment to the Agreement and/or the Service if you continue to use the Service after the relevant period of notice has expired.

L. Charges

1. You agree that your use of any of the Service by any Users, in any way, will be chargeable to you. When varying the applications subscribed to within the Service, any outstanding Charges from previously selected applications for all Users will require settlement in full.
2. You agree to refund to us the cost of collecting outstanding payments owed or charges incurred due to failed or referred transaction(s).
3. In the event that we do not receive payment of the Charges due on the due date, we reserve the right, at our sole discretion, and without notice to you, to suspend our performance under this Agreement until payment is received.
4. We reserve the right to increase or decrease our Charges from time to time. Details of any such change will be communicated to you by post or email 90 days in advance of the change taking effect.
5. On providing us with evidence that the availablility of the Service, as defined in the Business Professional Service Offer, was less than 100% in a given month, we will apply the appropriate credit to the total mothly rental charges for the Service for that month.

M. Termination

1. This Agreement will run from the time you complete the registration process and will continue thereafter unless and until terminated by either of us as set out in this Clause.
2. This Agreement may be terminated at any time for any reason by you on the day you give us notice as defined in Clause N; and by us on 90 days notice to you.
3. We may also terminate the Agreement or suspend the performance of the Service to you, at our sole discretion, immediately and without notice if:
i) you breach this Agreement; or
ii) bankruptcy or other insolvency proceedings are brought against you; or
iii) you are no longer able lawfully to receive the Service; or
iv) we do not receive payment of the Charges due within 30 days of the due date.

4. If we suspend the Service, either pursuant to Clause L(3) above, or under this Clause, you must continue paying the Charges (if applicable) unless and until the Service is terminated.
5. In the event of termination of this Agreement you will remain responsible for all Charges you have incurred to the date of termination and we reserve the right to delete any email and application data that has been created by you through the use of the Service subject to Clause M(6) below.
6. Upon request by you made within 30 days after the effective date of Termination of this Agreement, we will make available to you for download a file or files of your data in comma separated value (CSV) format together with all attachments in their native format. After such 30 day period we shall have no obligation to you to provide any of your data and shall thereafter, unless legally prohibited, delete all of your data in our systems or otherwise in our possession or under our control.
7. Termination of this Agreement does not affect any obligations that have arisen prior to termination.
8. Clause E, F, G, H, I, J, L and M(6) above shall survive any termination or expiration of this Agreement.

N. Notices

1. Unless otherwise provided in this Agreement, any notices shall be sent by e-mail or post.
2. In the case of notices sent by email, such notices shall be deemed to be received when capable of being accessed by the recipient. In the case of notices sent to us by post, such notices shall be deemed to be received on the second business day after posting.
3. In the case of notices to you, we will use the postal or email address you have given us in your registration details or to any other address provided to us subsequently.
4. In the case of notices to us, the following details are to be used:

In writing sent by first class post to:
Business Professional
Customer Support Centre
The Coatbridge Business Centre
204 Main Street
Coatbridge, ML5 3RB
United Kingdom; or

by email to support@business-prof.com.

O. Settlement of Disputes

1. If any dispute arises out of this Agreement the parties will attempt to settle it by negotiation.
2. If the parties are unable to settle any dispute by negotiation within 21 days the parties will attempt to settle it by mediation in accordance with the UK Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. The mediation will take place in Glasgow, Scotland and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by, and construed and take effect in accordance with Scots law. The courts of Scotland shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the mediation.
3. If the parties have not settled the dispute by the mediation within 21 days from when the mediation was instituted, the dispute shall be referred to, and finally resolved by, arbitration under the Rules of the Chartered Institute of Arbitrators, which Rules are deemed to be incorporated by reference to this clause. The arbitration will take place in Glasgow, Scotland and the language of the arbitration will be English.
4. The award of the Arbitrator will be final and binding upon the Parties concerned.
5. Both parties will share the cost of mediation and/or arbitration equally.
6. See also the ADR Directive 2013 supplemented by the Regulation on Consumer ODR 2013: http://ec.europa.eu/consumers/odr/ .

P. General provisions

1. If any provision of this Agreement is deemed by a court of competent jurisdiction to be contrary to law, or otherwise unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
2. This Agreement shall be governed by and interpreted in accordance with Scots law.
3. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
4. These terms and conditions set out the whole of our agreement relating to our supply of the Service. They cannot be varied except in writing by a director of Business Professional. In particular nothing said by any employee on behalf of Business Professional should be understood as a variation of these terms and conditions or an authorised representation about the Service or the nature and quality of items displayed thereon. We shall have no liability for any such representation being untrue or misleading. Notwithstanding any provisions to the contrary therein, no terms and conditions stated in your purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.

(Last updated: March 21, 2016)

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