THESE TERMS AND CONDITIONS (the “Terms”) are dated 21st of May 2014
PLEASE READ CAREFULLY BEFORE DOWNLOADING AND/OR USING THE SOLUTION AND/OR THE SERVICES FROM THIS WEBSITE.
These Terms are legal agreement between you (“you”) and Openmind Networks Limited of 4 Westland Square, Pearse Street, Dublin 2, Ireland (“Licensor”, “us” or “we”) for Golgi, which offers app developers powerful and intelligent two-way app to app and app to server communication and which is further described at www.golgi.io/features (the “Solution”) and related documentation (the “Documents”).
“User” shall mean those who are authorized by you to use the Solution, the Documents and/or Services (as defined below). You shall ensure that all of your Users comply with these Terms, and you shall be liable for any breach of these Terms by your Users. You agree to indemnify and hold us harmless against any claims or damages we incur as a result of actions of your Users.
We licence use of the Solution and Documents to you and your Users on the basis of these Terms and subject to any rules or policies applied by us. We do not sell the Solution or the Documents to you or to your Users. We remain the owners of the Solution and the Documents at all times.
By downloading the Solution from this Site, by clicking on the “Accept” button below and/or by actually using the Solution and/or the services available via the Solution (the “Services”), you agree to these Terms, which will bind you and your Users. It is your responsibility to ensure your Users adhere to these Terms. These Terms include, in particular, the privacy statement defined in Section 1.6 and limitations on liability in Section 9. Please ensure that you read these Terms carefully, and check that the details on your order for the Solution (and Services) (the “Order”) are complete and accurate, before you submit the Order. If you think that there is a mistake or require any changes, please contact us. We will confirm any changes in writing to avoid any confusion between you and us. If you are using our Solution (and Services) for an organization, you agree to these Terms on behalf of that organization. You must be 18 years of age or older to use the Solution (and Services). You represent and warrant that you are 18 years of age or older and are fully able and competent to enter into, and abide by these Terms. The Solution (and Services) is not intended for those under the age of 18. If you do not agree to these Terms, we do not license the Solution, the Services or the Documents to you and the Solution and the Documents should not be used by you or any of your Users.
1.1 These Terms apply to the Solution or any of the Services, including any updates or supplements to the Solution or any Services, unless they come with separate terms, in which case those terms apply.
1.2 If any open-source software is included in the Solution or any Service, the terms of an open-source licence may override some of these Terms. We will notify you of any material change to these Terms arising from our use of open-source software in the Solution.
1.3 We may change these Terms at any time by sending you an email with details of the change or notifying you of a change when you next access the Solution or log onto one of the websites referred to in Section 1.6 below. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Solution, the Documents and/or the Services.
1.4 From time to time, updates to the Solution may be issued. Depending on the update, you may not be able to use the Solution and/or the Services until you have downloaded or streamed the latest version of the Solution and accepted any new terms.
1.5 You will be assumed to have obtained permission from the owners of the devices that are controlled by you and/or which use the Solution and/or Services (the “Devices”). You accept responsibility in accordance with these Terms for the use of the Solution or any Service on or in relation to any Device, whether or not it is owned by you.
1.6 The terms of our privacy statement, available at www.golgi.io/privacy (the “Privacy Statement”) are incorporated into these Terms by reference and apply to the Solution and the Services. Additionally, by using the Solution or any Services, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the Solution or any Services may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
1.7 By using the Solution or any of the Services, you consent to us collecting and using technical information about the Devices, Users’ use of the Services (on an aggregated basis) and related software, hardware and peripherals for Services that are internet-based or wireless to improve our Solution and to provide any Services to you.
1.8 The Solution or any Services may contain links to other independent third-party websites (the “Third-Party Sites”). Third-Party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy statements (if any). You will need to make your own independent judgement regarding your interaction with any Third-Party Sites, including the purchase and use of any products or services accessible through them. You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you (or your Users) as a result of the availability of such Third-Party Sites, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such Third-Party Sites.
1.9 You agree your purchases of the Solution and/or the Services (and any downstream use of the Solution and/or the Services by your Users) are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by us (or any of our affiliates) regarding future functionality or features.
2. Sale Process
2.1 When you submit an Order to us, this does not mean we have accepted your Order. We will notify you of our acceptance of the Order with a written acceptance. If we are unable to process your Order, we will inform you of this in writing and we will not process the Order.
2.2 We shall assign an order number to the Order and inform you of it if we confirm the Order. Please quote the order number in all subsequent correspondence with us relating to the Order.
2.3 You have the right to cancel your Order with us with fourteen (14) days’ notice without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract for the Order. To exercise the right to cancel, you must inform us at firstname.lastname@example.org of your decision to cancel this contract by an unequivocal statement. You may use the attached cancellation form but it is not obligatory. To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
2.4 If you cancel this contract, we will reimburse to you payments (if any) received from you, including the costs of delivery, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to cancel the contract associated with the Order. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless we have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. If you begin to use Services (or access the Solution) during the cancellation period, you shall pay us an amount which is in proportion to what has been provided until you have communicated to us your cancellation of the contract in comparison with the full coverage of the contract. From the date of receipt of your cancellation neither you nor your Users shall have any further right to use the Solution and Services pursuant to the cancelled contract.
3. Grant and Scope of Licence
3.1 In consideration of you agreeing to abide by these Terms and subject to receipt of confirmation of your Order from us (in accordance with Section 2 above) and payment of applicable fees (details of which are available at www.golgi.io/pricing (the “Pricing Page”), we grant you a non-transferable, non-assignable, non-exclusive, personal, worldwide, revocable licence to use the Solution on the Devices and for the online transportation of data, as described in the Documents, subject to these Terms and the Privacy Statement. We reserve all other rights.
3.2 In consideration of your access to, and use of, the Solution you shall pay us, in accordance with Section 6 below, such amounts as are calculated as due and owing by with reference to the charging and plan options set out in the Pricing Page.
4. Licence Restrictions
Except as expressly set out in these Terms or as permitted by any local law, you agree:
(a) not to copy the Solution or Documents except where such copying is incidental to normal use of the Solution or Documents, or where it is necessary for the purpose of back-up or operational security;
(b )not to translate, adapt, vary or modify the Solution or Documents;
(c) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Solution or the Services or attempt to do any such thing except to the extent that such actions cannot be prohibited by law (d) in certain jurisdictions because they are essential for the purpose of achieving inter-operability of the Solution or the Services with another software program, and provided that the information obtained by you during such activities:
- is used only for the purpose of achieving inter-operability of the Solution or the Services with another software program;
- is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- is not used to create any software that is substantially similar to the Solution or the Services.
(e) to keep all copies of the Solution and the Documents secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Solution or Documents;
(f) to include our copyright notice on all entire and partial copies you make of the Solution, the Services and Documents on any medium;
(g) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Solution or any Service (the “Technology”),
(together the “Licence Restrictions”).
5. Acceptable Use Restrictions
5.1 You must, and you must procure that your Users do not (directly or indirectly, in whole or in part):
(a) use the Solution, the Documents or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Solution, any Service or any operating system;
(b) infringe our intellectual property rights or those of any third party in relation to your use of the Solution, the Documents or any Service, including the submission of any material;
(c) transmit any material that is defamatory, offensive, unlawful or otherwise objectionable in relation to your use of the Solution or any Service;
(d) use the Solution or Services in a greater capacity than we have identified to you or otherwise use the Solution or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
(e) sublicense or distribute the Solution or Services (other than to use the Solution in sublicensing or distributing the Apps);
(f) access, use, or copy any portion of the Solution or Services to directly or indirectly to develop, promote or support any product or service that is competitive with the Solution or Services;
(g) lease, rent or commercially share or otherwise use the Solution or Services for purposes of providing a service bureau or application service provider type services;
(h) remove any markings, identification, patent, trademark, copyright, or other notice from the Solution or Services;
(i) interfere with or disrupt the integrity or performance of the Solution or Services or third-party data contained therein;
(j) collect or harvest any information or data from the Solution, any Service and/or our systems or attempt to decipher any transmissions to or from the servers running the Solution or any Service;
(k) attempt to gain unauthorized access to the Solution or Services or the related systems or networks, including access to our customer’s data; and/or
(l) disclose or publish, without our express prior written consent, performance or capacity statistics regarding the Solution or Service
5.2 You must provide accurate and complete registration information any time you register to use the Solution and/or the Services.
5.3 You are responsible for the security of your passwords and for any use of your account. You will ensure that each username and password issued to you will be used only by an authorized User. You are responsible for maintaining the confidentiality of all usernames and passwords. You are solely responsible for all activities that occur under these usernames. You agree to:
(a) only allow authorized Users to use your account, usernames or passwords;
(b) keep a current list of all authorized Users; and
(c) promptly notify us if you becomes aware, or should be aware, of any actual or suspected unauthorized use of your account, usernames or passwords, or any other breach or suspected breach of security related to the Service.
5.4 You agree:
(a) not to use the Solution by any means other than through the interface that is provided by us;
(b) to use the Solution and Services only to develop and run applications on our infrastructure;
(c) not to access the Solution and/or Services for the purpose of bringing any claim of intellectual property infringement; and
(d) that you will protect the privacy and legal rights of any users of your Apps that use the Solution and/or Services. You must provide legally adequate privacy notice and protection for such users and process users personal information in full compliance with applicable data protection laws.
5.5 You shall be responsible for ensuring that all Users adhere to these Terms, for the accuracy, quality, integrity and legality of your Material and Apps and of the means by which you process your Material and Apps. You have sole control over your Material and any Apps used with, or on, the Solution and or Services, and acknowledges we have no control over and/or reasonability for your (or your Users) Material and Apps.
5.6 We reserve the right to remove or block any Material, App and/or account that violates these Terms.
6. Fees and Payment
(a) Fees for the Solution and Services are set out at www.golgi.io/pricing.
(b) We will charge you on a month-to-month basis for a Charged Account unless and until we terminate, or you cancel, your subscription to the Solution and Services.
(c) You must provide us with a current, valid, accepted method of payment (the “Method of Payment”) to use the Solution and Services.
(d) You authorize us to charge you a monthly fee at the then current rate (depending on the Solution plan you have chosen – see http://golgi.io/pricing), and any other charges you may incur in connection with your use of the Solution and Services to your Method of Payment.
(e) You acknowledge that the amount billed each month may vary from month-to-month for reasons that may include changing or adding a plan, Service or Solution option and you authorise us to charge your Method of Payment for such varying amounts, which may be billed monthly in one or more charges.
(f) We will bill the monthly recurring subscription fee to your Method of Payment. We automatically bill your Method of Payment each month on the calendar day (or closest calendar day) corresponding to the commencement of your subscription.
(g) We reserve the right to change the timing of our charging, in particular if your Method of Payment has not successfully settled.
(h) Without prejudice to Sections 2.3. and 2.4, we do not provide any refunds for lack of usage.
(i) We do not support all payment methods, currencies or locations for payment. Supported payment methods, currencies or locations for payment are listed at www.golgi.io/pricing.
(j) In the event the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel your account, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts. Your obligation to pay fees continues through the end of the subscription period during which you cancel your subscription.
(k) All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
(l) If you subscribe for a Charged Account or purchase any services that we offer for a fee, either on a one-time or subscription basis, you agree to us storing your payment information (in a tokenised form).
(m) All amounts are quoted in and you must pay all amounts owed in U.S. Dollars.
(a) fees are exclusive of all taxes, levies, or duties imposed by taxing authorities (including, for the avoidance of doubt, VAT), and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on our income.
(b) We will charge tax when required to do so and you must pay us any tax charged in addition to any fees.
(a) You may wish to purchase and enhanced version of the Solution and/or Services and add paid features to your account (effectively upgrading your account into a “Charged Account”). We will automatically charge you from the date you convert your account into a Charged Account and periodically (according to the Pricing Page thereafter) until cancellation.
(a) We reserve the right to adjust pricing for our Solution and Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes to your Solution and Service will take effect following email notice to you and will impact your subscription to the Solution and Service for the chargeable month after the notified change (i.e. the month for which you have already paid will not be affected). Your continued use of the Solution or Services following our notice to you of any price change shall be deemed an acceptance by you of such changes.
(b) For Charged Accounts advance notice of changes to our fees will be posted on the Pricing Page and sent to you via a message to the email address associated with your account.
6.5 Queries on Payments
(a) If you believe your invoice is incorrect, you must contact us in writing within 60 days of the Method of Payment transaction date containing the amount in question to be eligible to receive an adjustment or credit (if the fees charged are incorrect). It is your obligation to provide us with complete and accurate billing and contact information.
6.6 Termination and Cancellation
(a) In the event that payment under a Charged Account is not made within 30 days of the due date for such payment, we reserve the right to immediately suspend or terminate your (and your Users) access to the Solution and/or any contract with you, at our sole discretion and at no liability to us.
(b) You may cancel your Charged Account at any time but, subject to Sections 2.3 and 2.4 above, we do not issue any refunds.
(c) Subject to Sections 2.3 and 2.4 above, following any cancellation, you will continue to have access to the Solution and Services through the end of your current billing month.
7. Intellectual Property Rights
7.1 You acknowledge that all intellectual property rights in the Solution, the Services, the Documents and the Technology anywhere in the world belong to us or our licensors, that rights in the Solution are licensed (not sold) to you, and that you have no rights in, or to, the Solution, the Services, the Documents or the Technology other than the right to use each of them in accordance with the terms of these Terms. You acknowledge that you have no right to have access to the Solution in source-code form.
7.2 You understand that any application that you (or your Users) create using, or use with, the Solution and/or the Services (the “Apps”) are your sole responsibility.
7.3 You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) the Apps or any material (e.g. files, content, contacts, etc.) (the “Material”) that you (or your Users) create, encrypt, transmit or display while using the Solution and/or the Services.
7.4 We are not responsible for the Materials and/or Apps you use with our Solution and our Services.
7.5 We reserve the right (but shall have no obligation) to remove any or all of your Material from the Solution and/or Services. You agree to immediately take down any App and/or Material that violates these Terms. In the event that you elect not to comply with a request from us to take down certain Material, we reserve the right to directly take down such Material or to disable Apps.
7.6 If you provide feedback to us regarding the Services or the Solution (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us a non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
7.7 In the event that you become aware of any violation of these Terms by a user of the Apps, you shall immediately terminate/disable such User’s account on your App. We reserve the right to disable Apps in response to a violation or suspected violation of these Terms.
7.8 You agree that we have no responsibility or liability for the deletion or failure to store any Material, Apps and other communications maintained or transmitted through use of the Solution and/or the Service. You further acknowledge that you are solely responsible for securing and backing up your Apps and any Material.
7.9 Except as provided herein (including in Section 7.10 below), we acknowledge that we obtain no right, title or interest from you (or your licensors) under these Terms in or to any Material or Apps that you create, submit, post, transmit or display on, or through, the Solution or Services, including any intellectual property rights which subsist in such Material and the Apps. You agree that you are responsible for protecting and enforcing such rights and that we have no obligation to do so on your behalf.
7.10 By submitting, posting or displaying Material and/or by creating/or using an App on or through the Solution or Services, you (and you will procure that your Users) grant us a worldwide, perpetual, royalty-free and non-exclusive license to use, reproduce, adapt, modify, translate, publish, display and distribute such App and Material for the purpose of enabling us to provide you with our Solution or Services.
8.1 THE SOLUTION AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS WHICH MAY APPLY TO THE SOLUTION AND/OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, WE DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SOLUTION AND/OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SOLUTION AND/OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND/OR (C) DATA PROVIDED THROUGH THE SOLUTION AND/OR THE SERVICES WILL BE ACCURATE.
8.2 You warrant that
(a) you have full power and authority to enter into and perform these Terms;
(b) you have all right necessary to provide, access and modify the Material and the Apps, including rights to grant the license at Section 7.10;
(c) neither the Material nor the Apps violate any applicable law or infringe the intellectual property rights of any party.
9. Indemnity and Limitation of Liability
9.1 You acknowledge that none of the Solution, the Documents or the Services have been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Solution, the Documents and Services, as described in the Documents, meet your requirements.
9.2 You agree to indemnify us and our subsidiaries, affiliates, officers, agents and employees from and against any claim arising from or in any way related to: (a) you or your Users’ breach of these Terms; (b) you or your Users’ use of the Solution and/or the Services; (c) you and or Users’ violation of applicable laws relating to you or your Users’ use of the Solution and/or the Services; or (d) your Material or your Apps, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
9.3 WE HAVE NO LIABILITY TO YOU FOR ANY CONSEQUENTIAL OR INDIRECT LOSS, FOR ANY SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL OR DAMAGE TO REPUTATION, OR LOSS OF BUSINESS OPPORTUNITY (WHETHER DIRECT OR INDIRECT).
9.4 WE ARE ONLY RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREACH OF THESE TERMS OR OUR NEGLIGENCE UP TO THE LIMIT SPECIFIED IN SECTION 9.5 BUT WE ARE NOT RESPONSIBLE FOR ANY UNFORESEEABLE LOSS OR DAMAGE. LOSS OR DAMAGE IS FORESEEABLE IF IT IS AN OBVIOUS CONSEQUENCE OF OUR BREACH OR IF THEY WERE CONTEMPLATED BY YOU AND US AT THE TIME WE GRANTED YOU THE RIGHT TO USE THE SOLUTION AND THE SERVICES UNDER THESE TERMS.
9.5 OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS (INCLUDING YOUR (AND/OR YOUR USERS) USE OF ANY SERVICES) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO €500. THIS DOES NOT APPLY TO THE TYPES OF LOSS SET OUT IN SECTION 9.7.
9.6 YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THE SOLUTION MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED.
9.7 Nothing in these Terms shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded or limited by the laws of Ireland.
10.1 We may terminate our agreement with you under these Terms immediately by written notice to you:
(a) (other than in relation to Charged Accounts) at our sole discretion and for any or no reason. You agree that any termination of your access to the Solution and/or Services may be without prior notice, and you agree that we will not be liable to you or any third party for such termination;
(b) if you commit a material or persistent breach of these Terms which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so;
(c) without compensation or notice if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
10.2 You can cease using our Solution and Services at any time.
10.3 On termination for any reason:
(a) all rights granted to you under these Terms shall cease;
(b) you must immediately cease all activities authorised by these Terms, including your use of any Services; and
(c) you must immediately delete or remove the Solution from all Devices, and immediately destroy all copies of the Solution and Documents then in your possession, custody or control and certify to us that you have done so.
(a) Where we provide support for the Solution and/or Services (“Support”) this will be available during the Support Hours (as defined in Section 11.5 below).
(b) Support, where available, is further described at www.golgi.io/pricing.
11.2 Your obligations
(a) You shall:
- co-operate with us in performing the Support and provide any assistance or information as may reasonably be required by us, including in relation to the diagnosis of any Errors; and
- report Errors promptly to us.
(a) Support is provided by email.
(b) There is no guaranteed response time or resolution for Pro customers.
(c) We will respond for Pro +, Global and Enterprise on the terms set out in Section 11.4 below.
(a) We shall use our reasonable endeavours to resolve an Error within the estimated time scales set out in the table below within the Support Hours, provided no delays are caused which are outside our control. (b) Prioritization and categorization of Errors is at our sole discretion.
|Enterprise||Critical||Initial Response||1 Hour|
|Normal||Initial Response||1 Business Day|
|Fix||20 Calendar Days|
|Pro+/Global||Critical||Initial Response||1 Business Day|
|Restoration||2 Business Days|
|Normal||Initial Response||3 Business Days|
|Fix||45 Calendar Days|
?“Error” means a reproducible error in the Solution that causes it to fail to operate substantially in accordance with the Documents such that: (a) the Solution cannot process the stated maximum burst rate; or (b) the Solution fails to transport some or all of your (or your Users’) data where the recipient has been correctly specified. In the case of a software fault this is applicable to the client side software (the SDK) or the server side software that the Solution hosts in the cloud. A “critical error” means an error which severely impacts the Solution such that immediate corrective action is required (in our view, acting reasonably).
For the avoidance of doubt the Solution is not responsible for reporting or analysing poor data connectivity issues on Devices.
11.5 Support Hours
(a) Support Hours are:
- Pro+ and Global: 8 a.m. to 5 p.m. Pacific Time, Monday to Friday, excluding company holidays; and
- For Enterprise (for critical errors only): 24 hours a day, 7 days a week.
11.6 Service Levels
(a) Subject to these Terms, the Service “Uptime”, as defined below, will generally be equal to or greater than 98% in each calendar quarter, as per the table below and formula below:
“Uptime” = (Total Minutes – Unplanned Downtime) / (Total Minutes) x 100.
|Uptime Guarantee||Basic – 98%||Pro – 98.5%||Pro+ – 99%||Global / Enterprise – 99.9%|
(a) We shall have no obligation to provide the Support where Errors arise from:
- misuse, incorrect use of or damage to the Solution and/or the Services from whatever cause (other than our act or omission);
- failure to maintain the necessary environmental conditions or equipment for use of the Solution and/or the Services;
- provision of services in relation to the Solution and/or the Services by any person other than us (or a party acting on our behalf);
- any breach of your (or your Users) obligations under these Terms howsoever arising; or
- any access to or modification to the Solution and/or the Services not authorised by us.
(b) You are solely responsible for providing, at your own expense, all network access to your (and your Users) Apps and Materials, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Solution and Services.
(c) As your sole and exclusive remedy and our sole liability for non-conformance with the Service Levels, if the Service Level is not met by us you may terminate this Agreement pursuant to Section 10.2.
12.1 If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, you can send this to us by email or by prepaid post to Openmind Networks Limited – Golgi at 4 Westland Square, Pearse Street, Dublin 2, Ireland and email@example.com. We will confirm receipt of this by contacting you in writing, normally by email.
12.2 If we have to contact you or give you notice in writing, we will do so by email for the Solution.
13. Modifications to the Solution
13.1 We do not provide you with the equipment to use and access the Services and Solution. You are responsible for all fees charged by third parties to access and use the Services and Solution (e.g., charges by ISPs or mobile carriers).
13.2 We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Services and Solution without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or Solution.
14. Events beyond our Control
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (“Event Outside Our Control”).
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:
(a) our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations under these Terms may be performed despite the Event Outside Our Control.
15. Additional Terms
15.1 We grant you a limited, personal, non-exclusive, revocable, non-transferable license to use the “Powered by Golgi” logo (the “Logo”) subject to acceptance of the following terms. All rights in the Logo, in all parts of the world, are vested in us. By accepting these terms you acknowledge this. We reserve the right on demand, as we in our discretion think fit, to direct you to cease any and/or all use of the Logo with immediate effect. You will comply with any such direction that we may give in relation to use of the Logo, e.g. the placing of the Logo on your website. You agree that will not use the Logo in any manner which is indecent or inappropriate, or in any other way incompatible with our reputation.
15.2 We may revise these Terms from time to time, and will always post the most current version on our website. If a revision materially reduces your rights, we will notify you by sending a message to the email address associated with your account. By continuing to use or access the Solution and/or the Services after the revisions come into effect, you agree to be bound by the revised Terms.
15.3 These Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter (with the exception of non-disclosure agreements between the parties in relation to the subject matter hereof). Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
15.4 Any words following the terms “including”, “include”, “in particular” or “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
15.5 We may transfer or assign our rights and obligations under these Terms to another organisation, but this will not affect your rights or our obligations under these Terms.
15.6 You may only transfer or assign your rights or obligations under these Terms to another person if we agree in writing.
15.7 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
15.8 Each of the conditions of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
15.9 The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
15.10 We may include your name on a list of customers of the Solution and/or Services.
15.11 Please note that these Terms, its subject matter and its formation, are governed by the laws of Ireland. You and we both agree that the courts of Ireland will have non-exclusive jurisdiction.