Please read these Terms and Conditions carefully. All contracts that the Provider
may enter into from time to time for the provision of the Hosted Services shall be
governed by these Terms and Conditions, and the Provider will ask the Customer
for the Customer's express acceptance of these Terms and Conditions before providing
any such services to the Customer.
1. Definitions
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a
person to access and use the Hosted
Services;
"Agreement" means a contract made
under these Terms and Conditions between the
Provider and the Customer;
"Charges" means the amounts specified
in US$;
"Customer" means the person or
entity identified as such in the Services Order Form;
"Customer Data" means all data
generated by the Platform as a result of the use of
the Hosted Services by the Customer (but excluding analytics data relating to the
use of the Platform and server log files);
"Documentation" means the documentation
for the Hosted Services produced by the
Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means following the
Customer completing and submitting the online
Services Order Form published by the Provider on the Provider's website, the date
upon which the Provider sends to the Customer an order confirmation;
"Force Majeure Event" means an event,
or a series of related events, that is outside
the reasonable control of the party affected (including failures of the internet or
any public telecommunications network, hacker attacks, denial of service attacks,
virus or other malicious software attacks or infections, power failures,
industrial disputes affecting any third party, changes to the law, disasters,
explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the Convolution
Explorer software application, which will be
made available by the Provider to each Customer as a service via the internet in
accordance with these Terms and Conditions;
"Intellectual Property Rights" means
all intellectual property rights wherever in
the world, whether registrable or unregistrable, registered or unregistered,
including any application or right of application for such rights (and these
"intellectual property rights" include copyright and related rights, database rights,
confidential information, trade secrets, know-how, business names, trade names,
trademarks, service marks, passing off rights, unfair competition rights, patents,
petty patents, utility models and rights in designs);
"Platform" means the platform managed
by the Cloud Provider and used by the Provider
to provide the Hosted Services, including the application and database software for
the Hosted Services, the system and server software used to provide the Hosted
Services, and the computer hardware on which that application, database, system and
server software is installed;
“Program” means the Convolution Explorer
software application made available by the
Provider to Customer as part of Hosted Services;
"Provider" means Michael M. Levitan LLC,
a company incorporated in Texas
(registration number [registration number]) having its registered office at 801 East
Beach Drive, unit TW310, Galveston TX 77550
"Services" means any services that the Provider provides to the Customer, or has an
obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online order form published by the
Provider and
completed and submitted by the Customer incorporating these Terms and Conditions by
reference;
"Support Services" means support in
relation to the use of, and the identification
and resolution of errors in, the Hosted Services, but shall not include
the provision of training services;
"Supported Web Browser" means the current
release from time to time of Microsoft Edge,
Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the
Provider agrees in writing shall be supported;
"Term" means the term of the Agreement,
commencing in accordance with Clause 2.1 and
ending in accordance with Clause 2.2; and
"Terms and Conditions" means all the
documentation containing the provisions of
the Agreement, namely the main body of these Terms and Conditions and Schedule 1
(Acceptable Use Policy), including any amendments to that documentation from time to
time.
2. Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue as long as the Customer maintains a positive
balance in the Customer account.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order
Form shall create a distinct contract under these Terms and Conditions.
3. Hosted Services
3.1 The Provider hereby grants to the Customer a non-exclusive license to use the
Hosted Services by means of a Supported Web Browser for use of the Program in
accordance with the Documentation during the Term.
3.2 The license granted by the Provider to the Customer under Clause 3.1 is
subject to the following limitations:
(a) the Hosted Services may only be used by the Customer;
(b) the Hosted Services must not be used at any point in time by anybody but the
Customer.
3.3 Except to the extent expressly permitted in these Terms and Conditions or
required by law on a non-excludable basis, the license granted by the Provider
to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted
Services;
(b) the Customer must not permit any unauthorized person to access or use the
Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third
parties;
(d) the Customer must not republish or redistribute any content or material
from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as
permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any
load testing or penetration testing on the Platform or Hosted Services without
the prior written consent of the Provider.
3.4 The Provider shall use all reasonable endeavors to maintain the availability
of the Hosted Services to the Customer at the gateway between the public internet
and the network of the hosting services provider for the Hosted Services, but does
not guarantee 100% availability.
3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy).
3.7 The Customer must not use the Hosted Services in any way that causes, or may
cause, damage to the Hosted Services or Platform or impairment of the availability
or accessibility of the Hosted Services.
3.8 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or
activity.
3.9 For the avoidance of doubt, the Customer has no right to access the software
code (including object code, intermediate code and source code), reverse engineer
or reproduce the functionality of Convolution Explorer application.
4. Support Services
4.1 The Provider may provide the Support Services to the Customer during the Term,
but shall have no obligation to do so; any such Support Services shall be subject
to this Clause 5.
4.2 The Provider may make available to the Customer an email-based helpdesk.
4.3 The Provider shall provide the Support Services with reasonable skill and care.
4.4 The Customer may use the helpdesk for the purposes of requesting and, where
applicable, receiving the Support Services; and the Customer must not use the
helpdesk for any other purpose.
4.5 The Provider shall respond promptly to all requests for Support Services
made by the Customer through the helpdesk.
4.6 The Provider may suspend the provision of the Support Services if any amount
due to be paid by the Customer to the Provider under the Agreement is overdue.
5. No assignment of Intellectual Property Rights
5.1 Nothing in these Terms and Conditions shall operate to assign or transfer any
Intellectual Property Rights from the Provider to the Customer, or from the Customer
to the Provider.
6. Charges
6.1 The Customer shall pay the Charges to the Provider in accordance with these
Terms and Conditions.
6.2 All amounts stated in or in relation to these Terms and Conditions are,
unless the context requires otherwise, stated exclusive of any applicable value
added taxes, which will be added to those amounts and payable by the Customer to
the Provider.
7. Payments
7.1 The Customer must pay the Charges to the Provider in advance of the Service.
7.2 Submission of an online Services Order Form involve a payment that is credited
to the Customer account.
8. Warranties
8.1 The Customer warrants to the Provider that it has the legal right and authority
to enter into the Agreement and to perform its obligations under these Terms and
Conditions.
8.2 All of the parties' warranties and representations in respect of the subject
matter of the Agreement are expressly set out in these Terms and Conditions.
To the maximum extent permitted by applicable law, no other warranties or
representations concerning the subject matter of the Agreement will be implied
into the Agreement or any related contract.
9. Acknowledgements
9.1 The Customer acknowledges that the Program constitutes trade secrets and
proprietary data of the Provider and that the Program is and shall remain the
property of the Provider both before and after termination or expiration of
this Agreement.
9.2 The Customer acknowledges that complex software is never wholly free from
defects, errors and bugs; and subject to the other provisions of these Terms and
Conditions, the Provider gives no warranty or representation that the Hosted Services
will be wholly free from defects, errors and bugs.
9.3 The Customer acknowledges that complex software is never entirely free from
security vulnerabilities; and subject to the other provisions of these Terms and
Conditions, the Provider gives no warranty or representation that the Hosted
Services will be entirely secure.
9.4 The Customer acknowledges that the Hosted Services are designed to be
compatible only with that software and those systems specified as compatible in
Documentation; and the Provider does not warrant or represent that the Hosted
Services will be compatible with any other software or systems.
10. Indemnity
10.1 Provider SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE FOR THE PROGRAM LICENSED HEREUNDER. Provider shall not
in any event be responsible for the accuracy of the Program nor the results
obtained as a result of their use by Customer.
10.2 Customer hereby agrees to save and hold harmless Provider from any loss,
damage or claim resulting from the reliance by Customer upon the results obtained
through the use of the Program.
10.3 The Provider will not be liable to the Customer in respect of any losses
arising out of a Force Majeure Event.
10.4 The Provider will not be liable to the Customer in respect of any loss of
profits or anticipated savings.
10.5 The Provider will not be liable to the Customer in respect of any loss of
revenue or income.
10.6 The Provider will not be liable to the Customer in respect of any loss of
business, contracts or opportunities.
10.7 The Provider will not be liable to the Customer in respect of any loss
or corruption of any data, database or software.
10.8 The Provider will not be liable to the Customer in respect of any special,
indirect or consequential loss or damage.
11. Force Majeure Event
11.1 If a Force Majeure Event gives rise to a failure or delay in either party
performing any obligation under the Agreement, that obligation will be suspended
for the duration of the Force Majeure Event.
12. Termination
12.1 Either party may terminate the Agreement by giving to the other party at
least 30 days' written notice of termination.
12.2 Either party may terminate the Agreement immediately by giving written
notice of termination to the other party if the other party commits a material
breach of these Terms and Conditions.
13. Effects of termination
13.1 Upon the termination of the Agreement, all of the provisions of these
Terms and Conditions shall cease to have effect.
13.2 Within 30 days following the termination of the Agreement for any reason
the Provider must refund to the Customer any residual funds remaining in the
Customer account.
15. Notices
15.1 Any notice from one party to the other party under these Terms and Conditions
must be given by the following method:
(a) sent by email to the relevant email address specified through the Hosted
Services, in which case the notice shall be deemed to be received upon receipt
of the email by the recipient's email server
16. Subcontracting
16.1 Subject to any express restrictions elsewhere in these Terms and Conditions,
the Provider may subcontract any of its obligations under the Agreement, providing
that the Provider must give to the Customer, promptly following the appointment of
a subcontractor, a written notice specifying the subcontracted obligations and
identifying the subcontractor in question.
17. General
17.1 No breach of any provision of the Agreement shall be waived except with the
express written consent of the party not in breach.
17.2 If any provision of the Agreement is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other provisions of
the Agreement will continue in effect. If any unlawful and/or unenforceable
provision would be lawful or enforceable if part of it were deleted, that part will
be deemed to be deleted, and the rest of the provision will continue in effect
(unless that would contradict the clear intention of the parties, in which case
the entirety of the relevant provision will be deemed to be deleted).
17.3 The Provider may vary the Agreement by giving to the Customer at least
30 days' written notice of the variation. Subject to this, the Agreement may only
be varied by a written document signed by or on behalf of each of the parties.
17.4 The Customer hereby agrees that the Provider may assign the Provider's
contractual rights and obligations under the Agreement to any successor to all or
a substantial part of the business of the Provider from time to time - providing
that such action does not serve to reduce the guarantees benefiting the Customer
under the Agreement. The Customer must not without the prior written consent of the
Provider assign, transfer or otherwise deal with any of the Customer's contractual
rights or obligations under the Agreement.
17.5 The Agreement is made for the benefit of the parties, and is not intended
to benefit any third party or be enforceable by any third party. The rights of the
parties to terminate, rescind, or agree any amendment, waiver, variation or
settlement under or relating to the Agreement are not subject to the consent of any
third party.
17.6 Subject to Clause 8.1, a Services Order Form, together with these Terms and
Conditions shall constitute the entire agreement between the parties in relation to
the subject matter of that Services Order Form, and shall supersede all previous
agreements, arrangements and understandings between the parties in respect of that
subject matter.
17.7 The Agreement shall be governed by the laws set forth by the Government of
Texas, USA.
17.8 The courts of Texas shall have exclusive jurisdiction to adjudicate any
dispute arising under or in connection with the Agreement.