Lushsoft Managed Service Agreement
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY LUSHSOFT SERVICE.
1. AGREEMENT
This is an agreement between Lushsoft, Ltd. and you to provide Lushsoft Managed Service ("the Service"). By establishing an account, using the Service, using Lushsoft-provided software, using the equipment or indicating agreement through the software or website, you agree to be bound by this Agreement, including future revisions and to use the Service in compliance with the current Lushsoft's Acceptable Use Policy. The most recent versions of all Lushsoft's agreements and policies may be found at www.lushsoft.com/about/policies.htm.
2. TERM
If your Service has a specific initial term (like twelve (12) months) this agreement will continue on a month-to-month basis after the initial term is over. Lushsoft reserves the right to change prices of the Service upon 30 days notice. Lushsoft reserves the right to change features of the Service at any time. Current Service prices and features may be obtained by visiting our website www.lushsoft.com or by calling +44 (0) 870 863 7200.
3. THE SERVICE
Depending on the type of Service that you choose, the Service may include software, hardware, consultancy, remote managed services, Microsoft SharePoint Services and other features. From time to time Lushsoft may impose reasonable rules and regulations regarding the use of the Services.
The Service speed can vary depending Internet traffic, and other factors beyond the control of Lushsoft. Lushsoft does not guarantee upload or download speeds to our data centres, however this may change depending on the agreed service schedule.
Your Service may limit the amount of data that you can upload and/or download each month ("bandwidth") or may be priced according to the amount of bandwidth you use per month. Please see the description of your particular Service by referring to the appropriate product page at www.lushsoft.com or your Service Schedule for more information. If during any month, you exceed a monthly bandwidth limit associated with your Service, Lushsoft may, going forward, change your Service to one permitting such bandwidth use (as provided for in the Service options) and you agree to the standard fees Lushsoft charges for such Service. Lushsoft will provide you with notice of any such change to your Service. Alternative, Lushsoft will charge for the additional bandwidth as detailed on the Lushsoft website.
4. CANCELLATION
Lushsoft only accepts cancellation by phone, fax or post. We do NOT accept cancellations by email unless from within our support system using your registered email address and account. Accounts are set to close at the end of the current billing period. You will be issued a confirmation number as your only proof of cancellation. We do not grant refunds or credits for any prior use including partial use during the last month of cancellation. If you do cancel by one of the prescribed methods and are mistakenly billed again, we will refund any erroneous charges upon proof of cancellation.
To process your cancellation request, we require that you provide the following:
- Written request submitted on company letterhead by your billing contact
- Your customer or account number
- Current phone number
- Reason for cancelling the service.
Fax Cancellation:
Services may be cancelled by fax to 0118 962 0068. Please include your account number and a current phone number.
Mail Cancellation:
Send registered or recorded mail to:
Lushsoft Ltd
Cancel (list type of service)
Atlantic House
Imperial Way
Reading
Berkshire
RG2 0TD
Please provide the type of service you have in the address.
Lushsoft may terminate this Agreement, your password, your account, or your use of the Services for any reason, including, without limitation, if Lushsoft, in its sole discretion, believes you have violated this Agreement, violated the Lushsoft Acceptable Use Policy or if you fail to pay any charges when due. Termination notice will be by email or post to the address you provided for the Service. Sections 6, 7, 10 and 11 of this Agreement shall survive termination of this Agreement.
5. ACCOUNT REQUIREMENTS
In order to order and receive the Service, you must be at least 18 years old and may have to provide a valid credit card or other forms of payment. You are responsible for charges for the Service regardless of the status of these separate services. Changing service providers may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account. Your computer may have to meet certain minimum requirements, which may be found on the Lushsoft's homepage at: www.lushsoft.com.
6. PAYMENT
All monthly fees and set-up fees shall be due in advance of the month incurred and all additional charges shall be due at the end of the month in which such charges are incurred. Except as provided below, the set-up fees are non-refundable and Lushsoft does not issue pro rata refunds for fees paid in advance. Your right to use the Services are subject to any limits established by Lushsoft or by the issuer of your credit card. We reserve the right to claim stat.
You agree to pay all taxes, surcharges, and fees set by the government. We may not always give advance notice of changes to these items. We reserve the right to claim statutory interest at 8% above the Bank of England base rate at the date the debt becomes overdue in accordance with the Late Payments of Commerical Debt (Interest) Act 1998.
You are responsible for any charges to your account. Questions regarding charges to an account should be directed to Lushsoft's Customer Service Department at 0870 863 7200. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Adjustments will not be made for charges that are more than 30 days old.
Charges may be billed to your credit card, debit card or bank account, as applicable, each month for the Service and any additional usage, services, taxes and fees. Lushsoft is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Lushsoft. You agree to maintain valid and current credit card information on file with Lushsoft at all times.
If purchasing Services through a reseller, the reseller must pay all amounts owing for your account. If the reseller fails to pay Lushsoft any amounts due, whether or not you have paid the reseller, your account will be subject to suspension or cancellation until you or the reseller has paid all amounts due. Delinquent accounts may be suspended or cancelled at Lushsoft's sole discretion; however charges will continue to accrue until the account is cancelled. Lushsoft may bill an additional charge to reinstate a suspended account.
7. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You and members of your business are the only authorized users of your Lushsoft account and must comply with this Agreement. You must keep your password confidential so that no one else may access the Services through your account. You must notify Lushsoft immediately upon discovering any unauthorized use of your account.
8. MONITORING THE SERVICES
Lushsoft has no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if Lushsoft, in its sole discretion, believes that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Service properly; or protect itself, its employees, its customers or others. See our Privacy Policy. Lushsoft may immediately remove your material or information from Lushsoft's servers, in whole or in part, which Lushsoft, in its sole and absolute discretion, determines to infringe another's property rights or to violate our Acceptable Use Policy or other policies or laws.
9. DISCLAIMERS AND WARRANTIES
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LUSHSOFT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. LUSHSOFT MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH LUSHSOFT OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY LUSHSOFT OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. LUSHSOFT AND IT EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, LUSHOSFT'S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
LUSHSOFT SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR SERVICE; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICES; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICES, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICES;THE USE OF THE SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS,AND USEFULNESS OF ALL SERVICES, PRODUCTS,AND OTHER INFORMATION,AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
THE FOREGOING LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF LUSHSOFT, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST LUSHSOFT IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE.YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT.
10. MISCELLANEOUS
This Agreement, the Acceptable Use Policy, and Lushsoft's other Agreements and policies posted on Lushsoft's Web site constitute the entire agreement between you and Lushsoft with respect to your use of the Service. Lushsoft may revise, amend, or modify the Agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted on Lushsoft's Web site: (www.lushsoft.com) and/or on the support website (support.lushsoft.com) and/or by email and/or in our various publications and mailings to you. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Lushsoft.
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of Lushsoft, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Lushsoft will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Lushsoft as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. Lushsoft may subcontract any work, obligations or other performance required of Lushsoft under this Agreement without your consent.
You shall indemnify and hold Lushsoft harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), legal fees and expenses that Lushsoft may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement, the Acceptable Use Policy, and Lushsoft's other agreements and policies and for any act or omission of you or your clients which are in any way related to the Lushsoft Service.
11. CONFIDENTIALITY
You acknowledge that by reason of your relationship with Lushsoft, you may have access to certain information and materials relating to Lushsoft's business, customers, software technology and marketing which Lushsoft treats as confidential (collectively "Confidential Information"). You shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of Lushsoft; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
12. SPECIFIC CONDITIONS ON THE PROVISION OF TELEPHONY SERVICES
By purchasing our Telephony Services (VoIP) you confirm that you understand that our services:
- may not offer all of the features you may expect from a conventional phone line;
- may sometimes be unavailable as a result of things over which we have no control, for example, the weather, power disruptions and failures of your internet service provider (ISP) or broadband connection and you understand that in such circumstances all services (including 999/112 public emergency call services) will also be unavailable;
- may not connect you to the public emergancy service and if we do, may not provide your phone number and location details to the operator if you make a public emergency services call. You will have to provide your location information and phone number verbally to the operator; and
- may not offer you the ability to transfer (port) your existing number to an alternative service if your service ends.
- The Service provided by us is not a Publicly Available Telephone Services (PATS) and your attention is specifically drawn to the service descriptions at www.lushsoft.com that sets out the Service offering and service limitations for our customers. The Service is subject to different regulatory treatment than a Publicly Available Telephone Services (PATS) and this may limit or otherwise affect your rights of redress before regulatory agencies such as OFCOM in the UK.
Last Updated: 18th January 2010