IMPORTANT NOTICE: THIS SUBSCRIPTION AGREEMENT, THE PRIVACY NOTICE AVAILABLE AT https://ecanvasser.com/privacy.html AND THE PAYMENT POLICY AVAILABLE AT https://ecanvasser.com/payment-policy.html (TOGETHER THE “AGREEMENT”) FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU (THE “CUSTOMER” AS NAMED ON THE ORDER FORM) AND VCONNECTA LIMITED
A COMPANY INCORPORATED AND EXISTING UNDER THE LAWS OF THE REPUBLIC OF IRELAND (REGISTERED WITH COMPANY NUMBER 515149) WHOSE BUSINESS ADDRESS IS AT SUITE 10568, 26/27 UPPER PEMBROKE STREET, DUBLIN 2, REPUBLIC OF IRELAND
(THE "SUPPLIER"). THIS IS A SUBSCRIPTION AGREEMENT FOR THE USE BY THE CLIENT OF THE SERVICES (AS DEFINED BELOW).
THE SUPPLIER REMAINS THE OWNER OF THE SERVICES AS WELL AS OF ALL COPIES. IN ORDER TO AVAIL OF THE PROVISIONS OF THIS AGREEMENT AND ACCEPT THE TERMS OF THIS AGREEMENT THE CLIENT MUST CLICK “ACCEPT & CREATE ACCOUNT”.
THE CLIENT IS NOT REQUIRED TO ACCEPT THIS AGREEMENT. IF THE CLIENT DOES NOT ACCEPT THIS AGREEMENT, THE CLIENT MAY NOT INSTALL, OR USE THE SERVICES.
1.1. In this Agreement, the following words shall have the following meanings:
1.2. In this Agreement (except where the context otherwise requires):
1.2.1. use of the singular includes the plural and vice versa;
1.2.2. use of any gender includes the other genders;
1.2.3. any reference to a statute, statutory provision, subordinate legislation, code or guideline is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;
1.2.4. each of Supplier and Client is (a “Party”) and together Supplier and Client are (the “Parties”); and
1.2.5. any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms
2.1. Supplier hereby grants to the Client a limited, non-exclusive, non-transferable, revocable, non-assignable license to permit the End Users to use the Services, during the Subscription Term, solely for the Client's internal operations and for the Subscription Plan selected in the Order Process. All End Users must be over the age of 18 years to use the Services.
2.2. If the Client requires to add Contacts in excess of the maximum number in the Client’s Subscription Plan the Client may upgrade to the next relevant Subscription Plan to meet Client requirements. The Client will be automatically upgraded to the next relevant Subscription Plan in the event that the number of Contacts in the existing Subscription Plan is exceeded.
2.3. The Client’s continued use of the Services is subject to the following undertakings:
2.3.1. the Client must pay the Fees;
2.3.2. the number of Contacts and user licenses shall be limited in accordance with the Subscription Plan;
2.3.3. each End User shall keep a secure password for use of the Supplier Platform and shall keep that password confidential. Sharing of passwords is not permitted;
2.3.4. the Client will immediately notify Supplier of any security breach of which the Client becomes aware. Supplier shall not be responsible for any losses arising out of the unauthorised use of the Services; and
2.3.5. the Client will maintain a list of current End Users and provide such list to Supplier or the Channel Partner, upon request.
2.4. The Client shall not access, store, distribute or transmit any viruses or any material when using the Services that is considered illegal or harmful or facilitates illegal activity.
2.5. The Client shall not except to the extent expressly permitted under this Agreement:
2.5.1. attempt to modify, duplicate, create derivative works from, or distribute all or any portion of the Supplier IP;
2.5.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Supplier IP;
2.5.3. access all or any part of the Supplier IP in order to build a product or service which competes with the Services;
2.5.4. use the Supplier IP to provide services to third parties; or
2.5.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Supplier IP available to any third party except the End Users.
2.6. The End Users may be granted different rights of access to the Supplier Platform as may be further described in the Specification.
3.1. Supplier shall provide the Services to the Client on and subject to the terms of this Agreement during the Subscription Term.
3.2. Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance (carried out during such times which are notified to the Client) and unscheduled maintenance.
3.3. The Client shall own all rights, title and interest in and to all of the Client Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Content.
3.4. Any services provided by a Channel Partner in connection with the Supplier Platform, are the responsibility of the Channel Partner and the Supplier has no responsibility for any faults or issues arising as a result of such services.
4.1. The Client acknowledges that as part of using the Services, the Client may be able to access or integrate with the website content of, correspond with, and purchase products and services from, third parties via third-party websites. The Client accesses this information at its own risk.
4.2. Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not Supplier.
5.1. Supplier undertakes that the Services will be provided with reasonable skill and care.
5.2. Notwithstanding the foregoing:
5.2.1. Supplier does not warrant that the Client's use of the Services will be uninterrupted or error-free; nor that the Ecanvasser Platform, the Services, the Supplier Content, and/or the information obtained by the Client through the Services will meet the Client's requirements;
5.2.2. Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet;
5.2.3. use of the Services requires compatible devices, internet access and certain software including periodic updates. Performance may be affected if these are not available. High-speed internet access is strongly recommended for regular use; and
5.2.4. The latest version of required software is recommended to access the Services and may be required to download certain features available on the Supplier Platform.
5.4. Supplier reserves the right to modify the Services at any time and Supplier will make available to the Client all improvements from time to time made available by it to other customers.
5.5. The Services are (except as expressly provided in this Agreement) provided “as is” and “as available”. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
5.6. Supplier is not responsible and makes no representations or warranties for the delivery of any messages (such as emails, forum postings or transmission or any other user generated content) sent using the Services.
5.7. Supplier does not have any obligation to verify the identity of the End Users, nor does it have any obligation to monitor the use of the Services. The Supplier disclaims all liability for identity theft or any other misuse of Client Content.
6.1. The Client warrants and represents that it has all necessary rights and authority to enter into this Agreement and, where relevant, that Client has the right and authority to legally bind any individual, entity or organization to the terms and obligations of this Agreement.
6.2. The Client warrants and represents that it and all End Users will use the Services in accordance with the EULA and the Acceptable Use Policy.
6.3. The Client warrants that it shall:
6.3.1. comply with all applicable laws and regulations with respect to its activities under this Agreement;
6.3.2. ensure that the End Users use the Supplier Platform in accordance with the terms and conditions of this Agreement and the EULA and shall be responsible and liable for any End User’s breach of this Agreement or the EULA;
6.3.3. obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the use of the Services and including any consents required from the End Users and the Contacts, for the use of Client Content; and
6.3.4. be solely responsible for procuring and maintaining its systems, network connections and telecommunications links to access the Supplier Platform.
7.1. As consideration for receipt of the Services, the Client shall pay the Fees to Supplier or any Channel Partner(where the Services are purchased directly from the Channel Partner).
7.2 If the Client enters into a separate contract with a Channel Partner, the Client agrees to redirect payment to the Supplier at any time on the Supplier’s written request.
7.3. The Supplier may provide the Services to the Client on a free trial basis. Supplier may terminate a trial at any time and will notify the Client and/or the End User when the trial is over.
7.4. The Fees are payable in advance of the Initial Term or any Renewal Term and Client will pay the Fees online before accessing the Services.
7.5. If the Supplier has not received payment pursuant to this Agreement, Supplier may, without liability to the Client, disable the Client’s account and access to all or part of the Supplier Platform. Supplier shall be under no obligation to provide any or all of the Services while the Fees remain unpaid; and
7.6. All Fees stated or referred to in this Agreement:
7.6.1 shall be payable in the currency specified in the Order Process;
7.6.2 are non-cancellable and non-refundable, further information related to the payment policy which is available on:
7.6.3 are exclusive of value added tax or other applicable sales tax, which shall be added to the Fees where relevant.
8.1. The Client acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in the Supplier IP. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Supplier IP.
8.2. Each Party may be given access to the Confidential Information of the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that:
8.2.1. is or becomes publicly known other than through any act or omission of the receiving Party;
8.2.2. was in the other Party's lawful possession before the disclosure;
8.2.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
8.2.4. is independently developed by the receiving Party, which independent development can be shown by written evidence.
8.3. Each Party shall hold the other's Confidential Information in confidence and, unless required by law, shall not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
8.4. Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
8.5. Supplier acknowledges that the Client Content is the Confidential Information of the Client.8.6. The Client acknowledges that Supplier IP is the Confidential Information of Supplier.
8.6 The Client acknowledges that Supplier IP is the Confidential Information of Supplier.
9.1. The Client agrees that by submitting any individual’s personal information to Supplier, Client agrees and confirms its authority for Supplier’s collection, use and disclosure of such personal information in order to provide the Services under this Agreement.
9.2. If Supplier processes any personal data on the Client’s behalf, and under its instructions, when performing its obligations under this Agreement, the Parties record their intention that, to the extent that the EU General Data Protection Regulation (the “GDPR”) applies, Supplier shall be a processor of the relevant personal data and the Data Processing Agreement shall apply.
9.3. The Data Processing Agreement sets out the terms under which personal data is processed under this Agreement for the purposes of the GDPR or any other applicable data protection legislation. Any Client processing personal data of EU citizens must accept the terms of the Data Processing Agreement before uploading content to the Ecanvasser Platform.
10.1. In accordance with the CTIA (The International Association for the Wireless Telecommunications Industry) Best Practices and Guidelines for Location Based Services the Supplier is required to explain the location based aspect of the Service to the Client. The express consent of the End Users should be obtained before access to the location based aspect of the Ecanvasser Platform is provided.
10.2. The location based services form an integral part of the operational aspect of the Services. In order for the location based aspect of the Service to operate correctly, the Supplier must be permitted to communicate with the phone/tablet and or computer (the “Device”) on which the Supplier Platform is used. By doing so, the Supplier will attempt to identify device location but only when the End User logs a new address. This requires the collection, use and sharing, among other things of precise coordinate data, including real time geographic location of the device with the Supplier. This information is retained for the duration of this Agreement and for a short period following termination as further detailed in the Privacy Dashboard, in order to facilitate the efficacy of the Services. This information is accessible by the Supplier as further detailed in the Privacy Dashboard.
10.3. Client expressly agrees that where specified as part of the Privacy Dashboard, the Supplier will collect consent from the End User on behalf of the Supplier. Client hereby authorizes the Supplier, to collect and use the End User location data in order to provide the Services. Certain privacy settings relevant to consent and the use of the location data are configurable on the Privacy Dashboard.
11.1. Subject to clause 12, Supplier shall defend the Client against any third-party claims that the Supplier IP infringes any copyright and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
11.1.1. Supplier is given prompt notice of any such claim;
11.1.2. the Client provides reasonable co-operation to Supplier in the defence and settlement of such claim, at Supplier's expense; and
11.1.3. Supplier is given sole authority to defend or settle the claim.
11.2. In the defence or settlement of any claim, Supplier may procure the right for the Client to continue using the Supplier IP, replace or modify the Supplier IP so that it becomesnon-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) days’ notice to the Client without any additional liability to the Client as a result of such early termination.
11.3. In no event shall Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
11.3.1. a modification of the Supplier IP by anyone other than Supplier; or
11.3.2. the Client's use of theServices in a manner contrary to the instructions given to the Client bySupplier or in breach of the terms of this Agreement; or
11.3.3. the Client's use of the Services after notice of the alleged or actual infringement from Supplier or any appropriate authority.
11.4. The foregoing states the Client's sole and exclusive rights and remedies, and Supplier's (including Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any intellectual property right.
11.5. The Client shall indemnify the Supplier, its employees, agents and sub-contractors for any breach by the Client of the provisions of this Agreement including the Acceptable Use Policy and the Data Processing Agreement.
12.1. This clause 12 sets out the entire financial liability of Supplier (including any liability for the acts or omissions of its employees, contributing experts, agents and sub-contractors) to the Client.
12.2. Nothing in this Agreement limits or excludes the liability of Supplier, for death or personal injury caused by Supplier's negligence or for fraud or fraudulent misrepresentation.
12.3. Subject to clause 12.2:
12.3.1. Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement (in each case whether reasonably foreseeable or not); and
12.3.2. Supplier's total aggregate liability in contract (including indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by the Client during the twelve (12) months immediately preceding the date on which the claim arose.
12.4. Any claim under this Agreement must be made within one (1) year of the incident which gives rise to the claim occurring.
13.1. This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods equivalent to the Initial Term (unless otherwise specified in the Order Form) (each a “Renewal Term”), unless:
13.1.1. in the case of Supplier, the Supplier notifies the Client of termination, in writing, on thirty (30) days’ notice; or
13.1.2. in the case of the Client, upon thirty (30) days’ notice provided such notice is served so as to expire before the end of the Initial Term or any Renewal Term, in which case this Agreement will terminate at the end of the Initial Term or Renewal Term as applicable.
13.2. Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement immediately and without liability to the other if:
13.2.1. the other Party is in material or persistent breach of any of its obligations under this Agreement and either that breach is incapable of remedy (as determined at the sole discretion of the non-breaching Party), or the other Party has failed to remedy that breach within twenty (20) days after receiving written notice requiring it to remedy that breach. Any breach of the licensing provisions of this Agreement shall be deemed a breach incapable of remedy; or
13.2.2. the other Party is unable to pay its debts or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction.
13.3. On termination of this Agreement for any reason:
13.3.1. the license granted under this Agreement shall immediately terminate;
13.3.2. subject to clause 13.3.3, each Party shall make no further use of any Confidential Information (and all copies of them) belonging to the other Party;
13.3.3. Client shall have thirty (30) days to export the Client Content using the Ecanvasser Platform export to Excel function. Following this period Supplier may delete all Client Content in its possession; and
13.3.4. the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.4. Any expiry or termination of this Agreement will not affect any accrued rights or liabilities of either Party up to and including the date of such expiry or termination nor will it affect the coming into force or continuation in force of any other clauses and provisions of this Agreement which are expressly or by implication intended to come into force or continue in force on or after such termination.
Supplier shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other third party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration
15.1. For the purposes of service messages and notices about the Services to the Client, the Supplier may place a banner notice when the Services are accessed to alert the End Users to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from the Supplier to an email address associated with the Client account, even if the Supplier has other contact information, or via the Apple™ App Store™ and or the Android™ Marketplace™ depending on user requirements.
15.2. The Services allow for a mechanism of communication between the End Users. Client consents to the receipt of communication between the End Users using the Services.
16.1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2. This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
16.3. Each of the Parties acknowledge and agree that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether Party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
16.4. The Client shall not, without the prior written consent of Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.5. Subject to the requirements of the Data Processing Agreement, Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.6. Any notice to be given under this Agreement will be in writing and addressed to the Party at the address stated in the Order Form.
16.7. The terms and conditions in the Order Form shall prevail over the terms and conditions in this Agreement to the extent of any conflict. Terms contained in any purchase order or acknowledgement will be of no effect, even if such acknowledgement provides that Supplier’s acceptance of the purchase order is conditioned on Client’s agreement to the proposed terms contained in such purchase order or acknowledgement.
16.8. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the laws of the Republic of Ireland.
16.9. The Parties irrevocably agree that in relation to any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) the courts of the Republic of Ireland shall have jurisdiction.
17.1. Except as expressly set out in this Agreement or as permitted by any local law, you undertake not to:
17.1.1. use the Services for any unlawful or illegal purpose, act dishonestly, fraudulently or unprofessionally by engaging in unprofessional behaviour by posting inappropriate, inaccurate,or objectionable content to, or through, the Supplier Platform;
17.1.2. input personal or sensitive data relating to any Contact or End User without explaining the purpose of the collection and processing of such data to them;
17.1.3. make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the permanent aspects of the Supplier Platform;
17.1.4. make any translation, adaptation, arrangement or any other alteration of the permanent aspects of theSupplier Platform;
17.1.5. make any form of distribution to the public of the content of the Supplier IP, in whole or in part, or of copies thereof;
remove or alter any copyright or other proprietary notice from any part of the Supplier IP;
17.1.6. disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the Supplier Platform, or another product wholly or partially derived from any of the foregoing;
17.1.7. create a user account for anyone other than a natural person;
17.1.8. input personal data relating to any individual illegally;
17.1.9. harass, abuse or harm another person, including sending unwelcomed communications to others using the Supplier Platform;
17.1.10. use or attempt to use another's account or create a false identity using the Supplier Platform;
17.1.11. participate, directly or indirectly, in the setting up or development of a network that seeks to implement practices that are similar to sales by network or the recruitment of independent home salespeople for the purposes of creating a pyramid scheme or other similar practices;
17.1.12. reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Supplier Platform, or any part thereof;
17.1.13. use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or any part of theSupplier Platform;
17.1.14. infringe or use the Supplier brand, logos and/or trademarks, including, without limitation, using the word “Ecanvasser” or “Vconnecta” in any business name, email, or URL or including supplier’s trademarks and logos except as provided in any brand guidelines created by the Supplier or as expressly permitted by the Supplier;
17.1.15. use bots or other automated methods to access the Supplier Platform, add or download contacts, send or redirect messages, or perform other activities through the Supplier Platform,unless explicitly permitted by the Supplier;
17.1.16. engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the SupplierPlatform or any website from which the Supplier Platform is provided;
17.1.17. attempt to, or actually, access the Supplier Platform by any means other than through the interfaces provided by the Supplier such as its mobile application or by navigating to www.ecanvasser.com using a web browser.This prohibition includes accessing or attempting to access the SupplierPlatform using any third-party service, including software-as-a-service platforms that aggregate access to multiple services;
17.1.18. deep-link to the website relating to the Supplier Platform for any purpose, (i.e. including a link to the Supplier website other than the home page) unless expressly authorized in writing by the Supplier or for the purpose of promotion as set forth in any brand guidelines;
17.1.19. attempt to or actually override any security component included in or underlying the Supplier Platform;
17.1.20. engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the Supplier’s infrastructure, including, but not limited to, sending unsolicited communications to other users or Supplier personnel,attempting to gain unauthorised access to the Supplier Platform, or transmitting or activating computer viruses through or on the Supplier Platform;or
17.1.21. upload, post, email, transmitor otherwise make available or initiate any content that: (i) (falsely states,impersonates or otherwise misrepresents your identity, including but notlimited to the use of a pseudonym; (ii) is unlawful, libellous, abusive,obscene, discriminatory or otherwise objectionable; (iii) adds to a contentfield content that is not intended for such field (i.e. submitting a telephonenumber in the “Name” or anyother field, or including telephone numbers, email addresses, street addressesor any personally identifiable information for which there is not a fieldprovided); (iv) includes information that you do not have the right todisclose, use or make available under any law or under contractual or fiduciaryrelationships; (v) infringes upon patents, trademarks, trade secrets,copyrights or other proprietary rights; (vi) includes any unsolicited orunauthorised communication, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation and/or (vii) infringes upon the rights of individuals under applicable data protection laws where the Services are used.