Terms

LIMITED USE SOFTWARE LICENSE AGREEMENT and CONDITIONS OF SERVICE for the KASHFLOW PARTNER PROGRAMME

THANK YOU FOR LICENSING THE USE OF THE KASHFLOW SOFTWARE. IT IS IMPORTANT THAT YOU (THE "PARTNER") READ THESE TERMS CAREFULLY. THESE ARE THE ONLY TERMS AND CONDITIONS APPLICABLE TO YOUR USE OF THE SOFTWARE. THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS LICENSE AGREEMENT ARE RESERVED TO KASHFLOW SOFTWARE LIMITED OR ITS LICENSORS. THE SOFTWARE IS LICENSED, NOT SOLD.

This Software License Agreement and Conditions of Service for the Kashflow Partner Programme (“Agreement”) is a legal agreement between you (either an individual or a single entity) and KASHFLOW SOFTWARE LIMITED (“KASHFLOW”) for the “Kashflow” Software, which includes online access accounts and may include associated media, printed materials, and “online” or electronic documentation (all referred to as the “Software”). By installing, displaying, copying, accessing or otherwise using the Software, you, the Partner, agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install display, access or use the Software and please terminate your account before the expiration of any free trial period, special promotion or within seven days of opening an account at http://www.kashflow.co.uk, whichever the sooner. All Partners under this Agreement are not entitled to any refund, for whatever reason and howsoever accrued.

1.         GRANT OF LICENSE

1.1.      Subject to the Partner complying with these terms and in consideration of the Partner’s obligations and undertakings in this Agreement KASHFLOW SOFTWARE LIMITED hereby grants to Partners a personal, non-exclusive, non-transferable license to:

1.1.1   Make an application to open a Partner Account as either a single individual or single entity, subject to acceptance by Kashflow Software Limited (who reserves the right to refuse any application, without giving any reasons), and within the Scope of Use set out in Clause 2 of this Agreement;

2.         SCOPE OF USE

A Licensed Partner may:

2.1.      Manage a Partner Account on the Software (as either a single individual or single entity), to grant any end-users limited use to access and use one Software account per person or single entity subject to a Fair Use Policy in force at any time;

2.2.      Use any function or facility within the Partner Account provided by KASHFLOW SOFTWARE LIMITED, who reserves the right to limit or remove entirely any function or facility at any time, without notice and without giving any reason;

2.3.           Grant end-users a limited use sub-license, to access and use the Software under the licensed Partner’s own terms of business (subject to any terms in this Agreement, including Clause 3), including:

2.3.1.     any subscriptions at cost (either annually or monthly) for granting sub-licenses to access and use the software, using any compatible internet browser on any single computer;

2.3.2.     any special promotions (subject to compliance with local laws and customs, and a Fair Use Policy in force, at any time);

2.3.3.     any appropriate and acceptable brand of the licensed Partner (subject to compliance with the Copyright, Design and Patent Act 1988 and the Trade Descriptions Act 1968; or any other legislation in force);

In the event any terms, policy, procedure or practice between the licensed Partner and any end-users, the terms of this Agreement with KASHFLOW SOFTWARE LIMITED shall prevail. Licensed Partners shall indemnify KASHFLOW SOFTWARE LIMITED of any liability howsoever arising between the Partner and any end-users.

3.         PROHIBITIONS

The Licensed Partner shall not:

3.1       modify or alter the whole or any part of the Software nor merge any part of it with another Software nor separate any components of the Software from the Software nor, save to the extent and in the circumstances permitted by law, create derivative works from, or, reverse engineer, decompile, disassemble or otherwise derive source code from the Software or attempt to do any of these things

3.2       copy the Software, including but not limited to, graphics, image, script or code;

3.3       assign rent, transfer, sell, disclose, deal in, make available or grant any rights in the Software in any form to any person without the prior written consent of KASHFLOW SOFTWARE LIMITED;

3.4       remove alter, obscure, interfere with or add to any proprietary notices, labels, trade marks, names or marks on, annexed to, or contained within the Software;

3.5       use the Software in any manner that infringes the intellectual property or other rights of KASHFLOW SOFTWARE LIMITED or any other party;

3.6       use the Software to provide on-line or other database services to any other person; or

3.7       use the Software in a manner that may bring the Software or KASHFLOW SOFTWARE LIMITED into disrepute.

4.         INTELLECTUAL PROPERTY RIGHTS AND TERMINATION

The Licensed Partner acknowledges that:

4.1       all title to the copyright and all other intellectual property rights in and to the Software, any data (including but not limited to, username, passwords) its accompanying documentation and any copy made by a licensed Partner are the exclusive property of and remain with KASHFLOW SOFTWARE LIMITED and/or its licensor(s),

4.2       the Software and all copies (including but not limited to, any data) thereof are KASHFLOW SOFTWARE LIMITED's exclusive property and constitute confidential information and a valuable trade secret of KASHFLOW SOFTWARE LIMITED.

4.3       any unauthorised copying of the Software (including but not limited to, any data), or failure to comply with any of the provisions of this License Agreement (each, a "Terminable Event"), will result in automatic termination of this License Agreement and all licenses and sub-licenses granted under this License Agreement and licensed Partners must destroy all copies of any data required to gain access to the Software. In the event of a breach of this License Agreement by a licensed Partner, KASHFLOW SOFTWARE LIMITED reserves and shall have available all legal remedies.

5.         LIMITED TERM OF LICENSE FOR TRIAL VERSION SOFTWARE

The License pertaining to any trial, locked, demonstration or other non-standard version of the Software (all referred to as a "Trial Version") shall expire in accordance with the terms set out in such Trial Version. On the expiration of the License for the Trial Version, a licensed Partner will need to purchase a full license of the Software and upgrade it to continue use.

6.         LIMITED WARRANTY AND DISCLAIMER

6.1.      KASHFLOW SOFTWARE LIMITED makes NO warranty that at any time the Software and the servers it is hosted on, under normal use, be free from any defects, including but not limited to, any periods of inactivity, slow performance, bugs, viruses, worms or any defect that prevent any licensed Partner from any access or use of the Software;

6.2.      KASHFLOW SOFTWARE LIMITED makes NO warranty that at any time the Software will be accessible by any internet browser (or any particular version) on any internet or network connection;

6.3.      KASHFLOW SOFTWARE LIMITED will use reasonable commercial efforts to ensure the Software is compatible with the latest version of Microsoft Internet Explorer, save where any development, defect, or discontinued internet browser is beyond the reasonable control of KASHFLOW SOFTWARE LIMITED;

6.4.      KASHFLOW SOFTWARE LIMITED's entire liability and a licensed Partner's exclusive remedy under this warranty will be, at KASHFLOW SOFTWARE LIMITED's option, to use reasonable commercial efforts to attempt to correct or work around errors;

6.5.      Subject to the licensed Partner ha ving paid for all subscriptions to the Software in full and upon termination of any access accounts of the Software, KASHFLOW SOFTWARE LIMITED may, at its absolute and final discretion, refund any subscriptions;

6.6.      KASHFLOW SOFTWARE LIMITED will not have any liability to, or any obligation to, make any refunds for whatever reason, to any end-users granted a sub-license by any license Partners.

This Limited Warranty shall not apply if failure of the Software has resulted from accident, abuse, misuse or misapplication, howsoever caused. Outside the United Kingdom , neither these remedies nor any software support services offered by KASHFLOW SOFTWARE LIMITED are available unless explicitly agreed and authorised by KASHFLOW SOFTWARE LIMITED. The Software is licensed on an "as is" basis without any warranty of any nature.

7.         NO OTHER WARRANTIES

7.1.      Except for the above express limited warranty, all warranties conditions, terms and duties either expressed or implied by law and relating to merchantability, quality, fitness and/or non-infringement with regard to the Software and the provision of or failure to provide support services are excluded to the fullest extent permitted by law. A licensed Partner shall be solely responsible for the selection, use, efficiency and suitability of the Software and KASHFLOW SOFTWARE LIMITED shall have no liability therefor.

7.2.      KASHFLOW SOFTWARE LIMITED shall have no liability for, or any obligation to indemnify any licensed Partner regarding actions alleging the infringement of proprietary rights by the Software. KASHFLOW SOFTWARE LIMITED does not warrant that the operation of the Software will be uninterrupted or error free or that the Software will meet a licensed Partner’s specific requirements. Nothing in this License Agreement shall exclude or limit any statutory rights which cannot be excluded or limited due to a licensed Partner acting as a consumer. Any provisions which would be void under any legislation shall to that extent have no force or effect.

8.         LIMITATION OF LIABILITY

8.1.      In no event will KASHFLOW SOFTWARE LIMITED or its suppliers (including Data Centre, Internet Service Provider and Web Host) be liable for loss and/or corruption of data, loss of profits, damage to goodwill, cost of cover, any pure economic, special, incidental, punitive, exemplary, consequential or indirect damages or losses and/or any business interruption, loss of business, loss of contracts, loss of opportunity and/or loss of production arising from or in connection with the use of the Software, howsoever caused.

8.2.      Each limitation will apply even if KASHFLOW SOFTWARE LIMITED or its authorised distributor has been advised of the possibility of such damage and shall be deemed to be repeated and apply as a separate provision for each of liability in contract, tort, breach of a statutory duty, breach of common law and/or under any other legal basis.

8.3.      In no event will KASHFLOW SOFTWARE LIMITED’s liability exceed the amount a licensed Partner paid for the access and use of the Software. The licensed Partner acknowledges that these limitations are necessary to allow KASHFLOW SOFTWARE LIMITED to provide the Software at its current prices. If modification to these limitations is required KASHFLOW SOFTWARE LIMITED will agree appropriate amendment for payment of a higher than current price for the Software.

8.4.      Nothing in this License Agreement shall exclude or limit KASHFLOW SOFTWARE LIMITED’s liability for death or personal injury due to its negligence or any liability due to its fraud or any other liability which may not be limited or excluded as a matter of law.

9.         TERMINATION

9.1.      A licensed Partner may terminate this License Agreement at any time, without notice. KASHFLOW SOFTWARE LIMITED may terminate this License Agreement if a licensed Partner fails to comply with the terms and conditions of this License Agreement. In either event all licenses and sub-licenses granted under this Agreement shall end immediately and a licensed Partner must destroy all data to gain access and use of the Software. All terms which by their nature should survive termination of this License Agreement shall survive its termination.

10.       UPGRADE and MAINTENANCE

10.1.   KASHFLOW SOFTWARE LIMITED is under no obligation to undertake any upgrade at any particular time and any upgrade is at the discretion of KASHFLOW SOFTWARE LIMITED.

10.2.   KASHFLOW SOFTWARE LIMITED will endeavour to undertake any maintenance to the Software within a reasonable time and KASHFLOW SOFTWARE LIMITED makes no guarantee any maintenance will be carried out within a specified time or within any duration.

10.3.   KASHFLOW SOFTWARE LIMITED will carry out any upgrading or maintenance with the minimum disruption as possible. KASHFLOW SOFTWARE LIMITED will not accept any liability for any loss howsoever caused during any period of upgrade and maintenance and the Licensed Partner further acknowledge that Clause 8.1 shall apply.

11.       GUIDELINES FOR THE USE OF DIGITAL CONTENT AND INDEMNITY

The Software may contain templates, clipart, photo images, video and/or audio media files (collectively referred to as the “Digital Content”) which are either owned by KASHFLOW SOFTWARE LIMITED or licensed to KASHFLOW SOFTWARE LIMITED from a third party. Subject to adhering to the terms of this License Agreement and to the restrictions in this clause unless expressly granted to licensed Partners all rights to the Digital Content are reserved to KASHFLOW SOFTWARE LIMITED and/or its licensors. A licensed Partner is hereby licensed to use, modify, and publish the Digital Content upon the terms of this License Agreement. If a licensed Partner is uncertain as to whether any intended use complies with these terms the licensed Partner should seek the advice of a lawyer.

A. LICENSED PARTNER MAY, subject to any restrictions set out below:

1.         incorporate any Digital Content into Partner’s own original work and publish, display, and distribute that work in any media. Partner may not sell, supply, resell, sublicense, or otherwise make available the Digital Content for use or distribution separately or detached from a product or Web page created by Partner. For example, the Digital Content may be used as part of a Web page design, but may not be made available for downloading separately or in a format designed or intended for permanent storage or re-use by others. Partner’s, clients may be provided with copies of the Digital Content (including digital files) as an integral part of a work product created by Partner, but may not be provided with the Digital Content or permitted to use the Digital Content separately or as part of any other product; Partner may not sell, or otherwise distribute for compensation, money, money’s worth or consideration of any kind, greeting cards created with the Software, which include the Digital Content.

2.         Make one copy of the Digital Content for backup or archival purposes.

B. LICENSED PARTNER MAY NOT:

1.         create scandalous, obscene, defamatory, or immoral works using the Digital Content nor use the Digital Content for any purpose prohibited by law;

2.         Use or permit the use of the Digital Content or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Digital Content or any part thereof;

3.         use the Digital Content in electronic format, on-line, or in multimedia applications unless (a) the Digital Content is incorporated for viewing purposes only and (b) no permission is given to download and/or save the Digital Content for any reason;

4.         Rent, lease, sublicense, charge or lend the Digital Content, or a copy thereof, to another person or legal entity;

5.         use any Digital Content except as expressly permitted by this License Agreement and without prejudice to any other right or remedy KASHFLOW SOFTWARE LIMITED may have the licensed Partner indemnifies and shall keep indemnified KASHFLOW SOFTWARE LIMITED, its licensors and authorised suppliers (including but not limited to, Data Centre, Internet Service Provider and Web Host)  against all and any claims actions, liability, costs, proceedings, awards, damages, losses, demands, expenses, fines, loss of profits, penalties, loss of reputation, judgements and any other liabilities including legal costs (without set-off counterclaim or reduction) suffered by KASHFLOW SOFTWARE LIMITED and/or its licensors and/or its authorised suppliers arising out of or in connection with the use of the Software and/or use or distribution of the Digital Content by the Partner and/or any of its clients whether or not such losses were foreseeable or foreseen at the date of this License Agreement.

12.       MISCELLANEOUS

12.1    This Agreement shall be governed by and interpreted in accordance with English law and not by the 1980 U. N. Convention on Contracts for the International Sale of Goods. If this License Agreement has been translated into a language which is not English and a dispute arises as to the meaning or translation of any term of this License Agreement, the interpretation of the English version shall prevail. The parties agree to submit to the exclusive jurisdiction of the English Courts.

12.2    Except to the extent of any misrepresentation or breach of warranty which constitutes fraud and except in the case of a multi-user license agreement, this License Agreement constitutes the entire agreement between KASHFLOW SOFTWARE LIMITED and Partner and supersedes all prior agreements, understandings, communications, advertising, proposals or representations, oral or written, by either party.

12.3    If any provision of this License Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed and if possible revised to the extent necessary to cure the invalidity, illegality or non-enforceability, and the remainder of this License Agreement shall continue in full force and effect.

12.4    KASHFLOW SOFTWARE LIMITED reserve the right to make any variation to this License Agreement with immediate effect and the Partner acknowledge and accept the variation by notice on the Software website. The licensed Partner further acknowledge that each access and use (whether continuous or not) of the Software will constitute an acceptance of any terms in the License Agreement, whether varied or not.

12.5    No failure, delay, relaxation or forbearance on the part of either party in exercising any power or right under this License Agreement shall operate as a waiver of such power or right or of any other power or right.

12.6    This License Agreement and the license granted pursuant to this License Agreement are personal to Partner and except where permitted above the Partner shall not assign the benefit of or any interest or obligation under this License Agreement.

12.7    Apart from KASHFLOW SOFTWARE LIMITED’s licensors and authorised suppliers, a person who is not a party to this License Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this License Agreement. The consent of any third party is not required for any variation (including any release or compromise of any liability under this License Agreement) or termination of this License Agreement.

CONDITIONS OF SERVICE

1.         PAYMENT OF SUBSCRIPTIONS AND ANY FEES

1.1.      Upon an acceptance by KASHFLOW SOFTWARE LIMITED as a licensed Partner of the Software, the licensed Partner may:

1.1.1         Immediately subscribe to the service on an annual basis at the published rate at the time of applying for a license, using a valid credit or debit card;

1.1.2.        Receive any discount as part of a special promotion at the time of applying for the license, or renewal of the same;

1.1.3.        The licensed Partner further acknowledges that any promotion is subject to any additional terms and conditions of that promotion and KASHFLOW SOFTWARE LIMITED reserve the right to withdraw any promotion at any time for any reason without notice.

1.2.      Upon the opening of the Partner Account, the licensed Partner will be required to input any subscription details to fully activate the Partner Account, including but not limited to credit or debit card details.

1.3.      The licensed Partner acknowledges that by entering and storing the details of a credit or debit card the license Partner agrees for such details to be securely stored and for the stored credit or debit card to be debited on confirmation of each transaction made in the Partner Account;

1.4.      In the event of non-payment of any sums due, howsoever accrued, the licensed Partner agree for KASHFLOW SOFTWARE LIMITED to debit any amounts due from the stored credit or debit card when such amounts fall due, or any time thereafter.

1.5.      The licensed Partner further acknowledge that any payments made by credit or debit card is subject to any additional terms and conditions of the payment processor and any payment will constitute an acceptance of those terms.

2.         SUSPENSION, TRANSFER AND TERMINATION

2.1.      KASHFLOW SOFTWARE LIMITED reserves the right to immediately suspend (without notice) any access to and use of Partner Accounts, or any access and use by any end-users, for any period determined by KASHFLOW SOFTWARE LIMITED where:

2.1.1.  An outstanding debt, of any amount, remains unpaid, or under dispute;

            2.1.2.  Any chargeback is made on any credit or debit card;

            2.1.3.  The account is inactive for a period of seven days or more;

2.1.4.  Any suspension is required to enable compliance with any terms of this Agreement;

            2.1.5.  There has been a breach of any terms of this Agreement.

2.2.      Licensed Partners may request at any time to release any end-user under a sub-license and be transferred directly to KASHFLOW SOFTWARE LIMITED and any agreement between the licensed Partner and the end-user is immediately terminated forthwith.

2.3.      KASHFLOW SOFTWARE LIMITED reserves the right to transfer any end-user account under the control of any licensed Partner back to KASHFLOW SOFTWARE LIMITED where:

2.3.1   The licensed Partner specifically requests KASHFLOW SOFTWARE LIMITED to do so.

2.4.      Any end-user may request at any time in writing to transfer their access account to any nominated licensed Partner, subject to a written acceptance from the licensed Partner to KASHFLOW SOFTWARE LIMITED. The licensed Partner and the end-user acknowledge that upon transferring an access account, both transferor and transferee may lose any entitlements to any promotion, privileges, or other benefit in force at the time of transfer. Any continued entitlement and transfer of the same remains at the sole discretion of KASHFLOW SOFTWARE LIMITED.

2.5.      In the event of termination, by either party to this Agreement, for whatever reason, KASHFLOW SOFTWARE LIMITED reserve the right to transfer any end-user granted a sub-license by the licensed Partner, to a new license and enter into a new agreement directly with KASHFLOW SOFTWARE LIMITED.