1. IMPORTANT INFORMATION
This Web Hosted Service Agreement (Agreement) governs the use of hosted software applications on SoftQuest Solutions Pty Ltd owned and/or leased servers within its own and/or server provider facilities. Hosted Applications are also referred to as Application Service Provider (ASP) software. Customers rent the use of the application and access it over the Internet, or via a private line connection. ASP software is accessed via the Web browser, acting as a universal client interface.
This Agreement sets forth terms and conditions for use of SOFTQUEST Hosted Services. If you subscribe to a Hosted Service this Agreement together with the Terms & Conditions forms part of the Contract referred to in the Terms & Condition. For the meaning and interpretation of terms used in this Agreement please refer to UNDERSTANDING THESE TERMS & CONDITIONS section in the Terms & Conditions .
Please read the Agreement carefully before subscribing to Hosted Service. By ticking the I Agree box in the online registration for Hosted Service account (by yourself or with the assistance of SOFTQUEST staff or agents) you accept the Contract (including this Agreement). Each time you (and any of your customers using the Hosted Service as Transaction Intermediary, or B2C Hub) access the Hosted Service, you affirmatively state that you accept the Contract and would abide by its terms and conditions. SOFTQUEST is unwilling to provide you with access to the Hosted Service unless you accept the Contract.
You should ensure that your website terms and conditions enforce the provisions of the Contract on your customers. SOFTQUEST and You are the only parties to the Agreement and are sometimes referred to singularly as a "Party" or collectively as the "Parties."
You must complete the all the stages of the signup process before SOFTQUEST will activate the selected Hosted Service. SOFTQUEST reserves the right to reject the Contract for any reason prior to activation. Activation of the Hosted Services will indicate SOFTQUEST's acceptance of the Contract.
SOFTQUEST may amend or otherwise modify this Agreement at any time and from time to time without notice to you. You will be bound by the amended Agreement upon your continued use of the Hosted Service after the revised Agreement is posted on our website.
2. GENERAL PROVISIONS FOR HOSTED SERVICES
2.1 Compliance with SLA
SOFTQUEST agrees to provide the Hosted Service in accordance with the Service Level undertaking and you agree to strictly abide by all Customer Responsibilities outlined in the SLA section outlined at paragraph 4 herein.
2.2 User conduct
You can register and use a Hosted Service from anywhere in the world. You therefore agree to abide by all applicable local, state, national and international laws and regulations regarding your use of the Hosted Service.
2.3 Browser and operating system compatibility
Functionality of the Hosted Service has been tested with popular operating systems such as Windows, Linux and Mac OX and popular Web Browsers such as Internet Explorer, Firefox and others. SOFTQUEST is not responsible for your inability to access the Hosted Service due to operating system and/or Web Browser configuration or incompatibility issues.
2.4 Restricted Licence
Subject to the terms and conditions of this Agreement and the Contract, SOFTQUEST hereby grants you (and you accept) a non-exclusive, non-transferable license to access and use the Hosted Service. All rights not expressly granted to you are hereby reserved by SOFTQUEST and/or the respective owners of the Hosted Service software. SOFTQUEST and each Third Party software owner shall have the right to assert and enforce the provisions of this sub-paragraph 2.4 directly on its own behalf.
2.5 SoftQuest Promotional and other Rights
You consent that we are allowed to insert in your website footer and/or in pages of the Hosted Service Application a disclaimer that the software and/or the Hosted Service are powered by SOFTQUEST. You also consent to the use of your de-identified data and that of your customers, for statistical and marketing purposes. Finally you consent to receiving periodically promotional or marketing material from us, including by way of email delivery.
SOFTQUEST will not disclose any personal information about your use of the Hosted Service in violation of the Privacy Policy provisions in our Terms & Conditions.
2.6 Monitoring of Hosted Service
You agree that SOFTQUEST has the right to monitor the Hosted Service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers and other customers. SOFTQUEST will also use the Hosted Service information to calculate your monthly bills.
2.7 Term
The Effective Date of this Agreement shall be the first day in which your Account for the Hosted Service is created.
You may use the Hosted Service from the time we notify you that your account is active and ready for use. We do not impose any minimum or maximum period of use. You may then use the Hosted Service for as long as you:
- consent with, abide by and comply with all the provisions of the Contract;
- pay all fees and charges due to us or to Third Parties in respect of the use of the Hosted Service as and when due; and
- the Hosted Service has not been terminated in accordance with the Contract.
Your ability to use the Hosted Service in that manner does not create any commitment for the length of time or duration that the Hosted Service will be available to you. SOFTQUEST reserves the right to terminate any Hosted Service in accordance with the Contract by giving you 30 days prior notice.
2.8 Operational Equipment
If you already have a computer capable of and running a web browser, you do not need any additional computer hardware to use the Hosted Service.
2.9 Security and Data Storage
You shall not permit or allow other persons to have access to, or to use your Hosted Service account Information, other than your employees, consultants or agents who have been notified of the restrictions set forth in the Contract.
You agree to maintain the confidentiality of your Hosted Service account Information and agree to be primarily responsible for all activity pursuant to your Hosted Service account. Although SOFTQUEST has taken significant measures to ensure the security of information submitted by you while using the Hosted Service, SOFTQUEST cannot guarantee the security of information collected during the use of the Hosted Service and shall not be liable in any way for compromise of data collected or stored while using the Hosted Service.
2.10 General support services
You may request from us additional services such as Domain Name registration, website design, etc. Such services will be charged on time and material basis.
SOFTQUEST shall use its sole discretion to subcontract or use other parties to provide all or some of these services. SOFTQUEST does not assume any responsibility for these services.
2.11 Independent Contractor
It is expressly understood and agreed that the relationship between the Parties is as follows: each Party is acting as an independent contractor and is not an agent, partner, or joint venture with the other Party for any purpose. The Parties have no authority to assume or create any obligation for or on behalf of the other Party, express or implied, with respect to the Contract or otherwise.
3. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
In addition to the Warranties and Liabilities section in the Terms & Conditions SOFTQUEST HOSTED SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOFTQUEST EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SOFTQUEST HOSTED SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY SOFTQUEST, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL SOFTQUEST, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE HOSTED SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE HOSTED SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SOFTQUEST RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT SOFTQUEST IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL HOSTED SERVICES AVAILABLE FROM SOFTQUEST AND ITS AFFILIATES.
UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE.
THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
4. SERVICE LEVEL UNDERTAKING
4.1 Hosted Service Objectives
Hosed Services are geared towards end-users. Whilst the Bandwidth to the Hosted Service Equipment is provided by Third Party onto which Equipment (owned and/or leased) the Application is installed, you and other end users of the Hosted Service need to have Internet access in order to use it.
We shall provide you with access to the ASP software via a secured and efficient hosting environment. While SOFTQUEST's Hosted Service uses encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the Hosted Service.
You do not need to be an expert to use SOFTQUEST Hosted Services. We are responsible for installation and configuration of the Application and the required supporting software for the Hosted Service. You are responsible only for data input, its integrity, accuracy, legality, backup and all the other obligations outlined in the Contract.
4.2 Availability
The Third Party that hosts the Equipment onto which the Hosted Service Application is installed, is responsible for the Hosted Service availability. Therefore SOFTQUEST uses first tier Third Parties that use commercially reasonable efforts to make available to you the Hosted Service at least 99.7% of the time ("Service Level Commitment") with the following exceptions ("Excusable Downtime"):
- Circumstances beyond the Third Party's reasonable control, including, without limitation, unavailability of or interruption or delay in telecommunications or other third party services, virus attacks or hackers, failure of third party software (including, without limitation, payment gateways, chat, statistics or free scripts);
- A failure of the Internet, public switched telephone network, or other communication circuits used to access the Equipment onto which the Hosted Service Aoolication is installed;
- Scheduled network, hardware, or server maintenance or upgrades;
- Emergency maintenance;
- Your acts or omissions (or acts or omissions of others engaged or authorized by you) including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc.), OR your negligence, willful misconduct, or use of the Hosted Service in breach of the Contract; and
- Other outages of the Internet or otherwise that hinder access to the Hosted Service.
In the event of catastrophic Equipment failure SOFTQUEST undertakes to restore the Hosted Service Application within 24 hours of Equipment restoration by the Third Party Hosting the Equipment.
Notification of known Hosted Service failure is available via our website. We may also notify you via email.
4.3 Compatibility
You shall obtain and maintain, at your sole expense, equipment and appropriate telecommunication service adaptable to, compatible with, and suitable for communication with the Hosted Service.
You agree to be responsible for the accuracy and adequacy of the data which you furnish or transmit to the Hosted Service for processing or storage. Reasonable precautions have been taken by SOFTQUEST to prevent the loss, alteration or improper access to your data, but SOFTQUEST does not guarantee the accuracy or security of that data.
4.4 Bandwidth Quotas
Hosted service is assigned a standard Bandwidth Quota of 5 Gigabytes which you shall not exceed in any given month without our consent. You will be notified by email or via a message posted to your account if you exceed the Bandwidth Quota allowance. Additional bandwidth may be assigned or purchased.
The Hosted Service Equipment has a 10Mbps shared Internet access.
4.5 Your data storage, backup and restore
Hosted Service is assigned a standard Disk Quota of 5 Gigabytes which you shall not exceed without our consent. You will be notified by email or via a message posted to your account if you exceed the Disk Quota allowance. Additional disk space may be assigned or purchased.
SOFTQUEST is only responsible for the backup and restore of the Hosted Service Application. This also includes backup of any updates, modifications, customization and upgrade of the Application.
You are responsible for data input and routine backup and/or restore of data. The Hosted Service administrative access provides you with utilities to backup the data and restore it, if the need arises. Upon your request, SOFTQUEST shall restore your data to you, using your own data backups. You acknowledge that SOFTQUEST is not responsible for the data backups and the period they cover. SOFTQUEST is not responsible for any data loss resulting from your failure to regularly backup your data or the failure of SOFTQUEST's and the Third Party's backup system, including data storage devices or backup media. Restoration of your data by SOFTQUEST shall be at your sole cost and expense, unless the need for the restoration was due solely to a failure or error of SOFTQUEST or the Third Party Hosted Service Equipment Provider.
4.6 Technical support
Hosted Service is easy to use and does not require any specific IT skills. SOFTQUEST provides answers to common technical support issues via the Frequently Asked Questions (FAQ) area of SOFTQUEST's website, which may be accessed directly or through your account. Website support is available on a 24 hour, 7 day a week basis.
Should you require support via email you can use the Live Chat and Support area on SOFTQUEST's website to access fill and email a standard support form, or initiate a chat session. You can also call support staff on phone. Support via chat and phone is available from 9:00AM to 5:00PM Australia EST, only when a support staff is available. In most cases you do not need this form of support.
4.7 Resolution of problems
After we are notified of a problem, or detect a problem, SOFTQUEST will use its best efforts to resolve the incident in accordance with the following guidelines:
| Type A |
Third Party related problems such as a critical component of the Equipment onto which the Hosted Service Application is installed breaks down or malfunctions, or any other problem that renders the Hosted Service inoperable. Such fault emanates from a Third Party and no clear work-around exists for the problem. Examples: An outage for multiple shared customers. |
| Type B |
The Hosted Service is not performing as documented, leading to unexpected results with moderate or minor operational impact on you. Examples: request for password resets, restores, chargeable events, and single user issues. |
| Type C |
Hosted Service Application enhancement requests, documentation requests, usage questions, and clarification on Documentation. There are no Service Level Objectives for this type. |
SOFTQUEST will use its best endeavours to resolve all types of fault as soon as practicable. We will attend immediately to all reported and/or detected problems. Third Party's undertaking for resolution of Type A problem is 4 to 8 hours. Type C matters will be resolved within 72 hours.
SOFTQUEST does not assume any responsibility for resolution of Third Party related problems.
4.8 Remedy
You agree that your sole and exclusive remedy to any issues relating to the SOFTQUEST Hosted Service is to discontinue using the Hosted Service.
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