Terms and Conditions of Service

The fine print


Last updated on: 24/03/2016

Your continued use of Azexis products and services means that you agree to these revised terms.

Azexis reserves the right to update our Terms of Service at any time without prior notification. You are advised to check the terms of service from time to time for any changes that may affect your organisation or website.

If you have any questions about these Terms and Conditions, please contact us.

 

1. Definitions


1.1  “Evance” is a trading style of Azexis Ltd and is also the name of the software as a service content management product produced by Azexis Ltd.

1.2  “SaaS” means the software as a service provided by Azexis to enable you to manage your website.  This is a software licensing and delivery model in which software is Licenced on a subscription basis and is centrally cloud hosted.

1.3  “Service” means any service or product provided by Azexis

1.4  “Bespoke” refers to a design or development , or other service that is nonstandard to our SaaS offering or specific to your needs.

1.5  “Client”, “You”, means the account owner, your organisation, your staff and/or representatives.

1.6  “Deliverables” means the services and work product specified in the Proposal to be delivered by Azexis to the Client, in the form and media specified in the Proposal.

1.7  “Agreement” means the entire content of this Terms of Service document, the Proposal document(s, or related email estimate.

1.8  “Client Content” means all materials, information, photography, writings and other creative content provided by the Client for use on the Evance Software as a Service or in the preparation of and/or incorporation in the Deliverables.

1.9  “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression.

1.10  “Tools” means all design tools developed and/or utilized by Azexis in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Web site design, architecture, layout, navigational and functional elements.

1.11.  “Final Art” means all creative content developed or created by Azexis or commissioned by Azexis exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Azexis selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

1.12.  “Final Deliverables” means the final versions of Deliverables provided by Azexis and accepted by the Client.

1.13.  “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Azexis and which may or may not be shown and or delivered to the Client for consideration but do not form part of the Final Art.

1.14  “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.15  “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.16  “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of the Client.



2. Evance Software as a Service (SaaS)


2.1 Account Terms


2.1.1 You must be a minimum of 18 years old to use the Evance SaaS.

2.1.2 To use the Evance SaaS you must register an Evance account by registering your full legal name, organisation name, address and telephone number, email address and other required information as indicated.

2.1.3 Azexis may reject, disable or cancel your account at any time at our sole discretion. 

2.1.4 The email address that you provide at registration will be used as your main method of communication.

2.1.5 You are responsible for keeping your own password confidential and secure. Azexis will not be held responsible for any breach of security or any losses from your failure to maintain a strong, confidential password.

2.1.6 You are responsible for all activity, data and content that is uploaded to your Evance account. You must not upload or transmit any abusive, distasteful, illegal, pornographic, gambling related material. You must not upload or transmit worms, viruses or other destructive programs. You may only upload content that you have a legal right to use.


2.2 Account Ownership


2.2.1 The person that owns the account email address will be considered the site owner. If however the person that owns the account email address has registered the account on behalf of an organisation, the organisation will be considered to be the site owner. In this case the person registering the account must hold the appropriate authority to make a binding contract on behalf of the organisation which will in turn bind the organisation to these terms.

2.2.2 In the case of a dispute of account ownership, either party may contact Azexis directly. We will look in to the matter and may request documentation and/or further information in order to make a decision.  Ownership of the account will be transferred or remain with the rightful owner once a decision has been made. If rightful ownership is not clear and no decision can be made, Azexis reserves the right to disable or cancel the account.


2.3 Acceptance of terms


2.3.1 You must read, agree with and accept the Terms and Conditions of Service and Privacy Policy before you become a Client of Azexis and make use of the Evance Software as a Service. 

2.3.2 You agree and accept that we may amend these Terms of Service at any time by posting the most recent version on our website. Your continued use of our Evance Software as a Service constitutes your agreement to and acceptance of the most recent Terms of Service. If you do not agree to any change in Terms of Service do not continue to use the Evance Software as a Service.


2.4 Copyright and Intellectual Property Infringement


2.4.1 You agree not to copy, reverse engineer, reproduce, sell, resell or exploit any part of the Evance Software as a Service system without prior written permission.

2.4.2 You may not use the Azexis or Evance name for any reason including but not limited to marketing or sales literature and you may not use these terms as keywords for pay per click or other forms of marketing. 


2.5 Client Content and Intellectual property


2.5.1 The content of your account is your responsibility. Azexis takes no responsibility for the content held on Clients’ accounts. 

2.5.2 We do not claim any rights over content that you upload to the Evance Software as a Service. You can delete your content at any time by closing your Evance Account. You retain full ownership over the content and take full responsibility for it, including that it is compliant with any relevant laws or obligations.

2.5.3 By uploading content to your site, you agree to allow other internet users to view the content, you allow Azexis to display your content on your Evance Website.

2.5.4 Azexis reserves the right to review your Evance Software as a Service Website content at any time.

2.5.5 We reserve the right to terminate the Evance Software as a Service to Clients whose content violates third party copyrights or intellectual property. 

2.5.6 We reserve the right to terminate the Evance Software as a Service to Clients whose content falls in to any of the following categories at our sole discretion. Pornographic, sexually explicit, adult sex toys, dating, abusive, offensive, libellous, obscene, violent, illegal, or gambling related.


2.6 Client Responsibilities


2.6.1 It is the sole responsibility of the Client to test website forms, functions and payment gateways to ensure that enquires can be made and payments taken successfully for orders. If there are any issues found and the Client cannot remedy the issue from within the Evance Software as a Service Admin Panel, the issue(s) should be reported to Azexis Support immediately.


2.7 Technical Support and Training


2.7.1 Technical Support is only provided to paying users of the Evance Software as a Service. Emails for technical support may be sent to us 24/7. Support is provided by our team between the hours of 9am until 5pm (UK time) Monday to Friday excluding bank holidays and the Christmas shut down period.  The method(s) in which support is provided is determined by your Evance Software as a Service Plan.

2.7.2 Please note that we cannot guarantee that telephone support will be available during periods of peak demand. 

2.7.3 Technical Support included in the monthly plan of the Evance Software as a Service only relates to the standard functions and features and do not cover bespoke/non-standard functionality.

2.7.4 If your Evance Software as a Service Plan includes a Dedicated Account Manager, please note that we shall try to ensure that your Account Manager remains the same. However we reserve the right to change the Account Manager assigned to your account at any time. This may be the result of staff turnover, sickness, holiday, workload or any other circumstance.

2.7.5 All training is carried out at our premises or over the internet unless explicitly stated otherwise.

2.7.6 Training that is offered free of charge or as part of a Evance Software as a Service Plan, that has not been arranged or provided cannot be used as a reason for non-payment or delay in payment of fees.


2.8 Predesigned Themes


2.8.1 All Themes purchased are for single use on one website only. 

2.8.2 Once purchased you are free to export the Theme and upload it to another Evance Software as a Service Website however another Theme Licence must be paid. 
2.8.3 If a Theme is modified and then uploaded to another site, a Licence for the original base Theme must be paid.

2.8.4 You are not permitted to resell Themes.

2.8.5 Themes may be removed from the Theme Library at any point.

2.8.6 Support for modified or bespoke Themes is not included in the monthly fee unless the work was carried out by Azexis.  Support for the Theme should be provided by the company/individual that supplied/customised the Theme.

2.8.7 You may modify Pre-designed Themes to suit your business via the Theme Customizer or IDE.

2.8.8 Azexis may update Themes without prior notice at our discretion.

2.8.9 Themes may need to be updated/revised from time to time the keep them up to date with changes in technology or Service features.

2.8.10 The intellectual property rights of the Theme remain the right of the original designer even if the Theme is modified.

2.8.11 It is the responsibility of the Site Owner to ensure that customisations to a Theme do not overwrite an existing Theme installed on the site.


2.9 Payment of Fees


2.9.1 In order to use Evance Software as a Service Plans a valid credit or debit card must be associated with your account so that the monthly fee may be processed.

2.9.2 The Evance Software as a Service will be invoiced in one calendar month or one year intervals. A copy of the renewal invoice will be available in your Evance Software as a Service Control Panel and you will also be emailed a copy.

2.9.3 Clients that subscribe annually will be reminded 30 days prior to their renewal date.

2.9.4 You will have 14 days after your renewal date to pay your recurring fee. If you fail to make payment within this time period your account will be suspended. Your content will still be available for upto 3 months past your renewal should you wish to renew within this period. After 3 months of your renewal date your account will be closed and your content may be deleted.

2.9.5 For Legacy and Enterprise Clients that are invoiced by post and pay invoices by bank transfer, invoice terms are strictly 14 days. If payment has not been received one calendar month after invoice date, Azexis reserves the right to suspend the account until full payment has been received.

2.9.6 Azexis does not provide refunds.


2.10 Cancellation and Termination


2.10.1 You may cancel your account at any time by emailing us.

2.10.2 Upon termination Azexis will stop providing the Evance Software as a Service and you will no longer be able to login to your Evance Software as a Service Control Panel.

2.10.3 Upon termination you will not be entitled to a refund for any period of unused service.

2.10.4 Upon termination any outstanding invoices will become due and must be settled immediately

2.10.5 Upon termination your Evance Website will no longer be live on the internet.

2.10.6 We reserve the right to suspend or terminate your account at any time without prior notice.


2.11 Pricing Plans


2.11.1 You are only entitled to use the features specified in your plan.

2.11.2 Azexis reserves the right to add, change or withdraw features included in our Evance Software as a Service Pricing Plans at any time without prior notice.

2.11.3 Pricing for Evance Software as a Service Plans are subject to change at our discretion. Changes in pricing will be displayed on the Evance Website at least 30 days prior to a change taking effect.

2.11.4 Azexis will not be held responsible or liable for your or third party costs/damages for discontinuation or disruptions in the Evance Software as a Service.



3. Bespoke Design, Development and Other Services


3.1 Order Terms


3.1.1  You must be a minimum of 18 years old to use Azexis’s Services

3.1.2  To use Azexis’s Services you must provide your full legal name, organisation name, billing address and telephone number, email address and other required information as indicated.

3.1.3  The email address that you provide will be used as your main method for communication.

3.1.4  To place an order for our services you must either send a written order to Azexis via email or pay a deposit invoice. 


3.2 Acceptance of Terms 


3.2.1  You must read, agree with and accept the Terms and Conditions of Service and Privacy policy before you become a Client of Azexis and make use of our Services.

3.2.2  By sending a written order or by paying a deposit invoice you are accepting these Terms of Service.

3.2.3  You agree that we may amend these Terms of Service at any time by posting the most recent version on our website. Your continued use of our Services constitutes your agreement to and acceptance of the most recent Terms of Service. If you do not agree to any change in Terms of Service do not continue to use our Services.


3.3 Proposals


3.3.1  Azexis may provide estimates for Services via email, or quote documents. All prices quoted are valid for 90 days after presentation to the Client. In the event this Agreement is not executed by the Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution. The ordered work will be subject to the terms mentioned in the proposal and ours Standard Terms of Service.


3.4 Maximum Number of Hours


3.4.1  All service based work is estimated on a maximum number of hours. If the project exceeds the allocated hours, even if the scope of the quote is not fulfilled, you will be informed and further hours may be ordered. 


3.5 Copyright and Intellectual Property Infringement 


3.5.1  You may not use the Azexis or Evance name for any reason including but not limited to marketing or sales literature and you may not use these terms as keywords for pay per click or other forms of marketing.


3.6 Technical Support and Training


3.6.1  Technical Support for bespoke developed functionality or services is not included in the standard Evance Software as a Service fee. Support for bespoke/non-standard functionality is charged at our standard hourly rate.

3.6.2  Please note that we cannot guarantee that telephone support will be available during periods of peak demand. 

3.6.3  All communication for our services are to go through your assigned Sales Person, Account Manager or our general support email address. 

3.6.4  All training is carried out at our premises or over the internet unless explicitly stated otherwise.

3.6.5  Training that is offered free of charge or as part of a plan, that has not been arranged or provided cannot be used as a reason for non-payment or delay in payment of fees.


3.7 Theme Tuning


3.7.1  Azexis will only carry out Theme Tuning Services on Predesigned Themes that were originally created by Azexis. Third Party Themes will need to be customised by the original designer.

3.7.2  As with other bespoke design and development services offered by Azexis, all work is based on a maximum number of hours.

3.7.3  Theme Tuning Services are for the customisation of an existing Predesigned Theme. The original Predesigned Theme fee must be purchased at the time of order.

3.7.4  All Themes purchased are for single use on one site only. 

3.7.5  Once purchased you are free to export the customised Theme and upload it to another site however another Licence for the original Theme must be paid. 

3.7.6  You are not permitted to resell customised Themes.

3.7.7  Support for the customised Theme is only provided as part of the monthly Evance fee if Azexis customised the theme.

3.7.8  The intellectual property rights of the original Theme will remain the sole right of Azexis.


3.8 Guru Services


3.8.1  The Guru Service covers a range of services to help improve your website. Services covered by Guru include, design, mark-up, bespoke development, reporting, SEO, photography, social marketing and email marketing material.  Guru Services are based on a per hour charge subject to the Guru pricing plan you have ordered.

3.8.2  Guru hours not used in a given month are rolled over for up to 3 month. After 3 months, any unused hours expire and no refund will be given.

3.8.3  Use of Guru Services does not guarantee measurable results.

3.8.4  Guru Pricing Plans do not include 3rd party services and fees such as but not limited to PPC fees and stock media.

3.8.5  Once ordered the Guru Service will continue until cancelled in writing. 

3.8.6  We require a minimum of 30 days’ notice to cancel Guru Services.

3.8.7  Azexis reserve the right to cancel the Guru Service at any time for any reason without prior notice.


3.9 Payment of Fees


3.9.1  Invoice terms are strictly 14 days unless stated otherwise. If payment has not been received one calendar month after invoice date, Azexis reserves the right to place a lien over the work and temporarily suspend any Evance Software as a Service account until full payment has been made.

3.9.2  A 1.5% monthly service charge is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by late or default in payment. Azexis reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes.

3.9.3  Azexis does not provide refunds.


3.10 Expenses


3.10.1  The Client shall pay Azexis expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for overnight couriers, service bureaus, typesetting, blueprints, models, presentation materials and computer expenses, at cost plus Azexis standard mark-up of fifteen percent (15%), and, if applicable, a mileage reimbursement at 25p per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Azexis with the Client’s prior approval.


3.11 Additional Costs


3.11.1  The Project pricing includes Azexis fee and services only. Any and all Client approved outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licences, prototype production costs, talent fees, music licences, and online access or hosting fees, will be billed to the Client unless specifically stated otherwise in the Proposal.


3.12 Changes


3.12.1  Unless otherwise provided in the ordered Proposal, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services on a time and materials basis, at Azexis’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Azexis may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such 


3.13 Timing


3.13.1  Azexis will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Azexis. Azexis shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that Azexis ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the Client’s performance or Changes in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or Azexis obligations under this Agreement.


3.14 Deadlines


3.14.1  Azexis does not commit to any contractual deadline and therefore is not liable for penalties, damages or losses for deadlines that are not met. Any deadline or timeline provided is merely an estimate of production time and is not binding.


3.15 Testing and Acceptance


3.15.1  Azexis will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within reasonable period of receipt of each Deliverable, shall notify Azexis, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Azexis will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the Terms & Conditions of this Agreement. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.


3.16 Client Responsibilities


3.16.1  The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordination of any decision-making with parties other than Azexis;
(b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) Final proofreading and in the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
(d) It is the sole responsibility of the Client to test website forms, functions and payment gateways to ensure that enquires can be made and payments taken successfully for orders. If there are any issues found, they should be reported to Azexis Support immediately if the client cannot remedy the issue.


3.17 License of Deliverables


3.17.1  Upon full payment of fees associated with the deliverables for bespoke design and development projects and other services, Azexis grants the Client a limited license to use, display make available works based on the deliverables on a single designated domain with a current Evance Software as a Service subscription.

3.17.2  All copyright and intellectual property rights for all deliverables remain the sole property of Azexis.


3.18 Limit of Liability and Indemnification


3.18.1  The Services of Azexis are sold “as is” and “as available” basis in all circumstances without warranty.

3.18.2  In all circumstances Azexis, its directors, officers, employees, agents and affiliates, are not liable to the client or third party for damages for loss of profits, goodwill, use, data, content or other for any and all causes from the use of or inability to use the service (however arising including negligence).

3.18.3  The Client agrees to indemnify, save and hold harmless Azexis Ltd from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Azexis shall promptly notify the Client in writing of any claim or suit; (a) the Client has sole control of the defence and all related settlement negotiations; and (b) Azexis provides the Client with commercially reasonable assistance, information and authority necessary to perform the Client’s obligations under this section. The Client will reimburse the reasonable out-of-pocket expenses incurred by Azexis in providing such assistance.

3.18.4  You expressly understand that your use of the Service is entirely at your sole risk. 

3.18.5  Azexis does not offer any warranty that the Service is or will be uninterrupted, timely, error free, entirely secure or bug/error free.

3.18.6  Azexis does not offer any guarantee of site sales, results or performance


3.19 Term and Termination


3.19.1  This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

3.19.2  This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

3.19.3  In the event of termination, Azexis shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Azexis or its Agents as of the date of termination, whichever is greater; and the Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

3.19.4  In the event of termination by the Client and upon full payment of compensation as provided herein, Azexis grants to the Client such right and title as outlined in the proposal with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.

3.19.5  Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.


3.20 Warranties and Representations


3.20.1  By the Client. 
The Client represents, warrants and covenants to Azexis that (a) the Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) the Client shall comply with the Terms & Conditions of any licensing agreements which govern the use of Third Party Materials, and (d) the Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

3.20.2  By Azexis. 
(a) Azexis hereby represents, warrants, and covenants to the Client that Azexis will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. 
(b) Azexis further represents, warrants and covenants to the Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Azexis and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Azexis, Azexis shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Azexis to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Azexis knowledge, the Final Art provided by Azexis and its subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event the Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the Terms & Conditions noted herein, all representations and warranties of Azexis shall be void.
(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, AZEXIS MAKES NO WARRANTIES WHATSOEVER. AZEXIS EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.


3.21 Azexis's Right to Re-Use Deliverables


3.21.1  The Client acknowledges and agrees that Azexis may use part or all of the Deliverables in future Client projects, or Azexis’s own products or services. This excludes content, intellectual property, confidential or commercially sensitive information provided by the client.


3.22 Bespoke Development Warranty Period


3.22.1  During the warranty period for bespoke development Azexis will correct any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first three (3) months following expiration of this Agreement (“Warranty Period”), if any, Azexis shall provide up to Five (5) hours of Support Services at no additional cost to the Client. Additional time shall be billed at the standard hourly rate, then in effect upon the date of the request for additional support.

3.22.2  During the warranty period, the Client may request that Azexis develop enhancements to the Deliverables, and Azexis shall exercise commercially reasonable efforts to prioritize its resources to create such enhancements. The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Azexis then in effect price for such services.


3.23 Deficiencies


3.23.1  Subject to the representations and warranties of the Client in connection with Client Content, Azexis represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by the Client or any third party after delivery by Azexis, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that the Client’s sole remedy and Azexis sole liability for a breach of this Section is the obligation of Azexis to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Azexis, Azexis sole obligation shall be to substitute alternative Third Party Materials.


3.24 Designer Tools


3.24.1  Subject to the representations and warranties of the Client in connection with the materials supplied by the Client, Azexis represents and warrants that, to the best of Azexis knowledge, the Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by the Client or third parties.


3.25 Compliance with Laws


3.25.1  Azexis shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. The Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology



4 General Terms


4.1 Our Rights


4.1.1  We reserve the right to make changes to or terminate our services at any time, for any reason without prior notice.

4.1.2  We reserve the right to refuse service at any time for any reason.

4.1.3  Abusive communications whether written or verbal may result in termination of service at our sole discretion.

4.1.4  We reserve the right to provide our services to your competitors and make no commitment of exclusivity. However all commercially sensitive information will remain confidential.

4.1.5  Azexis shall have the right to use your name, trademark, logos and content for the sole purpose of promoting Azexis Services.

4.1.6  Azexis reserves the right to place our logo and hyperlinks to our website in the footer of your website. 


4.2 Waiver


4.2.1  Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.


4.3 Confidentiality


4.3.1  We will not disclose your confidential information to any third parties except as require in the course of providing our services. Confidential information does not include information that already exist in the public domain or that subsequently comes into the public domain by other means. We may however be required by law to disclose such information should it be requested by the authorities.


4.4 Relationship of the Parties


4.4.1  Azexis is an independent contractor, not an employee of the Client or any company affiliated with Client. Azexis shall provide the Services under the general direction of the Client, but Azexis shall determine, in its sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Azexis and the work product or Deliverables prepared by Azexis shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.


4.5 Agents


4.5.1  Azexis shall be permitted to engage and/or use third party designers/developers or other service providers as independent contractors in connection with the Services (“Agents”). Notwithstanding, Azexis shall remain fully responsible for such Agents’ compliance with the various Terms & Conditions of this Agreement.


4.6 No Solicitation


4.6.1  During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Azexis employee or Agent of Azexis, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, the Client agrees that Azexis shall be entitled to an agency commission to be the greater of, either (a) 25% of said person’s starting salary with the Client, or (b) 25% of fees paid to said person if engaged by the Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for the Client. Azexis, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.


4.7 Software and Server Updates


4.7.1  From time to time there may be the requirement for software updates and/or server updates/maintenance that requires the Service to be temporarily taken off line. We reserve the right to temporarily suspend service for this without prior notice.


4.8 Vulnerability


4.8.1  If your Evance website is the target of a denial of service, unexpected high traffic, other attack  or unusually high traffic/server load from a third party(ies), Azexis reserves the right to take  immediate action without prior notification to mitigate the issue. Techniques such as IP filtering, IP blocking or other techniques may be used. In some cases your Evance Services may temporarily be suspended and your website taken down in order to protect other Clients until we are satisfied that normal traffic has resumed.


4.9 Website Crawlers


4.9.1  You are not permitted to set-up any third party web crawlers/bots to monitor/analyse your Evance website for any reason unless granted explicit written permission from Azexis prior to implementation.  Such crawlers/bots can put excessive strain on servers.


4.10 Force Majeure


4.10.1  Azexis shall not be deemed in breach of this Agreement if Azexis is unable to complete the Services or any portion thereof by reason of fire, labour dispute, act/force of nature or public enemy, death, illness or incapacity. Or, any local, national or international law, governmental order or regulation or any other event beyond Azexis control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Azexis shall give notice to the Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.


4.11 Governing Law & Dispute Resolution


4.11.1  The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of England & Wales without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through any forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its legal’ fees and costs. In all other circumstances, the parties specifically consent to the local or national courts of England & Wales. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. The Client acknowledges that Azexis will have no adequate remedy at law in the event the Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Azexis shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.


4.12 Severability


4.12.1  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.


4.13 Headings


4.13.1  The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.


4.14 Integration


4.14.1  This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. 


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