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EULA - End User License Agreement
In this Contract:
"Authorised User" means anyone registered by the Customer with BTWS on the Service as authorised to use the Service.
"BTWS" means Blue Tang Web Systems registered in England No 4037143, Windovwre House, St Ann Street, Salisbury SP1 2DR
"Charges List" means a list of charges for the Service which BTWS publishes online at www.bluetang.co.uk or any alternative address which BTWS notifies to the Customer at any time.
"Content" means customer information, service requests, and any data placed onto the system by an authorised user or one of their clients or staff.
"Contract" means these Conditions, the Charges List, the completed Registration screen (if any), the Customer Requirements Form (if any) and the Order Form (if any) which, in the case of conflict, rank in this order of precedence.
"Customer" means the person so named on the Customer Requirements Form (if any) or the Order Form (if any) or at the Registration process and anyone reasonably appearing to BTWS to be acting with that person's authority or permission.
"Internet" means the global data network comprising interconnected networks using the TCP/IP protocol suite.
"Operational Service Date" means the date when the Service is first made available to the Customer on a chargeable basis.
"Site" means a place at which BTWS agrees to provide the Service
"System Administrator" means a named individual appointed by the Customer to be the point of contact with BTWS for matters relating to the provision of the Service.
"Third Party Information" means data, information, video, graphics, sound, music, photographs, software and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, published or otherwise made available by the Customer using the Service.
"Username" means that part of the URL for the Customer Website which is selected by the Customer.
This Contract begins on the Operational Service Date or, if earlier, on the date when BTWS accepts the Order Form (if any) or the Customer Requirements Form (if any) or from the day the Customer completes the online registration process (which incorporates these Conditions) and such registration is accepted by BTWS, and will continue until terminated in accordance with this Contract.
3. PROVISION OF THE SERVICE
3.1 BTWS will provide the Customer with the Service on the terms of this Contract.
3.2 BTWS will use reasonable endeavours to provide the Service by the date agreed with the Customer but all dates are estimates and BTWS has no liability for any failure to meet any date.
3.3 BTWS will provide the Service with the reasonable skill and care of a competent internet application service provider.
3.4 It is technically impracticable to provide a fault free Service and BTWS does not undertake to do so. BTWS will however repair any reported faults as soon as it reasonably can.
3.5 Occasionally BTWS may:
a. change the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service;
b. suspend the Service for operational reasons such as repair, maintenance or improvement of the Service or because of an emergency, but before doing so will give as much online, written or oral notice as is reasonably practicable. BTWS will restore the Service as soon as it reasonably can after suspension.
3.6 The Customer is responsible for providing suitable computer hardware, software and telecommunications equipment and services necessary to access and use the Service. This Contract does not include the provision of telecommunications services necessary to connect to the Service.
3.7 The Customer is responsible for the acts and omissions of all Authorised Users in connection with the Service and is liable for any failure by any Authorised User to perform or observe the terms and conditions of this Contract, including any instructions issued under paragraph 3.5.
4.1 The Customer is responsible for the security and proper use of all user names and passwords used in connection with the Service (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.
4.2 The Customer must immediately inform BTWS if there is any reason to believe that a user name or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
4.3 The Customer must not change or attempt to change a user name. If a Customer forgets or loses a password or user name the Customer must contact BTWS and satisfy such security checks as BTWS may operate.
4.4 BTWS reserves the right to suspend user names and password access to the Service if at any time BTWS considers that there is or is likely to be a breach of security.
4.5 BTWS reserves the right (at its sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service.
5. USE OF THE SERVICE
5.1 The Service is provided solely for the Customer's own use and the Customer will not resell or attempt to resell the Service (or any part or facility of it) to any third party unless otherwise agreed.
5.2. The Content is protected by copyright, trademark and other intellectual property rights, as applicable. The Customer must not and must not permit anyone else to copy, store, adapt, modify, transmit, distribute externally (and if the Customer accesses the Service from a LAN other than to Authorised Users on such LAN), perform, play or show in public, broadcast or publish any part of the Content, and the Content may only be used for the Customer's own purposes.
5.3. The Customer must not commercially exploit any Content to the commercial detriment of any supplier to BTWS of editorial management services relating to the Service or of Content containing news material by using any Content in any way in relation to the provision of an online or other information service.
5.4. BTWS does not warrant or guarantee the accuracy or completeness of any of the Content or any further information or results which may be derived from it. The Customer acknowledges that it is the Customer's responsibility to evaluate the accuracy and completeness of the Content. In particular the Customer acknowledges that it is not entitled to rely on any Content in making any business or other decision and that the Customer's use of the Content (for whatever purpose) is at the Customer's sole risk.
5.5. The Customer acknowledges that there may be additional conditions displayed on line relating to particular Content. If the Customer chooses to access such Content those online conditions will also form part of this Contract.
5.6 The Customer is solely responsible for evaluating any goods (including software) or services offered by third parties via the Service or on the Internet. BTWS will not be a party to or in any way responsible for any transactions between the Customer and third parties. The Customer expressly acknowledges that BTWS accepts no liability of any kind in relation to, or arising from, any representation or warranty or other statement made by the Customer to any third party or by the third party to a Customer.
5.7 The Customer shall be responsible for the creation, maintenance and design of all Customer Information.
5.8 The Customer must indemnify BTWS against any claims or legal proceedings which are brought or threatened against BTWS by a third party because:
a. the Service is used in breach of the provisions of this paragraph 5; or
b. the Service is faulty or cannot be used by that third party.
5.9 BTWS will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
5.10 If, following routine system administration of the Service (including without limitation server, network and security monitoring, and monitoring for unattended logins), BTWS detects that the Customer's use of the Service:
(i) impairs the integrity of the system and/or the network used to provide the Service; or
(ii) causes detrimental performance of the Service to the Customer or any other customer;
BTWS reserves the right, on giving the Customer prior notice where practicable, to suspend the Customer's access to the Service (without prejudice to BTWS's right to terminate this Contract under paragraph 20) until BTWS receives assurance from the Customer that the Customer will not use the Service in such a manner.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Intellectual property rights in the Software or any documentation supplied by BTWS to the Customer are and remain the property of BTWS or its licensors.
6.2 The Customer agrees to comply with the terms of any agreements reasonably required by the owner of intellectual property rights in the Software or any associated documentation to protect the owner's interests.
6.3 BTWS grants the Customer a non-exclusive non-transferable licence to use the Software.
6.4 The Customer will not, without BTWS's prior written consent, copy or (except as permitted by law) decompile or modify the Software, nor copy the manuals or documentation.
6.5 BTWS may offer updates or modifications to the documentation. Any applicable charges for such updates or modifications will be notified to the Customer at the time BTWS offers such updates or modifications.
7.1 The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not disclose that information to any person (other than their employees or professional advisers, or in the case of BTWS the employees or their suppliers who need to know the information) without the written consent of the other party.
7.2 This paragraph 11 will not apply to:
a. any information which has been published other than through a breach of this Contract;
b. information lawfully in the possession of the recipient before the disclosure under this Contract took place;
c. information obtained from a third party who is free to disclose it; and
d. information which a party is requested to disclose and if it did not could be required by law to do so.
7.3 This paragraph 11 will remain in effect for 2 years after the termination of this Contract.
8. CHARGES AND DEPOSITS
8.1 The charges for the Service will be calculated in accordance with the Charges List and, from the details recorded by or on behalf of BTWS. Charges are payable from the operational service date taking into consideration free trial periods and other special offers.
8.2 Unless the Charges List says otherwise subscription charges will be payable quarterly in advance.
8.3 The Customer will pay the charges within 28 days of the date of BTWS's invoice. BTWS may charge daily interest on late payments at a rate equal to 4 % per annum above the base lending rate of HSBC Bank plc.
8.4 All charges will be invoiced and paid in pounds sterling unless otherwise stated in the Charges List. Value Added Tax will be added to BTWS's invoices as appropriate.
8.5 The Customer acknowledges that the Customer may be subject to BTWS's credit vetting procedures and that BTWS may, at any time, require the Customer to pay a deposit.
9. LIMITATION OF LIABILITY
9.1 BTWS is not liable to the Customer, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of data.
9.2 The Customer accepts that BTWS is under no obligation to edit, review or modify Customer Information or Third Party Information and that BTWS does not examine the use to which customers put the Service. However, BTWS reserves the right to remove any Customer Information or Third Party Information without notice.
9.3 BTWS is not liable to the Customer either in contract, tort (including negligence) or otherwise for the acts or omissions of other providers of telecommunications or Internet services (including domain name registration authorities) or for faults in or failures of their equipment.
9.4 Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
10. MATTERS BEYOND EITHER PARTY'S REASONABLE CONTROL
10.1 If either party is unable to perform any obligation under this Contract because of a matter beyond its reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, or events beyond the reasonable control of its suppliers, it will have no liability to the other for that failure to perform.
10.2 If any of the events detailed in paragraph 18.1 continue for more than 14 days either party may serve notice on the other terminating this Contract.
11. SUSPENSION AND TERMINATION OF THIS CONTRACT
11.1 Either party may terminate this Contract on 14 days' notice to the other.
11.2 If notice is given under paragraph 19.1, the Customer will pay the charges due for the Service up to the expiry of the notice.
11.3 If either party gives notice under paragraph 19.1, BTWS will repay or credit the appropriate proportion of any charges paid in advance for a period following expiry of the notice period.
11.4 Termination by notice under this paragraph 19 does not avoid any liability for Service already provided.
12. BREACHES OF THIS CONTRACT
12.1 Either party may terminate this Contract or the provision of Service (in whole or in part) under it without notice if the other:
a. commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
b. commits a material breach of this Contract which cannot be remedied; or
c. is repeatedly in breach of this Contract; or
d. is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets.
12.2 If any of the events detailed in paragraph 16.1 occur because of the Customer, BTWS may suspend the Service (in whole or in part) without prejudice to its right to terminate this Contract. Where the Service is suspended under this paragraph the Customer must pay the charges for the Service until this Contract is terminated.
12.3 If either party delays in acting upon a breach of this Contract, that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver must be in writing and is limited to that particular breach.
13. CHANGES TO THIS CONTRACT
If the Customer asks BTWS to make any change to the Service BTWS may ask the Customer to confirm the request in writing. If BTWS agrees to a change, this Contract will be amended from the date when BTWS confirms the change in writing to the Customer.
BTWS can change the terms of this Contract (including the charges) at any time on 14 days' notice to the Customer.
This Contract is governed by the law of England and Wales and both parties submit to the exclusive jurisdiction of the English Courts.
15.1 Neither BTWS nor the Customer will issue any promotional or advertising material relating to the other, without first obtaining the other's prior written consent. In particular, without such prior written consent neither party has the right to use any trade marks, service marks, trade names, logos or the trading style used by the other party.
Terms and Conditions: Issue No. 2; Date: June 19th 2006 (c) Copyright Blue Tang Web Systems Limited