eramba SaaS Enterprise Services
Terms & Conditions
August 2023, V1.4
By accessing the Software, you agree to be bound by these terms and conditions (the Conditions). If you do not agree to be bound by these Conditions, do not use the Software. If you have any questions, contact us at support@eramba.org
These Conditions apply whether you have purchased access to the Software directly from Eramba, or through an authorised reseller of Eramba.
These Conditions may be updated from time to time and the updated version will be effective as soon as it is accessible. While we will try to contact you using email, you are ultimately responsible for regularly reviewing these Conditions so that you are aware of any changes to them.
We will process any personal data you provide to us in according to our privacy policy available at https://www.eramba.org/privacy-policy
1.1 In these Conditions, the following words have the following meanings:
1.2 Words in the singular include the plural and in the plural include the singular.
1.3 Clause headings shall not affect the interpretation of these Conditions.
1.4 References to Clauses are, unless otherwise provided, references to the clauses of these Conditions.
1.5 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
1.6 Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.
2.1 Subject to these Conditions, Eramba grants to the Customer the non-exclusive, non-transferable personal right and licence to access and use the Software for its normal internal business purposes. The Customer shall have no right to sublicense its rights under this Clause 2.1.
2.2 Following registration, the Customer shall receive a unique domain name for access and use of the Software. The Customer shall not access the Software except through web-browsers and REST API calls against its domain name. No other means of access are permitted, including automated tools to perform monitoring and web-vulnerability scans.
2.3 The Customer is responsible for maintaining the confidentiality of the credentials used to access the Software and shall not permit or assist any third party to access Software through its credentials. Eramba shall not be liable for loss or damage arising from the Customer’s failure to comply with this Condition 2.3.
2.4 The Customer shall comply with all reasonable instructions of Eramba relating to the Software.
2.5 Except to the extent required to be permitted by applicable law the Customer shall not, and shall not permit or assist any third party to:
2.5.1 arrange or create derivative works based on the Software;
2.5.2 utilise automated tools to test the Software for bugs or security issues; and./or
2.5.3 attempt to interfere with the proper working of the Software;
2.5.4 access all or any part of the Software in order to build a product which competes with the Software.
3.1 Eramba shall use reasonable endeavours to make the Software available at all times, but the Customer acknowledges that there may be occasions when access to the Software may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. The Customer should promptly report any fault in the Software to support@eramba.org and Eramba shall endeavour to remedy the fault as soon as reasonably practicable.
3.2 Eramba reserves the right to remove any content or features from the Software for any reason, without prior notice, and shall have no liability or responsibility to the Customer in any manner whatsoever in such circumstances, save to refund pro-rata any Fees paid in advance in respect of any content or features suspended or stopped.
4.1 Customer Content must comply with all applicable laws and regulations. In particular, Customer Content must not:
4.1.1 be inaccurate, false or misleading or relate to any third party’s organisation;
4.1.2 promote racism, hatred or physical harm of any kind against any group, establishment or individual;
4.1.3 harass or encourage harassment of another person;
4.1.4 promote illegal activities, criminal conduct or conduct that is abusive, threatening, obscene, defamatory or libellous;
4.1.5 involve the transmission of junk mail, chain letters, or unsolicited mass mailing or spamming;
4.1.6 Include any personal data without a lawful basis to do so and subject always to Condition 10; and/or
4.1.7 infringe any third party rights, including IP Rights.
4.2 Eramba is not responsible and accepts no liability for Customer Content. The Customer shall indemnify and keep indemnified Eramba and its agents from and against all costs, claims, losses, expenses, damages and liabilities that may be incurred as a result of any breach of Condition 4.1.
Subject to receipt of the Fee from the Customer or if applicable the Reseller, Eramba shall provide all or any of the following Support Services during Working Hours:
5.1 Error correction: The Customer should report Errors with as much detail as possible to support@eramba.org and Eramba shall use reasonable endeavours to correct such Errors as soon as practical, including by provision of a patch or a new version. The Customer acknowledges and agrees that depending on their complexity and priority as identified by Eramba, developing and distributing resolutions to the Error may take weeks or months;
5.2 Support: The Customer is entitled to report to Eramba’s support email address (support@eramba.org) or eramba’s forum (https://www.eramba.org) an unlimited number of questions relating to use and access of the Software. Eramba shall use reasonable endeavours as soon as practical to respond to such questions;
5.3 Information: Information on the availability of new versions of the Software.
Eramba shall be under no obligation to provide Support Services in respect of:
6.1 any software other than the Software;
6.2 unauthorised use of or access to the Software;
6.3 any programs used in conjunction with the Software; and/or
6.4 certifications, third-party audits reports, policies, processes, methodologies used to design, build and release software and related services.
7.1 The Customer or if applicable the Reseller shall pay to Eramba the Fee. All sums payable under these Conditions are inclusive of value added or other sales tax.
7.2 For the avoidance of doubt, unless otherwise agreed by Eramba, Support Services provided under these Conditions shall not commence until Eramba receives the Fee in full and cleared funds.
7.3 If the Customer or if applicable the Reseller is late in paying any sum due under these Conditions, Eramba:
7.3.1 reserves the right to charge the Customer or its appointed Reseller interest at a rate of 8% per annum above the Bank of England base rate, on a daily basis from the date payment becomes due until Eramba has received payment of the overdue amount together with all interest that has accrued; and
7.3.2 has the right to suspend access to the Software and/or any Support Services until it has received payment of the overdue amount together with any accrued interest.
8.1 The Customer agrees that no IP Rights that subsist in the Software and Support Services shall transfer to the Customer under these Conditions.
8.2 The Customer shall promptly notify Eramba of any claim that the Customer receives that use of the Software and/or Support Services infringes the IP Rights of any third party (a Claim). The Customer shall:
8.2.1 not make any admission of liability, agreement, settlement or compromise in relation to a Claim without Eramba's prior written consent;
8.2.2 give to Eramba and its professional advisers all reasonable assistance as may be required in relation to a Claim;
8.2.3 at Eramba’s request, give Eramba the exclusive control and right to defend a Claim and make settlements in relation to a Claim; and
8.2.4 mitigate its losses in relation to a Claim, including where requested to do so by stopping using the Software and Support Services.
8.3 On receipt of a notice under Condition 8.2, Eramba shall at its sole expense either procure for the Customer the right to continue accessing and using the Software and Support Services or modify or replace the infringing part of the Software to avoid the infringement.
9.1 Confidential Information shall mean all information whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, customers, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).
9.2 The Receiving Party shall not, and shall ensure that its employees shall not, use, copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under the Conditions.
9.3 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.
9.4 The provisions of Conditions 9.1, 9.2 and 9.3 shall not apply to any Confidential Information which:
9.4.1 is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;
9.4.2 is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or
9.4.3 Is required to be disclosed by any court, governmental or administrative authority competent to require disclosure.
10.1 In this Condition 10, the following terms have the following meanings:
10.1.1 Controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation.
10.1.2 Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
10.1.3 Personal Data: the personal data uploaded by the Customer to the Software from time to time.
10.2 In performing its obligations under these Conditions, each party shall comply with the requirements of the Data Protection Legislation.
10.3 Each of the parties agrees that in respect of any Personal Data, Eramba is the processor of the Personal Data and the Customer is the controller of the Personal Data.
10.4 The Customer warrants and represents that it has the lawful right to provide the Personal Data to Eramba under these Conditions, and shall indemnify and keep indemnified Eramba and its agents from and against all costs, claims, losses, expenses, damages and liabilities that may be incurred as a result of any breach of this Condition 10.4.
10.5 Eramba shall:
10.5.1 process the Personal Data only to provide access to the Software and otherwise on the Customer’s written instructions, which may be specific instructions or standing instructions of general application;
10.5.2 take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of or damage to the Personal Data;
10.5.3 at the Customer’s request and where technically possible; either deliver up or delete the Personal Data from its systems on termination of the Services;
10.5.4 ensure that individuals processing the Personal Data for Eramba are subject to a duty of confidence in relation to the Personal Data;
10.5.5 be entitled to engage sub-processors to process the Personal Data provided it does so in accordance with the Data Protection Legislation;
10.5.6 assist the Customer in providing data subject access and allowing data subjects to exercise their rights under applicable laws;
10.5.7 assist the Customer in meeting its legal obligations under the Data Protection Legislation in relation to the security of processing, the notification of personal data breaches and data protection impact assessments; and
11.1 Each of the parties represents, warrants and undertakes that:
11.1.2 it has the right, power and authority to enter into these Conditions and to perform fully all of its obligations under these Conditions; and
11.1.3 the performance of these Conditions shall not breach any other agreement entered into by it.
11.2 Eramba warrants that it shall provide access to the Software and the Support Services with reasonable skill and care.
11.3 The Customer warrants and represents that it is not a consumer and that it is entering into these Conditions for the purposes of a business. Accordingly, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to these Conditions.
11.4 The Customer warrants that it has not relied on any oral representation made by Eramba, or on any descriptions, illustrations or specifications contained in any materials, including online materials, produced by Eramba which are only intended to convey a general idea of the Software. The Customer confirms that in the Customer’s opinion, the Software and Support Services are fit for the Customer’s purposes.
12.1 SUBJECT TO THESE CONDITIONS, THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL IMPLIED WARRANTIES, CONDITIONS AND CONDITIONS RELATING TO THE SOFTWARE AND SUPPORT SERVICES (WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), INCLUDING ANY WARRANTY, TERM OR CONDITION AS TO ACCURACY, COMPLETENESS, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR PURPOSE, AVAILABILITY AND NON-INFRINGEMENT ARE EXCLUDED.
12.2 WITHOUT PREJUDICE TO THE GENERALITY OF CONDITION 12.1, ERAMBA DOES NOT WARRANT THAT THE SOFTWARE OR THE SUPPORT SERVICES WILL ENSURE THAT THE CUSTOMER IS IN COMPLIANCE WITH ALL RELEVANT REGULATORY AND/OR LEGAL REQUIREMENTS RELATED TO ITS BUSINESS.
12.3 SUBJECT TO CONDITION 12.5, ERAMBA WILL NOT BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE, AS A RESULT OF OR IN CONNECTION WITH THE SOFTWARE AND SUPPORT SERVICES FOR ANY:
12.3.1 ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS);
12.3.2 LOSS OF REPUTATION or GOODWILL;
12.3.3 LOSS OF DATA OR CONTENT; AND/OR
12.3.4 SPECIAL OR INDIRECT OR CONSEQUENTIAL LOSS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
12.4 SUBJECT TO CONDITION 12.5, ERAMBA’S AGGREGATE LIABILITY TO THE CUSTOMER UNDER THESE CONDITIONS OR OTHERWISE IN RESPECT OF THE SOFTWARE AND SUPPORT SERVICES SHALL BE LIMITED TO THE FEES RECEIVED BY ERAMA FROM THE CUSTOMER FOR THE SOFTWARE AND SUPPORT SERVICES DURING THE 12 MONTHS BEFORE THE DATE THE CLAIM AROSE.
12.5 Nothing in these Conditions shall limit or exclude a party’s liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or any other loss that cannot lawfully be excluded or limited.
13.1 Without prejudice to any other rights or remedies which may be available to it, Eramba shall be entitled to terminate these Conditions with immediate effect if the Customer is in breach of any of the Conditions. Eramba may notify the Customer at the email address provided by the Customer to Eramba. No refund of any Fee paid shall be due to the Customer following such termination.
13.2 The Customer shall be entitled to terminate these Conditions at any time on notice to Eramba to support@eramba.org, provided that no refund of any Fee paid shall be due to the Customer following such termination unless such notice is received by Eramba within 5 Working Days of initial payment of the Fee.
13.3 On termination, the Customer shall delete the Software from all systems and devices within its possession or control. The following Conditions shall remain in force notwithstanding termination: 9 (Confidential Information), 12, (Disclaimer, Limit of Liability), 13.3 (Termination), 15 (Miscellaneous) and 16 (Governing Law and Jurisdiction).
14.1 For the purposes of this Condition 14 an event of Force Majeure means any event beyond the reasonable control of either party, including war or threat of or preparation for war, terrorism or threat of terrorism, or fire, explosion, storm, flood, earthquake, volcano, subsidence, epidemic or other natural disaster, failure of any utility service or transport network, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery.
14.2 If a party is prevented, hindered or delayed from or in performing any of its obligations under these Conditions by an event of Force Majeure, the affected party’s obligations under these Conditions are suspended without liability while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed
14.3 If performance of any obligation under these Conditions is prevented, hindered, or delayed for more than 10 days due to an event of Force Majeure either party shall be entitled to terminate these Conditions on written notice to the other party.
15.1 These Conditions contain the entire agreement of the parties with respect to its subject matter and supersede all prior agreements and representations, standard conditions or other implied conditions, whether written or oral, with respect to the subject matter of these Conditions.
15.2 The Customer shall not assign or delegate its rights or obligations under these Conditions, in whole or in part, to any third party by operation of law or otherwise, without the prior written consent of Eramba. Any attempted assignment or delegation that does not comply with this Condition 15.2 shall be of no effect.
15.3 Any failure to enforce any provision of these Conditions shall not constitute a waiver thereof or of any other provision.
15.4 If any provision of these Conditions is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties.
15.5 Eramba shall be entitled to subcontract the Support Services at its discretion.
15.6 Nothing in these Conditions shall create or imply an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
16.1 These Conditions are governed by and will be construed in accordance with the laws of England and Wales.
16.2 The parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any legal actions or proceedings arising out of or in connection with these Conditions, save that this submission will not preclude any party from applying to any other court having jurisdiction for urgent or interim relief in aid of proposed or pending proceedings in England.