Last Updated: March 20, 2023
These Web Application’s Terms of Service (“Terms of Service”), together with the Privacy Policy (collectively, this “Agreement”) are entered into by and between the person or entity (“Customer” or “you” or “your”) signing up to utilize the Services (as defined below), and Iconsolve Engineering Co, Ltd., a company incorporated under the Gambia Business Corporations Act (Iconsolve), effective immediately upon the Customer’s acceptance of both the Terms of Service or the Subscription Form (the “Effective Date”).
In this Agreement, Customer and Iconsolve may be individually referred to as “Party” and collectively referred to as the “Parties.”
This Agreement applies to the Customer’s use of the Services (as defined below) which are made available by Iconsolve through its proprietary web application platform located at https://isarms.org (the “App”). Iconsolve may change or revise this Agreement from time to time in its sole discretion, with or without notice to Customer. Customer is bound by any such revisions and should therefore periodically check and review the then-current Terms of Service at the website. Customer’s access and use of the App and Service will be subject to the most current version of the Agreement. Customer’s use of the App after such revised Agreement is updated at the website will signify Customer’s acceptance of such revised Agreement and Customer’s agreement to be bound by it. By accessing, visiting, or using the App and/or its related Services, the Customer agrees to the terms set forth herein. If you do not agree to these Terms of Service in their entirety, you are not authorized to use the App or the Services in any manner or form whatsoever.
In consideration of the mutual exchange of promises below, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
Except as otherwise provided, capitalized terms used in this Agreement have the following meanings:
“Account” or “Subscription means an account enabling a Customer to access and use the Services.
“Customer Data” means all data or information uploaded by Customer and/or its Users to the Services. For greater clarity, both Customer and its Users, such as parents and staff can submit Customer Data.
“Documentation” means any documentation for the Services produced by Iconsolve and made available to the Customer.
“Charges” means the amount, as specified in the Subscription, between Customer and Iconsolve (collectively, the “Subscription Type), payable by Customer to Iconsolve for the right to receive access to the Services. In addition, “Charges” refer to the financial transaction amount paid by Customer as well as any other fee(s) billed to Customer by Iconsolve in the course of business.
“User(s)” means any individual authorized by Customer to use the Services, and who has/have been supplied with a User account or applicable link by Customer to access the Service, such as a parent, student, or a staff.
2. Scope.
(a) Iconsolve has provided and will provide this software service, through iSARMS App, to Customer as set forth in this Agreement.
(b) Iconsolve shall ensure that the App will generate an Account for the Customer and Iconsolve will provide the Customer with login credentials, relevant Documentation, and all other required onboarding materials required for Customer’s respective Account.
(c) Both Parties agree to act in a professional manner and perform the Parties respective obligations hereunder in accordance with good business practices.
3. Ownership and License Grant.
(a) Iconsolve hereby grants to the Customer (and its authorized Users, as defined above) a non-exclusive, revocable, non-transferable, license to use and access the App and Services, and to access, display and use the Service, and any content, text, graphics, images, software, audio, video, information or other works of authorship provided by Iconsolve hereunder through the App
(b) Iconsolve shall also retain ownership rights, and reserves all rights, including intellectual property rights in and to all aggregate derivative Customer Data and anonymized data.
(c) Notwithstanding the foregoing, and solely as between Iconsolve and Customer, Customer owns all rights, interest, and title in and to all Customer Data and Iconsolve does not claim any copyrights in Customer Data.
(d) You may remove your Customer Data by closing your Account or by contacting Iconsolve as provided below and asking Iconsolve to remove your Customer Data. However, you acknowledge that in certain instances, some of your Customer Data may not be completely removed and copies of the Customer Data may continue to exist on the Services.
(e) You shall not sublicense or transfer your rights to access and use the Services to any third party, nor shall you permit any unauthorized person to access or use the Services via Customer’s Iconsolve Account.
4. Customer and User Responsibilities.
(a) Customer shall be responsible for all Customer Data provided by Customer or Customer’s authorized Users to Iconsolve, including the accuracy, reliability, appropriateness and validity of such information, and Customer represents that Customer has the legal right to provide such Customer Data to Iconsolve. Under no circumstances will Iconsolve be liable in any way for any Customer Data. You are entirely responsible for all Customer Data that you provide. Iconsolve has no responsibility for any Customer Data, including without limitation any errors or omissions therein.
(b) It is a condition of this Agreement that you do not:
Upload, post, transmit or otherwise make available:
Any Customer Data that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
Any Customer Data that constitutes or encourages activity illegal under criminal or civil law;
Any Customer Data that is in violation of any applicable privacy laws or your privacy policy;
Any Customer Data that is false, misleading, or fraudulent;
(c) You understand and agree to protect yourself from unauthorized activity in your iSARMS Account. You should regularly log into your Account and review all activity. If you believe your Iconsolve login information has been lost or stolen, please contact Iconsolve immediately.
5. Iconsolve Responsibilities.
(a) We respect your privacy and the use and protection of your Customer Data, and any non-public, personal information. Your submission of personal information through the App is governed by our Privacy Policy. The Privacy Policy is incorporated into and made a part of this Agreement. Iconsolve reserves the right to modify its Privacy Policy in Iconsolve’s reasonable discretion from time-to-time. Our Privacy Policy is incorporated into this Agreement by reference.
(b) Iconsolve will provide basic support for the Services and assist as is commercially reasonable, and will maintain and issue fixes/patches to ensure that the Services are functioning to reasonable specifications. Iconsolve shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for:
(i) any planned downtime; or
(ii) any unavailability caused by circumstances beyond Iconsolve’s reasonable control, including but not limited to acts of government, flood, fire, earthquakes, acts of terror, strikes or other labour problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Iconsolve’s possession or reasonable control, and denial of service attacks.
6. Charges And Taxes.
(a) Customer is required to provide direct payment of all Charges due to Iconsolve as they become due.
(d) All Charges shall be exclusive of any value added tax, goods and services tax, or other transaction or indirect tax, fee or surcharge (collectively, the “Taxes”) that may apply by any state, local, or national unit of government, including any related interest or similar charge. If Iconsolve has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be automatically collected from your provided payment method or invoiced to and paid by Customer. Iconsolve understands it is solely responsible for all taxes based solely on Iconsolve’s income.
(b) If Customer is late in making any payment, the Customer shall promptly reimburse Iconsolve for any collection costs incurred. Customer shall pay interest on any late payments at the lower of 1.5% per month or the maximum rate allowed by applicable law.
(c) If Customer disputes any portion of an invoice, the Customer shall give Iconsolve written notice within three (3) calendar days of the invoice date, otherwise the Customer shall be considered to have accepted the accuracy and validity of the invoice.
(d) If Customer’s account is thirty (30) calendar days or more overdue, Iconsolve reserves the right to suspend the Services provided to Customer, without liability to Customer, until such undisputed amounts are paid in full.
(e) Customer agrees to indemnify and hold Iconsolve and Iconsolve’s respective directors, officers, employees, representatives, agents and control, persons harmless from all liabilities and costs, including attorney’s Charges, which Customer may incur by acting in reliance upon the authorization provided by Customer to Iconsolve under the Business Pre-Authorized Debit Agreement for Variable Amounts form and the Credit Card Authorization Form. The Business Pre-Authorized Debit Agreement for Variable Amounts form and the Credit Card Authorization Form shall remain in full force and effect until revoked/cancelled by Customer in writing and in according with the terms of the Agreement.
7. Confidentiality.
(a) Definition. “Confidential Information” means any information about a Party that is not generally available to the public or to the Party’s industry and includes all legal and financial information about a Party, a Party’s trade secrets, and any Customer Data. The Party disclosing or providing access to information will be the “Disclosing Party” and the other Party, the “Receiving Party.” For clarity, Customer and a User may each be a Disclosing Party or Receiving Party hereunder.
(b) Obligation to Protect. The Receiving Party will not disclose or make available to any third party the Disclosing Party’s Confidential Information in any form without the express written approval of the disclosing Party except as permitted herein. The Receiving Party will protect the Disclosing Party’s Confidential Information with at least the same level of care as the Receiving Party protects the Receiving Party’s own Confidential Information and, in any case, with no less than a reasonable standard of care.
8. Term and Termination.
(a) Term.
(i) This Agreement begins on the Effective Date and continues in accordance with the duration stipulated under the Subscription (the “Initial Term”), unless earlier terminated as permitted herein. Upon the expiry of the Initial Term, the Agreement shall renew automatically for successive periods equal to the Initial Term provided under the Subscription (each a “Renewal Period”) unless Customer notifies Iconsolve of Customer’s intention to terminate this Agreement, in writing, within the notice period provided under the Subscription Form prior to the expiry of the Initial Term or applicable Renewal Period, in which case this Agreement shall terminate. In this Agreement, the Initial Term and all Renewal Terms, together, may be referred to as the “Term.”
(b) Termination.
(i) Iconsolve may terminate Customer’s Account or access to the App or Service if, under appropriate circumstances, Iconsolve determines Customer has violated any of the provisions of the Agreement, Subscription, or its Privacy Policy. If Iconsolve terminates Customer’s access to the App or Service, your Customer Data, and all other data will no longer be accessible through your Account, but those materials and data may persist and appear within the App. Upon termination, all licenses and other rights granted to you in this Agreement will immediately cease.
(ii) Customer may, subject to the fulfillment to payment of all Charges described in Customer’s Subscription or this Agreement, cancel this Agreement for convenience by providing Iconsolve at least thirty (30) calendar days written notice. Such termination shall not relieve Customer of any payment obligations arising from Customer’s then current Term or any other fee due to Iconsolve.
10. Limitation of Liability and Indemnification.
(a) Limitation of Liability.
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL ICONSOLVE OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, Charges, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE SERVICES, THE APP, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE APP REGARDLESS OF WHETHER Iconsolve HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, Charges, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF CUSTOMER DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
(b) Indemnification.
(i) TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ICONSOLVE, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSORS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSS, LIABILITIES, DAMAGES, EXPENSES, DEMANDS, AND COSTS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ Charges AND COSTS OF ANY LITIGATION OR OTHER DISPUTE RESOLUTION, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH OR RELATED TO (1) YOUR USE, MISUSE, OR ATTEMPT TO USE THE APP AND SERVICES, (2) CUSTOMER DATA OR INFORMATION YOU SUBMIT OR TRANSMIT THROUGH THE APP, (3) YOUR BREACH OF THIS AGREEMENT, OR THE REPRESENTATIONS AND WARRANTIES PROVIDED BY YOU IN THIS AGREEMENT, OR (4) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD-PARTY.
(c) Alternatives/Modifications.
If Iconsolve becomes aware of an actual or potential intellectual property infringement Claim, or if Customer provides Iconsolve with notice of an actual or potential intellectual property infringement Claim, then Iconsolve may at its sole option: (i) procure for Customer the right to continue to use the Service(s); or (ii) replace or modify the Service(s) with equivalent or better functionality so that Customer’s use is no longer infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate provision of the Service(s).
11. Warranty Disclaimer.
YOUR USE OF THE APP AND SERVICES IS AT YOUR OWN RISK. THE APP AND SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT MADE AVAILABLE ON OR THROUGH THE APP AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE APP AND SERVICES AND YOUR USE THEREOF.
ICONSOLVE MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (II) CUSTOMER’S ACCESS TO OR USE OF THE APP AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) ANY DEFECTS IN THE APP AND/OR SERVICES WILL BE CORRECTED, OR (IV) THE APP AND SERVICES OR ANY SERVER THROUGH WHICH CUSTOMER’S ACCESSES AND USES THE SERVICES, ARE FREE FROM VIRUSES, OTHER HARMFUL COMPONENTS, OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE ELEMENTS OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE CUSTOMER’S COMPUTER SYSTEM, DATA OR PERSONAL INFORMATION.