PresenceSpace: Terms of Service

This page contains the Terms of Service for:

PresenceSpace.com Customers to purchase and use Live Support Services;
Resellers to qualify to sell Live Support Services to their own Reseller Accounts; and
Resellers to enable their Reseller Accounts to use the Live Support Services.

By initiating an order with PresenceSpace.com you are promising:

if you are a PresenceSpace.com Customer, that you have read, understand and agree for yourself and your users of the services to be bound by the terms, conditions, and policies set forth herein except those applicable only to Resellers;
if you are a Reseller, that you have read, understand and agree to be bound to all the terms, conditions, and policies set forth herein applicable to both PresenceSpace.com Customers and specifically to Resellers, and that you will resell Live Support Services only in compliance with these Terms of Service.

Definitions

In this Terms of Service the following terms will be used and have the subsequent definitions assigned to them:

Control Panel: a website and application programming interface (API) that allows Customers, Resellers, and Reseller Accounts to manage their account settings online.
Customer(s): purchaser(s) of Live Support Services directly from PresenceSpace.com, including Resellers.
Effective Date: the date an order for Live Support Services is submitted to PresenceSpace.com by a Customer and payment has been received for the first month's services; and in the case of Resellers, the date the Reseller is approved by PresenceSpace.com and a properly executed order form has been received by PresenceSpace.com.
Live Support Services: the capability acquired from PresenceSpace to engage in chat conversations through the Internet, via HTTP, and XMPP protocols.
Initial Period: the period commencing on the Effective Date and continuing for the amount of time selected by the Customer during the ordering process
Renewal Period: each period subsequent to the Initial Period for which this Agreement shall be renewed on these Terms of Service unless and until this Agreement is terminated as provided herein.
Reseller Account(s): purchaser(s) of Live Support Services from Resellers.
Reseller(s): purchaser(s) of Live Support Services from PresenceSpace.com for the purpose of reselling the services to their respective customers. Provisions pertaining specifically to Resellers override conflicting provisions applicable generally to Customers.
User(s): user(s) of Live Support Services, whether purchased directly from PresenceSpace.com or from a Reseller.
PresenceSpace.com Network: the network infrastructure, hardware and software used to provide Live Support Services.
PresenceSpace.com: the company providing Live Support Services pursuant to this Agreement.

General Terms for Live Support Services

Modification of Terms of Service

PresenceSpace.com may modify this Agreement at any time. Customer can reference this page for the most current version of this Agreement. PresenceSpace.com will provide the date for the most recent modifications on the website. Material changes, as determined by PresenceSpace.com, will be noticed to Customer (or, in the case of a Reseller, its Reseller Accounts) using any of the contact methods provided by Customer. The Customer's continued exercise of the rights provided by this Agreement, for five business days after notice of the modification is given (or after 90 days after notice is given in the case of modifications in pricing) will constitute an affirmative acknowledgement by the Customer that the Customer has read, understands and agrees with such modification at which time the modification shall be considered part of this Agreement.

Period of Performance

This Agreement shall become effective as to each Customer on the Effective Date. The Period of performance of this Agreement will commence on the Effective Date and will continue for the Initial Period. Thereafter, this Agreement will automatically renew for successive Renewal Periods unless and until this Agreement is terminated as herein provided.

Taxes

Customer shall be responsible for the payment of all taxes associated with this Agreement or its use or, in the case of Reseller Accounts, the sale of the PresenceSpace.com Live Support Services (other than taxes based on PresenceSpace.com net income) and the Reseller Account's use of Live Support Services, including, but not limited to, personal property taxes, import taxes, taxes on telecommunication services, information services, data processing services or similar governmental charges that may be assessed by any jurisdiction, whether based on gross revenue or delivery of products or services. If PresenceSpace.com is required to pay any such taxes directly, Customer shall, upon receipt of the PresenceSpace.com invoice, reimburse PresenceSpace.com for any amount that PresenceSpace.com has paid.

Right to Set-off

PresenceSpace.com may, without limiting or waiving any other right or remedy against Customer, set off against and apply to any amounts, which are due, and owing to PresenceSpace.com by Customer all amounts due and owing by PresenceSpace.com to Customer until all amounts owing to PresenceSpace.com have been paid.

Termination

Either PresenceSpace.com or Customer, who is not in material breach of this Agreement, may terminate this Agreement by giving the other party at least 30 days prior written notice specifying the date of termination. A Customer who terminates pursuant to the immediately preceding sentence shall be eligible for a refund of any prepaid fees applicable to a period (measured in full months) after the effective date of such termination.

Exceptions to the thirty-day notice requirement include:

PresenceSpace.com may terminate this Agreement with immediate effect if Customer violates (or in the case of Reseller, any Reseller Account, causes a violation of) provisions of Customer's Responsibilities or violates (or causes a violation of) PresenceSpace.com' Acceptable Use Policy or breaches (or causes a breach of) Customer's confidentiality obligations.
Customer shall be deemed to have automatically terminated this Agreement if Customer fails to accept any proposed modification by PresenceSpace.com.
In the case of Live Support Services, Customer may terminate this Agreement if PresenceSpace.com fails to comply with the Uptime Guarantee according to the provisions provided therein.

In the event PresenceSpace.com terminates this Agreement on account of a material breach, Customer shall not be entitled to a refund of any amounts previously paid.

Notwithstanding any termination or nonrenewal, this Agreement shall remain in effect only to the extent that, and only for as long as, it is necessary to provide the parties with the ability to enforce the rights and remedies that are intended to survive termination or nonrenewal.

Either party shall have the right to terminate this Agreement in the event either party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise.

Customer understands and agrees that in the event of a termination PresenceSpace.com shall terminate service to a Reseller regardless of the commitments made by the Reseller to any Reseller Account, and PresenceSpace.com shall have no liability with respect thereto.

Privacy Policy

PresenceSpace.com will adhere to the PresenceSpace.com Privacy Policy incorporated herein by reference with respect to the collection and use of Customer's (or Reseller Account's) personal information by PresenceSpace.com.

Rights

Notwithstanding anything to the contrary stated herein, PresenceSpace.com maintains all rights, title, and interest in the Live Support Services, and all software applications underlying such Live Support Services excluding any software applications acquired through commercial vendors or the open-source community. Unless Customer is a Reseller and qualified as such hereunder, Customer may only use the Live Support Services for internal business purposes and may not use such services in a resale capacity or allow or share access to such services.

PresenceSpace.com reserves all rights to use the Live Support Services in whatever manner it chooses, including provision of identical or similar services to other PresenceSpace.com customers. Nothing herein shall be deemed to restrict such rights.

Warranties

PresenceSpace.com makes no promises or warranties that are not expressly provided in the other terms of this Agreement. In addition, PresenceSpace.com does not warrant (a) that the functions contained in the PresenceSpace.com Live Support Services provided will meet Customer's (or in the case of a Reseller, any Reseller Account's) requirements or (b) that the operation of the PresenceSpace.com Live Support Services or will be uninterrupted, accurate or error free.

EXCLUSION. THE WARRANTIES AND GUARANTEES EXPRESSLY PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT.

Limitation of Liability

Notwithstanding anything to the contrary herein: (a) PresenceSpace.com will not be liable for any losses, claims, expenses or damages arising out of use, or inability to use, the Live Support Services or ; and (b) PresenceSpace.com will not be liable for unauthorized access to or alteration, theft or destruction of Customer's (or in the case of a Reseller, its Reseller Accounts') data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of PresenceSpace.com gross negligence or intentional misconduct.

The entire PresenceSpace.com liability and Customer's exclusive remedies against PresenceSpace.com (whether in contract, tort, warranty, or otherwise) are set forth in this Agreement. The PresenceSpace.com total liability to Customer for damages (regardless of the form of action, whether in contract, tort, warranty or otherwise) shall in no event exceed the fees for the Live Support Services or the paid by Customer to PresenceSpace.com under this Agreement for the three month period immediately preceding the event which caused the damage or injury. In respect to any claim against PresenceSpace.com by a Reseller Account in respect to any aspect of Live Support Services or , the applicable Reseller shall indemnify and hold harmless PresenceSpace.com from the same and all costs and expenses incurred by PresenceSpace.com in connection therewith.

Entire Agreement and Severability

This Agreement comprises the complete, final and entire Agreement between PresenceSpace.com and Customer and supersedes any and all prior agreements between the parties regarding the subject matter contained herein. Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected. Each party agrees to pay all reasonable costs and expenses the other party incurs in successfully enforcing this Agreement, including expert witness and reasonable attorneys' fees.

Force Majeure

Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, acts of terrorism, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of a Web site or other occurrences which are beyond either party's reasonable control. In the event that PresenceSpace.com is prevented or delayed in the delivery or installation of PresenceSpace.com Live Support Services for reasons beyond its control, such delivery or installation shall take place as soon thereafter as is reasonably possible.

PresenceSpace.com Live Support Services

Description of Services

Subject to the terms of this Agreement PresenceSpace.com will provide Live Support Services to Customers and will provide to Resellers the right to sell Live Support Services to Reseller Accounts in compliance with the terms hereof. Resellers only may resell Live Support Services they purchase to their Reseller Accounts. Reseller Accounts shall have no right or remedy with respect to PresenceSpace.com. PresenceSpace.com shall have no obligation to Reseller Accounts and they shall not be third party beneficiaries of this Agreement. PresenceSpace.com's sole obligation in respect to providing Live Support Services to Reseller Accounts shall be to the applicable Reseller. PresenceSpace.com acknowledges that each Customer will select a specific package of Live Support Services and PresenceSpace.com will provide only those Live Support Services that Customer has selected to receive.

If any information provided by Customer is false or inaccurate, PresenceSpace.com retains the right to terminate the Customer's right to use the Live Support Services (and Reseller's right to resell, and such Reseller Accounts' right to use, Live Support Services) without prior notice or opportunity to cure.

Customer is solely responsible for Content (including in the case of Reseller control of their Reseller Accounts' content), including any subsequent changes or updates. Customer represents and warrants that Content: (a) will not infringe or violate the rights of any third party including, but not limited to, intellectual property, privacy or publicity rights of others; (b) is not abusive, profane or offensive to a reasonable person; or (c) will not be hateful or threatening. Violations of the foregoing may result in early termination of Live Support Services by PresenceSpace.com in the sole discretion of PresenceSpace.com. Content shall mean and refer to the content of all emails through the Live Support Services.

Customer is solely responsible for the administration of all end user login names and passwords for the purpose of authenticating and authorizing access to the PresenceSpace.com Live Support Services. PresenceSpace.com provides a Control Panel that allows Customers to administer most aspects of the Live Support Services, including but not limited to the end user login names and passwords. Customer (and Resellers on behalf of Reseller Accounts) are responsible to PresenceSpace.com for maintaining the confidentiality of their Control Panel password and account and responsible for all activities (whether by Customer or by others) that occur under the Customer's (or in the case of a Reseller, the Reseller Account's) password or account. Customer agrees to notify or, in the case of Reseller, to cause a Reseller Account to notify PresenceSpace.com immediately of any unauthorized use of a password or account or any other breach of security. PresenceSpace.com cannot and will not be liable for any loss or damage arising from the failure by a Customer (or in the case of a Reseller, the Reseller Account) to protect its password or account information.

Customer is solely responsible for handling all communication, technical support to and business relations with end users who Customer has authorized to use the Live Support Services, including but not limited to responding to inquiries and questions from end users.

Maintenance Windows

PresenceSpace.com generally performs all system maintenance activities during a scheduled maintenance window. These windows are necessary to upgrade the system components that allow PresenceSpace.com to meet service level commitments. The maintenance windows are currently scheduled for Saturdays and Sundays from 4:00 a.m. to 8:00 a.m. GMT, though not every maintenance window is utilized. The maintenance schedule can also change.

If you have questions or concerns regarding this Agreement, you should contact us using the information below:

PresenceSpace.com
Email: support@presencespace.com

Updated December 16, 2007