These terms and conditions for the use of Esticom (“the User Terms”) regulates the account holder’s use of Esticom software application (“Esticom”) and Esticom website at www.Esticom.com (“the Website”) and any other related software and services provided by Esticom to the account holder.
By accepting the User Terms the account holder, including the account holder’s employees agree to adhere to the User Terms and the obligations and rights herein.
Acceptance of the User Terms
In order for the account holder to use Esticom, the account holder must first agree to the User Terms. Please review the User Terms as well as any other information notified to the account holder by Esticom carefully before using Esticom.
The account holder can accept the User Terms by:
The account holder agrees that the account holder is solely responsible for any and all content that the account holder creates, uploads, transmits or displays while using Esticom (the User Content) and for the consequences of the account holder actions (including any loss or damage which Esticom or any third party may suffer) by doing so. Esticom have no responsibility to the account holder or to any third party for such action or losses.
By submitting, posting or displaying the User Content the account holder gives Esticom a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to use any User Content for the purposes of the account holders use of Esticom.
By uploading any User Content to Esticom the account holder warrants and represents that:
The account holder has the lawful right to upload, reproduce and distribute such User Content and power and authority necessary to grant the license.
Any User Content the account holder uploads, posts or otherwise transmits or displays while using Esticom will not:
The account holder shall indemnify Esticom, without limitation and upon demand, against any cost, damages or expenses (including reasonable legal expenses) that may be incurred by Esticom, either
The account holder acknowledges as reasonable and agrees that Esticom may, on occasion, use User Content for analytical purposes or in order to improve Esticom.
The account holder acknowledges as reasonable and agrees that Esticom does not delete any projects but archives them automatically for the user.
The account holder acknowledges that Esticom will send the account holder mobile notifications and emails for any actions created as a result of using Esticom.
Password and Security
The account holder must keep account holder’s password confidential and must not disclose it or share it with anyone.
The account holder will be responsible for all activities and orders that occur or are submitted under the account holder’s password.
If the account holder knows or suspects that someone else knows and will be able to abuse the account holder’s password the account holder agrees to notify Esticom immediately by contacting Esticom immediately.
If Esticom has reason to believe that there is likely to be a breach of security or misuse of Esticom, Esticom may require the account holder to change the account holder’s password or Esticom may suspend the account holder’s account.
Further, the account holder is responsible for anything that happens through the account holder’s account until the account holder closes down the account or prove that account holder’s account security was compromised without fault on part of the account holder.
All intellectual property rights subsisting in or used in connection with Esticom (including, but not limited to any data) are and shall remain the sole property of Esticom and Esticom’s licensors. All present and future rights in and title to Esticom, including the right to grant access to it over any present or future technology, are solely and exclusively reserved to Esticom.
By accepting and adhering to the User Terms and the obligations herein Esticom grant the account holder a non-exclusive, non-assignable, non-transferable non-sublicensable licence for the duration of the agreement created by these User Terms to use Esticom solely and strictly for the account holder’s own use/employees use. The account holder shall not assign, transfer or sub-license any of account holder’s rights or obligations under the User Terms.
The account holder agrees not to access (or attempt to access), nor allow any third party to use any part of Esticom by any means other than through the interface that is provided by Esticom. The account holder specifically agree not to access (or attempt to access) nor allow any third party to access any part of Esticom through any automated means, including use of scripts, robots, spiders, scrapers or web crawlers, and not to disclose account holder password to any third party for the purposes of using any such technology
The account holder agrees that the account holder will not
The account holder agrees that the account holder will not engage in any activity that interferes with or disrupts Esticom, or the servers and networks which are connected to Esticom.
The account holder agrees that the account holder shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within Esticom.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Esticom are non-confidential and shall become the sole property of Esticom.
Esticom shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Esticom does not intend to become a storage facility for the internet. Therefore Esticom maintains a fair usage policy for users.
If Esticom believe that a user is exceeding this fair usage policy then Esticom can terminate the account.
Esticom may at any time, terminate the agreement with the account holder and remove access to Esticom from the account holder if:
The account holder has materially breached any provision of the User Terms (or have acted in manner which clearly shows that the account holder does not intend to, or is unable to comply with the provisions of the User Terms) and, where such breach is capable of remedy, Esticom determine that the account holder has not so remedied within fourteen days of notification; or
Esticom are required to do so by law (for example, where the provision of Esticom to the account holder is, or becomes, unlawful); or
if either party becomes insolvent; or enters into any kind of composition, scheme of arrangement, compromise or arrangement involving that party and its respective creditors generally (or any class of them) save for the purposes of a bona fide company reorganisation; or is unable to pay its debts; or is the subject of an order for the seizure of the assets or a substantial part thereof of that party made by any court having jurisdiction.
When the User Terms are terminated:
Esticom reserves the exclusive right and prerogative to retain, maintain, archive, protect, use, or store any and all data or information, without regard as to time or duration, as it may deem reasonable or necessary in the pursuit of Esticom’s business or interests, or in protecting such business or interests, notwithstanding the termination or cessation of account holder relationship with Esticom.
Termination of this agreement and the User Terms may be made after receiving 30 days notice by writing. For avoidance of doubt, only Esticom or the party paying for Esticom may terminate account holder’s access to Esticom. Termination of account holder’s Esticom account includes disabling account holder’s access to Esticom and may also bar the account holder from any future use of Esticom.
Esticom will offer Technical support to all account holders to a necessary degree.
In the scenario where Esticom are unable to replicate an incident and there has been no reoccurrence of the incident for a period of one month from the reported occurrence, the incident will be deemed ‘No Fault Found’ and Esticom will take no further action.
A complaint from an account holder needs to be raised in writing or email (support@Esticom.com) to Esticom’s account manager within 14 days. Esticom will complete investigation of the issues raised. Where this requires access to saved or archived data, transcription files or other digital data, the account holder hereby authorises Esticom to have unlimited access to this information to allow the complaint investigation to be completed.
Esticom will use its reasonable endeavours to complete the investigation within 7 business days of the complaint being raised. Should the dispute be upheld, Esticom and the account holder will work together to decide on the best course of redress (including, but not limited to regeneration of the report, report credits).
The total value of this redress is limited to the invoiced cost of the service rendered no matter on what basis the claim is made. Esticom will not be liable for any losses or claims arising from delay or quality of reports generated by Esticom.
In the event a subscription is made by an account holder and Esticom is not available, due to technical reasons relating to Esticom, for a total time period of 120hours in a 30 day time period, and this is acknowledged by Esticom, Esticom will compensate the account holder a proportionate amount of the monthly subscription amount.
Esticom is not liable for additional claims or compensation due to lack of operation of Esticom than stated in the User Terms. Esticom do not warrant or represent that the operation of Esticom will be uninterrupted, timely or error free for any account holders regardless of subscription.
Exclusions and Limitations
Nothing in these User Terms, shall exclude or limit any warranty or liability which may not be lawfully excluded or limited by applicable law, including liability for fraud or for death or personal injury caused by Esticom’s negligence.
The account holder acknowledges and agrees that Esticom have no liability to the account holder for any misuse or loss of User Content by third parties. In particular, the account holder acknowledges and agrees that no refund or compensation will be due to the account holder from Esticom, and the account holder further acknowledges and agrees that since Esticom have no control over the content and/or quality of the User Content this limitation of Esticom’s liability to the account holder is reasonable.
There are no conditions, warranties, representations or other terms, express or implied, that are binding on Esticom except as specifically stated in these User Terms (including statutory warranties and conditions of merchantability, fitness for a particular purpose and non-infringement). Any condition, warranty, representation or other term concerning the supply of Esticom which might otherwise be implied into or incorporated in these User Terms, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
The account holder expressly understands and so agrees that account holder’s use of Esticom is at account holders sole risk and that Esticom is provided on an “as is” basis.
In particular, Esticom, Esticom subsidiaries and affiliates, and Esticom licensors, do not represent or warrant to the account holder that:
Any material (including User Content) downloaded or otherwise obtained or accessed through the use of Esticom is done at account holder’s own discretion and risk, and that the account holder will be solely responsible for any damage, loss, or prejudice to account holder’s computer system or other device or loss of data that results from the download or access of any such material.
In order for the account holder to make full use of Esticom it may be necessary for the account holder to use particular computer equipment or to download or install certain pieces of software.
If the account holder are unable to access all or part of Esticom because the account holder do not have access to any necessary software or equipment, this shall not constitute a breach of these User Terms by Esticom and Esticom shall not be liable for any loss, damage or expense which may result from account holder inability to access Esticom.
No advice or information, whether oral or written, obtained by the account holder from Esticom or any of Esticom’s subsidiaries, affiliates, officials, employees, or personnel, or through or from Esticom shall create any warranty not expressly stated in these User Terms.
Esticom shall not be under any liability whatsoever in respect of any inaccuracies or omissions in Esticom. All such liability is excluded by us to the fullest extent permitted by law.
The account holder expressly understands and agrees that Esticom and Esticom’s licensors shall not be liable to the account holder for:
Subject to the clauses above, the aggregate liability of Esticom in respect of any loss or damage suffered by the account holder and arising out of or in connection with the use of Esticom by the account holder and/or any third party shall not exceed the amount of the total fees actually paid by the account holder to Esticom in the twelve months preceding the date of the account holder’s claim.
The account holder agrees and acknowledges that the account holder is in a better position than Esticom to foresee and evaluate any potential damage or loss which the account holder may suffer in connection with the use of Esticom; that Esticom cannot adequately insure its potential liability to the account holder; and that accordingly the exclusions and limitations contained in this clause are reasonable.
The account holder also undertakes at all times to mitigate any such damage or loss.
Esticom is not a back-up service and only provides limited back-up and will not be liable for any loss of data or error.
Account holder is responsible for backing up their data regularly to prevent any loss of information.
Failure or neglect by Esticom to enforce any of the provisions of the User Terms at any time shall not be construed or deemed to be a waiver of Esticom rights nor shall this in any way affect the validity of the whole or any part of Esticom User Terms, nor prejudice Esticom rights to take subsequent action.
If any part of any provision of these User Terms shall be or become invalid, unlawful or unenforceable to any extent, then the remainder of such provision and all other provisions of the User Terms shall continue to be valid and enforceable to the fullest extent permitted by law.
The User Terms represent the entire agreement of the account holder and Esticom in relation to the subject matter of these User Terms and supersedes any previous agreement between the account holder and us in relation to Esticom.
Law and jurisdiction
The User Terms shall be construed in accordance with Texas law and the parties hereby submit to the exclusive jurisdiction of Travis County Court to settle any disputes which may arise in connection with the User Terms.