Service Terms and Conditions
This Agreement is entered into between:
The Path Central Ltd, hereinafter referred to as The Path Central and/or We and/or Us and/or Our
You, the account holder, hereinafter referred to as the “End-User” and/or You and/or Your.
- Words importing natural persons shall include a reference to bodies corporate and other legal personae and vice versa.
- Words importing the masculine shall include a reference to the feminine and other genders.
- Words importing the singular shall include a reference to the plural and vice versa.
- Annexure(s) to this Agreement shall be deemed to have been incorporated herein and shall form an integral part hereof.
- Reference to a party in a document includes that party's successors and permitted assigns.
- Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
- Where the day on or by which anything is to be done is not a Business Day, it shall be done on or by the 1st (first) Business Day thereafter.
- When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day is not a Business Day, in which case, the last day shall be the next Business Day.
- A reference to a document includes an amendment or supplement to, or replacement or novation of that document.
- The Captions appearing in this agreement are for reference purposes only and shall not affect the interpretation hereof.
- If any provision is a definition (or under this heading "Interpretation" and/or any other heading in this Agreement) and is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition (or such other clause) effect shall be given to it as if it were a substantive provision in the body of the Agreement.
- Where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
Definition of Terms
- The Path refers to The Path to Online Business Success.
- The “Website” refers to The Path Central website (thepathcentral.com).
- The “Service” or “Services” refer to The Path Central and/or The Path Desktop and/or The Path Enterprise and/or The Path Consulted systems, plus any services delivered against The Path.
- A “Path Service Provider” (“PSP”) is an entity which delivers Services related to The Path and within The Path Central framework.
- A “Reseller” is a company or individual that has a license to sell The Path Services in return for commission. They also may have Resellers under them.
- During the course of this Agreement a “Path Service Provider” and a “Reseller” will be jointly referred to as “Channel Partners”.
- An “End-User” is any individual, organization, or legal personae which purchases project licenses for The Path Consulted, The Path Desktop, The Path Enterprise, or The Path based Services from Us.
- A “Project” or “Job” is the application of the Service to a single URL or website. This is the base upon which all services are delivered. A Project gives you a license to use The Path Desktop for that Project. A Job is a service offering from The Path Enterprise.
- A “Project Package” or “Job Package” is a group of Projects or Jobs which may be, at our discretion, sold at a discounted rate.
- An “Active Project” is one which has a currently paid for subscription and is not suspended in any way.
- A Month is deemed to be 30.4375 days (365.25 days / 12 months).
End-User Account Terms
You may only be registered once under any individual identity number, legal entity, or corporation within any single, joined, or linked tiered Reseller Channel chain.
We may contact You in order to ascertain Your Channel Partner’s manner, tactics, and efficiency, and to monitor the content and use of any and all material pertaining or relating to The Path Central Ltd or the Service. Should We deem a Channel Partner’s sales pitch, marketing or servicing tactics, standards, ethics, or use of any of the material relating or pertaining to Us or the Service to be unsatisfactory, then We reserve the right to immediately suspend or terminate the account of that Channel Partner. This will not affect Your rights to Your Account and/or Project and/or Job in terms of this Agreement.
Cancellation and Termination
- Your Account will be made available to You once You have successfully completed the registration process, and shall remain available to You subject to the terms and conditions as set out in this Agreement.
- You may cancel Your account and terminate this Agreement at Your own discretion at any time by logging into The Path Central Website and activating the cancellation feature. No other means of cancellation will be accepted.
- In the event of any misuse and/or abuse in whichever form and howsoever committed of an abandoned but technically valid account, the account holder in whose name the account is registeredwill be held to be fully liable and responsible for any damages incurred by Us.
- In the event of irregularities or misuse of Your account in terms of this Agreement, Your account will be suspended pending further investigation. Should We find that You have violated the terms and conditions herein, We have at Our sole discretion the right to take any action We deem necessary, including further suspending and/or terminating Your account and refusing any and all current or future access to or use of the Service offered by Us, for any reason at any time. Such termination of the Service may result in the deactivation and/or deletion of Your Account and Your access to data pertaining to Your Account, and the forfeiture and relinquishment of all content in Your Account as pre-liquidated damages.
- Your account will be terminated upon any direct or indirect contravention of the terms and conditions of this Agreement.
Project & Job License Terms
Should You purchase a Project and/or Job, in any form or package, You must:
- Pay any and all Service charges related to the Project, including monthly reoccurring payments due.
- Submit valid payment details upon purchase of a Project Package and/or Job Package.
- Accept that Your Project license will become valid only once Your initial purchase payment is received.
- Accept that Your Project license will continue to be valid subject to Our receiving Your monthly subscription payments.
- Agree that your payments constitute your full and continued agreement with the Terms and Conditions herein.
- Upon verification of an End-Users authorised access to a domain, any Projects and / or Jobs connected to the said domain by other End-Users shall be removed.
- We will only provide the Service, including monthly access to Projects, once We have received payment from You, both on initial purchase and on monthly billing cycles.
- We will only provide the Service, including access to Jobs, once We have received payment from You.
- We shall be entitled without obligation to suspend the Services on non-payment.
- Project Package upgrades are made effective, at Your choice, either on the next billing cycle applicable to Your account, or immediately, in which case You will be charged on a pro-rata basis.
- Fees are paid using Your nominated payment method as selected on initial account signup and/or in the payment method facility provided to You in Your Account area on The Path Central Website.
- No cash or checks (cheques) will be accepted.
- We reserve the right to apply an annual inflation to the prices of the Services, including but not limited to monthly subscription fees of current subscriptions, as per the conditions stated herein.
Due to the nature of Projects, refunds will not be given for The Path Central Services, including but not limited to The Path Desktop, The Path Enterprise, The Path Consulted, and any related Services. We offer sufficient trial versions of the software and various free services which You can review fully before You make a purchase decision.
- All notices may be provided at any time via email and/or The Path Desktop Messaging system and/or by announcement on The Path Central Website.
- Technical support is only provided to paying account holders and is only available via The Path Central Website and/or PSPs and/or The Path Desktop Messaging system, where applicable and as available.
- You understand that We use third party vendors to provide the necessary hardware, software, networking, storage, and related technologies and services required to run the Service and the Website and that We cannot be held responsible for any failure of third parties to deliver.
- You must not modify, adapt, or hack any part of the Service, including but not limited to The Path Desktop, or any related software or systems.
- You may not modify another website so as to falsely imply that it is associated with The Path, the Service, or in any way with The Path Central Ltd or Our services,.
- You agree not to reproduce, rename, duplicate, copy, sell, resell, alter in any way, or exploit any portion of the Service, use of the Service, access to the Service, or any The Path Central Ltd brand, without the express written permission of Us.
- You understand that We are bound to uphold the terms and agreements and standards of third party service providers upon which delivery of the Service is dependant to whatever degree and that We will enforce said third parties’ terms and conditions and standards.
- The Services may not be used in any way to design, author, disseminate, market, or assist any website or business which is unlawful, offensive, threatening, libelous, defamatory, pornographic, prostitutive (sexual), obscene, unethical, or otherwise objectionable. This includes but is not limited to hate, anti-religious, terrorist, pro-drug, pro-crime, pro-gambling, pro-spamming, pro-spying/spyware, or pro-psychiatric/psychology, or similar derived based content. In the event of contravention of this term no refunds will be provided and the offender’s account will be suspended indefinitely with immediate effect. Further, the offender may be held liable for damages incurred as a result of the contravention.
- We may, but have no obligation to, remove content and/or Accounts containing content that We determine in Our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, prostitutive (sexual), obscene, unethical, hateful, anti-religious, pro-drug, terroristic, pro-gambling, pro-crime, pro-spamming, pro-spying/spyware, pro-psychiatric/psychology, or similar derived content, or otherwise objectionable and/or which violates any party’s intellectual property, or these terms and conditions, or the terms and conditions of any third party upon which delivery of the Service is dependant to whatever degree.
- Verbal, physical, written, or any other form of abuse (including threats of abuse or retribution) of any The Path Central Ltd customer, employee, member, affiliate, or officer, will result in Your immediate account termination and potential legal action against you.
- We have no obligation to re-open or re-activate any account that was previously closed, suspended, or terminated, following the subsequent removal of any or all of the offensive, illicit, or violating material initially responsible for the closure, suspension, or termination.
- You understand that the technical processing and transmission of the Service, including Projects, Jobs, messages, and content, may be transferred and/or processed encrypted and/or unencrypted and may involve:
- Transmission over various networks;
- Changes to conform and adapt to technical requirements of connecting networks or devices;
- Storage in databases and/or file systems.
- You understand that any Project(s) that are inactive or have not been accessed for 2 (two) years will be deleted from the system.
- You understand that any Jobs(s) or its sub-parts that are inactive or have been completed for 6 (six) months will be deleted from the system. Viewing a Job does not influence its active status.
- You understand that if your account has not been active for 1 (one) year, it will be suspended.
- You understand that if your account has been pending approval for 3 (three) months, it will be deleted.
- You understand that if your account has not been accessed for 2 (two) years, it will be deleted.
- You understand that any message(s) that have not been retrieved from the server for a period of 1 (one) year will be deleted from the server.
- Only 1 (one) free website report per URL may be requested from the Website within any 6 (six) month period per User.
- If You have performed any Services against a website which is later verified as being owned by another User, all Your projects and jobs for that website will be deleted without recourse. This is regardless of whether the Services were paid for or not.
- You must not transmit any worms, viruses, Trojans, or code of a destructive nature, or any material which violates these terms and conditions. If You do, We may close and/or suspend Your account immediately, and you will be liable for damages incurred.
- You must not use The Path Desktop Messaging system, The Path Central Marketing system, or any other transmission system connected to or affiliated with The Path or The Path Central Ltd, in any way which contravenes these terms and conditions. This includes but is not limited to spamming or transmission of unsolicited commercial email (UCE) or messages, phishing, or misrepresentation or identity theft of The Path, The Path Central Ltd, the Service, any Channel Partner, or any End-User.
- If Your bandwidth usage in using the Service exceeds fair usage as determined by Us, We reserve the right to throttle Your bandwidth and/or throttle Your access to the Service.
- We do not warrant that:
- The Service will meet Your specific requirements.
- The Service will be uninterrupted, timely, completely secure, unhackable, or error-free.
- The results that may be obtained from the use of the Service will be accurate or reliable.
- The quality of any Services and/or products, subsidiary or auxiliary services and/or products, processes, information, or other material purchased or obtained by You through the Service, The Path Central, or The Path Central Ltd, will meet Your expectations.
- Any errors in same will be corrected.
- You expressly understand and agree that We shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data, advantage, or other intangible losses, even if We have been advised of the possibility of such damages, resulting from:
- The use of or the inability to use the Service.
- The cost of procurement of subsequent Services/services and/or products or third party services and/or products, resulting from any products, Services/services, data, advice, or information purchased or obtained, messages received, or transactions entered into, through or from the Service or The Path Central or The Path Central Ltd.
- Unauthorized access to or alteration of Your transmissions or data.
- Statements or conduct of any third party concerning the Service or The Path Central or The Path Central Ltd.
- Any other matter relating to the Service or The Path Central or The Path Central Ltd.
- The failure of Us to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such rights or provisions.
- We reserve the right to refuse service to anyone for any reason at any time.
- We reserve the right to cooperate with any lawful investigation regarding any aspect of Your Account and/or Your use of the Service or The Path Central.
- We reserve the right to present any of Your data to a valid court of law if subpoenaed to do so.
- We are not liable for any advertised results, such as but not limited to projected income, statistical representations, and predicted Channel growth rates.
- Purchases for Services which violate these terms and conditions will not be refunded.
- Questions about these terms and conditions should be sent to Our legal department at firstname.lastname@example.org.
We commit to the following:
- We warrant that We will not coerce You to terminate this Agreement and/or to enter into a new agreement with Us, or any party nominated by Us, superseding this Agreement.
- Your information will remain private and will not be released to third parties without Your express permission, unless legally required to do so.
- We commit to timeously repair any bug or error reported and verified as such in the Service.
- We commit to transfer You to Your Channel Partner’s up-line or to Ourselves as applicable in the event Your Channel Partner’s account is cancelled for any reason.
Copyright and Content Ownership
The Service, the functionality, the purpose, and the appearance of The Path and its derivatives, and its related applications, material, and documentation, is copyright ©2004-2009 The Path Central Ltd. All rights reserved. You may not duplicate, copy, modify, transmit, disseminate, or reuse any portion of the Service, including but not limited to the HTML, CSS, visual design elements, interfaces, text files, PDFs, XSL templates, XML outputs, The Path sequence or a derivative thereof, or any business or financial processes, without express written permission from Us.
Warranty Disclaimer and Remedies
USE OF THE SERVICE AND ANY RELIANCE BY YOU UPON THE SERVICE, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. THE PATH CENTRAL LTD DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED "AS IS" AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND IS FULLY EXEMPT FROM ANY RECOURSE FROM ANY OF THEM WHATSOEVER. ALL ERRORS AND OMISSIONS EXCEPTED.
Your sole and exclusive remedy for any failure or non-performance of the Services shall be for Us to use commercially reasonable efforts to adjust or repair the Services within a reasonable time.
See Annexure “A”.
Duration of Agreement
The duration of this Agreement shall endure for a period of no less than 100 (one hundred) years, subject to either Party’s rights to terminate the Agreement. The termination of this Agreement by either Party shall be without prejudice to any rights between the Parties existing at the time of the termination, which shall endure beyond the date of termination.
Variation and Cancellation
No Agreement varying, adding to, deleting from, or cancelling this Agreement, and no waiver whether specifically, implicitly, or by conduct of any right to enforce any term of this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties. It is recorded that there exists no collateral and/or other Agreements concerning the matters dealt with herein, and that this is the sole Agreement entered into by and between the Parties regarding the matters dealt with herein.
Each of the provisions of this Agreement shall be considered as separate terms and conditions and in the event that this Agreement is affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise held to be illegal, invalid, prohibited, or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition, or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited, or unenforceable provision was not a part hereof.
- This Agreement including any annexure(s) constitutes the whole Agreement between the Parties relating to the matters dealt with herein. On the date of the last signature hereof, it supersedes any previous Channel Partner License Agreement the Parties may have in respect of the subject matter. No Party shall assert that it had an understanding inconsistent with, or that goes beyond, or falls short of, any provisions herein.
- No amendments, variations, additions, or consensual cancellation of this Agreement or any term thereof and no extension of time, waiver, or relaxation of any provision or terms of this Agreement shall be binding unless recorded in a written document signed by the Parties. Any such extension, waiver, or relaxation which is so given or made shall be construed as relaxing strictly to the matter in respect whereof it was made or given.
- No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement shall not operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party from exercising its right in accordance with this Agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS, AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE AND/OR USE THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND GRANT TO US THE RIGHTS SET FORTH HEREIN.
1. Dispute Resolution
- 1.1. Should any dispute or difference arise at any time between the Parties in regard to:
- 1.1.1. The rectification of
- 1.1.2. Any matter arising out of
- 1.1.3. The interpretation of
- 1.1.4. The termination of
- 1.1.5. Any matter arising out of the termination of this Agreement, such dispute or difference shall be submitted to arbitration in terms of this clause 1.
- 1.1.1. The rectification of
- 1.2. If any dispute, including but not limited to any controversy and/or claim, arising out of or relating to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the dispute by mediation in accordance with the International Mediation Rules of the International Centre for Dispute Resolution (ICDR) before resorting to arbitration.
- 1.2.1. The mediator shall be, if the question in issue is:
- 220.127.116.11. Primarily an accounting matter: an independent Accountant of not less than 10 (ten) years standing as such.
- 18.104.22.168. Primarily a legal matter: a practicing Senior Counsel of not less than 5 (five) years standing as such, or a practicing Attorney of not less than 10 (ten) years standing as such.
- 22.214.171.124. Any other matter: an independent person agreed upon between the Parties and, failing agreement, then clause 1.2.2 herein shall apply.
- 1.2.2. Should the Parties be unable to settle the dispute through mediation, then the dispute resolution shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules.
- 1.2.1. The mediator shall be, if the question in issue is:
- 1.3. The place of arbitration shall be agreed to by the Parties, as advised by the ICDR.
- 1.4. It is agreed between the Parties that the award by the commissioner in the arbitration shall be final and binding and not appealable.
- 1.5. The language of the arbitration shall be English.
- 1.6. Further information about the ICDR and any Rules can be secured by contacting the International Centre for Dispute Resolution or by visiting the ICDR's Web site at www.icdr.org.
- 1.1. Should any dispute or difference arise at any time between the Parties in regard to:
Date: 15 October 2009