General Terms and Conditions
CounterBooks is an online accounting service designed especially for retail businesses. These General Terms and Conditions are intended to explain our obligations as a service provider and Your obligations as a service user. Please read them carefully. When taking out a Licence to use CounterBooks there may have been specific variations in the Terms and Conditions of Your Licence Agreement. Any variation in the Terms and Conditions in Your Licence Agreement take precedence over the General Terms and Conditions which are issued for guidance only. Always refer to Your signed Licence Agreement for the exact Terms and Conditions which apply to You.These Terms were last updated on 12th February 2019.
"Agreement" means these Terms and Conditions.
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"CounterBooks" means the CounterBooks system.
"CB" means CounterBooks Limited. A UK registered company whose principal offices are at, Chancery House, 53 -64 Chancery Lane, London, WC2A 1QS, United Kingdom.
"Data" means any data input by You or with Your authority into the Website.
"Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party including, without limitation, any strike, lockout, or other form of industrial action, accidents, fires, explosion, failure of equipment or machinery, delays in transportation, war, civil commotion, riots, sabotage, applicable legislation and regulations thereunder, and interruptions by government;
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Licensee" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Licence Fee" means the annual or monthly Licence Fee payable by You.
"Primary User"means the user name allocated to the Licensee when the CounterBooks Licence was taken out.
"Secondary User" means any person or entity, other than the Licensee, that uses the Service with the authorisation of the Licensee from time to time.
"Service" means the online accounting service made available via the Website.
"Sub-Licensee" means a client of the Licensee who is granted a limited sub-licence by the Licensee. Where a Sub-Licensee exists all references to the Licensee also apply to the Sub-Licensee.
"Website" means the Internet site at the domain name https://cloud.counterbooks.com/counterbooks/ or any other site operated by CB.
"You" means the Licensee, and where the context permits, a Secondary User. "Your" has a corresponding meaning.
2. Use of Software
CB grants You the right to access and use the Service via the Website with the access rights available to You according to Your Licence Agreement. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Licensee and the Secondary Users, or any other applicable laws:1. the Licensee determines who is the Primary User; 2. the Licensee determines who is a Secondary User and the level of access that Secondary User has; 3. the Licensee is responsible for all Secondary Users’ use of the Service; 4. the Licensee controls each Secondary User’s level of access to the relevant organization and Service at all times and can revoke or change a Secondary User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Secondary User or shall have that different level of access, as the case may be; 5. if there is any dispute between a Licensee and a Secondary User regarding access to any organization or Service, the Licensee shall decide what access or level of access to the relevant Data or Service that Secondary User shall have, if any.
3. Your Obligations
3.1. Access conditions:
3.1.1 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify CB of any unauthorized use of Your passwords or any other breach of security and CB will reset Your password and You must take all other actions that CB reasonably deems necessary to maintain or enhance the security of the CounterBooks system and networks and Your access to the Services.
3.1.2 As a condition of these Terms, when accessing and using the Services, You must:
(i) not attempt to undermine the security or integrity of the CounterBooks system or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
(ii). not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(iii). not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(iv). not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(v). not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.2. Messaging System: As a condition of these Terms, if You use the Messaging system through the Website You agree only to use it for lawful and legitimate purposes. You must not use the Messaging system for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial offers, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
3.3. Indemnity: You indemnify CB against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to CB, including (but not limited to) any costs relating to the recovery of any Licence Fees that are due but have not been paid by You.
4. Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
4.1.1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
4.1.2. Each party's obligations under this clause will survive termination of these Terms.
4.1.3. The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:
(i). is or becomes public knowledge other than by a breach of this clause;
(ii). is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(iii). is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(iv). is independently developed without access to the Confidential Information.
5. Intellectual Property
Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remain the property of CB.
5.2. Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the CounterBooks Licence Fee when due. Subsequent to the termination of Your Licence agreement You will continue to have read-only access to Your data for the length of time required for the statutory retention of accountancy data in your legal jurisdiction. You grant CB a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Service and for any other purpose related to provision of services to You.
5.3. Backup of Data:
5.3.1. CB will procure regular backups of Licensee accounting data.
5.3.2. CB will continue to store the Licensees’ and Sub-Licensees’ data electronically for the statutory retention period required in your legal jurisdiction.
5.4. Third-party data sources
Where data is imported into CounterBooks using data files or document scans provided by a third party You will be presented with the data in a format allowing the contents of the file to be checked before import. You are responsible for checking and confirming that the data is correct before importing it into CounterBooks. CB expressly excludes liability for any losses resulting from the importing of data from third party data sources.
6. Warranties and Acknowledgements
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
6.2.1. You are authorized to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorized to use the Service. You are also authorized to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
6.2.2. The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
6.2.3. CB does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. CB is not in any way responsible for any such interference or prevention of Your access or use of the Services.
6.2.4. CB is not Your accountant and does not provide accounting advice. If You have any accounting questions, please contact an accountant.
6.2.5. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
6.2.6. You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
6.3. No warranties: CBs gives no warranty about the Services. Without limiting the foregoing, CB does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.4. Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, 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 the supply of the Services, the Website or these Terms.
7. Limitation of Liability
7.1. To the maximum extent permitted by law, CB excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
7.2. If You suffer loss or damage as a result of CB’s negligence or failure to comply with these Terms, any claim by You against CB arising from CB’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Licence Fees paid by You in the previous 12 months.
7.3. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
8.1. If CB or the Licensee is in breach of any of its material obligations under these terms and conditions, and such failure is not remedied within 28 days after written notice to remedy, the other party may terminate this Agreement forthwith.
8.2. CB may terminate this Agreement forthwith if the Licensee becomes insolvent or unable to pay its debts as they fall due, or if an application is made or resolution is passed for its winding up other than for the purposes of reconstruction, or if a receiver, liquidator or similar officer is appointed to handle its affairs, or if any other event of a substantially similar nature takes place.
8.3. Any termination of this Licence shall not affect CB’s rights accrued prior to the date of such termination.
8.4. CB shall have the right to change or add to the terms of the Licence at any time, (provided that it is not CB’s’ intent that such change substantially affects the licence rights granted to the Licensee and for which the Licence Fees were paid) and to change, delete, discontinue, or impose conditions on any feature or aspect of pricing, technical support options, and other product-related policies upon notice by any means CB determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in CounterBooks or any CounterBooks related website. Any use of CounterBooks by the Licensee after CB’s publication of any such changes shall constitute Licensee’s acceptance of this Licence as modified.
8.5. The Licensee agrees that CB shall not be liable to the Licensee or any third party for any termination of the Licensee’s access to CounterBooks. The Licensee agrees to defend, indemnify and hold CB harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to legal fees) arising from the Licensee’s violation of this Agreement.
8.6. CB and the Licensee can terminate at any time after the end of the first year by giving 1 month’s notice.
9. Accrued Rights
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
9.1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
9.2. immediately cease to use the Services and the Website.
10. Help Desk
10.1. CounterBooks will provide a technical help desk during normal office hours (9:00 to 17:30, UK statutory holidays excepted.) to the Licensee.
10.2. Where sub-licencing occurs the Licensee will provide a user support helpdesk to the sub-licensees.
11. Server Availability and Scheduled Down Times
In the event that CounterBooks or its sub-contractors need to perform maintenance on the server side hardware needed to access CounterBooks it will do so during the hours of 22:00 to 04:00 (UK time) Monday through Sunday. In the event of a mission critical maintenance situation arising, CounterBooks may be required to perform emergency maintenance at any time. During these scheduled and emergency maintenance periods the Licensee may be unable to transmit and receive data. Licensee agrees to reasonably co-operate with CounterBooks or its sub-contractors during the scheduled and emergency maintenance periods to minimise the effects of such down time. The availability, performance and speed of Internet access depends on many factors that are outside CB's control. CounterBooks does not give any warranties or undertakings as to the availability, performance or quality of the service in this regard.
12. Relationship of the Parties
It is agreed and understood that Licensee is not the agent or representative of CounterBooks and has no authority or power to bind or contract in the name of or to create any liability against CounterBooks in any way and that nothing in this Agreement shall be construed as creating any form of partnership between the parties.
13.1. Entire agreement: These General Terms and Conditions do not supersede the Term and Conditions of any specific Licensing agreements between CB and the Licensee.
13.2. Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
13.3. Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
13.4. No Assignment: You may not assign or transfer any rights to any other person without CB’s prior written consent.
13.5. Proper law and jurisdiction:
13.5.1. This Agreement and all matters arising from it shall be governed by and construed in accordance with English Law and the parties hereto subject to the non-exclusive jurisdiction of the Courts of England and Wales.
13.5.2. CB may bring proceedings to recover any amounts arising under this Agreement in any country where the Licensee carries on business or has assets.
13.6. Severability: If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
13.7.1. All notices hereunder shall be in writing.
13.7.2. Notices shall be deemed to have been duly given:
(i) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
(ii) when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
(iii) on the fifth business day following mailing, if mailed by national ordinary mail, postage pre-paid; or
(iv) on the tenth business day following mailing, if mailed by airmail, postage pre-paid, and in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
13.8. Rights of Third Parties: A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
13.9. Force Majeure Neither party shall have any liability under or be deemed to be in breach of this Agreement in the event of Force Majeure for any delays or failures in performance of this Agreement. If such circumstances continue for a continuous period of more than 3 months, either party may terminate this Agreement forthwith by written notice to the other party.
13.10. Data Protection The parties hereby undertake with each other to comply with the Data Protection Act 2018 (GDPR) in relation to data in respect of both each other and any third parties pursuant to this Agreement as though each were a Data Controller for the purposes of the Act.
14 Dispute Resolution Process
All issues with CounterBooks should initially be reported to the CounterBooks Helpdesk by phone, e-mail, or the CounterBooks messaging system. They will be processed as follows:
14.1. System problems
Including, but not exclusively, system not accessible, screens not operating correctly, reports not available, reports not displaying correctly.Process:
- A reply will be issued to the user notifying them of the solution or that CounterBooks staff are working on the problem.
- The user will be updated on the progress of the problem or further information may be requested to identify the cause of the problem.
- The user will be informed when the problem is fixed.
14.2. Contractual disputesProcess: • The Helpdesk will refer any contractual issues to the appropriate manager for resolution. 14.3. Unresolved issues In the event that an issue remains unresolved the matters arising shall be governed by English Law and the jurisdiction of the Courts of England and Wales. Please refer to your contract for further information.