“Access Fee” means the fee (excluding any taxes and duties) payable by You for each Subscription License in accordance with the fee schedule set out on the Website (which Actionstep may change from time to time on notice to You).
“Actionstep” means the company which grants You the right to use the Service and to which you pay the Access Fee and is based on your primary income tax jurisdiction as follows:
• Actionstep Operations UK Limited (a United Kingdom company) for the United Kingdom, Middle East, and the European Union
• Actionstep Operations Australia Limited (an Australian company) for Australia
• Actionstep Operations New Zealand Limited (a New Zealand company) for New Zealand
• Actionstep Inc (a USA company) for United States, Canada, and any other jurisdictions not covered above.
“Actionstep Group” means Actionstep Limited (a New Zealand company), all current and future global subsidiaries of Actionstep Software Limited, and all associated officers, directors, employees, and shareholders thereof.
“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 unauthorized disclosure by the other party.
“Data” means any data inputted or uploaded by You or with Your authority into the Website.
“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.
“Service” means the online business and practice management services made available (as may be changed or updated from time to time by Actionstep) via the Website.
“Subscriber” 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.
“Subscription License” means a license required by each User to access the Service.
“Subscription Period” means the period of time wherein the Subscription Licenses are in effect.
“User” means any person or entity, including the Subscriber, that uses the Service with the authorization of the Subscriber from time to time.
“Website” means the Internet sites at the domain, or subdomains, at Actionstep.com or any other site operated by Actionstep.
“You” means the Subscriber, and where the context permits, a User. “Your” has a corresponding meaning.
2. USE OF THE SERVICE
Actionstep grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. 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 Subscriber and the Users, or any other applicable laws:
• the Subscriber determines who is a User and what level of user role access to the relevant organization and Service that User has;
• the Subscriber is responsible for all Users’ use of the Service;
• the Subscriber controls each User’s level of access to the relevant organization and Service at all times and can revoke or change a 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 User or shall have that different level of access, as the case may be;
• if there is any dispute between a Subscriber and a User regarding access to any organization or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that User shall have, if any.
3. YOUR OBLIGATIONS
3.1 Payment obligations Unless you are accessing a free trial then you will be billed for all Subscription Licenses at the beginning of each Subscription Period. Subscription Periods will automatically renew until this Agreement is terminated in accordance with clause 8.
Any Subscription Licenses added during a Subscription Period will be billed when added at a pro-rata rate for the remainder of the Subscription period. You can reassign Users between available Subcription Licenses within a Subscription Period.
It is Your responsibility to remove unwanted Subscription Licenses prior to the renewal of each Subscription Period. No credit will be provided for inactive, unassigned, or unused Subscription Licenses.
All Actionstep invoices will be available to You by email or download from the Website. You must pay or arrange payment of all amounts specified in any invoice by the due date on the invoice. If you have setup auto-billing arrangements with Actionstep then Actionstep will deduct the payment automatically under the terms of those arrangements.
You are responsible for payment of all taxes and duties in addition to the Access Fee. Depending on Your jurisdiction and circumstances You may be required to pay federal, state, provincial and/or local sales, use, excise, value-added, or other similar taxes, levies or duties due on the transactions and Actionstep will include these on Your invoice these as applicable.
3.2 General obligations You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Actionstep or condition posted on the Website. You may not use the Service to gain competitive information about Actionstep or the Service.
3.3 Access conditions You must ensure that all usernames and passwords required to access the Service is kept secure and confidential. You must immediately notify Actionstep of any unauthorized use of Your passwords or any other breach of security and You must take all other actions that Actionstep reasonably deems necessary to maintain or enhance the security of Actionstep’s computing systems and networks and Your access to the Service.
As a condition of these Terms, when accessing and using the Service, You must:
• not attempt to undermine the security or integrity of Actionstep’s computing systems or networks or, where the Service is hosted by a third party, that third party’s computing systems and networks;
• not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
• 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 Service is hosted;
• 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
• not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.4 Usage Limitations Depending on which instance of the Service You are accessing Your use of the Service may be subject to limitations, including but not limited to monthly transaction volumes, data storage, feature sets, and the number of calls You are permitted to make against Actionstep’s application programming interface.
3.5 Communication Conditions As a condition of these Terms, if You use any communication tools available through the Website (such as email, chat, file notes, text messages, forums), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to): offers of goods or services for sale, unsolicited commercial email, files that may damage any other person’s computing devices or software, content that may be offensive, 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). When You make any communication on the Website, You represent that You are permitted to make such communication. Actionstep is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Service. As with any other web-based service, You must exercise caution when using the communication tools available on the Website. However, Actionstep does reserve the right to remove any communication at any time in its sole discretion. 3.6 Indemnity You indemnify the Actionstep Group against: all claims, costs, damage and loss arising from Your breach of any of these Terms or obligations, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
4. CONFIDENTIALITY AND PRIVACY
4.1 Confidentiality Unless the relevant party has the prior written consent of the other or unless required to do so by law:
• 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.
• Each party’s obligations under this clause will survive termination of these Terms.
• The provisions of the confidentiality clauses above shall not apply to any information which:
• is or becomes public knowledge other than by a breach of this clause; * is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
• is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
• is independently developed without access to the Confidential Information.
5. INTELLECTUAL PROPERTY
5.1 General Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remain the property of Actionstep (or its licensors).
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 Actionstep Access Fee when due. You grant Actionstep a license to use, copy, transmit, store, and backup 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 Actionstep adheres to its best practice policies and procedures to prevent data loss, including a frequent system data backup regime, but does not make any guarantees that there will be no loss of Data. Actionstep expressly excludes liability for any loss of Data no matter how caused. You can request a backup of your Data at any time. Backups will be provided in a common export format determined by Actionstep. Additional costs may apply depending on the frequency, size, and delivery requirements of the backups.
5.4 Third-party applications and your Data If You enable third-party applications for use in conjunction with the Service, You acknowledge that Actionstep may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Service. Actionstep shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
5.5 Ownership and Protection of Proprietary Rights You acknowledge that the Intellectual Proprietary Rights in the Software belong exclusively to Actionstep and that You will not dispute such ownership. In the event that Actionstep provides new features or services based on requests or suggestions made by You, You acknowledge that any such new features or services belong exclusively to Actionstep, and that You will not be compensated for the request or suggestion.
6. WARRANTIES AND ACKNOWLEDGMENTS
6.1 Authority 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. 6.2 Acknowledgment You acknowledge that:
• You are authorized to use the Service and that You are authorized to access the processed information and Data that is made available to You through Your use of the Service (whether that information and Data is Your own or that of anyone else). • The provision of, access to, and use of, the Service is on an “as is “ basis and at Your own risk. • Actionstep 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 Service. Actionstep is not in any way responsible for any such interference or prevention of Your access or use of the Service. • It is Your sole responsibility to determine that the Service meet the needs of Your business and are suitable for the purposes for which they are used. • 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). • Use of the Service does not constitute the receipt of accounting, legal, financial, tax, payroll or any other professional advice from Actionstep.
• Any configurations of the Service (such as workflows, document templates, system settings, and knowledge base contents, etc) supplied by Actionstep are for Your convenience only, and it is solely up to You to determine if they are suitable for the purposes for which they are used.
6.3 No Warranties Actionstep gives no warranty about the Service. Without limiting the foregoing, Actionstep does not warrant that the Service 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 Service 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 Service, the Website or these Terms.
7. LIMITATION OF LIABILITY
To the maximum extent permitted by law, Actionstep 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. If You suffer loss or damage as a result of Actionstep’s negligence or failure to comply with these Terms, any claim by You against Actionstep arising from Actionstep’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months. 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 Prepaid Subscriptions Actionstep will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
8.2 No-fault Termination: These Terms will continue for the period covered by the Access Fee paid or payable. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
8.3 Breach If You:
• breach any of these Terms (including, without limitation, by nonpayment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
• breach any of these Terms and the breach is not capable of being remedied; or
• You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, Then Actionstep may take any or all of the following actions, at its sole discretion:
• Terminate this Agreement and Your use of the Service and the Website;
• Suspend for any definite or indefinite period of time, Your use of the Service and the Website;
• Suspend or terminate access to all or any Data.
• Take either of the actions above in respect of any or all other persons whom You have authorized to have access to Your information or Data.
For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organizations (as defined in clause 3) is not made in full by the relevant due date, Actionstep may: suspend or terminate Your use of the Service, the authority for all or any of Your Organizations to use the Service, or Your rights of access to all or any Data.
8.4 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:
• remain liable for any accrued charges and amounts which become due for payment before or after termination; and
• immediately cease to use the Service and the Website.
8.5 Deletion of Data Actionstep is entitled to delete all copies of your Data after 30 days following termination of this agreement. You are entitled to receive a backup of your Data provided the request is made within 20 days following termination of this agreement.
8.6 Expiry or Termination Clauses 3.1, 3.6, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. TECHNICAL SUPPORT AND HOSTING
9.1 Help Desk Limited support will be provided by Actionstep to paying Users of the Service subject to the following conditions:
• all Access Fees due under this Agreement are fully paid at the time of the support request; and
• the person making the request has a valid Actionstep login; and
• the support request is not covered in the user guide, Website, knowledge base or other available information about the Service; and
• the support request would not be expected to be known by a fully trained end user of the Service; and
• the nature of the support request is minor and can reasonably be expected to be answered by the Help Desk without a significant investment in time, effort, or expense; and
• the support request is solely related to the Service as delivered from the hosting location, and not related to ancillary hardware, software or systems such as computers or networks used by You to access the Service. The limited support provided under this Agreement is not intended to be a replacement for end-user training, system configuration, or consulting. If, in the sole opinion of Actionstep, the support request does not meet the criteria for limited support under this Agreement then Actionstep may decline to respond to the support request and may suggest alternative means of satisfying the support request such as via professional services for additional training or consulting, or by entering into a more comprehensive support agreement that better meets Your requirements. Details on how to contact the Help Desk can be found on the Website.
9.2 Hosting Actionstep hosts the Service on Amazon Web Services (AWS) global regions determined by your data sovereignty requirements.
9.3 Service Availability The Service will be available to the Recipient for 99.5% of all scheduled available time as it relates solely to the Actionstep’s network and server Internet access. Scheduled available time shall be defined as 24 hours-a-day, seven days-a-week, excluding:
• routine system maintenance downtime of up to six hours per week, which shall be scheduled outside of normal business hours if practical;
• downtime to address specific critical Software issues; and • any downtime caused by circumstances beyond the immediate control of the Provider.
9.4 Data Sovereignty You can elect to have your Data hosted in any AWS region supported by Actionstep. Actionstep will keep your Data on servers located within the elected region but Users will be able to connect to the Service from anywhere on the Internet and thus some of your Data may be transmitted outside the elected region in response to User queries.
10.2 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.
10.3 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.
10.4 No Assignment You may not assign or transfer any rights to any other person without Actionstep’s prior written consent.
10.5 Governing law and Jurisdiction: If the information or Data You are accessing using the Service and the Website is solely that of a person who is a tax resident in the United States of America at the time that You accept these terms then the State of California law govern this Agreement and You submit to the exclusive jurisdiction of the state courts of Santa Clara County, California or federal court for the Northern District of California for all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Service and the Website is solely that of a person who is a tax resident in the United Kingdom or European Union at the time that You accept these terms then the laws of England and Wales govern this Agreement and You submit to the exclusive jurisdiction of the courts of England and Wales for all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Service and the Website is solely that of a person who is a tax resident in Australia at the time that You accept these terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement. In all other situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
10.6 Severability If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
10.7 Notices Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Actionstep must be sent to support@Actionstep.com or to any other email address notified by email to You by Actionstep. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
11. Addendum for Law Firms Regulated by the SRA
The following terms only apply to law firms in the United Kingdom and Wales who are regulated by the Solicitors Regulation Authority (“SRA”). Actionstep recogniszes that Data may include Confidential Information about your clients which is the subject of confidentiality and other professional duties imposed by law and by the SRA. Actionstep agrees to protect the confidentiality, security and availability of Data in a manner consistent with such duties. Data may be processed by Actionstep only for the purpose of providing the Service. Having regard to professional duties to your clients and to the harm that may be done if access to Data is denied, Actionstep waives any legal right to assert a lien on Data and agrees not, in any circumstances, even if we are in breach of the Terms, to deny us access to Data except as set out in this paragraph. If we are in breach of the Terms (including a failure to pay the Access Fees), Actionstep may exercise its rights to suspend or otherwise restrict access to the Service but only after:
• making all Data available for download (or, subject to you paying Actionstep’s fees then prevailing, on physical media securely shipped to you) in a machine-readable format and in a manner which allows a reasonable skilled person to assimilate such Data in a replacement system;
• providing not less than 28 days’ prior written notice of Actionstep’s intentions, which notice shall include details of the Data download arrangements set out in the previous paragraph; and
• you fail within such 28 day period to remedy the breach of the Terms. Data shall be stored on facilities located within the European Union that adhere to the Safe Harbor Privacy Principles agreed upon by the US and the European Union. Actionstep shall give not less than 28 days’ prior written notice before changing these arrangements.
Actionstep agrees to:
• act only on instructions from you (or the SRA) in respect of Data processed by Actionstep;
• have technical and organisational measures in place against unauthorised or unlawful processing of Data and against accidental loss or destruction of, or damage to, Data held or processed by it, appropriate to the harm that might result from such unauthorised or unlawful processing or loss, destruction or damage to Data and the nature of the Data;
• take all reasonable steps to ensure the reliability of any of its staff who have access to Data processed in connection with the Terms;
• undertake, at least annually, an audit of the measures adopted pursuant to this section. Actionstep agrees to use reasonable care and skill when providing the Services. Actionstep shall ensure that the Service and the Website do not infringe the Intellectual Property Rights of any third party. Actionstep acknowledges the role and powers of the SRA. Actionstep agrees to use reasonable endeavours to co-operate with the SRA including permitting the SRA to exercise on behalf any rights and remedies set out in the Terms. If the SRA calls upon Actionstep to provide such co-operation, you hereby give irrevocable authority to disclose Data and provide all such co-operation without prior consent and at your cost.
12. Addendum for Clients subject to European Union (EU) Regulations
13. Addendum for Tax Residents of New Zealand
The following terms only apply to entities regulated by the New Zealand legislation Tax Administration Act 1994 and the Goods and Services Tax Act 1985. Taxpayers remain responsible for their tax obligations including retaining business records for the retention period (usually seven years) required under the Tax Administration Act 1994. Unless this agreement is terminated Actionstep will retain Your Data for at least seven years for the purpose of the Commissioner of Inland Revenue to readily ascertain the amounts of tax payable by You. In the event the Agreement is terminated you must request a back-up of your Data within 20 days of termination. You must then retain your Data in accordance with your obligations under New Zealand legislation, including the Tax Administration Act 1994, which includes retaining business records for the retention period of the Act (usually seven years). Actionstep is entitled to delete all copies of your Data after 30 days following termination of this Agreement.
14. Addendum for Free Trial and Non-Paying Users
• USE OF SERVICE
• YOUR OBLIGATIONS except for “Payment Obligations”
• CONFIDENTIALITY AND PRIVACY expect for “Backup of Data” • WARRANTEES AND ACKNOWLEDGEMENTS
• LIMITATION OF LIABILITY
The following additional terms apply to free trial and non-paying users and if any conflict or doubt arises these additional terms will prevail:
• Actionstep may terminate your use of the Service at any time and for any reason, and
• you agree that your Data have no commercial value and that Actionstep may delete your Data upon termination of the Service, and
• you will not be entitled to technical support, although Actionstep may elect to provide this at its sole discretion.
Last updated: 1-July-2020
• Updated the agreement to reflect Actionstep’s current organization structure
• Added information about Your sales tax obligations under section 3.1 “Payment obligations”
• Updated section 9 “Technical Support and Hosting” to clarify the use of Amazon Web Services