Parago Software Limited - Parago User Terms and Conditions
Warning
The Customer’s attention is specifically drawn to the following provisions in these terms: time for payment and certain remedies for late payment (clause 3), restrictions on use of the Website (clause 4), availability of the Website (clause 5.1), minimum requirements for the Customer’s IT system (clause 5.3), standards of on-line conduct (clause 6.2), Supplier’s liability for linked sites (clause 7), limits on the Supplier’s responsibility for Website content (clause 9), limits on the Supplier’s liability (clause 10), warranties by the Customer (clause 11), restrictions on certain confidential information (clause 12), obligations on termination of this Agreement (clause 13.4) and the Supplier’s monetary remedies (clauses 18.7 and 18.8).
Background
Parago is an ICT asset management tool for schools. The system is in the
form of a website owned and maintained by the Supplier. The system can
provide indicative prices for ICT products to help schools develop ICT
procurement strategy, but this functionality is not a core part of the
system, the Customer should not rely on the indicative prices, and the
Supplier excludes responsibility and liability for them. The website is
made available to the Customer on the following terms and conditions.
Agreed terms
1. Definitions and Interpretation
1.1 In this Agreement (including the Warning and Background, above, and the Order Form) unless context otherwise requires:“Agreement” means the Order Form and the Terms and the contract made between the Parties on the terms of the Order Form and the Terms.
“Business Day” means each day other than a Saturday, Sunday and statutory, public or bank holiday.
“Client-side Software” means each software package supplied by any means by the Supplier and installed on the Wide Customer System (and any part of it).
“Commencement Date” means the date stated in Part B of the Order Form.
“Content” means all and any text, graphics and other data and information whatsoever on or from the Website or generated by the Website from time to time, including ICT product prices.
“Customer Representative” means the Customer’s employee identified in the Order Form (or such other employee of the Customer as the Customer may choose and notify to the Supplier from time to time) with day-to-day operational responsibility in relation to the Customer’s obligations under this Agreement.
“Customer System” means the Customer’s computer network whose servers and user terminals are at the location(s) stated in Part D of the Order Form.
“Customer” means the person identified as the Customer in Part A of the Order Form
“End User” means the Customer and those of its employees, contractors and students whom the Customer permits to use the Customer System provided that the number of End Users shall not exceed the End User Maximum.
“End User Guidance” means user guides, help files, training, user support and all and any other instructions, warnings and guidance given by the Supplier from time to time regarding the Website and use of it.
“End User Material” means all and any material transmitted to the Website by any End User pursuant to clause 4.1(c).
“End User Maximum” means the maximum number of End Users, which is stated in Part D of the Order Form.
“Exclusions” means those elements of the Website and/or the GUI and/or the User Functionality and/or the Client-side Software and/or the End User Guidance identified in Part D of the Order Form which shall be disabled or otherwise disabled during any Trial Period.
“Execution Date” means the date on which the Order Form is signed by last of the Parties to sign the Agreement.
“Fee” means the fee stated in Part D of the Order Form.
“Group” means a corporation, its subsidiaries, its holding companies, and all the subsidiaries of such holding companies.
“GUI” means the graphical user interface presented in the form of web-pages from time to time made available via the Login, by which the End Users are permitted to use the User Functionality, provided always that End Users use the GUI in accordance with the End User Guidance.
“Licence Period” means the period specified in Part B of the Order Form.
“Intellectual Property Rights” means all copyrights, design rights, patents, database rights and trade marks in any part of the world and whether or not registered or registrable, for the full period and all extensions and renewals.
“Login” means the login page at the URL specified by the Supplier from time to time, via which the End User may gain access to the GUI using a username and password provided by the Supplier. The current URL of the Login is stated in Part D of the Order Form.
“Minimum Specification” means the minimum specification from time to time that the Customer’s System must meet in order to use the Website. The Minimum Specification can be found at the URL stated in Part E of the Order Form or otherwise specified by the Supplier from time to time, and may be attached to the Order Form.
“Option Period” means, where the Order Form indicates the Customer may trial the Website, the period stated in Part B of the Order Form which shall commence on the expiry or earlier termination of the Trial Period.
“Order Form ” means the order form (whether completed and submitted to the Supplier on-line or signed and delivered to the Supplier in hardcopy form) into which the Terms are incorporated.
“Parties” means the parties to this Agreement and “Party” means either party and “Third Party” means any person other than the Parties.
“Privacy Policy” means the Supplier’s privacy policy which can be found at the can be found at the URL stated in Part E of the Order Form or otherwise specified by the Supplier from time to time, and may be attached to the Order Form.
“Sales Tax” means value added tax and any similar, replacement or additional tax or duty.
“School” means the school identified in Part A of the Order Form.
“Senior Representatives” means (for the Supplier) its Managing Director and (for the Customer) means the Managing Director (if the Customer is a company), the chairperson or leading officer (if the Customer is a trust or other unincorporated association) or the head of education (if the Customer is a Local Education Authority).
“Standard Of Care” means reasonable skill and care.
“Strategic Functionality” means all and any User Functionality which processes the End User Material to produce forecasts, reports or any other output relied upon by any End User (whether or not it is intended to be so used) in any way in connection with the School’s ICT strategy or any procurement.
“Supplier Representative” means the Supplier’s employee identified in Part C of the Order Form (or such other employee of the Supplier as the Supplier may choose and notify to the Customer from time to time) with day-to-day operational responsibility in relation to the Supplier’s obligations under this Agreement.
“Supplier” means Parago Software Limited (a company incorporated in England and Wales with number 5132764) whose registered office is care of One High Street, Chalfont St Peter, Gerrards Cross, Buckinghamshire SL9 9QE but whose address for the purposes of this Agreement is Merlin House, Brunel Road, Theale, Berkshire RG7 4AB.
“Terms” means these terms and conditions.
“Trial Period” means, where the Order Form indicates the Customer may trial the Website, the period stated in Part B of the Order Form which shall commence on the Execution Date.
“User Functionality” means the processes and functions made available from time to time to End Users by the GUI, as determined by the Supplier from time to time and available to End Users to use in accordance with the End User Guidance.
“Website” means the website from time to time provided by the Supplier, accessed via the Login, by which End Users may make use of the User Functionality via the GUI. No other part of the Website or means of using the Website is available to the End Users to access or use.
“Wide Customer System” means the Customer System and user terminals which belong to End Users. For the avoidance of doubt the Supplier contemplates such user terminals comprising (1) End Users’ portable computers connected to the Customer System from time to time with the Customer’s prior consent and (2) End Users’ home computers.
1.2 In this Agreement the following rules of interpretation shall apply.
(a) The headings in this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
(b) Reference to statutory provisions shall be construed as references to those provisions as respectively amended, modified or re-enacted.
(c) In the interpretation of this Agreement in Scotland, any expression not in current use in Scotland shall be accorded the meaning of its nearest equivalent in that country.
(d) The singular shall include the plural and vice versa. Reference to one gender includes all and any other genders.
(e) Reference in this Agreement to a person means any individual, any trust, partnership or other unincorporated association, any government or public or statutory authority, and any corporation.
(f) References to the Customer regarding its obligations under this Agreement include its directors, officers, employees, agents, and lawful assigns and sub-contractors under this Agreement.
(g) The words “holding company” and “subsidiary” have the meanings given in section 736 of the Companies Act 1985 and “personal data”, “data subject” and “processing” have the meanings given in the Data Protection Act 1998.
(h) The word “web-page” means a web-page as presented in a browser window, and excludes the source scripts, code, databases and other materials and instructions from or by which such web-page is generated.
(i) The words “writing” and “written” include fax and email and “written notice” means notice given in accordance with clause 13.
(j) The words “include” and “including” shall be construed so as not to limit the range of matters that it is intended to cover even if a lot of examples are given.
(k) The words “agreed” or “agreed form” means agreed by the Parties in writing initialled by them or on their behalf by their respective duly authorised representative.
(l) For the avoidance of doubt reference to a software package in this Agreement includes all and any several individual software programs, files databases and other materials comprising such package and “use” in relation to the Client-side Software means the Customer may download, install and passively permit the Client-side Software to operate (which it shall do automatically and without instruction, prompting or other intervention) but shall not use the Client-side Software in any other way whatsoever.
2 Commencement, duration and renewal
2.1 If Part D of the Order Form states the licence type is a “Trial Licence”, clause 2.4 shall not apply and this Agreement shall:(a) commence on the Commencement Date for the Trial Period, subject to termination by the Supplier at any time by the Supplier giving notice to the Customer, which notice shall take effect immediately on receipt by the Customer; and
(b) (with reference to the terms of clause 4) exclude any licence to use the Exclusions and prohibit any End User from using the Exclusions,
and the terms of clauses 2.2 and 2.3 shall apply.
2.2 Upon expiry or earlier termination of the Trial Period:
(a) the licence granted under clause 4 (subject to clause 2.1(b)) shall be suspended and the Customer and the End Users shall stop using or attempting to use the End User Guidance and the Website and the Client-side Software; and
(b) with reference to End User Material submitted by any End User during the Trial Period pursuant to clause 4.1(c) the Supplier shall for the duration of the Option Period refrain from deleting such End User Material from the Supplier’s system.
2.3 Upon expiry or earlier termination of the Option Period the terms of clauses 13.3, 13.4 and 13.5 shall apply.
2.4 If Part D of the Order Form states the licence type is a “Full Licence”, the preceding terms of this clause 2 shall not apply and this Agreement shall be deemed to commence on the Commencement Date for the Licence Period (subject to earlier termination under clause 13) and shall continue thereafter from year to year (subject also to earlier termination under clause 13).
3 Fee, payment and supplier’s remedies
3.1 The Supplier shall have no obligations under this Agreement during a given Licence Period until it has received the Fee in full from the Customer in cleared funds. If the Supplier agrees on the Order Form to accept payment of the Fee in instalments the Supplier shall have no obligations under this Agreement until it has received the first instalment from the Customer, in full and in cleared funds.The Customer shall pay the Fee for the first Licence Period before the Commencement Date. In the case of subsequent Licence Periods the Supplier shall submit an invoice for the Fee at any time during the final 31 days of the then current Licence Period.
3.2 Without prejudice to the Supplier’s other remedies under this Agreement, if:
(a) the Customer fails to pay any sum due under this Agreement on or before the due date; or
(b) any End User breaches any term of this Agreement,
the Supplier’s obligations and the rights of the Customer and the End Users shall be suspended without liability to the Supplier until the payment is received by the Supplier in cleared funds or (as the case may be) the breach is remedied to the Supplier’s reasonable satisfaction.
3.3 The Supplier may take any reasonable action to prevent any End User from using the Website for the purpose of enforcing clause 3.2, including disabling the Login username and password.
3.4 The Supplier may charge a reasonable fee for its time and materials expended in reversing any action taken by the Supplier pursuant to clause 3.3.
4 Customer’s licence and Supplier’s Intellectual Property Rights
4.1 In consideration of the Fee and in reliance on the Customer’s warranties and representations in clause 11 the Supplier shall permit End Users to:(a) temporarily download web-pages forming part of the GUI for the purposes of using the Website by viewing the GUI in a browser;
(b) print a reasonable number of web-pages as presented by the GUI;
(c) input and upload End User Material via the forms (and other means authorised by the Supplier) forming part of the GUI, for processing by the User Functionality for the purposes of the School (and not for any other purpose) provided that such End User Material relates to the School and subject always to each End User observing and performing clause 6.2;
(d) download documents generated by the User Functionality using End User Material, and print such documents;
(e) refer to the End User Guidance;
(f) use the Client-side Software on the Customer System,
on the following basis:
(i) no person other than the Supplier may modify the Content or End User Guidance in any way;
(ii) no element of the Content or End User Guidance may be used separately from any other element of it so that (for example) no graphics forming part of any Content may be used separately from the accompanying text; and
(iii) the Supplier’s copyright and trade mark notices and this permission notice appear in all copies.
4.2 The Customer shall not suffer or permit any person to use the Website or any part of it other than an End User using the Website for the School (and not for any other school) via the Wide Customer System (and via no other system and from no other location) and at all times and for all purposes on the terms of this Agreement.
4.3 The Customer shall not suffer or permit any person to use the Client-side Software or any part of it other than an End User using the Website for the School (and not for any other school) via the Customer System (and via no other system and from no other location) and at all times and for all purposes on the terms of this Agreement.
4.3 The Customer shall not suffer or permit any End User to use or access any part of the Website other than to:
(a) use the User Functionality via the GUI; and
(b) download the Client-side Software,
in each case and at all times and for all purposes in accordance with the End User Guidance.
4.5 The Customer shall not suffer or permit more End Users than the End User Maximum to use the Website or the Client-side Software.
4.6 Unless otherwise stated, all Intellectual Property Rights whatsoever in the End User Guidance and in the Client-side Software and in all material on, material from, material comprising and material generated by the Website (including without limitation Content and any items specified in any notice of Intellectual Property Rights issued by the Supplier and only excluding the End User Material) are owned by the Supplier or its licensors. For the purposes of this Agreement, any use of the End User Guidance or the Website or the Client-side Software or any part of them other than in accordance with clause 4 for any purpose is prohibited. If any End User breaches any of the terms of this Agreement, each End User’s permission to use the Website shall automatically terminate.
4.7 Except as permitted by this clause 4, no part of the Client-side Software or the End User Guidance or the Website or material obtained from them may be extracted, downloaded or otherwise obtained from them or reproduced or stored in any other website or included in any public or private electronic retrieval system or service without the Supplier’s prior written permission.
4.8 Any rights to use the End User Guidance or the Website or the Client-side Software not expressly granted in this clause 4 are reserved to the Supplier.
5 Service access
5.1 Although the Supplier shall use its reasonable endeavours to ensure that the Website is available 24 hours a day, the Supplier shall not be liable if for any reason the Website is unavailable at any time or for any period.5.2 Access to the Website may be suspended temporarily and without notice at any time and for any period in the case of any failure by any End User to observe or perform any of the terms of this Agreement, system failure, supplier failure, maintenance or repair or for reasons beyond the Supplier’s control.
5.3 The Customer acknowledges that the Customer System must at least meet the Minimum Specification. If it does not, the Customer acknowledges that End User’s use of the Website may be adversely affected.
6 End User material, and conduct of transmissions
6.1 The Supplier shall not:(a) process personal data except in accordance with the Privacy Policy and the Supplier shall not treat any personal data as being proprietary or confidential; or
(b) permit any transmission by the Client-side Software of any data from the Customer System to the Supplier’s system unless such transmission is encrypted using reasonably secure encryption.
6.2 End Users are prohibited from posting or transmitting to or from the Website any material:
(a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or
(b) for which the End User has not obtained all necessary licences, consents and/or approvals required for the End User and the Supplier and the Supplier’s agents, sub-contractors and suppliers to use such materials, including consents fairly and lawfully obtained from data subjects in relation to personal data; or
(c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in the UK or any other country in the world; or
(d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
6.3 The End Users shall observe and perform all the End User Guidance and shall not misuse the Website (including, without limitation, by hacking).
6.4 The Supplier shall fully co-operate with any law enforcement authorities or court order requesting or directing the Supplier to disclose the identity or locate anyone posting any material in breach of clause 6.2 or clause 6.3.
6.5 If any End User’s use of material on or from the Website results in the need for servicing, repair or correction of equipment, software or data, the Customer shall assume all costs thereof.
6.6 The Customer shall indemnify the Supplier and hold the Supplier harmless from and against all liabilities whatsoever arising from the breach by any End User of any term of this Agreement, and the negligent, wilful or reckless act or omission of any End User.
7 Links to and from other websites
7.1 Links to third party websites on the Website are provided solely for the convenience of the End Users. If any End User uses these links, the End User leaves the Website. The Supplier has not reviewed all of these third party websites and does not control and is not responsible for these websites or their content or availability. The Supplier therefore does not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If any End User decides to access any of the third party websites linked to this Website, the End User does so entirely at the risk of the Customer and the End User and subject to the third party website provider’s terms and conditions.7.2 No person may create links to the Website without the Supplier’s prior written consent and subject to the terms of the Supplier’s website linking licence.
7.3 No person may access the Website or any part of it except an End User via the Login using a username and password provided by the Supplier to the Customer. No person may deep link into any part of the Website.
7.4 The Customer shall fully indemnify and hold harmless the Supplier for any loss or damage suffered by the Supplier or any of its group companies for breach of clause 7.2 or clause 7.3.
8 Registration
8.1 The Supplier will supply the Customer with a single user name and password for the End Users to input at the Login to lawfully gain access to the Website.8.2 Each registration is for End Users up to the End User Maximum. The Supplier does permit the Customer to share its user name and password with the End Users up to the End Uses Maximum.
8.3 Responsibility for the security of any passwords issued rests with the Customer and the End Users.
9 Disclaimer
9.1 While the Supplier shall endeavour to ensure that the information on the Website is correct, the Supplier does not warrant the accuracy and completeness of any of the Content on or from or comprising or generated by the Website. The Customer acknowledges that the Supplier may (but is not obliged to) make changes to the Content, the GUI and/or the User Functionality at any time without notice. The Content may be out of date, and the Supplier makes no commitment to update the Content.9.2 No output from any Strategic Functionality is intended to be relied upon by the Customer or any End User without supporting advice from a suitably qualified professional adviser.
9.3 The Website, the GUI, the User Functionality, the Strategic Functionality, the Content and the End User Guidance is provided “as is”, without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, the Supplier provides the Website on the basis that the Supplier excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this Agreement might have effect in relation to the Website or any part of it.
10 Liability
10.1 The following provisions set out each Party’s entire liability (including any liability for the acts and omissions of its employees) to the other Party in respect of:(a) any breach of its contractual obligations arising under this Agreement; and
(b) any representation statement, tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with this Agreement.
10.2 The Supplier, each member of its group of companies and its and their officers, directors, employees, shareholders or agents shall accept no liability or responsibility to the Customer or any End User for or in respect of:
(a) any indirect, consequential or special loss or damage, even if such loss or damage was reasonably foreseeable or the Supplier had been advised of the possibility of it being incurred)
(b) any loss of income, time, profit or surplus, goodwill or reputation, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption that results to the Customer or any End User or any third party, and in each case whether such loss or damage is direct, indirect, consequential or special, even if such loss was reasonably foreseeable or the Supplier had been advised of the possibility of it being incurred) in connection with:
(i) the Website in any way; or
(ii) the use, inability to use or information supplied by or the results of use of the Website; or
(iii) any websites linked to the Website or the material on such websites,
including loss or damage due to viruses that may infect the computer equipment, software, data or other property of the Customer or any End User on account of any End User’s access to, use of, or browsing the Website or downloading of any material from the Website or any websites linked to the Website.
10.3 In respect of any other Events Of Default:
(a) subject to clause 10.5, where the Supplier maintains insurance as agreed with the Customer, in respect of matters for which it maintains insurance the liability of the Supplier shall not exceed the level of cover provided by such insurance in any one year and in all other cases the liability of the Supplier shall not exceed in any one year a sum equivalent to 150% of the fees paid by the Customer under this Agreement in the course of such year; and(b) the liability of the Customer to the Supplier shall not exceed the amount of 150% of the fees payable by the Customer to the Supplier under this Agreement; and
(c) subject only to clause 10.6, the Supplier shall have no liability whatsoever to or in respect of any End User under or in connection with this Agreement.
10.4 If a number of events give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
10.5 The Supplier shall maintain in full force and effect for the term of this Agreement all insurances as the Parties may agree, subject to limits and exclusions agreed by the Parties, provided that the Customer shall not in any way or for any reason rely on the Supplier’s insurance in respect of any risk covered by the Customer’s insurance.
The Customer shall maintain in full force and effect for the term of this Agreement all insurances in respect of all risks and with such levels of cover and on such reasonable terms that any reasonably prudent person engaged in the provision (or use) of a website such as the Website might reasonably be expected to maintain, and otherwise as the Parties may agree.
10.6 Nothing in this Agreement shall exclude or limit either Party’s liability for:
(a) death or personal injury caused by negligence (as such term is defined by the Unfair Contract Terms Act 1977); or
(b) fraud; or
(c) misrepresentation as to a fundamental matter; or
(d) any liability which cannot lawfully be excluded or limited.
11 Customer’s warranties
11.1 The Customer warrants and represents to the Supplier that:(a) the Customer is a school, the board of governors of a school, a local authority or a local education authority and the End Users are its employees who are duly authorised to use the Customer System; and
(b) the Customer has in place appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(c) the Customer has in place appropriate physical and logical security controls to prevent unauthorised access to any data held by the Customer, including means to control the incidence of malicious code; and
(d) the Customer is (if it is a corporation) duly incorporated and (in any case), validly existing and in good standing under the laws of England and Wales; and
(e) the Customer has the requisite power to enter into and perform its obligations under this Agreement and has taken all action necessary to execute and deliver this Agreement; and
(f) this Agreement is, and will remain throughout its term, a duly authorised, valid and binding Agreement; and
(g) the Customer has obtained and will maintain for the duration of this Agreement all permissions, licences, registrations and consents necessary under or in connection with this Agreement; and
(h) the Customer’s obligations under this Agreement do not conflict with any applicable laws or regulation or with any contract binding upon the Customer.
11.2 The representations and warranties contained in clause 11.1 shall survive the execution of this Agreement and shall be deemed repeated by the Customer, on the first day of each month throughout the term of this Agreement, with reference to the circumstances then subsisting.
12 Confidentiality and data protection
12.1 The Customer shall treat as confidential the terms of this Agreement and all information whatsoever obtained from the Supplier from or via the Website or otherwise including the Login and the associated username and password and the Supplier shall treat as confidential all End User Material (in this clause 12, “Confidential Information”).12.2 Neither Party shall divulge Confidential Information to any person (except to the Customer’s professional advisers and to the End Users), without the Supplier’s prior written consent, provided that this Clause 12 shall not extend to information which was lawfully in the possession of the Customer prior to Commencement Date, which is already public knowledge before it comes into the Customer’s possession, or which is required by law to be disclosed.
12.3 The Customer shall ensure that the End Users are aware of and comply with the provisions of this Clause 12.
12.4 The Supplier shall process personal data supplied to it automatically by the Website and in the course of developing, maintaining or administering the Website and otherwise for the purposes of complying with its obligations under this Agreement. The Supplier shall not process such personal data for any other purposes whatsoever without the Customer’s prior written consent or instruction.
12.5 The Supplier has in place and shall maintain appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to, personal data.
12.6 The foregoing obligations as to confidentiality shall survive any termination of this Agreement.
Termination
13.1 Except as permitted by the following terms of this clause 13 the Customer may not terminate this Agreement except by written notice delivered to the Supplier and received by the Supplier not less than 30 days before the expiry of the then current Licence Period, such notice to take effect on the expiry of the then current Licence Period provided that the Supplier shall remind the Customer (or any End User) of the approach of the termination period by giving notice not less than 60 days before the expiry of the then current Licence Period.13.2 This Agreement may be terminated forthwith by either Party (“the Innocent Party”) on written notice at any time before the expiry of the Licence Period in the event of misfeasance or a breach of this Agreement (including any breach of warranty) by the other Party (“the Defaulting Party”), in the event that the Defaulting Party fails to remedy such misfeasance or breach within a period of 5 Business Days from the date of written notice from the Innocent Party to the Defaulting Party identifying the misfeasance or breach and requesting it be remedied.
13.3 This Agreement may be terminated forthwith by either Party on written notice if the other Party shall convene a meeting of creditors, or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors, or if the other Party shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other Party, or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other Party, or for the making of an administration order (other than a reconstruction, amalgamation or transfer of any engagement).
13.4 For the avoidance of doubt any breach of the terms of clause 12 (Confidentiality) shall be deemed incapable of remedy and shall entitle the Innocent Party to terminate this Agreement forthwith.
13.5 Any termination of this Agreement shall be without prejudice to any other rights or remedies either Party may be entitled to under this Agreement or at law which have accrued prior to or as a result of termination of this Agreement and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
13.6 On termination of this Agreement (whether by expiry or otherwise):
(a) the Customer and the End Users shall stop using or attempting to use the End User Guidance and the Website and the Client-side Software and shall uninstall and delete all elements of the End User Guidance and the Website and the Client-side Software residing on the Customer System and (in breach of this Agreement) on any other system;
(b) the Customer may retain all reports generated by the User Functionality; and
(c) the Customer shall immediately destroy all copies of the End User Guidance and all web-pages and other traces of the Website and the Client-side Software from the Wide Customer System, and all other information received from the Supplier (and shall procure that each End User do likewise) and shall at the Supplier’s request certify its and their compliance with this clause; and
(d) the Customer may at the Customer’s cost and expense request and the Supplier shall provide a copy of all the Customer’s data and information inputted by the End Users and held on the Website.
14 Dispute resolution
14.1 Each dispute which may arise under this Agreement or with respect to any matter arising out of or in relation to this Agreement may be notified by one Party to the other in writing for resolution in accordance with this clause 11 (“Notice”) and shall initially be subject to discussion and resolution by the Supplier Representative and the Customer Representative who shall use their reasonable endeavours to resolve the dispute.14.2 If the dispute is not resolved in accordance with clause 14.1 within 10 Business Days from and including the date of the Notice the dispute shall from and including the eleventh Business Day be subject to discussion and resolution by the Senior Representatives, who shall use their reasonable endeavours to resolve the dispute.
14.3 If the dispute is not resolved in accordance with clause 14.1 or 14.2 above within 20 Business Days from and including the date of the Notice the terms of clause 14.4 shall apply.
14.4
(a) The Parties shall attempt to settle the dispute by mediation in accordance with the Centre for Effective Dispute Resolution’s (“CEDR”) Model Mediation Procedure. If there is any point on the conduct of the mediation (including as to the nomination of the mediator) upon which the Parties cannot agree within 25 Business Days of the Notice, at the request of either Party CEDR Solve will decide that point for the Parties, having consulted with them and the mediation shall take place within 50 Business Days of the Notice.
(b) Expert’s or mediator’s fees incurred pursuant to this clause 14.4 shall be borne by the Parties in equal shares unless such expert or mediator determines that the conduct of either Party is such that the fees should be borne in different shares.
14.5 The dispute may be referred to the courts of England provided that, for the avoidance of doubt, the Parties have exhausted the procedure set out in this clause 14.
14.6 Notwithstanding the terms of clause 14.5 either Party may seek a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary to avoid irreparable damage
15 Notices
15.1 Any notice to be given by one Party to the other under or in connection with this Agreement or the Website shall be in writing and sent by first class, registered or recorded delivery post and be sent to the address of the receiving Party set out in this Agreement (or such other address as either party may notify to the other party from time to time.)15.2 Any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery, or if sent by post, upon expiration of 48 hours after posting.
16 Force Majeure
16.1 The Supplier shall not be liable for any breach of its obligations under this Agreement that where it is necessarily prevented from observing or performing such obligations by some matter that arises from causes beyond its reasonable control (“Force Majeure”).16.2 The Supplier agrees to give notice forthwith to the Customer upon becoming aware of any Force Majeure, and such notice shall contain details of the circumstances giving rise to the Force Majeure, the likely duration and the effects of the Force Majeure. The Supplier shall use its reasonable endeavours to circumvent the Force Majeure and find alternative means of observing and performing its obligations or to remove or neutralise the Force Majeure.
17 Assignment and Sub-Contracting
17.1 The Customer may not assign, novate, charge, transfer or otherwise deal with this Agreement or the Customer’s rights or obligations under it without the prior written consent of the Supplier.17.2 The Customer may not sub-contract or otherwise share performance of any of its obligations under this Agreement.
17.3 The Customer may not share the benefit of its rights under this Agreement except with the End Users in accordance with this Agreement.
18 General
18.1 Any and all sums referred to in this Agreement rare stated exclusive of any Sales Tax which may be payable in addition to such sum by the Customer.18.2 This Agreement constitutes the entire agreement between the Parties and supersedes all previous written or oral agreements between the Parties in respect of the Website and each Party hereby irrevocably releases all rights and claims it may have under or in connection with such prior agreements. In particular (but without limitation) the terms of this Agreement shall take precedence over any standard terms issued by the Customer and received by the Supplier under or in connection with this Agreement or the Website.
18.3 Without prejudice to either party’s rights in respect of future representations or fraudulent misrepresentation made by either Party, each Party hereby agrees that in entering into this Agreement it has not relied on any prior representation not recorded in this Agreement.
18.4 If any provision of this Agreement shall be found, by any court or administrative body of competent jurisdiction, to be void, invalid or unenforceable, the voidance, invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not so affected shall remain in full force and effect to the extent this shall be lawful and commercially viable for both Parties.
18.5 The Parties hereby agree to attempt to substitute a valid and enforceable provision for any provision, which is held to be void, invalid or unenforceable.
18.6 No variation of the terms of this Agreement shall be valid unless made by deed attested by duly authorised signatories of both Parties on or after the date of this Agreement. Any variation shall take effect on the date specified in such deed.
18.7 The Supplier shall be entitled but not obliged at any time to set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, howsoever arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination. Any exercise by the Supplier of its rights under this clause shall be without prejudice to any other rights or reme¬dies available to the Supplier under this Agreement or otherwise.
18.8 Any sum due to either Party under this Agreement that remains unpaid 30 Business Days after the due date shall accrue interest, from and including the due date until the date of the last payment of such sum, at the base lending rate of ¦ Bank plc or 5% per annum (whichever is lower). With reference to the Parties’ respective rights under the Late Payment of Commercial Debts (Interest) Act 1998 the Parties each herby irrevocably waive their rights.
18.9 The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies otherwise available by law to either Party.
18.10 Failure by either Party to exercise or enforce any rights under or in connection with this Agreement shall not be deemed to be a waiver of such rights or a bar on the exercise or enforcement of such right subsequently. No provision of this Agreement shall be treated as being waived unless such waiver is in writing signed by the Party waiving its right.
18.11 No person other than the Parties shall have any rights under or in connection with this Agreement by virtue of the contracts (Rights of Third Parties) Act 1999, and neither Party shall require the consent of any Third Party in relation to this Agreement.
18.12 Each Party shall pay its own legal costs and expenses incurred by it leading to such Party’s entry into this Agreement unless otherwise stated in this Agreement.
19 Governing law and jurisdiction
This Agreement shall be governed by and construed in accordance with English law. Disputes arising in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts.
Issue Date: September 2005
