| This page complements our Data Processing Addendum and Privacy Policy. |
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| Last Updated: 15/01/21 |
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| BACKGROUND |
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| (A) | The Service Provider (as defined below) has developed website template and e-commerce portal software ("the Software") which is used to provide the Template (as defined below) to the Client (as defined below). |
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| (B) | The Client wishes to appoint the Service Provider and the Service Provider wishes to host such Software on its systems and provide access to such Software to the Client together with ancillary services from time to time on the terms and conditions of this Agreement. |
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| THE PARTIES HAVE AGREED as follows: |
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| 1 | DEFINITIONS |
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| 1.1 | In this Agreement, unless the context otherwise requires, the following expressions have the following meanings: |
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| | "Business Day" means a day which is not a Saturday, a Sunday or a public holiday in England and Wales; |
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| | "Client" means the Company or individual entering into these terms and conditions; |
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| | "Client Material" means the Client Software any designs, logos, artwork, information or other content supplied by the Client for use in connection with the Software or otherwise for use by the Service Provider in its provision of the Services; |
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| | "Client Software" means the Website and the software used in the same which is either owned by the Client or licensed to it by a third party; |
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| | "Confidential Information" means all information concerning the business, finances, technology, solutions, clients or commercial affairs of a party or its clients which is described as confidential by the party providing the information or which, by its nature, should be assumed to be confidential, to include, but not limited to, the negotiations relating to and the subject matter of this Agreement (as the same may be amended or supplemented from time to time); |
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| | "Data Processing Addendum" means the addendum to this Agreement found at https://www.bluepark.co.uk/dpa.html; |
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| | "Data Protection Laws" means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data; |
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| | "Documentation" means the operating and user manuals for the Software supplied by the Service Provider and any modification to them which are supplied to the Client during the subsistence of this Agreement; |
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| | "Effective Date" means the date that the client uploads its content and providing the Client Material; |
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| | "Fees" means the fees to be paid by the Client to the Service Provider for the provision of the Services, more particularly detailed on the Service Provider's website; |
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| | "Intellectual Property Rights" means patents, trade marks, Internet domain names, service marks, registered designs, applications for registration of any of the foregoing, copyright, database rights, design rights, trade and business names, semiconductor topography rights, trade secrets and know how and any other similar protected rights in any country subsisting now or in the future; |
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| | "IP Address" means the internet protocol address which is the numeric address for the Server; |
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| | "Services" means the services detailed on the Service Provider's website for which the Client contracts; |
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| | "Service Hours" means the hours between midnight and 6 am Greenwich Mean Time or such other seasonal time variation as is applicable in the United Kingdom from time to time; |
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| | "Service Provider" means Bluepark Solutions Limited (registered number 05233290); |
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| | "Service Provider's Website" means the website located at the url www.bluepark.co.uk or such other url from time to time; |
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| | "Template" means the website template developed by the Service Provider utilising or incorporating the Software and forming part of the Services; |
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| | "Website" means the Client's website developed using the Template and hosted by the Service Provider as part of the Services. |
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| | "Third Party Services" means any third party service, product, website, information or materials, provided in connection with the Services or Website that are not exclusively operated or controlled by the Service Provider. |
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| 1.2 | In this Agreement references to clauses are to the clauses of this Agreement; headings are for convenience only and do not affect interpretation of this Agreement; references to statutes and statutory provisions shall be construed as amended or replaced and as including any subordinate legislation made under them in any such case from time to time. |
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| 2 | PROVISION OF SERVICES |
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| 2.1 | In consideration of the payment of the Fees, the Service Provider shall provide the Services including: |
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| | 2.1.1 | providing the Client with access to the Software; |
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| | 2.1.2 | hosting and supporting the Software as set out in clauses 3 and 4 below; |
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| | 2.1.3 | any other services as the parties may from time to time agree, for example, training. |
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| 2.2 | The Service Provider reserves the right to alter or modify the Software including but not limited to the functionality of the Software, from time to time, as it deems appropriate to enhance the functionality or performance of the Software. |
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| 2.3 | The Service Provider shall maintain control and ownership of the IP Address that is assigned to the Client as part of the Services and reserves the right in its sole discretion to change or remove any and all IP Addresses. |
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| 2.4 | Where the Service Provider changes or removes any IP Address it shall use its reasonable endeavours to avoid any disruption to the Client. |
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| 2.5 | The Service Provider will issue the Client with personal identification information (username and password) that will allow the Client and its employees to access and use the Software. |
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| 2.6 | The Client agrees that it will ensure that its employees keep confidential the personal identification information issued by the Service Provider in accordance with clause 2.5 and will not disclose it to third parties. The Client will be responsible for any unauthorised use of personal identification information. The Client will notify the Service Provider immediately in writing upon becoming aware of any known or suspected unauthorised use of such personal identification information in order that Service Provider can prevent further use of that personal identification information. |
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| 2.7 | The Client may not lease, sub-licence, loan, resell or otherwise distribute access to the Software or otherwise permit access to or use of the Software by or on behalf of any third party. |
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| 2.8 | The Client warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure the access to the Software granted under this Agreement is limited as set out under this Agreement. |
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| 2.9 | The Service Provider does not set limits on bandwidth usage (web traffic or data transfer) but operates a "fair" usage policy. The Service Provider reserves the right to prevent any misuse of the resource by the Client, to maintain the resource for all Clients and to protect server performance. |
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| 2.10 | The Client shall be responsible for informing the Service Provider of a transfer of business ownership where use of the Software is involved. The Service Provider reserves the right to suspend access to the Software in the event of a dispute as to rightful ownership until a resolution has been determined by the parties involved. |
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| 3 | HOSTING OF THE SOFTWARE |
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| 3.1 | The Service Provider shall use its reasonable endeavours to ensure that during the term of this Agreement the Client's access to and use of the Software as hosted by the Service Provider functions effectively, subject to routine maintenance, repairs, configurations or upgrades of the same. Any routine maintenance will be carried out in the Service Hours whenever reasonably possible. |
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| 3.2 | The Service Provider shall have no liability to the Client in respect of the Client's inability to access the Software or errors in the functioning of the Software and or Services which are attributable to errors in or made by or failures in the performance of the Client's hardware or operating systems; failure of internet connections; operator error; provision of incorrect information by the Client; power failures; and malicious interference by any third party. |
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| 4 | SUPPORT AND MAINTENANCE |
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| 4.1 | The Service Provider shall use its reasonable endeavours to ensure that during the term of this Agreement the Software is accessible by the Client; and the Client's access to and use of the Software functions effectively, subject to routine and emergency maintenance, repairs, configurations or upgrades of the same. |
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| 4.2 | On opening an account, the client will be asked to nominate a primary support contact. The Client's account details including those of the primary support contact can be amended by the Client at anytime. The Service Provider shall not be under any obligation to respond to support queries raised by representatives other than the Client's nominated primary support contact. |
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| 4.3 | The Service Provider will supply the Client with a help desk number and e-mail address to which the Client shall direct all Software and Services queries. Such help desk and e-mail address will be manned during the Service Provider's normal business hours. |
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| 4.4 | The Service Provider will promptly acknowledge receipt and respond to any problems with the Services notified to it via the support telephone number or e-mail address given to the Client by the Service Provider and as soon as reasonably practicable investigate the reported problem and thereafter use its reasonable endeavours, taking into account the severity level of the problem, to promptly correct such problem. |
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| 4.5 | If the Service Provider is of the opinion that it cannot resolve the problem or provide a workaround to the problem, the Service Provider shall notify the Client and provided the failure substantially hinders or prevents the Client from using a material part of the functionality of the Services, the Client shall be entitled to terminate this Agreement forthwith by written notice to the Service Provider and recover a pro-rata refund of the Fees paid by the Client reflecting the unexpired period covered by such Fees. |
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| 4.6 | The problem resolution service in clauses 4.3 and 4.4 shall not include the provision of services in respect of problems attributable to any of the circumstances in clause 3.2. Should the Service Provider agree to provide any support that falls within such exclusion, the Service Provider shall be entitled to make an additional charge in accordance with its standard scale of charges from time to time in force. |
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| 4.7 | The Service Provider shall be entitled to suspend access to the Services on reasonable notice to the Client for such period as may be reasonably required for maintenance, repairs or improvements; and without prior notice to the Client for exceptional operational reasons. |
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| 5 | USE OF THE SERVICE |
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| 5.1 | The Client shall provide the Service Provider with any Client Material necessary for the performance by the Service Provider of the Services in such format as the Service Provider shall reasonably require. |
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| 5.2 | All alterations and updates to the Website shall be made by the Client using the online account management facility. The Client will be issued with a user name and password in order to access the account pursuant to clause 2.5. |
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| 5.3 | The Client agrees to co-operate with the Service Provider by making its nominated management and employees available by telephone, e-mail or in person, as reasonably necessary, to provide such information, services, support and other assistance as may be reasonably required by the Service Provider in its provision of the Services. |
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| 5.4 | The Client shall obtain, at its cost and expense and before supplying any Client Material to the Service Provider, all necessary approvals, authorisations, consents, licences and waivers necessary for use by the Service Provider of the Client Material such that the Service Provider and its sub-contractors shall have an unfettered and unconditional right to use, copy, add to or modify the Client Material for use in connection with the Services as envisaged by this Agreement. |
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| 6 | DATA PROTECTION |
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| 6.1 | Each party to the Agreement undertakes to comply with its obligations under the relevant applicable Data Protection Laws and the Data Processing Addendum. |
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| 6.2 | The Client shall be responsible for any data transmitted by or on behalf of the Client. |
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| 6.3 | To the extent that such data contains Personal Data (as defined in the applicable Data Protection Laws), the Client warrants that it has complied with its obligations under such laws and shall indemnify and keep indemnified the Service Provider against any losses, damages, costs or expenses suffered by the Service Provider as a result of a breach of such warranty. |
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| 6.4 | The Service Provider will carry out the processing (as defined by the applicable Data Protection Laws) of Personal Data transmitted by or on behalf of the Client only to the extent necessary for the provision of the Services and will not divulge the whole or any part of the Personal Data to any person, except to the extent necessary for the proper performance of the Services or as permitted by the Client. |
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| 6.5 | The Service Provider will ensure that it has appropriate security measures in place to safeguard against any unauthorised access or unlawful proceedings or accidental loss, destruction or damage or disclosure of such Personal Data. |
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| 7 | INTELLECTUAL PROPERTY |
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| 7.1 | The Client acknowledges that the Intellectual Property Rights in the Software and the Template are and shall remain the property of the Service Provider and that the Client will not obtain any rights in the Intellectual Property Rights in the Software other than as expressly granted to it under this Agreement. |
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| 7.2 | The Service Provider acknowledges that the Intellectual Property Rights in the Client Material are and shall remain the property of the Client or its licensors as the case maybe and that the Service Provider will not obtain any rights in the Intellectual Property Rights in the Client Material other than expressly granted to it under this Agreement. |
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| 7.3 | The Client grants to the Service Provider a non-exclusive, non-transferable, royalty-free, worldwide licence to use the Client Material only to the extent necessary for it to carry out its obligations under this Agreement. The Service Provider may make such copies as may be necessary to perform its obligations under this Agreement, including back up copies of such Client Material. Upon the termination or expiration of this Agreement, the Service Provider shall destroy or deliver to the Client any copies of the Client Material and other materials provided by the Client as remain in the Service Provider's possession or control. |
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| 7.4 | The Service Provider grants to the Client and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use the Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Client any right, title, interest or Intellectual Property Rights in the Software. |
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| 7.5 | The Client undertakes that he will not himself or through any third party, sell, lease, license or sublicense the Software. If the Client is permitted under this Agreement or by law to make any copies of the same, the Client must reproduce all proprietary notices of the Service Provider, if any, on the copies. The Service Provider may make such copies of the Client Materials as may be necessary to perform its obligations under this Agreement, including back up copies of the same. Upon termination or expiration of this Agreement, the Service Provider shall destroy or deliver to the Client all such copies of the Client Material and such other materials provided by the Client as and when requested by the Client. |
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| 7.6 | The Service Provider shall maintain control and ownership of the IP address that is assigned to the Client as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses. |
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| 7.7 | Where the Service Provider changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Client. |
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| 8 | INTELLECTUAL PROPERTY RIGHTS INDEMNITY |
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| 8.1 | Subject always to the Client's proper observance of its obligations under this clause 8 the Service Provider shall at its own expense, defend or, at its option settle any third party claim or suit alleging that the use by the Client of the Software or any part of it infringes any Intellectual Property Rights belonging to a third party ("a Claim") and agrees to be responsible for any reasonable costs involved and to pay any damages finally awarded against the Client in any such Claim by a competent court of jurisdiction provided that: |
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| | 8.1.1 | the Client shall immediately notify the Service Provider if a Claim is made against the Client and agrees to grant to the Service Provider exclusive control of all litigation and negotiations in connection with such Claim; |
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| | 8.1.2 | the Client shall at the request and expense of the Service Provider afford to the Service Provider all reasonable assistance for the purpose of contesting any Claim; |
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| | 8.1.3 | the Client shall not make any admissions (save where required by court order or governmental regulations) which may be prejudicial to the defence or settlement of any Claim without the approval of the Service Provider (not to be unreasonably withheld or delayed). |
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| 8.2 | If a Claim is made or in the reasonable opinion of the Service Provider is likely to be made, the Service Provider may at its own expense either: |
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| | 8.2.1 | modify any part of or all of the Software without reducing the performance and functionality of the same so as to avoid the infringement or the alleged infringement, or; |
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| | 8.2.2 | procure a licence to use the infringing or potentially infringing part of the Software on terms which are acceptable to the Client (acting reasonably); or |
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| | 8.2.3 | if neither causes of action under clauses 8.2.1 or 8.2.2 are reasonably practicable or economical, terminate the Agreement and refund to the Client the Fees paid by the Client to the Service Provider less a pro rata deduction corresponding to the period of use of the Services by the Client prior to such termination. |
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| 8.3 | If the Service Provider has availed itself of its rights to modify the Software pursuant to clause 8.2.1 or to procure a licence under clause 8.2.2 and has therefore avoided any Claim, then the Service Provider shall have no further liability in respect of that Claim. |
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| 8.4 | The provisions of clauses 8.1 and 8.2 shall not apply insofar as any such Claim is in respect of: |
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| | 8.4.1 | the use by the Client of the Software or any part thereof in a manner not reasonably to be anticipated by the Service Provider when supplying the same to the Client; or |
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| | 8.4.2 | the Client Material; or |
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| | 8.4.3 | designs or specifications supplied by the Client. |
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| 8.5 | Subject always to the Service Provider's proper observance of its obligations under this clause 8.5, the Client shall at its own expense, defend, indemnify and hold the service provider harmless against or, at its option settle any third party claim or suit alleging that the use of the Client Material or any part of them in accordance with this Agreement infringes any Intellectual Property Rights belonging to a third party ("a Materials Claim") and agrees to be responsible for any reasonable costs involved and to pay any damages finally awarded against the Service Provider in any such Materials Claim by a court of competent jurisdiction provided that: |
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| | 8.5.1 | the Service Provider shall immediately notify the Client if a Materials Claim is made against the Service Provider and agrees to grant to the Client exclusive control of all litigation and negotiations in connection with such Materials Claim; |
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| | 8.5.2 | the Service Provider shall at the request and expense of the Client afford to the Client all reasonable assistance for the purpose of contesting any Materials Claim; |
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| | 8.5.3 | the Service Provider shall not make any admissions (save where required by court order or governmental regulations) which may be prejudicial to the defence or settlement of any Materials Claim without the approval of the Client (not to be unreasonably withheld or delayed). |
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| 8.6 | The Client shall defend, indemnify and hold harmless the Service Provider against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Software or Services. |
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| 8.7 | The foregoing states the Client's sole and exclusive rights and remedies, and the Service Provider's entire obligations and liability, for patent, copyright, database or right of confidentiality infringement. |
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| 9 | FEES, PAYMENT AND REFUNDS |
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| 9.1 | The Client shall pay the Fees for the Services, monthly in advance, and will receive notification by e-mail, on the date of the initial purchase ("the Billing Notification") of billing monthly, and monthly thereafter of billing on a recurring transaction basis. |
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| 9.2 | The Client shall be given 30 days notice, in writing, of any increases to the Fees in accordance with the prices and terms listed on the Service Provider's Website. |
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| 9.3 | Should the Client elect to upgrade or downgrade the Services supplied, a written request by e-mail is required. The "initial purchase" billing date will be retained for billing purposes and the changed Fees applied accordingly. |
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| 9.4 | The Client may incur additional Fees by exceeding any pre-determined allowance to specified Services. On initiation of the use of such specified Services, the Client will be advised by an electronic "popup" notification that additional Fees may be incurred. The Client will be required to confirm their willingness to proceed. On completion of the use of such specified Services, the Client will be advised immediately by an electronic "popup" notification of the additional Fees due. The additional Fees due will be charged on the next monthly billing date. |
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| 9.5 | Any bespoke services supplied by the Service Provider in addition to the Services shall be charged for by the Service Provider on a time and materials basis. The Client shall reimburse the Service Provider's reasonable travel, accommodation and subsistence expenses incurred in the provision of such services which are in accordance with the Client's expenses policy or pre-authorised by the Client. |
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| 9.6 | The Client shall pay Fees on receipt of the Billing Notification or where otherwise agreed within 30 days of the date of the Service Provider's Invoice ("the Due Date"), without deduction or set-off against the relevant Billing Notification. |
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| 9.7 | In the event that the Client does not make payment by the Due Date, the Service Provider may, without prejudice to any other rights and remedies at its option: |
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| | 9.7.1 | charge the Client interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and |
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| | 9.7.2 | suspend its provision of the Services. |
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| 9.8 | All amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Client, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice. |
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| 9.9 | In the event the Client is not entirely satisfied with the Services, for any reason, within 30 days of the initial purchase date ("the initial period"), the Service Provider will provide a full refund of the fees paid, upon receipt of a written termination request. Subsequent fees paid are non-refundable. |
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| 10 | CONFIDENTIALITY |
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| 10.1 | Each party shall keep strictly confidential all Confidential Information received directly or indirectly from the other party. Such Confidential Information shall not be disclosed to any third party other than the employees and authorised subcontractors of the receiving party and such receiving party shall not use any such Confidential Information for any purpose other than the performance of the Agreement. Further, it is agreed by the parties that each party shall procure that its employees and subcontractors act in a manner consistent with the obligations of confidentiality set out herein. |
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| 10.2 | Either party may disclose information which would otherwise be Confidential Information if and to the extent that: |
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| | 10.2.1 | that party is required to do so by law provided that the party disclosing the information shall notify the other party as soon as reasonable of its intention to disclose the information or of the fact that it has had to disclose the information; |
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| | 10.2.2 | it is information which has come into the public domain through no fault of the receiving party; |
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| | 10.2.3 | it is reasonably required to be disclosed to employees or subcontractors of such party, subject to such employees or subcontractors being under obligations of confidentiality no less onerous than as set out in this clause; |
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| | 10.2.4 | that party is permitted by the other party to do so in writing in advance; |
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| | 10.2.5 | it is information in the possession of the receiving party prior to disclosure under this Agreement or is disclosed to the receiving party by a third party without breach of any obligation of confidentiality owed to the disclosing party; or |
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| | 10.2.6 | it is information that is independently developed by personnel of the receiving party having no access to the other party's Confidential Information. |
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| 10.3 | The provisions of this clause 10 shall remain in full force and effect notwithstanding any termination of this Agreement. |
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| 11 | ACCEPTABLE USE POLICY |
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| 11.1 | The Website and the Services may be used for lawful purposes only and the Client may not submit, publish or display any content that breaches any law, local, national or international, statute or regulation. In particular, (but without limitation) the Client agrees not to: |
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| | 11.1.1 | transmit, or procure the sending of any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (SPAM); |
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| | 11.1.2 | send e-mail or any type of electronic message with the intention or result of affecting the performance of any computer facilities; |
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| | 11.1.3 | publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights, via the Services or on the Website; |
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| | 11.1.4 | threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others; |
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| | 11.1.5 | engage in illegal or unlawful activities through the Services or via the Website; |
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| | 11.1.6 | knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or |
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| | 11.1.7 | access without authority, interfere with, damage or disrupt: |
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| | 11.1.7.1 | any equipment or network on which the Website is stored; |
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| | 11.1.7.2 | any software used in the provision of the Services; |
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| | 11.1.7.3 | any equipment or network or software owned or used by any third party. |
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| 11.2 | The Client has full responsibility for the content of the Website. For the avoidance of doubt, the Service Provider is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services. |
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| 11.3 | If the Client fails to comply with the Acceptable Use Policy outlined in clause 11.1 the Service Provider shall be entitled to withdraw the Services and terminate the Client's account forthwith and without further notice. |
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| 12 | WARRANTIES |
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| 12.1 | The Service Provider warrants that it shall use reasonable skill and care in the provision of the Services. |
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| 12.2 | If the Service Provider receives written notice from the Client of any breach of the warranty at clause 12.1 then the Service Provider's sole liability shall be to remedy the breach within a reasonable time and without charge to the Client, or, in the event that the breach is incapable of remedy to refund to the Client such proportion of the Fees as shall correspond to the period during which the breach took place. |
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| 12.3 | No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the Client's requirements or that the Services will operate uninterrupted or error free. |
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| 12.4 | Except as expressly stated in this Agreement all other warranties, representations (unless made fraudulently), terms and conditions are excluded to the fullest extent permitted by law. |
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| 13 | LIMITATION OF LIABILITY |
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| 13.1 | The following provisions set out the entire financial liability of the Service Provider (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of: |
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| | 13.1.1 | any breach of this Agreement; and |
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| | 13.1.2 | any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement. |
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| 13.2 | Nothing in this Agreement excludes or limits the liability of the Service Provider for death or personal injury caused by the Service Provider's negligence or for fraudulent misrepresentation. |
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| 13.3 | Subject to clause 13.2, the Service Provider shall not be liable to the Client for any indirect, consequential, special or punitive loss, damage, costs and expenses; loss of profit; loss of business; loss of reputation; depletion of goodwill; or loss of, damage to or corruption of data. |
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| 13.4 | Subject to clauses 13.2 and 13.3, the Service Provider's total liability to the Client under or connected with this Agreement for: |
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| | 13.4.1 | damage to the Client's tangible property resulting directly from the Service Provider's negligence or that of its employees shall not exceed £250,000 for any one event or series of connected events; |
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| | 13.4.2 | any other loss or damage not covered by clause 13.4.1 and which arises directly out of the Service Provider's negligence, shall not exceed £250,000 for any one event or series of connected events; |
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| | 13.4.3 | any other loss not covered by clauses 13.4.1 or 13.4.2, shall not exceed 125% of the Fees payable by the Client for the 12 month period immediately preceding a Claim arising. |
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| 13.5 | For the purposes of this clause 13, a "Claim" shall mean any one event giving rise to a claim or, where there is more than one event giving rise to a claim, then a series of connected events. |
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| 14 | DURATION AND TERMINATION |
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| 14.1 | This Agreement shall commence on the Effective Date and shall remain in full force and effect for 1 month ("the Initial Period") and thereafter for successive periods of one month unless and until terminated by either party giving to the other not less than 1 month's notice in writing to be given at any time after the end of the Initial Period unless terminated in accordance with the provisions of clause 14.2. |
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| 14.2 | This Agreement may be terminated forthwith: |
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| | 14.2.1 | by the Service Provider if the Client fails to make any payment on the due date and payment has not been made within 7 days of a written request for the same; |
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| | 14.2.2 | by either party if the other commits any material breach of any term of this Agreement (other than one falling within clause 14.2.1) and which (in the case of a breach capable of being remedied) has not been remedied within 21 days of a written request to remedy the same; |
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| | 14.2.3 | by either party if an order is made or a resolution is passed for the winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the court to make a winding-up order or the other party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction. |
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| 14.3 | Any termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law or any accrued rights or liabilities of either party or the coming into or continuance in force of any term of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination. |
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| 15 | THIRD PARTY SERVICES |
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| 15.1 | If a Client makes use of any Third Party Service they agree that they are solely responsible for their relationship with the Provider of the Third Party Service. The Client agrees that the Providers of Third Party Services are solely responsible for their own actions or inactions. |
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| 15.2 | The Client acknowledges that the Service Provider has no control over Third Party Services and is not liable for any damages, claims or liabilities arising out of or related to any Third Party Services. |
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| 15.3 | The Client agrees that they will not use Third Party Services in a manner that would violate their agreement with the Service Provider and that they will comply with the Terms and Conditions of any Third Party Services they engage with. |
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| 15.4 | The Client agrees that they will not use Third Party Services to engage in fraudulent, criminal or unlawful activity. |
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| 15.5 | The Service Provider reserves the right to disable or discontinue access to any Third Party Services at its discretion. |
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| 16 | FORCE MAJEURE |
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| 16.1 | The Service Provider shall not have any liability under this Agreement to the extent that the performance of its obligations is delayed, hindered or prevented by an Event of Force Majeure. |
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| 16.2 | If the period for which the Service Provider's performance is delayed, hindered or prevented by an Event of Force Majeure continues for more than 60 days, then either party may terminate the Project Orders affected by such Event forthwith by notice to the other. |
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| 16.3 | "Event of Force Majeure" shall mean fire, storm, flood, earthquake, accident, adverse weather conditions, explosions, Acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions, strikes, lock-outs, industrial action, employment dispute, protests, public disorder, traffic congestion, accident, breakdown, vandalism, interruptions in communications or power supply, shortages of materials or supplies, failure or malfunction of computer systems or any other event or circumstance outside the control of a party to this Agreement. |
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| 17 | NOTICES |
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| 17.1 | Any notice, request, instruction or other document to be given by a party under this Agreement shall be delivered by hand, sent by pre-paid first class post, or by facsimile or e-mail transmission to the recipient's usual fax number or e-mail address or such other address, fax number or e-mail address which may be notified by that party in accordance with this clause 17.1. |
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| 17.2 | Unless proved otherwise, a notice shall be deemed to have been received if delivered by hand, at the time of delivery; if sent by facsimile or e-mail during the Business Day of transmission as long as the sender can show satisfactory transmission; and if sent by post, 48 hours after posting. |
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| 18 | GENERAL |
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| 18.1 | The terms and conditions of the Agreement are the entire agreement between the parties with regard to their subject matter and no other terms, conditions, warranties or statements (unless fraudulent) will apply. Each party acknowledges that in entering into the Agreement it does not do so on the basis of, and does not rely on any representation, unless made fraudulently, warranty or other provision not expressly contained in the Agreement. Any variation to the Agreement, by the Service Provider, will be published on the Service Provider's Website and date stamped. If a court decides that any part of the Agreement cannot be enforced, that particular part of the Agreement will not apply, but the rest of the Agreement will. A waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Agreement shall not prevent the exercise of that or any other right. The Client may not assign or transfer any benefit, interest or obligation under the Agreement without the prior written consent of the Service Provider. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, agency or joint venture between the parties or be deemed to constitute either party the agent of the other for any purpose and neither party shall have any authority or power to bind the other or to contract in the name of the other of or create a liability against the other. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English courts. |
