The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: means the contract between the Customer and the Supplier which incorporates these Terms and Conditions;
Business Day: a day other than a Saturday, Sunday or English public holiday.
Charges: the charges in respect of the Services as agreed between the Parties together with any charges arising under the terms of this Agreement.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
Deliverables: means those deliverables that are to be provided by the Supplier to the Customer as part of the Services.
Contract Term: the period during which the Customer requests access to the Services.
Effective Date: the date of this Agreement.
Data Protection Laws: the Data Protection Act 2018, the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and any successor legislation, and the terms “data controller”, “data processor”, “Personal Data” and “Data Subject” shall have the meanings as under those acts.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade-marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: the information, data or content provided to the Supplier by the Customer from time to time for incorporation or use in the Services.
Module: Individual Software applications forming part of the Services.
Software Application: Software including but not limited to that developed by Productive Machines Limited
Services: the services, together with any training and/or ancillary services, to be provided by the Supplier pursuant to these terms.
Subscription Fee: the subscription fee levied per Module or per set of Modules on a per month or per year basis for the Software Applications payable by the Customer.
Supplier: Productive Machines Limited, company number 12227915, whose registered office is at AMP Technology Centre, Catcliffe, Rotherham S60 5WG.
1.2 Clause headings do not affect the interpretation of this Agreement.
1.3 References to clauses are (unless otherwise provided) references to the clauses of this Agreement.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and vice-versa.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 References to content include any kind of text, information, image, audio or video material which can be incorporated in a website for access by a visitor to that website.
2.1 The Supplier has developed certain Software Applications and platforms which it makes available to Customers on a subscription basis payable per Module. Modules are priced individually on a per month or annual contract basis. In consideration of the Subscription fee, the Supplier shall provide the Services for the respective Module for the Contract term.
3.1 The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any Materials the Customer provides to the Supplier.
3.2 The Customer shall provide the Supplier via the Software with access to, and use of, all Materials reasonably required by the Supplier for the performance of its obligations under this Agreement.
3.3 The Customer will inform the Supplier via its ticketing system as soon as it becomes aware of any issues with the delivery or quality of the Services provided.
3.4 The Customer shall be responsible (at its own cost) for preparing the supply of the Services and provide in a timely manner such access to the Customer’s data as is requested by the Supplier for the provision of the Services.
3.5 The Customer grants the Supplier the right to use the resulting outcome of the Deliverables within its promotional material, on the understanding that the name of the Customer will be withheld and reference made solely to the applicable industry sector in which the Customer operates.
4.1 The Charges for the Services shall be set out on the Supplier’s website or as specified in a separate agreement signed by the Parties.
4.2 Unless otherwise agreed, the Supplier shall issue an invoice in respect of the Charges, and the Customer shall pay in full, and in cleared funds, to the Supplier the Charges set out in such invoice.
4.3 The Customer hereby acknowledges and agrees upon entering into this Agreement any Charges specified by the Supplier must be paid in a timely manner, and time for payment shall be of the essence of the Contract.
4.4 The Supplier reserves the right to review its prices for Services, and any increases in costs to the Supplier in delivering the Services may be passed on to the Customer by way of a reasonable increase in the relevant Charges in any subsequent renewal period.
4.5 If the Customer fails to pay any sum properly due and payable under this Agreement, the Supplier may charge interest on the overdue amount at the rate of 4% per annum above the base rate for the time being of the Bank of England (or 4% per annum where the base rate falls below 0%) accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment.
4.6 The Customer hereby acknowledges and agrees that the Supplier shall have the right to suspend the Services in the event that the Customer fails to pay any sum properly due and payable under this Agreement by giving written notice to the Customer.
4.7 All payments payable to the Supplier under this Agreement shall become due immediately on termination of the Agreement despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
4.8 All amounts due under this Agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law).
5.1 Any request to change the scope of the Services shall be processed in accordance with the procedure set out in this clause.
5.2 The Supplier and the Customer shall discuss any change to this Agreement (Change) proposed by the other and such discussion shall result in either:
5.3 Such request or recommendation shall be confirmed in writing, together with any additional Charges, and such Change shall be agreed between the parties.
5.4 The Supplier reserves the right to amend or update these standard Terms and Conditions from time to time, in order to comply with any changes in applicable law which are relevant to the Services.
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
6.2 The Supplier shall provide the Software Application with reasonable care and skill. Technical support for the software will be provided via a ticketing system with a 1 business day response time.
6.3 If the Supplier breaches the warranty in clause 6.2, it shall be afforded the reasonable opportunity to investigate the failure of the provision of the Services and, if necessary, repeat performance of the part of the relevant Services, as appropriate, which are found not to conform to the warranty.
6.4 The warranty in clause 6.2 is conditional upon:
6.5 In the event that the Supplier is unable to make the Services available for use by the Customer for a period of 7 business days or more, the Supplier will issue a pro-rata refund for the period during which the Services were unavailable.
6.6 If a Technical Support query is identified as a request outside the scope of the Services, the client will be quoted for this service in line with current prices, and the Customer will have the option to contract for the Additional Services.
6.7 This Agreement sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties, or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
7.1 Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
7.2 The Supplier shall not be liable under or in connection with this Agreement, for any:
7.3 Subject to clause 7.1, each party’s maximum liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the amount of Charges paid or payable by the Customer under this Agreement.
7.4 The Supplier is supplying the Services based on an assessment made in good faith of the Customer’s requirements as expressed in the information provided by the Customer. The Supplier shall not be liable for any failure to provide or any defect in the Services to the extent that such failure or defect is caused by an omission, error, or ambiguity in the expression of the Customer’s requirements or in the Materials provided by the Customer.
8.1 All Intellectual Property Rights, but excluding the Materials, arising in connection with this Agreement shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive license of such Intellectual Property Rights for the purpose of receiving the Services. Such license shall be granted and continue subject to payment of the Charges.
8.2 The Customer grants to the Supplier, for the duration of this Agreement, a non-exclusive royalty-free license to use, operate, and copy the Customer’s Intellectual Property rights for the purpose only of performing the Supplier’s obligations under this Agreement.
8.3 The Customer shall indemnify the Supplier against all damages, losses, and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
8.4 The indemnity in clause 8.3 is subject to the following conditions:
8.5 The indemnity in clause 8.3 may not be invoked to the extent that the action or claim arises out of the Customer’s compliance with any designs, specifications, or instructions of the Supplier.
9.1 The Customer shall own all rights, title, and interest in and to all of its Personal Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Personal Data used in connection with the Services.
9.2 The Customer agrees that the Supplier may access and disclose Personal Data as required by applicable Data Protection Laws, as permitted by the Customer and as is required to provide the Services.
9.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor, and in any such case:
10.1 This Agreement shall commence on the Effective Date and shall renew automatically unless terminated in writing by the Customer prior to one calendar month before the Contract End date for fixed-term contracts or prior to 7 days before the end of the month for rolling monthly contracts, unless terminated earlier in accordance with clauses 10.2 to 10.4.
10.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
10.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other if:
10.5 On termination of this Agreement by the Supplier pursuant to clause 10.2, all licenses granted by the Supplier under this Agreement shall terminate immediately.
10.6 On expiry or termination of this Agreement otherwise than on termination by the Supplier pursuant to clause 10.2, the Supplier shall promptly return all Materials to the Customer.
10.7 On expiry or termination of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect. The termination of this Agreement, shall be without prejudice to the rights of the parties accrued up to the date of such termination.
11.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances, or causes beyond its reasonable control (including but not limited to any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot, or war) (“Force Majeure”). In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three months, the party not affected may terminate this Agreement by giving 7 days’ written notice to the affected party.
11.2 No party shall, in such circumstances, be liable to the other for any losses suffered by the other party by reason of failure or delay in the performance of their obligations under this Agreement which is due to Force Majeure. Notwithstanding this, each party shall use reasonable endeavors to continue to perform, or resume the performance of, such obligations for the duration of such Force Majeure.
12.1 Each party shall protect the Confidential Information of the other party against unauthorized disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates, and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
12.3 The obligations set out in this clause 12 shall not apply to Confidential Information which the receiving party can demonstrate:
12.4 The obligations of confidentiality in this clause 12 shall not be affected by the expiry or termination of this Agreement.
13.1 Neither party shall (without the prior written consent of the other party) at any time until the expiry of 12 months after the date of termination of this agreement utilize the services of, solicit, or endeavor to entice away from or discourage from being employed by the other party any employee of the other party whose duties have included the provision or receipt of the Services under this agreement.
13.2 Each party agrees that if it is in breach of clause 13.1, damages may not be an adequate remedy, and the party not in breach may wish to apply for an injunction or take other action. Nevertheless, each party shall, if in breach of clause 13.1, pay on demand to the other party (as is agreed to be a genuine pre-estimate of the loss likely to be suffered by the other party as a result) a sum representing the gross amount paid to the employee concerned during the last 6 months immediately prior to such solicitation plus the costs incurred by the other party in recruiting a suitable replacement.
14.1 A notice given under this Agreement:
14.2 The addresses for service of notice shall be as set out at the start of this Agreement, unless otherwise notified by either party from time to time.
14.3 A notice is deemed to have been received:
14.4 To prove service, it is sufficient to prove that the notice was transmitted to the e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
15.1 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over, or deal in any other manner with any of its rights or obligations under this Agreement without the prior written consent of the Supplier.
15.2 The Supplier may assign, transfer, mortgage, charge, subcontract, declare a trust over, or deal in any other manner with any of its rights or obligations under this Agreement.
16.1 These Terms and Conditions constitute the entire Agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
17.2 No one other than a party to this Agreement, their successors, and permitted assignees, shall have any right to enforce any of its terms.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
20.2 If any provision or part-provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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