1) GENERAL PROVISIONS
BASIS OF AGREEMENT
1.1 Where Software (as specified below) is supplied to The Customer by The Supplier, the terms of this Agreement shall govern access to and use of the said Software.
1.2 The following definitions apply to this Agreement:
“Additional User” means a User above the number of Users specified in the applicable Order.
“Affiliates” means entities controlling, controlled by or under common control with The Supplier.
“Agreement” means (subject to clause 8.1.1) the terms and conditions set out in this document (“Terms and Conditions”); the applicable Order (together with any renewal thereof); and Special Conditions (if any) agreed between The Supplier and The Customer. In case of conflict between the documents comprising this Agreement, the documents comprising the Agreement shall prevail in the following order of precedence: 1. Order Form; 2. Special Conditions; 3. these Terms and Conditions.
“Amended Terms” refers to the need for these terms and conditions to be updated periodically to ensure they correctly reflect the intended use of the Software and the provision of such by The Supplier, to The Customer.
“Charges” mean the fees payable by The Customer for the licensing of the Software as specified in the applicable Order.
“The Customer” means entity specified as The Customer on the applicable Order.
“Competitor” shall mean a Third Party that is regularly engaged in the business of developing or marketing software that performs the same or similar functions as one or more of the modules of the Software licensed hereunder by The Customer.
“Control”: an entity will be deemed to Control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
“Detrimental Amendment” means any materially detrimental change to the Agreement, including such things as an increase in Charges and/or substantial loss of content or functionality in the Software to The Customer’s detriment and for which no reasonable substitute is provided.
“Documentation” means the User Guide(s) published from time to time for the relevant software.
“Initial Subscription Period” means the period from the Start Date to the Initial Expiry as specified in the applicable Order; where the Start Date for the Software has for any reason to be adjusted, The Supplier may at its discretion either a) adjust the Initial Subscription Period to run from the revised Start Date or b) reduce it and invoice on a pro-rata basis for the reduced period.
“Objection Deadline” means 1 calendar month after the date of the Renewal Notification
“Renewal Notification” means the notification provided to The Customer in the event of a change, usually, but not limited to Charges, prior to the Renewal Period
“Renewal Period” means each successive 12-month period (or such other period as the parties may agree) following the expiry of the Initial Subscription Period.
“Software” means the business management system referred to as Business Pilot and providing such functionality as demonstrated during the sales presentation and demonstration version, according to the appropriate purchase level as defined in the sales order details at the front of this document.
“Special Conditions” means individually negotiated variations, amendments and/or additions to these Terms and Conditions or those of an Order and are deemed to be included in this Agreement.
“Start Date” in respect of each Software licensed means the later of
(a) the date specified as the date on which access to the Software is intended to start and
(b) the actual date on which access to that Software is given.
“Supplier Services” means other services that The Supplier may from time to time offer to The Customer.
“The Supplier” means Business Pilot Limited, (Company No. 05421237). Registered in England and Wales. Registered office: Unit 1, De Haviland Court, Penn Street, Amersham,
“The Customer Confidential Information” means any information provided by The Customer that is not accessible in the public domain, therefore making it confidential to The Customer.
“The Supplier Confidential Information” means any information provided by The Supplier that is not accessible in the public domain, therefore making it confidential to The Supplier. This includes but is not restricted to the intellectual property of the Software and any future innovations discussed in relation to the Software.
“Third Party” means any individual or organisational entity not specified otherwise within this Agreement.
“Term” in respect of each Software licensed comprises the Initial Subscription Period and any Renewal Period in relation to that Software.
“Trial Period” means any period provided (at the discretion of the Supplier) to The Customer that is without Charges.
“Updates” mean any periodic Software releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Software; or 2) resolving technological issues related to The Customer’s then-current Version of the Software.
“User” means personnel of The Customer authorised by The Supplier and The Customer to use the Software as more particularly specified in the applicable Order.
“Version” means a new release of the Software (outside a point release) that includes a major revision, alteration, improvement, modification, or the like, to the current Software release.
2) SOFTWARE LICENCE
The Supplier grants The Customer a non-exclusive, non-transferable, limited licence to use for the number of Users, the Software in The Customer’s normal course of business, including the version initially licensed together with any Updates included in the subscription, but excluding any new software feature or substantial additional functionality for which The Supplier, in its sole discretion, generally charges The Customers of the Software additional charges.
The Software is protected by copyright. The Customer agrees that any development of its own in relation to business management software that includes functionality found in the Software, is a breach of The Supplier’s copyright.
2.3 Other Restrictions.
The Customer may not sell, resell, loan, lease or transfer Software nor reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software. The Customer may not use Software, nor allow Software to be used, to provide data management or processing services for third parties. The Customer may not reproduce all or any portion of the Software (except as expressly permitted herein) or any accompanying Documentation, or modify, translate or otherwise create derivative works of the Software. The Customer agrees to notify its employees and agents who may have access to the Software of the restrictions contained herein and to ensure their compliance with these restrictions.
2.4 Other Licences.
The Software may be used to access and use various Supplier products and services, (“Supplier Services”). All access to and use of such The Supplier Services by means of the Software, including any charges for such access and use, will be governed by the terms applicable to the relevant The Supplier Services.
The Customer hereby acknowledges and agrees that all right, title and interest in and to the Software, the Documentation and any other related materials are, and shall remain, vested solely in The Supplier, its Affiliates and other Software owners, if any, and The Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, The Customer agrees that it shall make no use of the Software, the Documentation or any other related materials without The Supplier’s prior written consent. All goodwill associated with such rights shall inure directly and exclusively to the benefit of The Supplier.
3) CONFIDENTIAL INFORMATION
3.1 The Supplier acknowledges that any documents, the contents thereof, or other proprietary or confidential materials expressly designated as confidential that are provided to The Supplier by The Customer during the Term of this Agreement (“The Customer Confidential Information”) are valuable assets of The Customer. The Supplier will take reasonable steps to ensure that The Customer Confidential Information is not used or disclosed except as expressly permitted by this Agreement. The Supplier will not permit any unaffiliated Third Party access to, in any manner, The Customer Confidential Information, except as provided in this Agreement. The Customer Confidential Information shall not include information that consists of ideas, concepts, know-how or techniques relating to the enhancement, customisation, installation or implementation of the Software.
3.2 The Customer acknowledges and agrees that the Software constitutes a valuable proprietary product of The Supplier and that the Software, together with the terms of this Agreement, shall be referred to as the “The Supplier Confidential Information.” The Customer will take reasonable steps to ensure that The Supplier Confidential Information is not used or disclosed except as expressly permitted by this Agreement. The Customer will not permit any Third Party access to, in any manner, The Supplier Confidential Information, except as provided in this Agreement. The Customer may permit its independent contractors access to The Supplier Confidential Information to the extent necessary for such contractor’s provision of services to The Customer if such contractor executes a confidentiality agreement with The Customer or The Supplier which prohibits the contractor from using or disclosing The Supplier Confidential Information; provided, however, that such independent contractors may not include any Competitor.
4.1 The Charges payable by The Customer for use of the Software will be as specified in the applicable Order and will cover the Software licence, maintenance, and support services as provided in clauses 9 and 10 of this Agreement.
4.2 Charges and modifications.
4.2.1 Except in the event of early termination of this Agreement as permitted herein, The Customer shall pay the Charges for the Software for the Initial Subscription Period and any Renewal Period (and Trial Period where so agreed) or as otherwise provided for by this clause 4.
4.2.2 Where The Customer requests access to any Software for an Additional User, each Additional User will be charged for at the Additional User fee rate, pro-rated, for the remainder of the Initial Subscription Period or then-current Renewal Period (as applicable), unless otherwise specified on the Order.
4.2.3 Each Additional User fee will be billed to The Customer at the end of the month in which the said User was given access to the Software.
4.2.4 The parties agree to enter into good faith negotiations regarding this Agreement (including the financial provisions) if either party deems there is a material change in The Customer’s organisational structure, including, but not limited to mergers, acquisitions, a significant increase in the number of relevant personnel at a site, divestitures or downsizing.
Notification of Proposed Charges for Renewal Period.
4.2.5 Where The Supplier wishes to make no increase in the Charges and/or additional User fees for a Renewal Period then unless notice of termination is served by The Customer in accordance with clause 9.2.3, then the Term shall be deemed to be extended for the Renewal Period.
4.2.6 Where The Supplier wishes to modify the Charges for the Renewal Period in respect of any Software, The Supplier will endeavour to issue The Customer with a renewal notification specifying the proposed charges for each relevant Software (“Renewal Notification”) not less than 1 calendar month before the end of the Initial Subscription Period (or Renewal Period, if applicable).
4.2.7 The Customer is deemed to agree to extend the Agreement for the Renewal Period and to pay the proposed charges for the Software for the Renewal Period, either:
(a) on the expiry of the Objection Deadline or
(b) after bona fide discussions as provided for by clause 4.2.9, have resulted in agreement on the Proposed Charges; whichever is the later, and thereafter these Proposed Charges shall not amount to a Detrimental Amendment for the purposes of clause 7.2.1 hereof.
4.2.8 Where, on expiry of the Initial Subscription Period or Renewal Period (as applicable), the Objection Deadline has not elapsed, The Supplier shall have the option to continue supplying each relevant Software on the terms of this Agreement until the Objection Deadline elapses and shall be entitled to invoice The Customer for Charges incurred at the existing rates. On expiry of the Objection Deadline, unless clause 4.2.9 applies, The Supplier shall be entitled to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and the expiry of the Objection Deadline.
4.2.9 Where, on expiry of the Objection Deadline, the Proposed Charges are under active bona fide discussion between the parties, The Supplier shall:
(a) whilst, in The Supplier’s reasonable opinion, such discussions are proceeding without undue delay, continue supplying each relevant Software on the terms of this Agreement during that period and to bill The Customer for Charges incurred at the existing rates;
(b) be entitled, once agreement has been reached on Proposed Charges, to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and such agreement being reached; and
(c) in the event that such agreement is not reached within 1 calendar month, at The Supplier’s sole discretion have the right to cancel provision of the Software without any responsibility for the data held within the Software belonging to The Customer.
Billing and Payment.
4.2.10 All Charges are exclusive of applicable sales, use, value added, personal property and other taxes, which are additionally payable by The Customer.
4.2.11 All third party charges incurred by The Customer in using the Software are the responsibility of The Customer.
4.2.12 The Customer will pay any undisputed invoice rendered by The Supplier in full within 30 days of invoice date via Direct Debit (GoCardless).
4.2.13 If full payment is not made by the due date, except to the extent that any part non-payment relates to a bona fides disputed invoice, without prejudice to any rights or remedies otherwise available, The Supplier reserves
(a) the right to charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Lloyds Bank or the maximum interest rate permitted by law, whichever is the greater and
(b) the right to cease provision of the Software.
5) DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
5.1.1 Except as specifically provided in this Agreement, the Software is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness and delays.
5.1.2 The Supplier warrants to The Customer that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has authority to enter into this Agreement with The Customer.
5.1.3 Some systems/software may not be capable of supporting the Software and The Customer acknowledges
(a) that it has made appropriate investigations into the necessary systems/software required to support The Customer’s use of the relevant Software and
(b) that performance of that Software may vary with equipment and telecommunications links with which it is used.
5.2 Exclusion of Liability.
5.2.1 Neither The Supplier, its Affiliates nor any licensors of the foregoing make any warranty that access to any Software will be uninterrupted, secure, complete or error free.
5.2.2 Other than in respect of the warranty given in Clause 5.1.2 and 6.1 The Supplier shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Software.
5.2.3 The Supplier shall not be liable in contract, tort, delict or otherwise for any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Software.
5.3 Limitation of Liability.
5.3.1 Other than in respect of the warranty given in Clause 5.1.2 and 6.1, The Customer’s exclusive remedy and The Supplier’s, (its Affiliates’ and/or licensors of the foregoing) entire liability under this Agreement if any, for any claim(s) for damages relating to the Software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the Charges paid by The Customer relative to the specific aspect of the Software which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim.
5.3.2 None of the terms of this Agreement shall operate to exclude or restrict liability for fraud or for death or personal injury resulting from the negligence of The Supplier or its Affiliates or the appointed agents or employees of The Supplier or its Affiliates whilst acting in the course of their employment.
5.3.3 Except for claims relating to non-payment of the Charges or improper use of the Software, no claim regardless of form which in any way arises out of this Agreement may be made, nor action based upon such claim brought, by either party to this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.
5.4 Failures Not Caused by The Supplier.
The Supplier will not be responsible to the extent that the Software fails to perform due to one or more of the following:
(1) the malfunction of software not provided by The Supplier
(2) the malfunction of hardware,
(3) The Customer’s negligence or fault,
(4) The Customer’s failure to follow the instructions set forth in the Documentation, or
(5) material changes in the operating environment not authorised by The Supplier. If The Supplier discovers that a failure is caused by one of the above, The Supplier reserves the right to charge The Customer for its work in investigating such failure. At The Customer’s request and at a fee to be agreed upon, The Supplier will thereafter assist The Customer in resolving such failure. It is The Customer’s responsibility to develop and implement a proper and adequate backup and recovery system.
5.5 Exclusive Remedies The remedies in clauses 5 (Disclaimer of Warranties and Limitation of Liability), 6 (Infringement Claims), 7 (Term and Termination), 9.4 (Remedies) and 9.3 (Remedies) are The Customer’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of The Supplier for damages (except for death and personal injury) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Software or the integration of the Software with other software or hardware.
6) INFRINGEMENT CLAIMS
6.1 The Supplier warrants to The Customer that no Software to which The Customer has subscribed, nor its features infringe any industrial or intellectual property rights of any Third Party.
6.2 The Customer shall promptly inform The Supplier if The Customer becomes aware of:
(a) any unauthorised use of the Software;
(b) any actual, threatened, or suspected infringement of any intellectual property of The Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to The Customer’s notice; and
(c) any claim by any Third Party coming to its notice that the Software infringes the intellectual property or other rights of any other person.
6.3 The Customer shall at the request and expense of The Supplier do all such things as may be reasonably required to assist The Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of The Supplier, its Affiliates and/or licensors of the foregoing in the Software.
6.4 In the event a claim of infringement is made against The Supplier or The Customer with respect to the Software, The Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software:
(i) substitute fully equivalent non-infringing software; or
(ii) modify the Software so that it no longer infringes but remains functionally equivalent. If, as a result of such claim, The Customer or The Supplier is permanently enjoined from using the Software by a final, nonappealable decree from a court of competent jurisdiction, The Supplier will take one or both of the actions set forth in (i) and (ii) above or will obtain for The Customer at The Supplier’s expense the right to continue to use the Software.
6.5 The Supplier’s obligations to The Customer pursuant to this clause 6 is contingent upon The Supplier being given prompt notice and control of, and detailed information regarding any such claim, suit or proceeding. The Customer shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. The Customer shall not settle any such claim or action without The Supplier’s prior written consent.
6.6 This clause 6 contains The Supplier’s entire obligation and the exclusive remedies of The Customer regarding any claimed infringement arising out of or based upon the Software used by The Customer.
7) TERM AND TERMINATION
7.1 This Agreement will, once approved by The Supplier, commence on the Start Date and shall continue for the Initial Subscription Period and shall then renew for successive Renewal Periods until the end of the final Renewal Period unless earlier termination takes place in accordance with the provisions set out in clause 7.2.
7.2 This Agreement may be terminated by:
7.2.1 The Customer, on written notice to The Supplier after receiving notice of an amendment (as permitted under this Agreement) which is deemed to be a Detrimental Amendment, which notice shall not take effect until the date on which such amendment or increase comes into effect; or
7.2.2 either party on written notice to the other if:
(a) the other commits a material breach of this Agreement, provided that where the breach is capable of being remedied then the defaulting party shall have failed to remedy the same within 30 days of receiving notice specifying the breach and requiring its remedy; or
(b) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors or if a trustee or a receiver or administrator or administrative receiver or receiver and manager is appointed against the whole or any part of its assets or business; or
7.2.3 either party on receipt of written notice by the other of not less than 30 days prior to, but not taking effect until, the expiry of the Initial Subscription Period or current Renewal Period; or
7.2.4 The Supplier, with immediate effect, if any organisation, which The Supplier acting reasonably determines to be a Competitor of The Supplier acquires Control of The Customer.
7.3 If at any time The Supplier for any reason decides to cease general provision of the Software, The Supplier may, on providing not less than ninety (90) days’ written notice to The Customer, cease to provide any further Maintenance Services (see clause 9).
7.4 Upon termination for whatsoever reason, if The Customer has pre-paid any Charges in respect of Software being terminated or cancelled The Supplier’s sole liability to The Customer in respect of such termination shall be to refund the pre-paid Charges in respect of that Software for the period following termination to the end of the Term. No such refund shall be required in event of termination for The Customer’s breach of this Agreement.
7.5 Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties.
7.6 Subject to clause
7.7 below, upon expiry or termination of this Agreement (whether for a Trial or paid period), The Customer’s licence and right to use the Software or any part thereof shall end immediately.
8) GENERAL PROVISIONS
8.1 Effect of Agreement.
This Agreement (including any applicable Order) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Such Special Conditions as are agreed between The Supplier and The Customer shall apply, subject to clauses 8.1.1 and 8.1.2 for the Term.
8.1.1 Except as otherwise provided in this Agreement, The Supplier may amend the terms and conditions of this Agreement (“Amended Terms”) by providing The Customer prior written or online notice. Unless The Customer is notified to the contrary by The Supplier, such Amended Terms shall apply after the expiry of 1 calendar month after they have been provided.
8.1.2 Where agreed Special Conditions are affected by Amended Terms, the parties shall enter into good faith negotiations and agree amendments to the Special Conditions to reflect the parties intentions. Where agreement cannot be reached, such Amended Terms may amount to a Detrimental Amendment and clause 7.2.1 may apply.
8.1.3 Any other amendment must be in writing and signed by both parties.
8.2 Force Majeure.
The Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like.
Except as otherwise provided, all notices and correspondence must be given in writing to The Supplier at: Business Pilot, Unit M1, De Haviland Court, Penn Street, Amersham, HP7 0PX or such other addresses as may from time to time be notified to The Customer in writing; and to The Customer at the address set out in the applicable Order unless otherwise notified to The Supplier in writing.
8.4 Governing Law and Assignment.
This Agreement and all matters arising out of it shall, unless otherwise specified on the applicable Order or by The Supplier in writing, in all respects be governed by the laws of England and Wales and shall be subject to the non-exclusive jurisdiction of the English courts. The Supplier may, upon written notice to The Customer, assign or transfer this Agreement or any rights and obligations hereunder either to an Affiliate or to a Third Party successor to all or substantially all of the business, stock or assets of The Supplier’s legal information business, in each case, without the prior consent of The Customer. The Supplier may without the prior written consent of The Customer and without notice assign any benefit or transfer, delegate or sub-contract any of their duties and obligations under this Agreement to any Third Party, provided that in the case of sub-contracting, The Supplier shall remain responsible for the performance by its sub-contractors of such obligations under the Agreement. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by The Customer without The Supplier’s prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
Clauses 3 (Confidential Information), 5 (Disclaimer of Warranties and Limitation of Liability), and 8 (General Provisions) shall survive any termination or expiry of this Agreement.
9) MAINTENANCE TERMS
9.1 Maintenance & Support Services.
Maintenance & Support Services consist of the following:
The Supplier may provide Updates to and/or new Versions for the Software to The Customer which shall be included in the Charges.
9.1.2 Telephone Support.
The Supplier will provide telephone support for purposes of handling The Customer questions relating to the operation of the Software. Telephone support is provided to a single named contact of The Customer.
9.2 The Supplier’s Obligations.
9.2.1 The Supplier’s obligations hereunder will extend only to
(a) the Updates and Versions of the Software provided to The Customer by The Supplier; and
(b) Software that has not been modified or altered in any way by anyone other than The Supplier.
9.2.2 Maintenance Services will not include services for the items for which The Supplier is not responsible set forth in clause 5.4 of this Agreement.
9.3 The Customer Obligations.
The Customer shall ensure that The Supplier’s personnel are provided with such information under The Customer’s control as is reasonably necessary to enable The Supplier to comply with its obligations hereunder.
The Customer’s sole remedy for The Supplier’s material breach of its obligations under this clause 9 will be to have The Supplier re-perform the defective services so that they conform to the specifications provided herein.
10) TRAINING SERVICES
Training is offered via a range of methods including webex, face to face and telephone sessions. The Customer should contact The Supplier to arrange mutually agreeable methods, charges, dates and times.
11) GOVERNING LAW
This Agreement is governed by the law of England and Wales, and is subject to the exclusive jurisdiction of the courts of England and Wales.