IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE SIGNING UP FOR THE 30-DAY TRIAL OR LOGGING IN TO THIS WEBSITE:
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This Contract is a legal agreement between you (Customer) and the Supplier for the use of the Services, which includes the Software and the Documentation (see below for these defined terms).
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BY TICKING ON THE "ACCEPT" BOX, YOU AGREE TO THESE CONDITIONS WHICH WILL BIND YOU AND ANY OTHER AUTHORISED USER. IF YOU DO NOT AGREE TO THESE CONDITIONS, WE ARE UNWILLING TO SUPPLY THE SERVICES TO YOU AND YOU MUST DISCONTINUE BY NOT TICKING THE ACCEPT BOX.
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| 1 |
INTERPRETATION 2 |
| 1.1 |
The definitions and rules of interpretation in this clause apply in these Conditions. |
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Authorised User: the Customer, if an individual, or, if the Customer is a business, any employee, agent or sub-contractor of the Customer, or any employee, agent or sub-contractor of the Customer’s clients, who is authorised by the Customer to use the Services and the Documentation, as further described in clause 4.2(d).
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Client Data: the data inputted by an Authorised User, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the use of the Services.
Conditions: these terms and conditions.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Documentation: the document made available to the Customer by the Supplier online via www.gbooks.co.uk or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date set out in the Order Confirmation when the Customer can begin using the Services.
EULA: the end-user licence agreement that each Authorised User (other than the Customer who is bound under these Conditions) must accept before using the Services.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order Confirmation: the email confirmation from the Supplier to the Customer in respect of the Services.
Services: the subscription services, known as “gbooks™”, provided by the Supplier to the Customer under these Conditions via www.gbooks.co.uk or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order Confirmation.
Subscription Term: the term of the Contract (including any Trial Period) as set out in the Order Confirmation.
Supplier: Gbooks, incorporated and registered in England and Wales with company number 07066744, whose registered office is at Unit A6 Speldhurst Business Park, Langton Road, Speldhurst, Tunbridge Wells, Kent TN3 0AQ.
Support Services Policy: the Supplier's policy for providing support in relation to the Services as made available at www.gbooks.co.uk or such other website address as may be notified to the Customer from time to time.
Trial Period: as set out in the Order Confirmation (if any).
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 11.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
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| 1.2 |
Clause headings shall not affect the interpretation of these Conditions.
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| 1.3 |
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives and successors.
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| 1.4 |
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
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| 1.5 |
Words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
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| 1.6 |
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
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| 2 |
BASIS OF CONTRACT
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| 2.1 |
The Order Confirmation constitutes an offer by the Supplier for the Customer to purchase Services in accordance with these Conditions.
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| 2.2 |
The Contract shall only come into existence when the Customer has logged-on for the first time and ticked the accept box.
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| 2.3 |
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
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| 2.4 |
The Order Confirmation is only valid for a period of five Business Days from its date of issue (unless otherwise agreed in writing by the Supplier).
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| 3 |
TRIAL PERIOD
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| 3.1 |
If a Trial Period is specified in the Order Confirmation, and in consideration of the payment by the Customer of £1 (inclusive of VAT), the Supplier hereby grants the Customer a non-exclusive, non-transferable right to permit it and the other Authorised Users (if any) to use the Services and the Documentation during the Trial Period. The Customer acknowledges and agrees that the Services will automatically "time out" (that is to say, cease to operate) at the end of the Trial Period, and no Subscription Fees will be payable, if the Customer does not give notice to the Supplier before the end of the Trial Period that it wishes to continue with the Services for the Subscription Term.
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| 3.2 |
During the Trial Period, the licence in clause 3.1 may be terminated immediately by the Supplier giving written notice if the Customer, or any Authorised User, is in breach of any of these Conditions (with any reference to the Subscription Term being read as the Trial Period).
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| 4 |
USER SUBSCRIPTIONS
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| 4.1 |
Subject to the Customer purchasing the User Subscriptions in accordance with clause 5.3 and clause 11.1, the restrictions set out in this clause 4 and the other terms and conditions of these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit it and other Authorised Users to use the Services and the Documentation during the Subscription Term.
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| 4.2 |
In relation to the Authorised Users, the Customer undertakes:
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(a) |
that the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
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(b) |
that it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
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(c) |
that if there is more than one Authorised User, it shall not make to Authorised Users (particularly Authorised Users that are clients of the Customer) any representations, warranties, guarantees or other commitments with respect to the Services, features or capabilities of Services which are inconsistent with those contained in the promotional material supplied by the Supplier (including, without limitation, the Documentation and the EULA) or otherwise incur any liability on behalf of the Supplier in any circumstances;
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(d) |
that it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five Business Days of the Supplier’s written request at any time or times;
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(e) |
that it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted upon reasonable prior notice, at the Supplier's expense, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
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(f) |
if any of the audits referred to in clause 4.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
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(g) |
if any of the audits referred to in clause 4.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Confirmation on demand.
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| 4.3 |
The Customer shall procure (so far as is possible in the exercise of its rights and powers) that the Authorised Users shall not transmit any Viruses, or any material during the course of their use of the Services that facilitates illegal activity and the Supplier reserves the right, without prejudice to its other rights and remedies, to disable the Customer’s access to any material that breaches the provisions of this clause.
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(a) |
except as may be allowed by any applicable law which is incapable of exclusion by agreement:
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(i) |
and except to the extent expressly permitted under these Conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
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(ii) |
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
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(b) |
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
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(c) |
use the Services and/or Documentation to provide services to any third parties other than their clients that themselves require the use of the Services; or
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(d) |
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
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(e) |
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
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| 4.4 |
The Customer shall prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
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| 4.5 |
If a particular Authorised User is in breach of the EULA then without prejudice to the Supplier's other rights the Supplier may terminate that Authorised User’s access to the Services, disable his password, and the Supplier shall be given the option to take sole authority over the defence or settlement of any claim or counterclaim by the Authorised User, whether against the Supplier or the Customer, in respect of such termination (but the Customer shall provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense).
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| 5 |
ADDITIONAL USER SUBSCRIPTIONS
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| 5.1 |
Subject to clause 5.2 and clause 5.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Confirmation and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Conditions.
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| 5.2 |
If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request (such approval not to be unreasonably withheld).
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| 5.3 |
If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions.
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| 5.4 |
The Customer, if a business, may cancel additional User Subscriptions at any time (provided that the number of Authorised Users must not be less than one for the duration of the Subscription Term). Any cancellation of a User Subscription shall not entitle the Customer to a refund of the fee paid for that User Subscription (unless otherwise agreed in writing by the Supplier at its sole discretion).
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| 6 |
SERVICES
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| 6.1 |
The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Conditions.
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| 6.2 |
The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
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(a) |
planned maintenance carried out during the maintenance window of 5.00 pm to 9.00 am UK time; and
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(b) |
unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 24 hours’ notice in advance.
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| 6.3 |
The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
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| 6.4 |
The provision of maintenance and customer support services may involve the Supplier logging on as the Customer but, subject to the right in the Trial Period as stated below, the Supplier will only do so with the Customer's permission (such permission not to be unreasonably withheld) and this permission will lapse 24 hours after it was given. Any Client Data viewed by the Supplier will be treated as confidential and will not be disclosed to any other party, except as may be necessary to enforce the terms of these Conditions or as may be required by law, by any court of competent jurisdiction or by any regulatory or administrative body. During any Trial Period, the Supplier shall not require the Customer's permission to log on as the Customer.
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| 7 |
CLIENT DATA
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| 7.1 |
The Customer (or its clients as may be agreed between the Customer and its clients) shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
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| 7.2 |
In the event of any loss or damage to Client Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up).
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| 7.3 |
In respect of all personal data processed by the Supplier on the Customer’s behalf when performing its obligations under these Conditions, 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:
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(a) |
the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under these Conditions;
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(b) |
the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with these Conditions on the Customer's behalf; and
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(c) |
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
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| 7.4 |
The Supplier reserves the right, without prejudice to its other rights and remedies, to restrict the amount of Client Data stored by the Customer on the Service to a level that matches the User Subscriptions, and to restrict access to or remove any Client Data, at the Supplier's sole discretion, stored on the Service in excess of that level.
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| 8 |
THIRD PARTY PROVIDERS
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The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, use and purchase services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
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| 9 |
SUPPLIER'S OBLIGATIONS
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| 9.1 |
The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
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| 9.2 |
The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the sole and exclusive remedy for any breach of the undertaking set out in clause 9.1. Notwithstanding the foregoing, the Supplier:
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(a) |
does not warrant that the Authorised User’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Authorised Users through the Services will meet their requirements; and
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(b) |
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges, and shall procure (so far as is possible in the exercise of its rights and powers) that the Authorised Users acknowledge, that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
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| 9.3 |
These Conditions shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.
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| 10 |
CUSTOMER'S OBLIGATIONS
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The Customer shall:
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(a) |
provide the Supplier with:
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(i) |
all necessary co-operation in relation to these Conditions; and
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(ii) |
all necessary access to such information as may be required by the Supplier;
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in order to render the Services, including but not limited to Client Data, security access information and configuration services;
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(b) |
comply, and procure (so far as is possible in the exercise of its rights and powers) that the Authorised Users comply, with all applicable laws and regulations with respect to its activities under these Conditions;
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(c) |
ensure, so far as is possible in the exercise of its rights and powers, that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these Conditions and shall be responsible for any Authorised User’s breach of these Conditions and, so far as it is not possible, the Customer shall take all reasonable steps to ensure that Authorised Users are aware of and accept the terms and conditions of the EULA prior to using the Services; and
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(d) |
refrain from amending or varying the terms of the EULA.
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| 11 |
CHARGES AND PAYMENT
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| 11.1 |
The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 11 and the Order Confirmation.
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| 11.2 |
The Supplier shall invoice the Customer:
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(a) |
on the Effective Date; or
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(b) |
on or about the first Business Day after the end of the Trial Period (if there is one),
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whichever is later, for the Subscription Fees payable in respect of the Subscription Term.
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| 11.3 |
The Customer shall raise additional invoices pursuant to clause 5.3 following the approval of additional User Subscriptions.
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| 11.4 |
The Customer shall pay each invoice within 30 days after the date of such invoice.
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| 11.5 |
If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
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(a) |
the Supplier may, without prejudice to its other rights and remedies, disable the Authorised Users’ passwords, the Customer’s account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
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(b) |
interest shall accrue on such due amounts at an annual rate equal to the higher of:
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(i) |
4% over the then current base lending rate of the Supplier's bankers in the UK at the rate the relevant invoice was issued; or
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(ii) |
the statutory rate under the Late Payment of Commercial Debts (Interest) Act 1988 (if it can be claimed by the Supplier),
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commencing on the due date and continuing until fully paid, whether before or after judgment.
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| 11.6 |
All amounts and fees stated or referred to in these Conditions:
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(a) |
are, subject to clause 15.4(b), non-cancellable and non-refundable;
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(b) |
are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
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| 12 |
PROPRIETARY RIGHTS
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The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Conditions do not grant the Customer or any Authorised User any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
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| 13 |
CONFIDENTIALITY
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| 13.1 |
Each party may be given access to Confidential Information from the other party (and in respect of the Customer, its clients, which shall be deemed to be the Customer’s Confidential Information for the purposes of these Conditions) in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include information that:
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(a) |
is or becomes publicly known other than through any act or omission of the receiving party;
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(b) |
was in the other party's lawful possession before the disclosure;
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(c) |
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
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(d) |
is independently developed by the receiving party, which independent development can be shown by written evidence; or
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(e) |
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
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| 13.2 |
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these Conditions.
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| 13.3 |
This clause 13 shall survive termination of these Conditions, however arising.
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| 14 |
INDEMNITY
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| 14.1 |
The Customer shall defend, indemnify and hold harmless the Supplier 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 Authorised Users’ use of the Services and/or Documentation.
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| 14.2 |
The Supplier shall, subject to clause 14.4, defend the Customer, its officers, directors, clients and employees against any claim that the Services or Documentation infringes any UK patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
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(a) |
the Supplier is given prompt notice of any such claim;
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(b) |
the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
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(c) |
the Supplier is given sole authority to defend or settle the claim.
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| 14.3 |
In the defence or settlement of any claim, the Supplier may procure the right for the Authorised Users to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
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| 14.4 |
In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer or its clients to the extent that the alleged infringement is based on:
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(a) |
a modification of the Services or Documentation by anyone other than the Supplier; or
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(b) |
an Authorised User’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier or under the EULA; or
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(c) |
an Authorised User’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
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| 14.5 |
The foregoing states the sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
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| 15 |
LIMITATION OF LIABILITY
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| 15.1 |
Subject to the provisions of clause 14.2, this clause 15 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of:
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(a) |
any breach of the Contract;
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(b) |
any use made by an Authorised User of the Services and Documentation or any part of them; and
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(c) |
any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
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| 15.2 |
Except as expressly and specifically provided in these Conditions:
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(a) |
the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Authorised Users, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided by the Authorised Users in connection with the Services, or any actions taken by the Supplier at the Customer's or any Authorised User’s direction;
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(b) |
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
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(c) |
the Services and the Documentation are provided on an "as is" basis.
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| 15.3 |
Nothing in these Conditions excludes the liability of the Supplier:
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(a) |
for death or personal injury caused by the Supplier's negligence; or
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(b) |
for fraud or fraudulent misrepresentation; or
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(c) |
for any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
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(d) |
for breach of the Consumer Protection Act 1987; or
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(e) |
for any other matter for which it would be illegal for us to exclude or attempt to exclude our liability.
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| 15.4 |
If the Customer is a business, and subject to clause 15.3:
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(a) |
the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
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(b) |
the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
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| 15.5 |
If the Customer is a consumer, and subject to clause 15.3, if the Supplier fails to comply with these Conditions, the Supplier shall only be liable to Customer for the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose together with any losses that you suffer as a result of our failure to comply (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise) which are a foreseeable consequence of such failure.
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| 16 |
TERM AND TERMINATION
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| 16.1 |
The Contract shall, unless otherwise terminated as provided in clause 3 or in this clause 16, commence on the Effective Date and shall continue for the Subscription Term. Any Contract described as "Auto Renew" in the invoice or Order Confirmation will automatically renew on expiry of the Subscription Term for subsequent periods of 1 year provided the Customer has not breached this agreement and unless either party has given written notice at least 30 days prior to the expiry of the Subscription Term of an intention not to renew the Contract.
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| 16.2 |
Without prejudice to any other rights or remedies to which the Supplier may be entitled, the Supplier may terminate the Contract without liability to the Customer if:
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(a) |
the Customer commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of the Customer being notified in writing of the breach; or
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(b) |
the Customer is unable to pay its debts (as per section 122 of the Insolvency Act 1986);
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(c) |
the Customer ceases, or threatens to cease, to trade; or
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(d) |
any Authorised User is a person (or connected or associated to a person) whom the Supplier reasonably determines to be a competitor in respect of the Services.
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| 16.3 |
On termination of the Contract for any reason:
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(a) |
all licences granted under these Conditions shall immediately terminate;
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(b) |
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party (and, in respect of the Customer, its clients);
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(c) |
provided the Customer has paid all sums that are outstanding to the Supplier, the Customer shall be entitled to read-only access to the Services for a maximum of 30 days after termination for the purpose of accessing and storing the Client Data; and
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(d) |
the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
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| 16.4 |
The Customer shall defend, indemnify and hold harmless the Supplier 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 termination of an EULA with any particular Authorised User following the termination of the Contract for any reason.
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| 16.5 |
We will, at our sole discretion, make all or part of the Client Data available in a standard readable form via email, CD ROM or DVD. We reserve the right to charge a reasonable fee for this service.
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| 17 |
FORCE MAJEURE
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The Supplier shall have no liability under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
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| 18 |
VARIATION AND WAIVER
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Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
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| 19 |
SEVERANCE
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If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
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| 20 |
ASSIGNMENT
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The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
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| 21 |
NO PARTNERSHIP OR AGENCY
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Nothing in the Contract is intended to or shall operate to create a partnership between the parties.
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| 22 |
THIRD PARTY RIGHTS
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The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors) pursuant to the Contracts (Rights of Third Parties) Act 1999.
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| 23 |
NOTICES
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Any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at the address set out in the Contract, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
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| 24 |
GOVERNING LAW AND JURISDICTION
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The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
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