Check our Terms & Conditions below.
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Interpretation
1.1. In this Agreement the following expressions shall have the following meanings:
"Account Manager" | means the account manager of each party specified in the Order Form; |
"Agreement" | means the end user licence agreement in relation to the Software, comprising the Order Form and these Terms and Conditions of Use; |
"Authorised Users" | means the total number of Customer users entitled to concurrently Use the Software, as set out in the Order Form. Authorised Users must be employees of the Customer or otherwise contracted to work for the Customer; |
"Availability Period" | means the Hours of Support in a calendar month, excluding any time for scheduled or unscheduled maintenance of which the Customer has been notified; |
"Business Days" | means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; |
"Change" | means a change to the Order Form; |
"Confidential Information"
| means any information, however it is conveyed, received or obtained in connection with this Agreement which relates to: (i) the provision of this Agreement; (ii) the negotiations relating to this Agreement; (iii) the customers and prospective customers of the Company; (iv) the Software and any information supplied as part of the provision of the Software; and (v) all other trade secret and proprietary Intellectual Property Rights; |
"Data Protection Legislation" | means the Data Protection Act 1998, the Privacy and Electronic Communications Regulations 2003 and any related act or regulation in the UK, including statutory modification or re-enactment of it, and where "Data Controller", "Personal Data", "Data Processor", and "Process" are referred to in this Agreement, they shall have the meaning specified in the Data Protection Act 1998; |
"Documentation" | means all documentation and materials in whatever form provided by the Company to the Customer for the purposes of this Agreement, including any user guides for the Software; |
"Fees" | means the monthly fees payable by the Customer as specified in the applicable Order Form (being the total number of units ordered multiplied by their stated price); |
"Hours of Support" | means between 9 am and 5 pm on Business Days; |
"Intellectual Property Rights"
| means copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trademarks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals; |
"Law"
| means: (i) any applicable laws, regulations, regulatory constraints, obligations proclamations or rules (including binding codes of practice and statement of principles incorporated and contained in such rules); (ii) any "enforceable EU right" within the meaning of section 2(1) of the European Communities Act 1972; or (iii) any applicable judgment of a relevant court of law which is a binding precedent in England and Wales, and in each case in force in England and Wales; |
"New Product" | means any new version of the Software that is publicly marketed and offered for purchase by the Company, or any other distributor, reseller or sales agent authorised by the Company, containing significant differences from previous versions so that such is generally accepted in the marketplace as constituting a new product; |
"Order Form" | means the foregoing "Order Form", which when completed and signed incorporates these Terms and Conditions of Use and constitutes the Agreement; |
"Order Form Start Date" | means the Order Form Start Date specified in the Order Form; |
"Software" | means the Company's "Financial Adviser", "General Broker", "Complete Administrator", and "Office Manager" software programs, including any additional functionality elements, as set out in the applicable Order Form; |
"Software Developments" | encompasses the provision of new releases and new versions of the Software from time to time, and the provision of additions, extensions and amendments to the Software, and, if applicable, updates to any Documentation; |
"Technical Support" | means advice with regard to the Software; |
"Use" | means to permit the number of Authorised Users (as specified in the applicable Order Form) to use the functionality of the Software (as specified in the Order Form) for internal purposes only and in accordance with the terms of this Agreement; and |
"User Data" | means any data uploaded to the Software by Authorised Users and/or the Customer. |
1.2. In this Agreement unless the context otherwise requires: (a) words in the singular include the plural and words in the plural include the singular; (b) references to a Clause refer to a clause of these Terms and Conditions of Use; and (c) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.
Acknowledgements
2.1. This Agreement governs the use of the Software by the Customer and any Documentation, if applicable. This Agreement shall continue to apply to any Software Developments made available to the Customer by the Company in accordance with this Agreement. Any New Products shall be governed by the applicable terms and conditions for such New Product.
2.2. From time to time, the Company shall be entitled to update or amend these Terms and Conditions of Use by notifying the Customer. The Company may require confirmation from the Customer (in writing or in such other manner as the Company reasonably requests) of the Customer's continued agreement to any updated Terms and Conditions of Use as a condition of the Customer being permitted to continue to use the Software under this Agreement.
Order Form
3.1. A completed Order Form incorporates all terms of this Agreement.
3.2. Either party shall be entitled from time to time to request a Change. Neither party shall be entitled to charge for considering and/or negotiating a Change. If any purported Change would involve:
(i) an increase in the Authorised Users, the amended Fees applicable to the increase in Authorised Users shall be calculated at the Company's then prevailing rates;
(ii) a reduction in the Authorised Users, this shall be considered a partial termination of this Agreement and shall only be effective if notice is given in accordance with Clause 12.2(i).
3.3. A Change will be effective when it is documented and agreed in writing by the Account Manager identified in the relevant Order Form (or, if no Account Manager is identified, such other duly authorised person as is appointed by the relevant party). For the avoidance of doubt, a Change under Clause 3.2(ii) shall only be effective upon satisfaction of the provisions of this Clause 3.3 and the applicable notice period within Clause 12.2(i).
Licence
In consideration of the payment of the Fees by the Customer, the Company grants to the Customer a limited, non-exclusive, revocable, non-transferable and non-sublicensable licence to Use the Software from the Order Form Start Date until termination of this Agreement for whatever reason.
Support
5.1. Technical Support. During the Hours of Support, the Company will use commercially reasonable endeavours to provide prompt Technical Support in response to the Customer's requests. Technical Support shall be made available through submitting a form via the Company's website.
5.2. Maintenance. The Company will from time to time (at the Company's discretion) issue Software Developments and shall be entitled to provide Software Developments either: (i) by allowing the Customer to download them from the Company’s website after having provided notice to the Customer by email, or (ii) by Durell’s technical staff installing them between 23:00 and 08:00 on any day or at any time on a Sunday.
Warranties and Claims
6.1. The Company shall take commercially reasonable precautions to ensure the Software is not accessible by unauthorised third parties and is reasonably secure.
6.2. The Company makes no representations or warranties with regard to the Software or any service pertaining to it or the Technical Support. The Customer hereby agrees that all representations or warranties, whether express or implied and whether arising under statute, common law or otherwise in relation to the Software or any service pertaining to it or the Technical Support, are excluded to the full extent permitted by law.
6.3. The company does not warrant that any contents of the Software will be error free, that defects will be corrected, or that the Software is free of any viruses or malware or other harm
harmful components. The Customer acknowledges that the Company shall not be liable for any loss or damage due to any fault or error within the Software
6.4. The Customer shall ensure that it makes all arrangements necessary for accessing the Software, including procuring, maintaining and updating its hardware, software, telecommunications and internet environment.
Payments
7.1. The Customer shall pay the Fees to the Company in accordance with this Clause 7.
7.2. Upon entering this Agreement, the Customer shall enter into a direct debit mandate allowing the Company to receive the Fees due each month, and all other sums due to the Company under this Agreement, unless otherwise agreed with the Company. The Customer shall immediately notify the Company of any changes to the direct debit details.
7.3. The Fees shall become due thirty (30) days from the date of an invoice from the Company and shall be paid via direct debit unless otherwise agreed by the parties.
7.4. If an invoice is not disputed by the Customer within fourteen (14) days from the date of the invoice, then the invoice shall be deemed to have been accepted by the Customer.
7.5. All Fees are exclusive of VAT, which shall be payable by the Customer at the rate prevailing when they fall due.
7.6. Any Fees which are not paid by the due date shall bear interest on a daily basis in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
7.7. The Company may increase the Fees by notice to the Customer from time to time, provided that it gives the Customer at least one (1) month's written notice and does not increase the Fees by more than ten percent (10%) in any twelve-month period.
Intellectual Property
The Company and/or its licensors own all Intellectual Property Rights in the Software and any Documentation. The Customer shall have no rights in, or to, the Software other than the express right to Use the Software in accordance with the terms of this Agreement. No provision of this Agreement shall transfer to the Customer ownership of: (a) the title in the Software or any Documentation; and/or (b) Intellectual Property Rights in the Software or any Documentation.
Account Managers
9.1. Each party shall be entitled to appoint an Account Manager as specified on the Order Form. Where a party has appointed an Account Manager, then that party shall ensure that its Account Manager (or, in the Account Manager's absence, a nominated replacement) shall usually be contactable during the Hours of Support using the contact details set out therein (if such details are provided, and as updated by notice to the other party from time to time). Each Account Manager shall: (a) deal with requests for information; and (b) deal with requests for Changes.
9.2. Each party shall promptly notify the other party of any changes of company name, address, Account Manager’s contact details, or other information which may reasonably assist the parties in their performance of their obligations under this Agreement.
9.3. The parties shall escalate any dispute as follows:
(i) the dispute shall be notified in writing to a party's Account Manager (if any); and
(ii) if the dispute remains unresolved within three (3) days of receipt of such notification, the dispute shall be escalated to both parties' senior management.
Confidentiality and Announcements
10.1. Each party that receives ("Receiving Party") Confidential Information from the other ("Disclosing Party"), whether before or after the date of this Agreement shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with this Clause 10; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Agreement ("Permitted Purpose").
10.2. The Receiving Party may disclose Confidential Information to its own officers, directors, employees, contractors, agents, and advisers who reasonably need to know for the Permitted Purpose (each a "Permitted Third Party"), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 10 of such Permitted Third Party as if such Permitted Third Party were the Receiving Party (and a party to this Agreement). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 10.
10.3. The terms of Clause 10.1 above shall not apply to any information which:
(i) is or becomes public knowledge other than by breach of this Clause 10; or
(ii) is independently developed without access to the Confidential Information; or
(iii) is disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the party making the disclosure, including any requirements for disclosure pursuant to this Clause 10.3.
10.4. Either party may make a public announcement or other disclosure relating to the fact of this Agreement provided such announcement or disclosure is not disparaging or critical of either party.
Data Protection
11.1. The Customer warrants that its Authorised Users are lawfully entitled to upload User Data and that the content of User Data shall not be defamatory or offensive.
11.2. Where the Company, pursuant to its obligations under this Agreement, undertakes the Processing of Personal Data on behalf of the Customer, the Customer shall comply with the Data Protection Legislation and the Company shall:
(i) only Process the Personal Data as required to perform the obligations under this Agreement or otherwise as required by Law or the reasonable instructions of the Customer; and
(ii) take reasonable technical and organisational precautions and measures to preserve the integrity of the Personal Data and prevent any unlawful processing or disclosure (the
(the "Security Measures"); and
(iii) keep accurate records of its Security Measures; and
(iv) notify the Customer within a reasonable period of any breaches of the Security Measures which affect the Personal Data.
Term and Termination
12.1. This Agreement shall commence on the Order Form Start Date and shall continue until termination by either party in accordance with this Clause 12.
12.2. Either party may terminate this Agreement, in whole or in part:
(i) at any time by giving not less than six (6) months' prior written notice to the other; or
(ii) immediately if the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days of receipt of written notice of that breach. The period of thirty (30) days only applies where a breach is capable of remedy. If it is incapable of remedy, this Agreement may be terminated by written notice immediately; or
(iii) immediately if the other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.
Consequences of Termination
13.1. On termination of this Agreement howsoever caused:
(i) the rights and duties created by this Clause 13 as well as Clauses 7 (Payments) (including any accrued payment obligations of the Customer), 10 (Confidentiality and Announcements), 11 (Data Protection), 14(Liability), and 16 (General Terms) shall survive;
(ii) the licence granted under Clause 4 (Licence) shall cease, provided that the Company may, at its discretion, grant the Customer a limited right of access to any User Data retained within the Software; and
(iii) any rights of either party which arose on or before termination shall be unaffected.
13.2. In the event termination of this Agreement occurs as a result of the Customer serving notice to terminate pursuant to Clause 12.2(iii) (Term and Termination), the Customer may collect a copy of the source code for the Software from Francis Clark LLP, Blackbrook Gate 1, Blackbrook Business Park, Taunton, Somerset, TA1 2PX. The Customer may use such source code thereafter for the maintenance of the Software only.
Liability
14.1. Neither party shall exclude or limit its liability under this Agreement for death or personal injury caused by its negligence, or for fraudulent misrepresentation.
14.2. The Customer shall indemnify and hold harmless the Company against all claims, losses, costs (including legal fees), demands and all other liabilities arising out of or in connection with the Use of the Software, including in relation to any breach or threatened breach of the Company’s Intellectual Property Rights or any Intellectual Property Rights of any third parties, or as a result of the Customer introducing any computer virus into the Software.
14.3. The Company shall not be liable for loss of profit, loss of revenue, loss of anticipated savings, loss of goodwill, or loss of data under this Agreement.
14.4. The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it (including those made negligently) upon which it relied in entering into this Agreement and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
14.5. The Company's Contractual Liability to the Customer shall not exceed the amounts payable by the Customer during the twelve (12) months preceding the first event giving rise to liability. "Contractual Liability" means liability howsoever arising under or in relation to the subject matter of this Agreement in respect of any claim or series of connected claims that is not: (a) unlimited by virtue of Clause 14.1; or (b) excluded pursuant to Clauses 14.3 or 14.4.
Assignment and Sub-Contracting
15.1. The Customer may not assign any of the benefits of this Agreement or transfer or sub-contract any of the burdens of this Agreement without the prior written consent of the Company. This Agreement will be binding on the successors and on the assignees of the Customer.
15.2. The Company shall be entitled to freely assign, transfer, delegate, and/or novate any or all of its rights and obligations under this Agreement.
15.3. All rights and licences granted under this Agreement shall be non-transferable subject to the terms of this Clause 15 unless otherwise stated.
General Terms
16.1. Force Majeure. Neither party shall be in breach of this Agreement to the extent that it is prevented from performing its duties and obligations thereunder directly as a result of any event beyond its reasonable control including act of God, explosion, flood, tempest, fire, or accident; war or threat of war, sabotage, insurrection, civil disturbance, or requisition; acts, restrictions, regulations, byelaws, prohibitions, or measures of any kind on the part of any governmental agency or local authority; or strikes, lock-outs, or other industrial actions or trade disputes.
16.2. No Waiver. No failure or delay by either party to exercise any right, power or remedy shall operate as a waiver of that right, power or remedy nor shall any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
16.3. Capacity. Each party warrants and represents to the other that it has full authority, power and capacity to enter into this Agreement and that all necessary actions have been taken to enable it lawfully to enter into this Agreement.
16.4. Entire Agreement. This Agreement supersedes any prior contra
contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.
16.5. Notices. All notices and other communications under this Agreement shall be delivered by hand, courier, or first-class pre-paid mail (either recorded delivery or registered) and will be deemed to have been communicated upon the date of actual delivery, provided that the parties may agree to serve notices by ordinary first-class pre-paid mail, fax and/or email. The addresses for service of notices under this Agreement shall be as specified on the Order Form.
16.6. Severability. Any provision of this Agreement which is held invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms hereof.
16.7. Remedies. No right or remedy conferred by either party is exclusive of any other right or remedy contained in this Agreement or as the Law may provide, but each shall be cumulative of every right or remedy given in this Agreement now or hereafter existing and may be enforced concurrently therewith or from time to time.
16.8. Third Party Rights. The rights of any third party under this Agreement, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, are hereby excluded.
16.9. Relationship. Nothing in this Agreement shall constitute or imply, or be deemed to constitute or imply, any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Nothing in this Agreement shall be deemed to constitute either party the agent of the other party, and neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
16.10. Counterparts. This Agreement may be entered into in any number of counterparts and by the parties to it on separate counterparts, each of which when so executed and delivered shall be an original.
16.11. Jurisdiction. This Agreement shall be governed by the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England.
