By ProspectSoft on Thu 24 May 2018 in Terms
ProspectSoft Terms and Conditions for the supply of Consultancy Services.
1. About us
1.1 ProspectSoft Limited (Company No: 02867271) whose registered address is at Beacon House, Ibstone Road, Stokenchurch, United Kingdom, HP14 3WN (we and us).
2. Our contract with you
2.1 These terms and conditions (Terms) apply to any order by you and supply of software or services by us to you (Contract). No other terms are implied by trade, custom, practice or course of dealing.
2.2 Save for any other related contracts entered into by the parties (such as our Subscription Agreement), the Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3. Placing an order and its acceptance
3.1 By submitting an order to us including via our website you accept that you are entering into a binding contract with us in accordance with these Terms pursuant to which we will supply any services and deliverables specified in the order (as applicable referred to in these terms as “Deliverables” and “Services”).
3.2 Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any requirements submitted by you within the order (the “Requirements”) are complete and accurate.
4. Our Deliverables and Services
4.1 Any descriptions or illustrations on our website are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
4.2 Save where:
(a) we have produced and you have signed off an agreed and written functional specification for any Deliverables or Services (Functional Specification); and
(b) we have expressly confirmed in writing a warranty that any applicable Deliverables or Services will comply with such Functional Specification;
we make no warranty of compliance with specification or Requirements in connection with any Deliverables or Services supplied pursuant to this Contract. All Deliverables and Services shall be supplied “as is”. If you require a Functional Specification, you may request that we write one, accepting that this specification consultancy is charged on time and material basis.
4.3 We do not warrant that any software Deliverables will operate uninterrupted or error-free.
4.4 We warrant to you that the Services will be provided using reasonable care and skill.
4.5 We will use all reasonable endeavours to meet any performance dates specified in any order, but any such dates are estimates only and failure to perform the Services or deliver any Deliverables by such dates will not give you the right to terminate the Contract.
4.6 Acceptance of any Deliverable shall be deemed to have occurred on whichever is the earliest of:
(a) the expiry of five days after the completion of any acceptance tests agreed by the parties,
(b) the use of any Deliverable by you in the normal course of your business.
4.7 We shall not in any circumstances be liable under these Terms if we can demonstrate that any failure of any Deliverable was caused or contributed to by any of the following:
(a) any failure by you to comply with its obligations under this agreement;
(b) any error or malfunction in any other software, hardware or systems for which we are not responsible or any failure by you, your agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which we are not responsible;
(c) any failure by you or your agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to us which is reasonably required by us for the proper performance of our obligations under this agreement; or
(d) any unauthorised modification of any software Deliverable made by you or on your behalf;
(e) your use of any version of any software Deliverable other than the latest version supplied by us, if such claim could have been avoided by the use of such supplied version;
(f) our incorporation into any software Deliverable of a feature expressly requested by you; or
(g) your use in connection with any project of any software, material, information, data, know-how, instructions or scripts provided by you that contain any errors or omissions, or were generally open to more than one interpretation.
5. Price of goods services
5.1 Deliverables and Services may be purchased using “points” as described on our site at the time you submit your order (Point(s)).
5.2 Each Point is purchased for a defined monetary value as set out on our Site from time to time which can then be used against Services and related Deliverables. Different types of Services consume different numbers of Points dependent of the type of resource used.
5.3 You must utilise any Points within 12 months of the date of purchase otherwise they will lapse and cease to have any value automatically.
5.4 Once purchased Points shall not be refundable in any circumstances.
5.5 The price of Points may change from time to time, but changes will not affect any order you have already placed.
5.6 The price of Points excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Deliverables and Services in full before the change in VAT takes effect.
5.7 Depending on the Deliverables, there may be additional Marketplace Subscription fees to cover hosting, maintenance, backup and running of additional services, or additional complexity or computing resource required to run and maintain existing services. These fees will be subject to our “Subscription Terms and Conditions”.
6. How to pay
6.1 You can only pay for Deliverables and Services by Direct Debit, or using a debit card or credit card.
6.2 Payment for Points (as described in clause 5) shall be made in advance on purchase of the applicable Points.
6.3 If we have not received payment within 14 days after the due date or if any payment via credit card or direct debit is declined, and without prejudice to any other of our rights and remedies:
(a) we may, without liability to you, suspend supply of any Services or Deliverables or access to all or part of any subscription services and we shall be under no obligation to provide any or all of the Services or Deliverables while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7. Your obligations
7.1 You warrant and represent that:
(a) you will:
(i) perform the any responsibilities identified to you in any order or as otherwise agreed by the parties within the relevant specified timescales specified such plans or, if none, as soon as reasonably possible; and
(ii) provide adequate and appropriately skilled and qualified resources to facilitate the testing of any software Deliverable.
(iii) comply with the terms of any applicable third party software licences;
(iv) obtain and shall maintain all necessary licences, consents, and permissions necessary for you to perform our responsibilities and obligations under this agreement; and
(v) ensure that all network connections and telecommunications links from your business systems to our systems and/or data centres are suitable for modern internet software applications, and comply with any additional relevant specifications provided by us from time to time.
(vi) co-operate with us in all matters relating to the Services or Deliverables, especially with regard to providing clear and timely feedback as requested by us during the delivery of these services;
(vii) provide us with such information and materials we may reasonably require in order to supply the Services or Deliverables, and ensure that such information is complete and accurate in all material respects.
8. Intellectual Property warranty
8.1 We provide a warranty that:
(a) the Deliverables are proprietary to us and that we have the right to license all UK Intellectual Property Rights in and to the Deliverables to you;
(b) use of any of the Deliverables will not infringe the Intellectual Property Rights of any third party.
For the purpose of these Terms, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
9. Intellectual property rights
9.1 All intellectual property rights in or arising out of or in connection with the Services and any Deliverables (other than intellectual property rights in any materials provided by you) will be owned by us.
9.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of any subscription agreement you have with us only to use any Deliverables (excluding materials provided you) for the purpose of receiving and using the Services and such Deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause 9.2.
9.3 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract (or any related Subscription Agreement) for the purpose of providing the Services and Deliverable to you.
10. Our liability: your attention is particularly drawn to this clause
10.1 We only supply the Deliverable and Services for internal use by your business, and you agree not to use the Deliverable and Services for any resale purposes.~
10.2 Nothing in these Terms limits or excludes our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other liability that cannot be limited or excluded by law.
10.3 Subject to clause 10.2 we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, arising under or in connection with the Contract for:
(a) any loss of profits, sales, business, or revenue; or
(b) loss of business opportunity; or
(c) loss of anticipated savings; or
(d) loss of goodwill; or
(e) any indirect or consequential loss.
10.4 Subject to clause 10.2, our total liability to you for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, will in no circumstances exceed 150% of the price paid for the Deliverables and Services to which the breach relates.
10.5 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Deliverable and Services. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Deliverable and Services are suitable for your purposes.
11.1 Either party may terminate the Contract at any time by providing notice in writing to the other.
11.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
11.3 Any Points purchase shall not be refundable for any reason.
11.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
12. Events outside our control
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
12.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Deliverable and Services to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
13.1 Each party undertakes that it will not at any time disclose to any person any confidential information concerning the other's business, affairs, customers, clients or suppliers, except as permitted by clause 13.2.
13.2 Each party may disclose the other's confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.
14. Communications between us
14.1 When we refer to "in writing" in these Terms, this includes email.
14.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
14.3 A notice or other communication is deemed to have been received:
(a) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(b) if sent by email, at 9.00 am the next working day after transmission.
14.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
14.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.1 Assignment and transfer.
(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you by posting a notice on our site if this happens.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
15.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
15.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
15.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
15.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
15.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
15.7 Disputes. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, our Customer Services Manager (or equivalent) and your Project Manager (or equivalent) shall attempt in good faith to resolve the Dispute;
(b) if our Customer Services Manager (or equivalent) and your Project Manager (or equivalent) are for any reason unable to resolve the Dispute within 60 days of service of the Dispute Notice, the Dispute shall be referred to our CEO and your CEO (or equivalent), who shall attempt in good faith to resolve it; and
(c) if our CEO and your CEO (or equivalent) are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 90 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 14 days after the date of the ADR notice
(d) No party may commence any court proceedings in relation to the whole or part of the Dispute until 28 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
(e) If the Dispute is not resolved within 28 days after service of the ADR notice or either party fails to participate or ceases to participate in the mediation before the expiry of that 28 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 15.6 (Jurisdiction) in this Agreement.