These terms and conditions are the contract between you and KMsoft Ltd. (“us”, “we”, etc). By visiting or using The Website www.kmsoft.co.uk (“the Website”), you agree to be bound by them.
They protect your rights as well as ours.
We are KMsoft Ltd, a company registered in Scotland, number SC504562. Our address is CodeBase, 8-10 Corn Exchange, Stirling, FK8 2HU, Scotland, UK.
You are: Anyone who uses the Website.
Please read this agreement carefully. If you do not agree with it, you should leave the Website immediately.
1. Definitions
In this agreement:
“Carrier” means any person or business contracted by us to carry Goods from us to you.
“Content” means any content in any form published on The Website by us or any third party with our consent.
“Goods” means any of the goods we offer for sale on The Website, or, if the context requires, goods we sell to you.
“Website” means any website of ours and includes all web pages controlled by us.
2. Interpretation
In this agreement unless the context otherwise requires:
2.1. a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
2.2. these terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you.
2.3. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;
2.4. except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person;
2.5. in this agreement references to a party include references to a person to whom those rights and obligations are transferred or passed as a result of a merger, division, reconstruction or other re-organisation involving that party.
2.6. the headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation;
2.7. a reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
2.8. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
2.9. these terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to The Website.
This agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. Our contract with you
3.1. This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
3.2. Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
3.3. If you use The Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
3.4. Because we rely on our suppliers, we do not guarantee that Goods advertised on The Website are available. We may change these terms from time to time. The terms that apply to you are those posted here on The Website on the day you order Goods.
3.5. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods.
3.6. If, in future, you buy Goods from us under any arrangement which does not involve your payment via The Website, these terms still apply so far as they can be applied.
3.7. We do not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not serve.
4. Acceptance of your order
4.1. Your order is an offer to buy from us. Nothing that we do or say will amount to any acceptance of that offer until we actually dispatch the Goods to you. [At any point up until then, we may decline to supply the Goods to you without giving any reason].
4.2. If we do not have all the Goods you order in stock, we will offer you alternatives. If this happens you may:
4.2.1 accept the alternatives we offer;
4.2.2 cancel all or part of your order.
5. Price and payment
5.1. The price payable for the Goods that you order is clearly set out on The Website.
5.2. It is possible that the price may have increased from that posted on The Website. If that happens, we will not despatch the Goods until you have confirmed that you wish to buy at the new price.
5.3. The Price detailed on our website is exclusive of VAT (or any other equivalent sales tax) and withholding tax which will be payable by the customer (where relevant) at the appropriate rate.
5.4. If the item you order is available in parts, you must pay us the full price of your order before we will send any part of it.
5.5. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than pounds Sterling will be borne by you.
5.6. If, by mistake, we have under-priced Goods, we will not be liable to supply that those Goods to you at the stated price, provided that we notify you before we dispatch it to you.
5.7. The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of The Website before we ask you to pay.
5.8. If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 14 days from the date when we accept that repayment is due.
6. Security of your credit card
We take care to make The Website safe for you to use.
6.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
6.2. If you have asked us to remember your credit card details in readiness for your next purchase or subscription, we will securely store your payment details on our systems. These details will be fully encrypted and only used to process your automatic monthly payments or other transactions which you have initiated.
7. Delivery and pick up
7.1. Goods are delivered within 30 days from the day you place an order to purchase the Goods.
7.2. Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept the delivery.
7.3. If we are not able to deliver your Goods within [30] days of the date of your order, we shall notify you by e-mail to arrange another date for delivery.
7.4. We may deliver the Goods in instalments if they are not all available at the same time for delivery.
7.5. All Goods must be signed for on delivery by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted, the Goods may be retained by the driver. When your Goods arrive, it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact us so that we may dispatch a replacement quickly and minimise your inconvenience.
7.6. Signing “Unchecked”, “Not Checked” or similar is not acceptable.
7.7. Goods are sent by post. We will send you a message by email to tell you when we have despatched your order.
7.8. If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. We are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
7.9. Some Goods will be delivered direct from the manufacturer who will contact you to arrange delivery. When delivery of the Goods has been arranged directly with the manufacturer, you will be subject to the manufacturer’s delivery policy.
7.10. Some Goods are so large and heavy that delivery times may be slightly longer. In this case, approximate delivery dates will be given when you place your order.
7.11. Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
8. Foreign taxes and duties
8.1. If you are not in the UK, we have no knowledge of, and no responsibility for, the laws in your country.
8.2. You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
9. Goods returned
These provisions apply if you buy from us other than being a Consumer. The following rules apply to return the faulty Goods:
9.1. We do not accept returns unless there was a defect in the Goods at the time of purchase, or we have agreed in correspondence that you may return them.
9.2. Before you return the Goods to us, please carefully re-read the instructions and check that you have assembled it correctly and complied with any provisions relating to the power supply, plugs, sockets and other operating instructions.
9.3. The Goods must be returned to us as soon as any defect is discovered but not later than 7 days.
9.4. So far as possible, Goods should be returned:
9.4.1 with both Goods and all packaging as far as possible in their original condition;
9.4.2 securely wrapped;
9.4.3 including our delivery slipor manufacturer’s delivery slip;
9.4.4 at your risk and cost.
9.5. Detailed instructions for returning faulty Goods are available in the Returns Policy on The Website. Please note in particular that we cannot deal with your complaint unless you return the entire Goods that you bought: that is to say, with all components and parts and in the original packaging.
9.6. In returning faulty Goods, please enclose with it a note clearly stating the fault and when it arises or arose.
9.7. Most of the Goods are covered by the manufacturer’s guarantee for a minimum of 12 months. Please first check the plug, fuse, batteries and the manufacturer’s operating instructions.
9.8. If we agree that the Goods are faulty, we will:
9.8.1 refund the cost of return carriage;
9.8.2 repair or replace the Goods as we choose.
9.9. If we repair or replace the Goods, you have no additional claim against us either under this agreement or by statute or common law, in respect of the defect.
10. Disclaimers
10.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
10.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
10.3. We make no representation or warranty for:
10.3.1 the quality of the Goods;
10.3.2 any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
10.3.3 the correspondence of the Goods with any description;
10.3.4 the adequacy or appropriateness of the Goods for your purpose.
10.4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from The Website.
10.5. We shall not be liable to you for any loss or expense arising out of or in connection with your use of The Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it.
10.6. We make no representation or warranty and accept no responsibility in law for:
10.6.1 accuracy of any Content or the impression or effect it gives;
10.6.2 delivery of Content, material or any message;
10.6.3 privacy of any transmission;
10.6.4 any act or omission of any person or the identity of any person who introduces himself to you through The Website;
10.6.5 any aspect or characteristic of any goods or services advertised on The Website;
10.7. The Website includes Content Posted by third parties. We are not responsible for any such Content. If you come across any Content which offends you, please contact us via the “Contact us” page on The Website.
10.8. We will do all we can to maintain access to The Website, but it may be necessary for us to suspend all or part of our service for repairs, maintenance or other good reasons. We may do so without telling you first.
10.9. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Goods concerned.
10.10. This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies, as well as to us. Any of them may enforce this provision under the Contracts (Rights of Third Parties) Act 1999 / Contracts (Rights of Third Parties) (Scotland) Act 2017.
10.11. If you become aware of any breach of any term of this agreement by any person, please tell us by emailing [email protected]. We welcome your input but do not guarantee to agree with your judgement.
10.12. Nothing in this agreement excludes liability for a party’s fraud.
11. Your account with us
11.1. You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
11.2. If you use The Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account.
11.3. You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
12. Security of The Website
If you violate The Website we shall take legal action against you.
You agree that you will not, and will not allow any other person to:
12.1. modify, copy, or cause damage or unintended effect to any portion of The Website, or any software used within it.
12.2. link to The Website in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
12.3. download any part of The Website, without our express written consent;
12.4. collect or use any product listings, descriptions or prices;
12.5. collect or use any information obtained from or about The Website or the Content except as intended by this agreement;
12.6. aggregate, copy or duplicate in any manner any of the Content or information available from The Website, other than as permitted by this agreement or as is reasonably necessary for your use of The Website;
12.7. share with a third party any login credentials to The Website.
12.8. Despite the above terms, we now grant a licence to you to:
12.8.1 create a hyperlink to The Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
12.8.2 you may copy the text of any page for your personal use in connection with the purpose of The Website.
13. Indemnity
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
13.1. your failure to comply with the law of any country;
13.2. your breach of this agreement;
13.3. any act, neglect or default by any agent, employee, licensee or customer of yours;
13.4. a contractual claim arising from your use of the Goods;
13.5. a breach of the intellectual property rights of any person.
14. Intellectual Property
14.1. We will defend the intellectual property rights in connection with our Goods and The Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in: text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
14.2. Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
14.3. You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
14.4. Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
15. Dispute resolution
The following terms apply in the event of a dispute between the parties:
15.1. If you are not happy with our services or have any complaint, you must tell us by email message to [email protected]
15.2. Detailed information about our complaint handling procedure is at on The Website.
15.3. If a dispute is not settled as set out above, we hope you will agree to attempt to resolve it by engaging in good faith with us in a process of mediation or arbitration.
16. Miscellaneous matters
16.1. When we communicate with you, we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post.
16.2. Where we provide goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service.
16.3. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
16.4. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
16.5. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
16.6. Any communication to be served on either party by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail.
It shall be deemed to have been delivered:
if delivered by hand: on the day of delivery;
if sent by post to the correct address: within 72 hours of posting;
If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
16.7. This agreement does not give any right to any third party under the Contracts (Rights of Third Parties) (Scotland) Act 2017or otherwise.
16.8. Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his reasonable control.
16.9. In the event of any conflict between any term of this agreement and the provisions of the articles of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
16.10. The validity, construction and performance of this agreement shall be governed by the laws of Scotland and you agree that any dispute arising from it shall be litigated only in that country.
17. Software Terms & Conditions
Definitions and Interpretation
In this Agreement, except where the context otherwise requires, the following words and expressions shall have the following meanings:
‘App’ means our proprietary Android app which we provide to you as part of the Service and is installed on the Equipment or Customer Device as applicable;
‘Business Day’means any day which is not a Saturday, Sunday or public holiday in the UK;
‘Confidential Information’means all information that is proprietary or confidential and is marked as confidential or which ought reasonably to be treated as confidential in whatever form which is disclosed by one Party to the other in terms of the Agreement whether before or after this Agreement becomes effective;
‘Configuration Fees’means the fees for configuration and installation work provided by the Company as stated in the Email Confirmation;
‘Customer Data’means the data inputted by the Customer, STOCKASSIST Users or the Company on the Customer’s behalf for the purpose of using the Hosted Services or facilitating the Customer’s use of the Hosted Services;
‘Customer Device’ means, where the App is to be installed on the Customer’s own device, the specific device listed in the Services Confirmation for this purpose;
‘Data Protection Legislation’means any law applicable relating to the processing, privacy and use of personal data, including: (i) the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426 (both as amended), and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) or Directive 2002/581EC; (ii) the General Data Protection Regulation (EU) 2016/679, and/or any corresponding or equivalent national laws or regulations; and/or (iii) any judicial or administrative implementation of any of the above, any guidance, guidelines, codes of practice, codes of conduct or approved certification mechanisms issued by the Information Commissioner’s Office, or other relevant data protection authority;
‘Delivery Date’means the date for delivery of the Equipment as set out in the Services Confirmation;
‘Documentation’ means the documentation made available to the Customer from time to time in electronic or hard copy format which sets out a description of the Hosted Services and user instructions;
‘Effective Date’ means the date in which the order was placed by you on our Website;
‘Email Confirmation’ means a confirmation of your order placed on our Website, which will contain a summary of the items you ordered;
‘Equipment’ means the mobile computer, printer and any other equipment which the Company agrees to purchase for and sell to the Customer as set out in the EmailConfirmation;
‘Fees’ means the Fees for the Subscription Fees and Configuration Fees;
‘Hosted Services’means the hosted services to be provided by the Company to the Customer as set out in the Email Confirmation;
‘Hosted Software’means the Company’s online software applications provided by the Company to the Customer under the Hosted Services as set out in the Documentation which includes the STOCKASSIST Software;
‘Intellectual Property Rights’means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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;
‘Initial Period’means the initial period set out in the Email Confirmation;
‘Normal Business Hours’means 9:00 am to 5:00 pm local UK time each Business Day;
‘Open-Source Software’ open-source software as defined by the Open Source Initiative (http://opensource.org)or the Free Software Foundation (http://www.fsf.org);
‘Parties’means the Company and the Customer, and “Party” shall be construed accordingly;
‘Price’means the price for the Equipment as set out in the Email Confirmation;
‘Renewal Period’means the renewal period set out in the Email Confirmation;
‘StockAssist Terms and Conditions’means the terms and conditions set out in Part 3 of the Schedule;
‘STOCKASSIST Software’means the Company’s proprietary software system, known as STOCKASSIST, which can be hosted remotely by the Company as part of the Hosted Software;
‘STOCKASSIST Users’means those employees, agents and independent contractors and Subsidiaries of the Customer who are authorised by the Customer to use the Hosted Servicesand Documentation as further described in the Software and Equipment Terms and Conditions;
‘Storage Capacity’means the amount of data storage space required by the Customer as set out in the Documentation;
‘Subscription Fees’ means the fees payable by the Customer to the Company for the User Subscriptions as set out in the EmailConfirmation;
‘Term’means the period beginning on the Effective Date and continuing for the Initial Period and shall be automatically renewed for successive Renewal Periods unless terminated in accordance with the Agreement or by either Party giving 90 days written notice prior to: (i) the expiry of the Initial Period; or (ii) the expiry of any Renewal Period;
‘User Subscriptions’means the user subscriptions purchased by the Customer which entitle STOCKASSIST Users to access and use the Hosted Software, Hosted Services and Documentation in accordance with this Agreement;
‘Virus’ means 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.
1.2 Any reference in this Agreement to a statute or any provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in this Agreement are for convenience only and shall not affect their interpretation.
1.4 A reference to writing or written includes email.
1.5 Words in the singular shall include the plural and vice versa.
1.6 In the event of any conflict between the Software and Equipment Terms and Conditions set out in Part 3 of the Schedule, then the Software and Equipment Terms and Conditions shall prevail, unless it is clearly and expressly stated that the opposite should be the case.
Schedule
Part 3
StockAssist Terms and Conditions
The Agreement may cover Hosted Software provided by way of software as a service, as well as Equipment sold to the Customer. Section A below applies only to Hosted Software, Section Bapplies only to the sale of the Equipment and Section Capplies to the entire Agreement.
Section A – Hosted Software
1. USER SUBSCRIPTIONS
1.1 Subject to the Customer purchasing the required number and type of User Subscriptions and the other terms and conditions of the Agreement, the Company hereby grants to the Customer a non-exclusive, non-transferable right to permit the STOCKASSIST Users to use the Hosted Services and the Documentation during the Term solely for the Customer’s internal business operations.
1.2 In relation to the STOCKASSIST Users, the Customer undertakes that:
(a) the maximum number of STOCKASSIST Users that it authorises to access and use the Hosted Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual STOCKASSIST User unless it has been reassigned in its entirety to another individual STOCKASSIST User, in which case the prior STOCKASSIST User shall no longer have any right to access or use the Hosted Services and/or Documentation;
(c) each STOCKASSIST User shall keep a secure password for his use of the Hosted Services and Documentation and that each STOCKASSIST User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current STOCKASSIST Users and provide such list to the Company within 5 Business Days of the Company’s written request at any time or times;
(e) it shall permit the Company to audit the Hosted Services in order to establish the name and password of each STOCKASSIST User. Such audit may be conducted as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in clause 1.2(e) reveal that any password has been provided to any individual who is not an STOCKASSIST User, then without prejudice to the Company’s other rights, the Customer shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 1.2(e) reveal that the Customer has underpaid Subscription Fees to the Company, the Customer shall pay to the Company an amount equal to such underpayment as calculated in accordance with the prices set out in Services Confirmation within 10 Business Days of the date of the relevant audit.
1.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property. The Company reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
1.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Hosted Software;
(b) except to the extent expressly permitted under the Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Hosted Software and/or Documentation (as applicable) in any form or media or by any means;
(c) access all or any part of the Hosted Services and Documentation in order to build a product or service which competes with the Hosted Services and/or the Documentation;
(d) use the Hosted Services and/or Documentation to provide services to third parties;
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Hosted Services and/or Documentation available to any third party except the STOCKASSIST Users, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Hosted Services and/or Documentation, other than as provided under this clause 1.
1.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hosted Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Company.
2. ADDITIONAL USER SUBSCRIPTIONS
2.1 The Customer may, from time to time during the Term, purchase additional User Subscriptions and the Company shall grant access to the Hosted Services and the Documentation to such additional STOCKASSIST Users in accordance with the provisions of the Agreement.
2.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Company in writing. The Company shall invoice the Customer for such additional User Subscriptions and the Customer shall pay to the Company the relevant fees for such additional User Subscriptions within 30 days of the date of the Company’s invoice. If such additional User Subscriptions are purchased by the Customer part way through the Initial Period or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Period or the current Renewal Period (as applicable).
3. CUSTOMER DATA AND DATA PROTECTION
3.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.2 The Company shall back-up the Customer Data as set out in the Documentation. Subject to the Data Protection Legislation and this clause 3, in the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Company in accordance with the back-up services set out in the Documentation. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Company to perform services related to Customer Data maintenance and back-up).
3.3 Both Parties will comply with all applicable requirements of the Data Protection Legislation. If the Company processes any personal data on the Customer’s behalf, whether contained in the Customer Data or otherwise, when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the controller and the Company shall be a processor (where ‘Controller’, ‘Processor’, ‘Data Subject’ and ‘Personal Data’ have the meanings as defined in the Data Protection Legislation). The scope, nature and purpose of processing by the Company is in relation to the provision of the Hosted Services. The type of Personal Data will be set out in any data uploaded by the Customer using the Hosted Services and the categories of Data Subjects are any individuals that may be referred to within such data. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this agreement. In relation to any Personal Data processed in connection with the performance by the Company of its obligations under this Agreement, the Company shall:
(a) process that Personal Data only on the written instructions of the Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process Personal Data (‘Applicable Laws’);
(b) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(c) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (i) the Customer or the Company has provided appropriate safeguards in relation to the transfer; (ii) the Data Subject has enforceable rights and effective legal remedies; (iii) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (iv) the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(d) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with the Data Protection Legislation and allow for audits by the Customer or the Customer’s designated auditor.
3.4 The Company shall ensure that it has in place appropriate technical or organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:
(a) pseudonymising and encrypting Personal Data;
(b) ensuring confidentiality, integrity, availability and resilience of its systems and services;
(c) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
(d) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.
3.5 The Customer consents to the Company appointing third-party processor of Personal Data under this agreement for the purposes of storage and data analytics. The Company confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it.
4. COMPANY'S OBLIGATIONS
4.1 The Company shall, during the Term, provide the Hosted Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
4.2 The Company undertakes that the Hosted Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
4.3 The undertaking at clause 4.2 shall not apply to the extent of any non-conformance which is caused by use of the Hosted Services contrary to the Company’s instructions, or modification or alteration of the Hosted Services by any party other than the Company or the Company’s duly authorised contractors or agents. If the Hosted Services do not conform with the foregoing undertaking, Company 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 Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 4.2. Notwithstanding the foregoing, the Company:
(a) does not warrant that the Customer’s use of the Hosted Services will be uninterrupted or error-free; nor that the Hosted Services, Documentation and/or the information obtained by the Customer through the Hosted Services will meet the Customer’s requirements; and
(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 that the Hosted Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
5. CUSTOMER'S OBLIGATIONS
The Customer shall:
(a) provide the Company with: (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information, Customer premises or Customer infrastructure as may be required by the Company in order to render the Hosted Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the STOCKASSIST Users: (i) receive proper training in the use of the Hosted Software and Hosted Services prior to using the Hosted Software and Hosted Services; and (ii) use the Hosted Services and the Documentation in accordance with the terms and conditions of the Agreement and the Customer shall be responsible for any STOCKASSIST User’s breach of the Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under the Agreement, including without limitation the Hosted Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and
(g) be solely responsible for: (i) procuring and maintaining its network connections and telecommunications links from its systems to the Company’s data centres; and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
6. PROPRIETARY RIGHTS
6.1 The Customer acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in the Hosted Software, Hosted Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer 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 Hosted Software, Hosted Services or the Documentation.
6.2 The Company confirms that it has all the rights in relation to the Hosted Software, Hosted Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
Section B– Equipment
12. QUALITY OF EQUIPMENT
12.1 The Customer acknowledges that the Company is not the manufacturer of any Equipment that may be provided as part of the Services. Where Equipment is provided the Company will, to the extent possible, provide the benefit of any manufacturer’s guarantee and/or warranty to the Customer in relation to that Equipment. All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
13. DELIVERY
13.1 The Company shall deliver the Equipment to the Customer at the Site on the Delivery Date.
13.2 The Customer shall procure that a duly authorised representative shall be present at the delivery of the Equipment at the Site.
13.3 Acceptance of delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended.
13.4 To facilitate delivery, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable delivery to be carried out safely and expeditiously by the Company.
13.5 The Customer agrees that the Company shall not be liable for any reasonable delay by the Company in delivering the Equipment.
14. RISK AND TITLE
14.1 Risk in the Equipment shall pass to the Customer upon delivery of the equipment to the Customer.
14.2 Title in the Equipment shall pass to the Customer on payment to the Company of the agreed price for that Equipment. Until title to the Equipment has passed to the Customer, the Customer shall:
(a) store the Equipment separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
(c) maintain the Equipment in a satisfactory condition.
Section C– General
15. CHARGES AND PAYMENT
15.1 The Customer shall by the Effective Date provide to the Company all relevant valid, up-to-date and complete contact and billing details.
15.2 The Customer shall pay the Fees and the Price of the Equipment to the Company as set out in the Services Confirmation in accordance with the Agreement.
15.3 Unless otherwise provided in this Agreement the Customer shall pay each invoice from the Company within 30 days after the date of such invoice .
15.4 If the Company has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Company, the Company may: (a) without liability to the Customer, disable the Customer’s password, account and access to all or part of the Hosted Services or On-Premise Software; (b) suspend supply of the Equipment and enter into the Customer’s premises to reclaim such Equipment; and (c) charge interest to the Customer on such amounts due at an annual rate equal to 4% over the then current base lending rate of the Royal Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
15.5 All amounts and fees stated or referred to in the Agreement: (a) shall be payable in pounds sterling; and (b) are exclusive of value added tax which may be added to the Company’s invoice(s) at the appropriate rate.
15.6 If, at any time whilst using the Hosted Services, the Customer exceeds the Storage Capacity, the Company shall charge the Customer, and the Customer shall pay the Company’s then current excess data storage fees. The Company’s excess data storage fees current as at the Effective Date are set out in the Documentation.
15.7 The Company shall be entitled to increase the Fees, the server fees and/or the excess storage fees payable pursuant to clause 15.6 at the start of each Renewal Period upon 30 days’ prior notice to the Customer.
16. USE OF APP
16.1 The Customer is licensed to use the App solely in relation to the use of the Hosted Service or On-Premise Software.
16.2 The App shall only be installed on the Equipment or Customer Device.
16.3 All Intellectual Property Rights in the App belong to the Company, and the Customer shall have no rights in or to the App other than the right to use it in accordance with the terms of this Agreement. The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the App in whole or in part.
17. CONFIDENTIALITY
17.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
17.2 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 the Agreement.
17.3 Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
17.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party unless they are acting on behalf of the Company or Customer.
17.5 The Customer acknowledges that details of the Hosted Services, and the results of any performance tests of the Hosted Services, constitute the Company’s Confidential Information.
17.6 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
17.7 This clause 16 shall survive termination of the Agreement.
18. INDEMNITY
18.1 The Customer shall indemnify the Company and hold the Company harmless against all claims, demands, actions, costs, expenses, losses and damages arising out of or caused by any failure of the Customer to comply with the provisions of the Agreement provided that: (i) the Customer is given prompt notice of any such claim; (ii) the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (iii) the Customer is given sole authority to defend or settle the claim.
19. LIMITATION OF LIABILITY
19.1 This clause 18 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of the Agreement; (b) any use made by the Customer of the Hosted Services, On-Premise Software, Documentation, Equipment or any part of them; and (c) any representation, statement, act or omission (including negligence) arising under or in connection with the Agreement.
19.2 Except as expressly and specifically provided in the Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Hosted Services, On-Premise Software and the Documentation by the Customer, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Hosted Services, or any actions taken by the Company at the Customer’s direction; and
(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 Agreement.
19.3 The Company shall not be liable for any claims, losses, liabilities, expenses or damages arising from:
(a) misuse of the Equipment, including without limitation improper use of the Equipment, use for purposes which are not expressly indicated by the Company in writing as suitable for such Equipment;
(b) negligence on the part of any person other than the Company;
(c) improper storage or treatment of the Equipment or any part of the Equipment by the Customer or any subsequent user; or
(d) loss or theft of the whole or any part of the Equipment.
19.4 Nothing in the Agreement excludes the liability of the Company: (a) for death or personal injury caused by the Company’s negligence; or (b) for fraud or fraudulent misrepresentation.
19.5 Subject to clause 18.4: (a) the Company shall not be liable whether in delict (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 Agreement; and (b) the Company’s total aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the amount of the Fees and the Price paid during the 12 months immediately preceding the date on which the claim arose.
20. TERM AND TERMINATION
20.1 The Agreement shall, unless otherwise terminated as provided in this clause 19, commence on the Effective Date and shall continue for the Term.
20.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:
(a) a voluntary agreement is approved, or an administration order is made, or an administrator, a receiver or an administrative receiver is appointed over any of the other party’s assets or undertaking or a resolution or petition to wind up the other party is passed or presented (other than for the purposes of a genuine scheme of solvent amalgamation or reconstruction) or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order or the other party ceases to carry on business; or
(b) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach.
20.3 The Company may terminate the Agreement forthwith without any liability to the Customer if there is a change of control of the Customer.
20.4 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate;
(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;
(c) subject to clause 3, the Company shall destroy or otherwise dispose of any of the Customer Data in its possession unless the Company receives, no later than ten days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Company shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Company in returning or disposing of Customer Data; and
(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.
21. FORCE MAJEURE
The Company shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, 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 Company 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, provided that the Customer is notified of such an event and its expected duration.
22. DISPUTE RESOLUTION
22.1 If any dispute arises between the parties to the Agreement, the parties shall use their reasonable endeavours to resolve the dispute as soon as reasonably practicable, with escalation within their respective organisations as appropriate.
22.2 If any dispute has not been resolved in accordance with clause 21.1 above within fourteen (14) days of the dispute arising then either of the parties may refer the matter to an independent third party as the parties may jointly agree on (‘Third Party’). If the parties fail to agree on the identity of the Third Party within 14 days then the Third Party shall be nominated at the request of either by the Chairman (or equivalent) for the time being of the Centre for Effective Dispute Resolution.
22.3 The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall be final and binding upon the parties involved, except in the case of a manifest error.
22.4 If the dispute has not been resolved by the mechanism referred to above either party shall be free to commence court proceedings in accordance with clause 23.8.
22.5 Each party acknowledges that, notwithstanding the provisions of this clause 21, nothing in the Agreement shall prevent either party from bringing proceedings in any court of competent jurisdiction to protect the Intellectual Property Rights, rights of confidentiality or Confidential Information of that party.
23. NON-SOLICITATION
23.1 The Customer shall not, for the duration of the Agreement and for a period of 6 months following its termination or expiry, directly or indirectly induce or attempt to induce any employee of the Company who has been engaged in the provision, receipt, review or management of the Hosted Services, On-Premise Software, Equipment or otherwise in connection with the Agreement, to leave the employment of the Company.
24. GENERAL
24.1 A waiver of any right under the Agreement 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. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
24.2 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
24.3 The Agreement, and any documents referred to in it, constitute the whole Agreement between the Parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover. Each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
24.4 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
24.5 Nothing in the Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24.6 The Agreement does not confer any rights on any person or party (other than the Parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contract (Third Party Rights) (Scotland) Act 2017.
24.7 Any notice required to be given under the Agreement 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 its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Agreement. 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. A notice sent by email shall be deemed to have been received at the time of transmission.
24.8 The Agreement 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 laws of Scotland. The parties irrevocably agree that the courts of Scotland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
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