ProVisit Software License & Agreement
PROVISIT - Software Licence & Support Terms and Conditions
Unless otherwise defined within the Order Form, the definitions, and rules of interpretation in this clause apply in this Contract.
Additional Support Service: The Support Service more particularly described in the Order Form, which is to be provided by Us to You under clause 3.8.
Affiliate: includes, in relation to either party, each any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party or any business entity from time to time controlling, controlled by, or under common control with, either party.
Basic Support Service: the support service more particularly described in the Order Form, which is to be provided by Us to You under clause 3.6.
Business Day: means any day other than a Saturday, Sunday, or public bank holiday in England.
Call Out Rate means £395 + VAT or such other rate as is notified by Us to You from time to time.
Charges: the charges payable for the Services under this agreement, being (where the context so requires) each or any of the following:
the charges for the Basic Support Service (which charges also include the Updating Service) as set out in the Order Form.
the charges for the Additional Support Service set out in the Order From; and
any charges agreed for New Versions.
in each case as the same may be amended for time to time in accordance with the provisions of clause 4.7.
Commencement Date: means the date on which We receive an official Order Form for You and our Scope of Works signed and completed.
Confidential Information: has the meaning given in clause 9.
Contract: means the contract between You and Us comprising of the Order Form, any terms and conditions and other documentation referred to therein.
Contract Year: any 12-month period ending on any anniversary of the Commencement Date.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2020, and the expression change of control shall be construed accordingly or the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Critical Fault: a reproducible fault which substantially hinders or prevents You from using a material part of the functionality of the software in question.
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations, and secondary legislation, as mentioned or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: any Documentation, Software, know-how or other works created or supplied by US (whether alone or jointly) while providing the Services.
Documentation: the documents provided by Us for the Software, in either printed text or machine-readable form, including the technical documentation, program specification and operations manual.
Hardware: means any hardware purchased by You from Us as detailed within the Order Form.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks 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.
Loss: means any and all damages, charges, claims, costs (including legal fees) damages, demands, expenses, fees, liabilities, and losses.
Modification: any Update or New Version which is acquired by You.
New Version: any new version of the Software which from time to time We publicly marketed and offered for purchase in the course of Our normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Next Day: means delivery to be made before 5 pm on the day after that on which the request for delivery is made, provided the request is made prior to 1 pm.
Non-Critical Fault: any reproducible fault in the Software other than a Critical Fault.
Order Form: means the document which is headed up as such.
Services: includes (as appropriate) the licence to use the Software, the Basic Support Service, the Updating Service, and the Additional Support Service.
Software: means the software specified within the Order Form and any other software which We from time to time grant a licence to You in respect of.
Support Hours: 9.00 am to 5.00 pm Monday to Friday, not including Bank Holidays. Supported Software has the meaning set out in clause 2.1.
Update: a release of the Software which corrects faults, adds functionality, or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Updating Service: the service to be supplied by Us to You under clause 3.1 and clause 3.7.
Virus: anything 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.
1.1 We, Us, our: means the party defined as such within the Order Form. You, your: means the party defined as such within the Order Form.
1.2 A person includes an individual, corporate, or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.3 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
2. Supported Software
2.1 Subject to clause 7, the restrictions set out in this clause and the remainder of these terms and conditions, we hereby grant to You a non-exclusive, non-transferable right, without the right to grant sublicenses, to use the Services and the Documentation during the Subscription Term solely for Your internal business operations.
2.2 You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive.
2.2.2 facilitates illegal activity.
2.2.3 depicts sexually explicit images.
2.2.4 promotes unlawful violence.
2.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.2.6 is otherwise illegal or causes damage or injury to any person or property.
and We reserve the right, without liability or prejudice to Our other rights, to disable Your access to any material that breaches the provisions of this clause.
2.3 You shall not:
2.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Contract:
18.104.22.168 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
22.214.171.124 attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software: or
2.3.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation: or
2.3.3 use the Services and/or Documentation to provide services to third parties; or
2.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party: or
2.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause.
2.4 You shall use Your best reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Us.
2.5 The rights provided under this clause are granted to You only and shall not be considered granted to any of Your Affiliates.
3. The Services
3.1 The Supported Software is:
3.1.1 the Software ProVisit
3.1.2 any Modification which is acquired by You (whether under this agreement or any other agreement between Us and You) and which accordingly becomes part of the Software; and
3.1.3 any other software which the We agree should be Supported Software for the purposes of this agreement.
3.2 Each party shall appoint the contact named in the Order Form, who shall be responsible for the co-ordination of all matters relating to the Services. All communications, documentation and materials relating to this Contract shall be sent as appropriate by the named contacts and each party shall notify the other in writing promptly if there is any proposed change to those appointments.
3.3 In relation to Updates:
3.3.1 as part of the Updating Service, we shall from time to time make Updates available to You without charge; and
3.3.2 You acknowledge that installing Updates promptly is needed for optimum provision of the Services. If You fail to install an Update within one month of Us notifying You that such Update is available for installation: (i) We shall not be liable for any failure to perform the Services; (ii) You may incur additional charges due to the increased efforts required to perform the Services and (iii) We may, at Our sole discretion, terminate this Contract by giving one month's written notice to You.
3.4 In relation to New Versions, if We release a New version, you are not obliged to acquire and install such New version. However, if you do elect to acquire and install a New Version, such New Version shall be chargeable in accordance with clause 4.2.
3.5 Where specified within the Order Form, we shall supply, and You shall take and pay for, the following Services:
3.5.1 the Basic Support Service; and
3.5.2 the Additional Support Service.
3.6 In relation to the Basic Support Service:
3.6.1 the Basic Support Service shall be provided during the Support Hours and shall comprise:
126.96.36.199 a telephone help desk to provide first-line technical support to users of the Supported Software; and
188.8.131.52 the Updating Service.
3.6.2 if on-site support is required in any month it may be provided by Us at Our option at the Call Out Rate and where We discover that any on-site support was necessitated through any breach of Your obligations under this Contract then We shall be permitted to charge additionally in respect of that.
3.6.3 where a Non-Critical Fault is to be corrected in a forthcoming Update, then for a reasonable period before the issue of such Update We may decline to provide assistance in respect of that Non-Critical Fault.
3.7 In relation to the Updating Service:
3.7.1 We shall issue Modifications as and when required and in whatever form (including, in the case of Non-critical Faults, by way of a local fix or patch of the Software or a temporary by-pass solution) in Our absolute discretion.
3.7.2 the Updating Service shall include the supply to You of all revisions to the Documentation which are necessary in order to reflect any Modification acquired by You.
3.7.3 for the avoidance of doubt, the cost of the Updating Service is included in the Charges payable for the Basic Support Service, but excludes any sum payable by You in respect of the licence of a New Version; and
3.7.4 once any Modification has been installed by You, where applicable and to the extent possible, you shall return all copies of the Software or any part of the Software which is superseded by that Modification.
3.8 The Additional Support Service offers everything included within the Basic Support Services and (where specified within the Order Form).
3.8.1 loan support in respect of the Hardware whereby We shall provide the Next Day delivery of a replacement piece of hardware whereby the Hardware does not work, and We are unable to fix the same remotely: and/or
3.8.2 remote diagnosis and, where possible, correction of faults; and/or
3.8.3 on-site support at 50% of Our standard scale of rates as notified to You from time to time: and/or
3.8.4 5% reduced rates on consumables and passes (discount code will be provided for use on Our website; and/or
3.8.5 installation and training in respect of the use of the Hardware and the Software.
3.8.6 ProVisit Go app now works with Cloud and Local Hosted. If a customer chooses to host the data themselves, they will require a local network connection for the mobile app to connect. If Cloud hosted, then a minimum 3g connection is required to access the information. Lesar cannot be held responsible for the accuracy of this data shown on your mobile device.
3.9 We may, on prior notice to You, make changes to the Services, provided such changes do not have a material adverse effect on Your business operations.
3.10 We shall have no obligation to provide the Services or may levy an additional charge to You for any Services provided where faults arise from:
3.10.1 misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by Us), including failure or fluctuation of electrical power.
3.10.2 failure to maintain the necessary environmental conditions for use of the Software:
3.10.3 use of the Software in combination with any equipment or software not provided by Us or not designated by Us for use with any Modification forming part of the Supported Software, or any fault in any such equipment or software:
3.10.4 relocation of the Software by any person other than Us or a person acting under Our instructions.
3.10.5 any breach of Your obligations under this agreement howsoever arising or having the Software maintained by a third party.
3.10.6 any Modification not authorised by.
3.10.7 operator error.
3.10.8 Us not being able to connect to Your system remotely.
3.10.9 any on-site visits which transpire to have been necessitated by physical damage to Your system and external issues not related to Us including network issues, computer problems or user error.
4.1 In consideration of the Services, you shall pay the Charges. These Charges shall be paid either monthly, quarterly, or annually in advance by You to Us as agreed in writing above on or in advance of the Commencement Date or where applicable, such other date as may be specified within Our invoice.
4.2 Charges for any New Version shall be notified to You and agreed in writing before performance or supply by Us and shall be charged and invoiced to You by Us (and paid by You) following acceptance by Us of Your written order for such New Version.
4.3 You shall pay all costs (at Our then prevailing rates) and expenses incurred by Us for work carried out by Us in connection with any fault which is not covered by this Contract.
4.4 You shall reimburse any expenses incurred by Us where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.
4.5 If We have not received payment of any Charges by the due date as specified, and without prejudice to any other of Our rights and remedies:
4.5.1 We may, without liability to You, disable the Software, your account and access to all or part of the Services and We shall be under no obligation to provide any or all of the Services while the Charges concerned remain unpaid; and
4.5.2 interest shall accrue daily on such due amounts at an annual rate equal to 8% per-annum, over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. You shall pay the interest together with the overdue amount.
4.6 All amounts payable under this agreement shall be exclusive of VAT or relevant local sales tax (if any) or any relevant local sales taxes which shall be paid at the rate and in the manner for the time being prescribed by law.
4.7 We may increase the Charges as from each anniversary of the date of this Contract. Any increase shall be notified to You at least three months before such anniversary.
4.8 All amounts due under this Contract shall be paid by You to Us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual Property Rights
5.1 All Intellectual Property Rights in the Deliverables shall belong to Us, and You shall have no rights in respect of any of the Deliverables except as expressly granted under this Contract. You shall do or procure to be done all such further acts and things and sign or procure the signature of all such other documents as We may from time to time require for the purpose of giving Us the full benefit of the provisions of this clause 5.1.
5.2 You shall:
5.2.1 as soon as reasonably practicable, give Us written notice of any claim or action alleging that the use or possession of any of the Deliverables (or any part of them) infringes the Intellectual Property Rights of a third party (Claim), specifying the nature of the Claim in reasonable detail.
5.2.2 not making any admission of liability, agreement, or compromise in relation to the Claim without Our prior written consent (such consent not to be unreasonably conditioned, withheld or delayed).
5.2.3 give Us and Our professional advisers at reasonable times (on reasonable prior notice) access to Your premises and Your officers, directors, employees, agents, representatives, or advisers, and to any relevant assets, accounts, documents and records within Your power or control, so as to enable Us and Our professional advisers to examine them and to take copies (at Our expense) for the purpose of assessing the Claim; and
5.2.4 take such action as We may reasonably request to avoid, dispute, compromise or defend the Claim.
5.3 If any Claim is made, or in Our reasonable opinion is likely to be made, against You, We may at Our sole option and expense:
5.3.1 procure for You the right to continue using, the Deliverables (or any part of them) in accordance with the terms of this Contract.
5.3.2 modify the Deliverables so that they cease to be infringing and provide comparable functionality.
5.3.3 replace the Deliverables with non-infringing works providing comparable functionality; or
5.3.4 terminate this Contract immediately on notice to You and repay to You all sums which You have paid to Us under this Contract during the year in which the termination occurs, less a charge for the Services performed up to the date of termination.
5.4 This clause 5 constitutes Your exclusive remedy and Our only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 12.1.
6. Your Responsibilities
6.1 You shall provide Us, and all other persons duly authorised by Us with full, safe, and uninterrupted access including remote access to Your premises, systems, facilities, and the Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of- hours downtime, to be within the Support Hours. Where the Services are to be performed at any of Your premises, you shall provide adequate working space and office facilities (including telephone) for use by Us and all other persons duly authorised by Us and take reasonable care to ensure their health and safety.
6.2 You shall ensure that appropriate environmental conditions are maintained for the Supported Software and shall take all reasonable steps to ensure that the Supported Software is operated in a proper manner by Your employees.
6.3 You shall:
6.3.1 co-operate with Us in performing the Services and provide any assistance or information as may reasonably be required by Us, including in relation to the diagnosis of any faults.
6.3.2 report faults promptly to Us; and
6.3.3 keep full backup copies of all its data.
6.4 You shall indemnify Us against any and all Loss incurred by or awarded against Us as a result of Your breach of this Contract howsoever arising or any negligent or wrongful act of You or Your officers, employees, contractors, or agents.
You shall not, for the duration of this Contract, and for a period of six months following termination, directly or indirectly induce or attempt to induce any of Our employees who have been engaged in the provision, receipt, review, or management of the Services or otherwise in connection with this agreement to leave Our employment.
8. Risk and title
Risk in, and title to, any media bearing any Software or Documentation or other information that may from time to time be supplied by Us to You shall pass to You on receipt of all payments due in accordance with this Contract.
9. Confidentiality and Publicity
9.1 Each party shall, during the term of this Contract and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Contract) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates (Confidential Information), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
9.2 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party's reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
9.3 The terms of this Contract may not be disclosed by You (other than to Your legal advisors) without Our prior written consent.
9.4 We may refer to You as being Our client in customer reference lists, sales presentations, advertising or press releases.
9.5 The provisions of this clause 9 shall remain in full force and effect notwithstanding any termination of this Contract.
10. Data protection
10.1 In so far as required, both parties agree that they will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller, and We are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature, and purpose of processing by Us, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
10.3 Without prejudice to the generality of clause 10.1, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Us for the duration and purposes of this Contract.
10.4 Without prejudice to the generality of clause 10.1, We warrant and undertake that We shall, in relation to any Personal Data processed in connection with the performance by Us of Our obligations under this Contract:
10.4.1 process that Personal Data only on Your written instructions unless We are required by the laws of any member of the European Union or by the laws of the European Union applicable to Us to process Personal Data (Applicable Laws). Where We are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You.
10.4.2 ensure that We have in place appropriate technical and organisational measures, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
10.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.4.4 not transfer any Personal Data outside of the European Economic Area unless Your prior written consent has been obtained and the following conditions are fulfilled:
10.4.4.1 either You or We have provided appropriate safeguards in relation to the transfer.
10.4.4.2 the data subject has enforceable rights and effective legal remedies.
10.4.4.3 We comply with Our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
10.4.4.4 We comply with reasonable instructions notified to Us in advance by You with respect to the processing of the Personal Data.
10.4.5 assist You, at Your 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.
10.4.6 notify You without undue delay on becoming aware of a Personal Data breach.
10.4.7 at Your written direction, delete or return Personal Data and copies thereof to You on termination of this Contract unless required by Applicable Law to store the Personal Data; and
10.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 10 (and allow for audits by You or Your designated auditor).
10.4.9 If using Cloud Storage - You consent to Us appointing Digital Ocean https://www.digitalocean.com/security/ as a third-party processor of Personal Data under this Contract. We confirm that We have 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 OR incorporating terms which are substantially similar to those set out in this clause.
10.5 As between You and Us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 10.5.
11. Our Warranties
11.1 We represent and warrant to You that:
11.1.1 the Services will be performed:
184.108.40.206 in accordance with all applicable laws and regulations; and
220.127.116.11 with all reasonable skill and care.
11.1.2 as far as We are aware, the Deliverables will not infringe the UK Intellectual Property Rights of any third party; and
11.1.3 at the date of this Contract, we have obtained and will maintain for the duration of this Contract all permissions, licences, and consents necessary for Us to perform the Services.
11.2 If, during the term of this Contract, We receive written notice from You of any breach by Us of the representations and warranties contained in clause 11.1.1, We shall, at Our own option and expense and provided that We agree with such notice in Our professional opinion, remedy that breach within a reasonable period following receipt of such notice, or terminate this Contract immediately on written notice to You and repay to You all sums which You have paid to Us under this Contract during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. You shall provide all information reasonably necessary to enable Us to comply with Our obligations under this clause 11.2. This clause sets out Your sole remedy and Our entire liability for breach of clause 11.1.1.
11.3 No representation or warranty is given by Us that all faults will be fixed or will be fixed within a specified period of time.
11.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties, or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
12. Limits of liability
12.1 You shall indemnify Us, keep Us indemnified and hold Us harmless against all Loss (including any direct, indirect, special, or consequential Loss, loss of profit, loss of business, contract, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Us arising out of or in connection with:
12.1.1 Your breach of this Contract howsoever arising.
12.1.2 any wilful or negligent act or omission of You, Your officers, employees, contractors, or agents; and
12.1.3 Your use of the Services and/or Documentation.
12.2 Except as expressly and specifically provided in this Contract:
12.2.1 You assume sole responsibility for results obtained from the use of the Services and the Documentation by You, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Services, or any actions taken by Us at Your direction.
12.2.2 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 this Contract; and
12.2.3 the Services and the Documentation are provided to You on an "as is" basis.
12.3 Nothing in this Contract excludes Our liability:
12.3.1 for death or personal injury caused by Our negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.3:
12.4.1 We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any Loss of an indirect, special, or consequential nature howsoever arising under this Contract including 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; and
12.4.2 Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the total Charges paid to Us by You in cleared funds during the 12 months immediately preceding the date on which the claim arose.
12.5 You acknowledge that:
12.5.1 You are exclusively responsible for:
18.104.22.168 reviewing any new Modifications in accordance with clause 1.2.
22.214.171.124 ensuring that Your staff are trained in the proper use and operation of the Software.
126.96.36.199 ensuring the security, completeness and accuracy of all inputs and outputs.
188.8.131.52 making regular backup copies of Your data to ensure recovery of Your data if the Software malfunctions; and
184.108.40.206 the selection, use of and results obtained from any other programs, equipment, materials, or services used in conjunction with the Software.
12.5.2 the level of the Charges reflects the allocation of risk between the parties set out in clauses 11 and clause 12; and
12.5.3 You are in a better position than Us to assess and manage Your risk in relation to use of the Software.
12.6 All dates supplied by Us for the delivery of the Modifications or the provision of Services shall be treated as approximate only. We shall not in any circumstances be liable for any Loss arising from any delay in delivery beyond such approximate dates.
12.7 All references to us in this clause 12 shall, for the purposes of this clause only, be treated as including all of Our employees, subcontractors and suppliers and Our Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
Supply of the Services by Us to You shall commence on the Commencement Date and, subject to termination in accordance with the provisions of this Contract, shall continue for a fixed term of one year. After expiry of the fixed term, the supply of the Services shall (subject to any such termination) automatically renew under this Contract from annually unless terminated by either Us or You on at least 6 months' prior written notice to the other to expire at the end of the current Contract Year of the term.
14.1 Without prejudice to any rights that have accrued under this Contract or any of its rights or remedies, either party may at any time terminate this Contract and/or the Support Services with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so:
14.1.2 the other party repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract.
14.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
14.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.
14.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.
14.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party.
14.1.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver.
14.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party.
14.1.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration, or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 10 Business Days:
14.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1.3 to clause 14.1.9 (inclusive).
14.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.2 We may, without prejudice to its other rights or remedies, terminate this Contract immediately by notice to You if You:
14.2.1 undergo a change of Control.
14.2.2 sell all its assets or is merged or re-organised in circumstances where it is not the surviving entity.
14.2.3 dispute the ownership or validity of the Our Intellectual Property Rights.
14.2.4 We are unable to continue to provide the licence as a result of any third party.
15. Effect of Termination
15.1 Other than as set out in this Contract, neither party shall have any further obligation to the other under this Contract after its termination.
15.2 Any provision of this Contract which expressly or by implication is intended to come into or continue in force on or after termination of this Contract, including clause 1, clause 5, clause 9 to clause 12, shall remain in full force and effect.
15.3 Termination of this Contract, for any reason, shall not affect the accrued rights, remedies, obligations, or liabilities of the parties existing at termination.
15.4 Notwithstanding its obligations in this clause 15, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party's Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
15.5 On termination of this Contract for any reason, your right to receive the Services shall cease automatically and each party shall as soon as reasonably practicable:
15.5.1 return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating, or based on Confidential Information belonging to the other party. If required by the other party, it shall provide written evidence (in the form of a letter signed by a director) no later than 5 Business Days after termination of this Contract that these have been destroyed and that You have not retained any copies of them (except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in clause 9).
15.5.2 return all of the other party's equipment and materials, failing which, the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, the party in possession shall be solely responsible for their safe keeping.
15.6 On termination of this Contract for any reason, you shall immediately pay any outstanding unpaid invoices and interest due to Us. We shall submit invoices for any Services that We have supplied, but for which no invoice has been submitted, and You shall pay these invoices immediately on receipt.
16.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be delivered by:
16.1.1 hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
16.1.2 by email to the addresses set out within the Order Form.
16.2 Any notice or communication shall be deemed to have been received:
16.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address.
16.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
16.2.3 if sent by email at 9:00 am on the second Business Day after transmission.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include fax or e-mail.
17. Miscellaneous Terms
17.1No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives)
17.2 No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.3 Except as expressly provided in this Contract, the rights and remedies provided under it are in addition to, and not exclusive of, any rights or remedies provided by law.
17.4 If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
17.5 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.
17.6 By signing this agreement, you agree to allow Lesar to reproduce your company logo for print purposes relating to this product and to use your logo if required on our website in connection with this product. If you do not want your company logo to be used please advise in writing and we will arrange to cease using within a reasonable period
17.7 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Contract.
17.8 We shall have no liability to You under this Contract if We are prevented from or delayed in performing Our obligations under it, or from carrying on its business, by acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Our workforce 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 You are notified of such an event and its expected duration.
17.9 You shall not assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this Contract without Our prior written consent (such consent not to be unreasonably withheld or delayed). We may at any time assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this Contract, provided We give written notice to You.
17.10 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
17.11 Notwithstanding the confidentiality obligations set out above, a party assigning any or all of its rights under this Contract may disclose to a proposed assignee any information in its possession that relates to this Contract its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause shall be made until notice of the identity of the proposed assignee has been given to the other party.
17.12 Nothing in this Contract 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).
17.13 This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. Dispute Resolution
18.1 It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this Contract. Accordingly, it is agreed that the procedure set out in this clause shall be followed before the serving of written notice terminating this Contract, or in relation to any matter of dispute between the parties concerning performance, procedure, or management.
18.2 If any disagreement or difference of opinion arises out of this Contract, directors for each party shall meet to attempt resolution. If, within 20 Business Days of the matter first having been referred to the directors, no agreement has been reached as to the matter in dispute, the dispute resolution process set out in this clause shall be deemed to have been exhausted in respect of the matter in dispute, and each party shall be free to pursue the rights granted to it by this Contract in respect of such matter without further reference to the dispute resolution process.
18.3 For the avoidance of doubt, this clause shall not prevent either party from seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of the first-named party's Intellectual Property Rights.
19. Governing Law and Jurisdiction
19.1 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).