YOUR-DATA INTERNET BACKUP TERMS AND CONDITIONS
ATTENTION - IMPORTANT LEGAL NOTICE : Please read the terms contained within this legal notice carefully before continuing. This Agreement forms a contract between You and BCL. By using BCL Your-Data Internet Backup You acknowledge that You have read this Agreement and agree to be bound by it.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause 1.1 apply in this Agreement.
Agreement:means, in order of precedence, these terms and conditions, the Licence Schedule, the Order Form and the User Manual which constitute a contract between BCL and You.
BCL: means Bespoke Computing Limited a company registered in England and Wales under company number 04778624 whose registered office is at 1 Bank Farm Cottages, Shrewsbury, SY3 9DQ, United Kingdom and whose VAT registration number is 815 9065 20. �Your-Data Internet Backup is a trademark and product of �Bespoke Computing Limited.
Business Day: means any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
Charges: means the amounts and rates charged for the Product as determined in accordance with this Agreement and as published on the Order Form and at http://www.your-data.co.uk and updated from time to time to also include any administration costs and expenses where detailed in this Agreement or advised by BCL.
Computer: means any PC, laptop, server or device to be backed up.
Confidential Information: means all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is: (a) identified as confidential at the time of disclosure; or (b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Customer Platform: means the hardware, software, infrastructure and any other equipment required to be purchased, operated and maintained by You onto which the Software is to be installed in order to enable You to use the Service (in accordance with this Agreement) details of which are as set out in the User Manual or as otherwise notified by BCL.
Data: means any programs, data or other electronic information copied or to be copied from You to be backed up or stored using the Product.
Documentation: means all documentation provided or made available to You in relation to the use of the Product by BCL from time to time.
Due Date: is the date payment is due which for the purpose of this Agreement is one month in advance on the Effective Date and thereafter on the same day each month for a minimum of 12 monthly payments.
Effective Date: means the date set out in the Order Form or from the date of expiration of the free trial whichever date is the earliest.
Force Majeure Event: has the meaning given in clause 11.
Initial Period: means the initial contract term of 12 months beginning on the Effective Date.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Licence: means the licence to use the Software as set out in the Licence Schedule.
Order Form: means the order form whether electronic or hardcopy which You complete as part of the order process.
Package: means the data package band You selected on signing up for the Product or the package band You are using at the time, as referred to in clause 5.3 and 5.4, and relates to the amount of space requested by or used by You for backing up the Data. Information and rates relating to the data package bands are published on the BCL Your-Data web-site http://www.your-data.co.uk.
Pass Phrase: is the combination of password, encryption key and user name which will give You access to Your backed-up Data on the BCL Platform.
Payment Method: shall mean the method You advise BCL to use for the payment of the Charges and shall be by credit card, debit card or by direct debit instruction.
Product: means both the Service and the Software together.
BCL Platform: means all hardware, software and infrastructure required to be operated by BCL or their suppliers to provide the Product.
Service: means the provision of online data backup and storage services provided by BCL Your-Data Internet Backup and powered by Attix5.
Software: means the client software provided by BCL or its suppliers to enable You to use the Service such software may be changed by BCL or their suppliers from time to time.
Site: means Your premises as identified in the Order Form.
Specification: means the description of the functionality of the Service as set out in the User Manual.
User Manual: means the instructions for installation, configuration and use of the Product made available to You and published at http://www.your-data.co.uk and updated from time to time. The user manual includes the Specification.
You: means the person or business named on the Order Form. BCL may accept instructions from another person whom BCL reasonably believe is acting with Your authority or knowledge.
1.2 Clause headings do not affect the interpretation of this Agreement.
1.3 References to clauses are (unless otherwise provided) references to the clauses and sub-clauses of this Agreement and references to Schedules are (unless otherwise provided) references to schedules to this Agreement.
1.4 Except where reference is expressly made to the contrary references to paragraphs are to paragraphs and sub-paragraphs in the appropriate Schedule.
1.5 In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.
1.6 Words in the singular include the plural and in the plural include the singular.
1.7 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
1.9 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.
2. SERVICES
2.1 In consideration of the Charges paid by You to BCL, BCL will reasonably endeavour to supply You with the Product on the terms and subject to the conditions of this Agreement.
2.2 BCL shall not be liable for any delays in implementing the Product resulting from Your failure to fulfil any of Your obligations set out in this Agreement. BCL reserves the right to Charge You for any additional expenses reasonably incurred by BCL as a result of such delays.
2.3 Any date specified for delivery or installation or configuration is to be treated as an estimate only and BCL whilst it will make reasonable efforts, does not accept any liability for failure to meet such date.
2.4 BCL shall provide the Service with reasonable skill and care.
2.5 BCL shall use reasonable endeavours to provide the Product in accordance with the User Manual.
2.6 Any product delivered to You shall from delivery be at Your risk.
2.7 BCL may carry out the initial installation of the Software before commencement of the Service if the installation service is purchased. Any further installation shall be carried out either by You in accordance with the User Manual or by BCL themselves, for which BCL shall make a charge on a time and materials basis.
2.8 BCL may at their discretion carry out training in relation to the Service. BCL may charge You for such training on a time and materials basis.
2.9 Occasionally BCL may temporarily suspend the Service because of an emergency or for operational reasons, maintenance or improvements. Service will be restored as soon as possible. During such suspension of Service BCL shall not be liable for any failure to provide the Service. Before suspending the Service BCL will give You as much notice as is reasonably possible.
2.10 All specifications and descriptions contained within BCL sales and marketing material are approximate and to be used as a guide only, and do not form part of any contract or agreement unless otherwise specifically specified in writing.
2.11 If BCL is prevented by Your default from delivering or installing or configuring the Product, or if delivery or installation or configuration is delayed at Your request, BCL may charge You its reasonable costs arising from such delay.
2.12 You will comply with all reasonable requirements of BCL or its authorised representative regarding installation or configuration including, where on site installation or configuration is required, provision of appropriate facilities.
3. YOUR RESPONSIBILTIES
3.1 You undertake to use the Product for Yourself only and will not resell or attempt to resell the Product (or any part or facility of it) to any third party and shall not allow the Service to be used by or for the benefit of any third party either directly or indirectly and whether through themselves or through a third party unless specifically agreed in writing by BCL.
3.2 You shall use the Product strictly in accordance with this Agreement and the User Manual and shall only use the Product on the Customer Platform which You shall maintain in a fully operative condition.
3.3 If You dispose sell or reallocate any of the Customer Platform or otherwise make it accessible or available to any third party You will ensure that all copies of the Software, User Manual and Documentation and references to the Product used on such part of the Customer Platform have been previously and fully deleted.
3.4 You must ensure that any equipment connected to or used with the Product is connected and used in accordance with any applicable instructions, safety and security procedures.
3.5 You shall procure that any person who may have access to the Product on Your behalf complies with the terms and conditions of this Agreement. You shall be responsible for the acts or omissions of all users of the Product (including those using the Product on Your behalf) and shall indemnify BCL for any and all losses that BCL may suffer as a result of use of the Product by users. To the extent that there is an obligation on You in this Agreement it shall also be an obligation upon the user for which You are entirely responsible.
3.6 You acknowledge that You are responsible for providing and paying for Your own internet access facilities through Your internet service provider or telecommunications provider.
3.7 You are responsible for downloading the Software from the BCL Your-Data website and installing and configuring it onto Your equipment. You acknowledge that the Product features may vary from release to release.
3.8 You agree not to use the Product in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or life support applications, devices or systems.
3.9 You shall ensure that the Data and Your use of the Product does not infringe any applicable laws, regulations or third party rights (such as data or material which is obscene, indecent, pornographic, seditious, offensive, defamatory, trade libellous, threatening, harassing, liable to incite racial hatred, menacing, blasphemous , in breach of any third party Intellectual Property Rights, infringes any rights of publicity or privacy, contains any virus or other programming routine intended to damage any system or data or is provided in breach of any prior contractual commitment to any third party) (Inappropriate Content).
3.10 If You wish to make any changes to the Product You must notify BCL of such changes. Following such notification BCL may at their sole discretion implement such changes but in such circumstances BCL may amend any terms or conditions within this Agreement including the Schedules. If You do not agree to such changes to the Agreement then the Product shall continue as it was before Your notification of its possible change. If the changes to the Agreement are accepted then they shall at a time agreed between the parties become part of this Agreement.
3.11 You warrant that entering into this Agreement will not:
(a) result in a breach of the Memorandum or Articles of Association or associated documentation of Yours;
(b) result in a breach or constitute a default under any agreement to which You are a party or to which You are bound;
(c) result in a breach of any order or judgment of any court or Governmental body or agency;
(d) constitute any infringement or breach of any law, regulation or other code or rules which may bind or govern Your activities.
3.12 You acknowledge and confirm the following:
(a) that loss of all or any part of Your Pass Phrase will result in irretrievable loss of Data and no practical means exists of You, BCL or their suppliers being able to recover such Data; and
(b) You are responsible for the daily control of activity using the Product and You have the ability to make daily checks (by looking at the Software client) that the Product is functioning to Your individual requirements over which BCL has no control; and
(c) BCL and their suppliers have no control over any Data and in no circumstances will BCL or their suppliers attempt any processing of any Data supplied to BCL or their suppliers under this Agreement other than storage and retrieval of encrypted data blocks; and
(d) BCL and their suppliers reserve the right to delete any Data where it reasonably suspects such content is Inappropriate Content. BCL shall notify You if it becomes aware of any allegation that the Data may be Inappropriate Content or not adhere to the terms and conditions in this clause 3; and
(e) under no circumstances will BCL or their suppliers be liable for Data that was never sent by You, using the Product, to the BCL Platform; and
(f) You shall be solely responsible for all measures to secure the integrity of the Product to include the software, data and programs; and
(g) You shall indemnify BCL and their suppliers against all damages, losses and expenses arising as a result of any action or claim that the Data constitutes Inappropriate Content; and
(h) You own or are licensed and are permitted to transmit to the BCL Platform all Data without breach of any law, agreement, arrangement or duty or the rights of any third party; and
(i) You are responsible for ensuring the Product is suitable for your needs and the entire risk as to the performance and the results of the Product and User Manual is assumed by You; and
(j) BCL and their suppliers have no access to the content of the Data You transmit to the BCL Platform using the Product as all Data is encrypted prior to being transmitted using an encryption key which BCL and their suppliers have no practical means of knowing, capturing, obtaining or having access to at any time; and
(k) at no time shall You undertake to transfer to the BCL Platform in whatever form and for whatever reason any encryption key, except a public key, decryption key, password or other access token except only where such encryption key, decryption key or password is itself encrypted as part of the Data in a way which prevents access to it; and
(l) You will promptly comply with all reasonable instructions, which BCL or their supplier may give from time to time regarding the use of the Product.
4. SOFTWARE LICENCE
4.1 The possession and use by You of the Software and the User Manual shall be on the terms and subject to the conditions of this Agreement and the Licence contained in the Licence Schedule
5. CHARGES AND PAYMENTE
5.1 You shall pay to BCL the Charges for the Product in accordance with and subject to these terms and conditions. Subject to any provision of this Agreement, liability for Charges shall commence with effect from the Effective Date.
5.2 The Charges for the Product shall be the price shown within the relevant Package banding rate published at http://www.your-data.co.uk from time to time as stipulated by BCL and charged in advance.
5.3 You acknowledge that the Charges shown within the relevant Package banding rate are subject to change and are dependant upon the Package selected by You or the amount of Data being stored by You.
5.4 If You exceed Your Package limit then You authorise that BCL can automatically upgrade you to the next Package and Charge you pro rata in advance for such Package for the remainder of the term of this Agreement.
5.5 You shall pay to BCL the Charges in pounds sterling on acceptance of this Agreement. All Charges payable under this Agreement are exclusive of VAT E&OE and any other taxes pertaining to the country the Product is provided to, for which You shall be responsible, unless otherwise indicated.
5.6 All Charges payable by You to BCL are due in advance on the Due Date.
5.7 All services provided by BCL outside of the Product shall be charged for by BCL on a time and materials basis, such charges shall be due and payable on receipt of such services.
5.8 BCL may, at any time, require You to pay a deposit or provide a guarantee as security for payment of future bills.
5.9 Any quotation unless otherwise stated is valid for a maximum period of 30 days from the quotation date.
5.10 Any discounts or cash-equivalent must be agreed in writing as part of a quotation or as part of a contract or agreement.
5.11 You hereby authorise BCL to use the Payment Method stated by You when you signed up with BCL to pay the Charges under this Agreement on the Due Date. Where any of Your Payment Methods are refused or reverse charged where this is not on instruction from BCL then BCL reserve the right to Charge You an administration fee of �20 on each and every occasion where this occurs to reimburse BCL for time and expense. You undertake to inform BCL each time your Payment Methods change and provide reasonable notice to BCL of any such change.
5.12 Without prejudice to any other rights or remedies of BCL (whether expressly specified in this Agreement or otherwise) in the event that You fail to pay any of the sums payable under this Agreement on their Due Dates for payment:
(a) BCL shall be entitled but not obliged to charge You interest on the overdue amount, payable by You forthwith on demand, from the Due Date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum above the base rate for the time being of HSBC bank plc. Such interest shall accrue on a daily basis and be compounded monthly. BCL reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
(b) BCL shall be entitled (but not bound) to suspend performance of this Agreement until all sums owing have been paid in full; and/or
(c) BCL shall be entitled to terminate this Agreement by giving You 30 Business Days� written notice of its intention to so do.
6. WARRANTIES
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
6.2 BCL does not warrant that the Product will be error free or uninterrupted and does not warrant that You will be able to restore Data after using the Product
6.3 You acknowledge that software in general is not error-free and agree that the existence of such errors shall not constitute a breach of this Agreement.
6.4 Subject always to its obligation to provide the Product with reasonable skill and care, BCL shall not be liable for failure to provide the Product.
6.5 This Agreement sets out the full extent of BCL�s obligations and liabilities in respect of the supply of the Product. All conditions, warranties or other terms concerning the Product which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
7. LIMITATION OF REMEDIES AND LIABILITY
7.1 The parties acknowledge and agree that the allocation of risk and liability contained in this Agreement is reasonable in all the circumstances having regard to all relevant factors including the nature of this Agreement, the Charges, and the ability of You to rely on Your own respective insurance arrangements and other resources to bear or recover any loss or damage incurred. You acknowledge that You are in a better position than BCL to foresee and evaluate any potential damage or loss that You may suffer in connection with this Agreement and therefore You are in a better position to adequately insure against such damage or loss.
7.2 Nothing in this Agreement shall operate to exclude or limit BCL�s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
7.3 BCL shall not be liable to You for any damage to software; loss, damage or corruption of data (including the Data); loss of profit; loss of contracts; loss of anticipated profits; loss of revenues, loss of anticipated savings, loss of reputation; loss of goodwill or business opportunity; any indirect or consequential loss where this is as a result of negligence or is due to unauthorised hacking of the BCL Platform network infrastructure; or for any indirect or consequential loss or damage and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, the exclusions set out in this clause 7.3 apply, whether such losses are direct, indirect, consequential or otherwise.
7.4 Failure of the Product to perform in accordance with clause 6 shall result in the return to You of the Charges relating to the Product paid by You to BCL during the period for which the Product failed to perform.
7.5 You shall indemnify BCL against all damages, losses and expenses arising as a result of any action or claim that:
(a) the Product infringes any Intellectual Property Rights of a third party; or
(b) is due in any way from any breach by You of this Agreement.
7.6 BCL shall in no circumstances be liable or responsible for (or for the consequences of):
(a) defects or errors resulting from any modifications of the Software or the Product made by any person other than BCL or their suppliers without BCL or their supplier�s prior written consent; or
(b) defects or errors resulting from using a version of the Software that is not current; or
(c) any defect or error that results in any data (including the Data) being lost or corrupt whilst the Data is in transit to or from the BCL Platform; or
(d) any defect or error that results in corruption or loss of any password, identification token, encryption key or decryption key; or
(e) defects or errors caused by the use of the Product or the Software other than strictly in accordance with this Agreement; or
(f) defects or errors as a result of You failing to correctly adhere to the User Manual and any instructions, whether written or verbal to include any Documentation; or
(g) use of the Software or the Product other than strictly in accordance with the User Manual or defects or errors due to operator error; or
(h) a situation where a defect or error can be avoided by consideration of all information contained in the User Manual, even if such consideration depends on the interpretation of such information; or
(i) any defect or error in the Customer Platform or any other equipment used in conjunction with the Software or the Product; or
(j) defects or errors caused by the malicious or negligent activities of You or Your agents or any other third parties; or
(k) defects or errors in any way related to You not affording BCL or their supplier�s proper access to the Software; or
(l) any loss or damage arising out of any failure by You to keep full and up to date security copies of the Software and any computer programs and data used in accordance with the Product in accordance with best computer practice; or
(m) defects or errors in the Product that are in any way related to the internet to include failure to use the Product due to a denial of service attack.
7.7 Subject to clause 7.1, BCL�s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 150% of the total Charges (excluding VAT) payable by You to BCL under this Agreement in that calendar year, or, if such limitation is considered to be unreasonable by a court or body with competent jurisdiction, liability shall be limited to the amount received by BCL from its insurance provider in relation to Your claim up to a maximum of �500,000 (five hundred thousand pounds).
7.8 You agree to have in place adequate insurance protection, including but not limited to business continuity insurance in order to protect You and Your business in the event of the Product failing or the Product resulting in any loss on the part of You.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights and other proprietary rights in the Software and the Product, processes, files, documentation or any source or object code of whatever nature comprised in the Software and/or the Product are and shall remain the absolute property of BCL (or BCL�s licensor if BCL is the licensee of such rights).
8.2 BCL and their suppliers retain all Intellectual Property Rights in the Software and Services, and grant to You a non-exclusive non-transferable license to such Intellectual Property Rights solely for the purpose of using the Product for the term of this Agreement. Any other use is strictly prohibited.
8.3 You shall not make any modification to the Software, User Manual, Documentation or Product without BCL�s prior approval in writing.
8.4 You agree not to alter, remove, conceal or deface any copyright or propriety rights notice or identification which indicates the ownership of the Product, User Manual or Documentation or any interest therein.
8.5 You shall immediately notify BCL if You become aware of any unauthorised use of the Product in whole or part or any breach of BCL�s Intellectual Property Rights therein by any person in any way whatsover.
8.6 BCL will have no liability to You under this clause 8 to the extent that the third party�s claim results from any modification of any part of the Software or the Product by a party other than BCL or their suppliers without BCL�s consent, from the use of the Software or the Product in combination with any other software or programs, from any negligent, wilful or fraudulent act or omission of or by You, from any breach by You of any of the provisions of this Agreement or from use of the Software or the Product other than strictly in accordance with the User Manual.
8.7 Subject to the provisions of this clause 8 BCL shall indemnify You against all claims or legal proceedings and any liabilities of whatsoever nature arising out of or in connection with any claim that the possession or normal use by You of the Product in accordance with this Agreement infringes the copyright or other intellectual rights in the United Kingdom of any third party provided that You:
(a) give written notice to BCL of any intellectual property infringement as soon as reasonably practicable upon becoming aware of the same; and
(b) at BCL�s request and expense give BCL the sole conduct of the defence to any claim, negotiation or action in respect of any intellectual property infringement and do not at any time admit liability or otherwise attempt to settle the said claim or action except upon the written consent of BCL; and
(c) give BCL all reasonable assistance and information requested.
8.8 On expiry or termination of this agreement by BCL pursuant to clause 10 all licences granted by BCL or their supplier�s under this Agreement shall terminate immediately.
8.9 In the event of any such claim, or if BCL or their suppliers believe that any part of the Product is likely to become infringing, BCL may at its sole option and expense:
(a) procure the right for You to continue using the Product; and/or
(b) make such alterations, modifications or adjustments to the Product as are required such that they become non-infringing without incurring a material diminution in performance or function; and/or
(c) replace the Product with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
9. DATA PROTECTION
9.1 Both parties shall comply with all provisions of the Data Protection Act 1998 (�the Act�) and any subsequent legislation relating to Personal Data (as defined in the Act) which may be applicable in relation to this Agreement. You hereby notify BCL that You have notified under the Act.
9.2 You are the Data Controller as defined in the Act and as such are responsible for compliance with the Act in relation to Personal Data. For the purposes of this Agreement BCL and their suppliers are Data Processor�s (as defined in the Act) and shall only process data in accordance with this Agreement.
9.3 You warrant and undertake that all Data has been obtained and processed lawfully and fairly and otherwise in accordance with the Act.
10. TERM AND TERMINATION
10.1 This Agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 10) remain in place until either party terminate the Agreement by giving 30 days written notice to the other party.
10.2 If You terminate this Agreement during the Initial Period other than under Clause 12 You must immediately pay BCL termination charges equal to the charges due in respect of the remaining period of the Initial Period.
10.3 BCL reserves the right to terminate the Product and this Agreement at any time giving You 7 days notice should payment not be received by the Due Date.
10.4 Either party may terminate this Agreement immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
i) ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement); or
ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party; or
iv) the ability of that party�s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party�s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
10.5 On expiry or termination of this Agreement for whatever reason You shall:
(a) immediately ensure You have all the Data in Your possession;
(b) immediately discontinue any use of the Product, User Manual or Documentation supplied as part of this Agreement;
(c) at BCL�s option immediately return or destroy the Software, User Manual, Documentation and any Confidential Information together with all copies in any form, including copies on any hard and backup disks; and
(d) immediately pay all Charges outstanding to BCL.
10.6 If BCL is entitled to terminate this Agreement under clause 10.3, BCL may, on giving prior notice where practicable, suspend the Product without prejudice to such rights. Where the Product is suspended under this clause 10.6 You must pay the Charges for the Product until this Agreement is terminated.
10.7 If this Agreement is terminated by BCL during the Initial Period because of an event specified in clause 10.3 You must pay BCL, without prejudice to any other rights BCL may have, the termination Charges specified in clause 10.2.
10.8 On expiry or termination of this Agreement BCL or their suppliers shall permanently delete the Data from the BCL Platform without any liability for loss or damage 30 days after the termination date of this Agreement. Prior to this 30 day period You may make arrangements to collect your data.
10.9 On expiry or termination of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
11. FORCE MAJEURE
11.1 The definition in this clause 11.1 applies in this agreement. Force Majeure Event means any event arising which is beyond the reasonable control of the affected party (including but not limited to, any industrial dispute affecting any third party, acts or regulations of any governmental body, fire, flood, disaster, civil riot, war, insurrection, sabotage, embargo, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications, networks or third party services, failure of third party software).
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
11.3 If such delay or failure continues for at least 30 days, either party will be entitled to terminate the agreement in writing.
12. CONFIDENTIALITY
12.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received or in the case of BCL the employees of a BCL group company or their suppliers, who need to know the information.
12.3 The obligations set out in this clause 12 shall not apply to Confidential Information that the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 12; or
(b) was in the possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
12.4 This clause 12 shall remain in effect for 2 years after the termination of this Agreement.
13. DISPUTES
13.1 Both parties to this Agreement will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to try and resolve the dispute.
13.2 All negotiations connected with the dispute will be conducted in complete confidence, and the parties undertake not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality, and will be without prejudice to the rights of the parties in any future proceedings.
13.3 If the parties fail to reach a binding settlement in accordance with clause 13.1 then such dispute shall be referred to a sole arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act 1996.
13.4 Nothing contained in this clause 13 shall restrict either party's freedom to commence legal proceedings to preserve any legal right or remedy or protect any proprietary or trade secret right.
14. NOTICES
14.1 Notices given under this agreement shall be in writing and must be delivered or sent by pre-paid registered post or by email to the address or e-mail address as the receiving party may have notified to the other party pursuant to this clause 14. In the case of post the notice shall be deemed to have been received 72 hours after it was posted, and in the case of email at the time of transmission provided that no non-delivery receipt was received within 72 hours of sending.
15. NON-SOLICITATION
15.1 Neither party shall (except with the prior written consent of the other) during the term of this Agreement, and for a period of one year thereafter, solicit or engage the services of any staff of the other party who have been engaged in the provision of the Product under this Agreement or the management of this Agreement or any significant part of it either as principal, agent, employee, independent contractor or any other form of employment or engagement other than by means of a national advertising campaign open to everyone and not specifically targeted at such staff of the other party.
16. PUBLICITY
16.1 All media releases, public announcements and public disclosures by either party relating to this Agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties in writing prior to release.
17. RIGHTS TO AUDIT
17.1 BCL shall on giving reasonable notice have the right to access and inspect the Site, the Software and the Customer Platform and any other equipment or premises they consider appropriate to ensure compliance by You with this Agreement. You shall give BCL all assistance requested in relation to such a right of access and inspection.
18. ASSIGNMENT
18.1 You may not assign, novate, sub-contract or transfer any of Your rights or obligations under this Agreement, in whole or in part, without the prior written consent of BCL, such consent not to be unreasonably withheld or delayed.
18.2 BCL reserves the right to assign, novate, sub-contract or transfer any part of, or as a whole, to any third party, any Product it provides under contract or agreement to You, subject to confidentiality agreements where necessary.
19. ENTIRE AGREEMENT
19.1 Except as set out in this clause 19, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it upon which it relied in entering into this Agreement (�Misrepresentation�), and neither party shall have any liability other than pursuant to the express terms of this Agreement. Nothing in this Agreement shall exclude or limit either party's liability for any Misrepresentation made knowing that it was untrue. Each party's liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party's ability to perform its obligations under this Agreement, shall be subject to the limit set out in clause 7.
19.2 The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it.
20. THIRD PARTY RIGHTS
20.1 This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
21. VARIATION AND WAIVER
21.1 A variation of this Agreement shall be in writing and signed by or on behalf of both parties to this Agreement.
21.2 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
21.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
22. SEVERANCE
22.1 If any provision (or part of a provision) of this 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.
22.2 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.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with any laws.
23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.
LICENCE SCHEDULE
1. LICENCE
1.1 BCL grants to You a non-exclusive non-transferable licence to use the Software and the User Manual at the Site for the duration of this Agreement only in relation to the Your internal business purposes.
1.2 BCL grants the Licence as set out in paragraph 1.1 above for You to use the Software at the Site in relation to the number of Computers as set out in the Order Form. You are entitled to access the Software by using the Pass Phrase and under no circumstances can any person other than You have access to or use the Software for any purpose whatsoever. For this reason You are under an obligation to store the Software and the Pass Phrase in a secure environment preventing any unauthorised use or access to them and You shall not transmit or provide access to the Software or the Pass Phrase to any third party other than an employee or agent engaged by You to use the Software on Your behalf and in accordance with this Agreement.
1.3 You shall at all times keep the Pass Phrase confidential and be entirely responsible for the use of the Pass Phrase and will only use it in accordance with this Agreement. You shall indemnify BCL and the licensor for any loss of whatever kind for what is in the reasonable opinion of BCL a misuse by You of the Pass Phrase or a breach of paragraph 1.1, 1.2 and/or 1.3.
1.4 You shall only use the Software on the Customer Platform and shall in all respects use the Software strictly in accordance with the User Manual.
1.5 You shall not permit any third party to use the Software nor use the Software on behalf of or for the benefit of any third party in any way whatsoever.
1.6 If You sell any of the Customer Platform You will ensure that all copies of the Software and all other references to the Product used with the Customer Platform have been previously and fully deleted.
2. ACTS NOT PERMITTED
2.1 Save as permitted by law You shall not permit any third party without the prior consent of BCL:
(a) (save for the purposes of normal backup procedures in accordance with the Software documentation) copy, make error corrections, reproduce, replicate, modify, adapt, reverse engineer, disassemble (or otherwise reduce into machine readable form), make derivative works from, combine or incorporate with any other programs the whole or any part of Software (or the User Manual) or the functionality of the whole or any part of the Software (including, without limitation, by means of, or by examination and/or reproduction of the screen format, sequential operation and general use of the interface of the Software and/or its general operation and use, or by replicating the functionality of the Software or otherwise by copying, reproducing or duplicating the use or function of the Software in whatever language or environment); or
(b) copy all or any part of the User Manual or any Documentation; or
(c modify or remove any copyright or proprietary notices on the Software (or the User Manual).
3. ALTERATIONS
3.1 In the event that You make any unauthorised use, alterations or modifications of the Software (or part of it) all ongoing obligations, warranties, indemnities and other responsibilities of BCL and their suppliers set out in the Agreement shall cease.
4. INDEMNITY
4.1 You shall indemnify BCL and their suppliers from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses incurred by BCL and their suppliers caused by, or in any way connected with, the unauthorised use of the Software by any third party whether through Your use of the Software, breach by You of the Agreement or any other act or omission by You.
Version 2.8 - Issue Date: 28th August 2006