Agreement: SOF, the terms and conditions set out in this document and any variations agreed between us
Authorised Users: in relation to Licence(s), the agreed users and being any employee, consultant, contractor or officer of yours
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 6
Licence(s): the item(s) listed under the ‘Order Details’ section of the SOF and identified by either a code or description of the licence purchased or subscribed to
Licence Fee: the fee payable for the Licence(s) to be granted under this Agreement, as specified in the SOF
Licence Period: the period in respect of which a Licence Fee is payable for any Licence(s) granted under this Agreement, as specified in the SOF
Materials: materials and courses provided by us to you under this Agreement, as specified in the SOF
Renewal Date: the date on which the Licence Period or Subscription Period expires
Renewal Fee: the fee payable for each Renewal Period and which shall be the same as the Licence Fee or Subscription Licence Fee
Renewal Period: a period of 12 months or a period otherwise agreed by us to commence after the expiration of the Licence Period or Subscription Period for which this Agreement is renewed and for which a Renewal Fee is payable
SOF: Sales Order Form and being the applicable ordering document
Software: The software or any hardware provided by us or by our suppliers which enables you to access the Materials, including data schemas, data models, databases and the like.
Start Date: The date the Licence Period or Subscription Period starts
Subscriber Data: The data input by you (and anyone authorised by you) for use in conjunction with the Materials
Subscription Licence Fee: the fee payable for the subscription Licence(s) to be granted under this Agreement, as specified in the SOF
Subscription Period: the period in respect of which a Subscription Licence Fee is payable for any Licence(s) granted under this Agreement, as specified in the SOF
Us, we, or our: INFONETICA LIMITED incorporated and registered in England and Wales with company number 04503405 whose registered office is at WARREN HOUSE, WARREN ROAD, KINGSTON UPON THAMES, SURREY, KT2 7HY
You or your: The party entering into this Agreement with us by accepting these terms. Where the context so requires, you or your includes your Authorised Users
2.1 In consideration of payment by you of the agreed Licence Fee or Subscription Licence Fee and you agreeing to abide by the terms of this Agreement, we hereby grant you and your Authorised Users a non-exclusive, non-transferable licence to use and access the Materials.
2.2 For any Licence(s) subscribed to and in relation to the Subscription Period, this Agreement (including the licences hereunder) starts on the Start Date and unless terminated earlier in accordance with clause 9 shall continue and automatically extend for a Renewal Period at the Renewal Date. Either party may give written notice to the other party, not later than 30 Days before the Renewal Date, to terminate the Agreement on the Renewal Date or at the end of the relevant Renewal Period, as the case may be.
2.3 For any Licence(s) purchased and in relation to the Licence Period, this Agreement (including the licences hereunder) starts on the Start Date and unless terminated earlier in accordance with clause 9 or a renewal is requested by you and accepted by us, shall continue until the end of the Licence Period.
2.4 In relation to the Licence(s) which you have purchased or to which you have subscribed, you may:
>2.4.1 display the Materials electronically to the Authorised Users;
>2.4.2 solely for use by the Authorised Users in the ordinary course of your business download and store limited and insubstantial extracts of Materials in machine readable form (except where we have given express authority for full Materials to be downloaded and stored);
>2.4.3 allow the Authorised Users to use limited and insubstantial extracts from the Materials in any internal business reports circulated to your employees or officers provided this does not form regular or routine patterns of use; and
>2.4.4 allow the Authorised Users to use limited and insubstantial extracts from the Materials for external purposes subject to the following conditions:
>>18.104.22.168 the use is the ordinary course of your business and does not form regular or routine pattern of use;
>>22.214.171.124 where extracts of the Materials are contained in documents which are to be made publicly available, such extracts of the Materials shall (unless otherwise agreed with us) not be released unless the following conditions are complied with:
>>>126.96.36.199.1 either a proof, copy or relevant section of the document are supplied to us for release authorisation during normal office hours and we give such authorisations in writing (such authorisations not to be unreasonably withheld or delayed); and
>>>188.8.131.52.2 our copyright notice is included in the document; and
>>>184.108.40.206.3 we are acknowledged expressly and with reasonable prominence as the source of the Materials so used.
3.1 Unless you have subscribed to a Licence which allows you to access the Materials through your own software, we hereby grant you on the terms and conditions of this Agreement a non-exclusive, non-transferable licence to access the Materials through the Software and to use the Software solely for your business purposes (and for the avoidance of doubt, nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software);
3.2 You shall not:
>3.2.1 attempt to adapt, duplicate, modify, disclose or distribute any portion of the Software, nor merge it with any other software in your possession;
>3.2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
> 3.2.3 use the Software to provide hosting services to third parties, without our prior written consent;
> 3.2.4 assign, transfer, or sub-licence temporarily or permanently, any rights or obligations under this Agreement, or
> 3.2.5 attempt to obtain, or assist others in obtaining, access to the Software, other than as provided under this clause.
3.3 We shall be entitled at any time to assign, transfer or deal in any other manner with any of our rights and obligations under this Agreement without your consent.
3.4 We confirm we have all the rights in relation to the Software that are necessary to grant all the rights we purport to grant under the terms of this Agreement.
4.2 You will take reasonable steps to ensure that Authorised Users do not:
>4.2.1 copy, print, modify, sell, distribute, transfer, commercially exploit or otherwise reproduce any Material nor any material relating to part of the Software, except as permitted under this Agreement or authorised by us in writing;
>4.2.2 create a database in electronic structured manual form by downloading and storing any of the content from such Materials;
>4.2.3 make any part of the Materials or of the Software available to anyone, except as permitted under this Agreement or authorised by us in writing;
>4.2.4 purport to assign, transfer or sublicense or otherwise dispose of your rights under this Agreement. We shall be entitled to assign or transfer this Agreement to any third party including our associated or affiliated companies; and
>4.2.5 save only as expressly permitted in accordance with the sub-clause 2.4.4 above, allow the Authorised Users to use the Materials for any external purpose whatsoever.
4.3 You agree and accept that you are solely responsible for your own course content and/or materials and the consequences of submitting and publishing such materials on our online training platform. You agree that any course content and/or materials that you upload to our online training platform will not contain third party copyright material, or material that is subject to other third party proprietary rights, unless you have express written permission from the rightful owner of the material or you are otherwise legally entitled to post the course content and/or materials.
4.4 You will take reasonable steps to ensure that nobody other than Authorised Users accesses the Materials or Software (whether in hard copy or other electronic format and regardless of the means of access or delivery). Without prejudice to any right or remedy available, we have the right to disable any user identification or password at any time, if in our reasonable opinion an Authorised User has failed to comply with this clause 4.4.
4.5 You acknowledge and agree that we and our licensors own all intellectual property rights in the Software and Materials. Except as expressly stated in this Agreement, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software and Materials, or any related documentation.
4.6 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.7 Subject to clause 5, you will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and all costs arising out of or in connection with your misuse of the Software or Materials, provided that:
>4.7.1 you are given prompt notice of any such claim;
>4.7.2 we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
>4.7.3 you are given sole authority to defend or settle the claim.
4.8 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software meet your requirements. You are responsible therefore for configuring your information technology, computer programmes and platform in order to access the Materials. Notwithstanding clause 5.7, you should use your own virus protection software.
4.9 You will take reasonable steps to ensure that the details of Authorised Users are maintained and updated accordingly. 4.9 By submitting any individual’s personal information to us, you agree, and confirm your authority from such other individual, to our collection, use and disclosure of such personal information to the extent reasonably necessary for us, our affiliates, service providers, agents and successors to provide the Materials and Software to the Authorised Users.
5.1 We warrant that you will not infringe any third party intellectual property rights by using the Materials and we will indemnify you against losses, costs or expenses you may incur as a result of any claim that the use by you of the Materials infringes any third party intellectual property rights, provided you notify us within a reasonable time of any such claim being made.
5.2 We reserve the right any time to withdraw any of the Materials if we cease to publish or cease to have the right to publish the relevant Materials or if the same are the subject to libel or copyright or other third party right infringement allegation and we consider that withdrawal is advisable in the circumstance.
5.3 If we exercise our right to withdraw any substantial part of the Materials under paragraph 5.2, we may offer you broadly equivalent replacement materials and information instead of those withdrawn.
5.4 In relation to any part of the Software owned by us, we shall defend you against any claim that your use of the Software infringes any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
>5.4.1 We are given prompt notice of any such claim;
>5.4.2 You provide reasonable co-operation in the defence and settlement of such claim, at our expense; and
>5.4.3 We are given sole authority to defend or settle the claim.
5.5 In the defence or settlement of the claim, we may at our discretion obtain for you the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to you. We shall have no liability if the alleged infringement is based on:
>5.5.1 a modification of the Software by anyone other than us; or
>5.5.2 Your use of the Software in a manner contrary to the instructions given to you by us; or
>5.5.3 Your use of the Software after notice of the alleged or actual infringement from us or any other person.
5.6 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
5.7 We will take reasonable steps to ensure that Software and data files we supply to you are virus-free.
5.8 We will use our best endeavours to ensure that Subscriber Data is maintained securely and is properly backed-up. In the event of any loss or damage to Subscriber Data, your sole and exclusive remedy shall be that we use our best endeavours to restore the lost or damaged Subscriber Data from the latest back up of such Subscriber Data. We shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by us to perform services related to Subscriber Data maintenance and back-up).
5.9 We will use our best endeavours to ensure that the Software operates continuously and that access to our website is not interrupted by any event within our control. We will notify you in advance of planned downtime for the purposes of maintenance or upgrade and will use our reasonable endeavours to minimise this period.
6.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential information shall not be deemed to include information that:
>6.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
>6.1.2 was in the other party's lawful possession before the disclosure;
>6.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
>6.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
>6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
6.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
6.3 Each party shall use its best endeavours to ensure that the other's Confidential Information to which it has access is not disclosed or distributed in violation of the terms of this Agreement.
6.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party (except, in our case, those third parties sub-contracted by us to perform services related to Subscriber Data maintenance and back-up).
6.5 You acknowledge that our Confidential Information includes the Software and the Licence Fee and Subscription Licence Fee.
6.6 We acknowledge that the Subscriber Data is your Confidential Information.
6.7 You acknowledge and accept that we do not guarantee any confidentiality with respect to any course content and/materials that may be uploaded by you.
6.8 This clause shall survive termination of this Agreement, however arising.
7.1 We are entitled, in our absolute discretion, to refuse any purchase or subscription for any Licence(s).
7.2 We give you no warranty or assurance, except as set out in clause 5 above. We declare and you acknowledge that all implied warranties and conditions are excluded to the maximum extent permitted by law.
7.3 Our policy is to conduct our business at all times in a professional manner and to best practice standards. We use our best endeavours to maintain Material up to date and to develop our Software to meet customers’ needs. However, we cannot guarantee the accuracy of any information or content of the Materials. We do not accept any responsibility or liability for any loss or damage whatsoever sustained by you as a result of using or relying on any information and content of the Materials or arising under or in relation to this Agreement.
7.4 We disclaim any and all liability in connection with any course content and/or materials that may be uploaded by you onto our online training platform. We do not permit copyright infringement activities and infringement of intellectual property rights on our online training platform and we will remove all course content and/or materials if we are properly notified that such materials infringe another’s intellectual property rights. We reserve the right to remove any such materials without prior notice.
7.5 You acknowledge and agree that, if and to the extent that the Materials contain or include any opinion, analysis, prediction or assessment of any facts or circumstances (‘Opinions’), such Opinions represent our subjective views based on the facts or information available or circumstances known to us at the relevant time and/or may change. You will use your own skill and judgement and will form your own opinions and views regarding the Materials and/or Opinions and will not rely upon the same as a substitute for your own assessment, judgement or opinion or as a means of reaching your own decision.
7.6 We give you no warranty or assurance that the Software and our means of delivery is compatible with your software or computer configuration.
7.7 We reserve the right to update, change, correct, or alter any aspect of the Software including varying the technical specification at our discretion.
8.1 Nothing in this Agreement shall limit or exclude our liability for:
>8.1.1 death or personal injury caused by our negligence;
>8.1.2 fraud or fraudulent misrepresentation; or
>8.1.3 any other liability that cannot be excluded or limited by English law.
8.2 Subject to Clause 5.1 and Clause 8.1 above:
>8.2.1 We shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
>8.2.2 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 Agreement shall be limited to the sum paid by you for the Licence(s) in the year in which the claim arose. You acknowledge that this limitation is reasonable.
8.3 Under this clause, ‘our liability’ includes that of any company in our group and our and their respective agents, employees, contributors and consultants and sub-contractors, ‘You’ includes any other party claiming through You.
8.4 We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement or from carrying on business by acts, events, omissions or accidents beyond our reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications 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 or storm.
9.1 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
>9.1.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make that payment;
>9.1.2 the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if that breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
>9.1.3 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 (in the case of a company) 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;
>9.1.4 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 (being a company) 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;
>9.1.5 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 (being a company);
>9.1.6 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
>9.1.7 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;
>9.1.8 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 9.1.3 to clause 9.1.7 (inclusive);
>9.1.9 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and
>9.1.10 you become a direct competitor to us or you sell, provide, disclose or transmit any of the Materials to any of our direct or indirect competitors.
9.2 If we are in material breach as a result of circumstances within our control, you will be entitled to pro-rata return of the Licence Fee or Subscription Licence Fee.
9.3 Notwithstanding clause 9.2, if payment of the Licence Fee or Subscription Licence Fee is not made in full by the due date(s), without prejudice to any rights or remedies otherwise available, we reserve the right to:
>9.3.1 charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Barclays Bank or the maximum interest rate permitted by law, whichever is the greater; and
>9.3.2 suspend or withdraw access to the Software and Materials.
9.4 On termination of this Agreement for any reason:
>9.4.1 all rights and licences granted under the Agreement shall immediately terminate;
>9.4.2 you shall as soon as reasonably practicable permanently delete or destroy all Materials, data, information, Software, and other materials (excluding personal certificates) provided to you in connection with this Agreement including all materials containing our Confidential Information.
>9.4.3 we may destroy or otherwise dispose of any of the Subscriber Data in our possession unless we receive, no later than ten days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to you of the then most recent back-up of the Subscriber Data in machine readable form. We shall use reasonable commercial efforts to deliver the Subscriber Data to you within 30 days of receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in carrying out such delivery.
>9.4.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
>9.4.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
10.1 This Agreement, the Licence Fee and Subscription Licence Fee invoice and any agreed written record identifying Authorised Users constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement.
10.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently made or not) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available to it for breach of the Agreement shall be for breach of contract under the terms of this Agreement.
11.1 Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties.
11.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
11.3 No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.1 Any notice given by one Party to the other under this Agreement shall be in writing and shall be delivered by hand, fax, or pre-paid first-class post to the address of the person out in the SOF, or to any other person for the purpose of receiving notices after the date of this Agreement, and marked for their attention.
12.2 Any notice shall be deemed to have been received:
>12.2.1 if delivered by hand, on signature of a delivery receipt;
>12.2.2 if sent by pre-paid first-class post, at 9.00 am on the second Business Day after posting [or at the time recorded by the delivery service]
>12.2.3 if sent by fax, at 9.00 am on the next Business Day after transmission.
12.3 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 e-mail.
13.1 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.
13.2 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.
14.1 This Agreement is not intended to benefit anyone other than the parties to it and, in particular, no term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
14.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
15.1 This Agreement 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.
15.2 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 Agreement or its subject matter or formation (including non-contractual disputes or claims).