This website is operated by Clik Limited. Throughout the site, the terms “we”, “us” and “our” refer to Clik Limited. Clik Limited offers this website, including all information, tools and services available from this site to you, the user, conditional upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/or purchasing something from us, you agree to be bound by these terms, including those additional terms and conditions and policies referred to in them and available by hyperlink. These terms apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these terms carefully before accessing or using our website.
Any new features or tools which are added to the store available on the site shall be subject to these terms. You can review the most current version of these terms at any time on this page. We reserve the right to update, change or replace any part of these terms by posting updates and/or changes to our website. The revised terms will apply only from the date they are available, and will not replace the terms of any transactions you have already concluded. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on WordPress. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
1. Who we are
1.1 We are Clik Limited. Our registered office is at The Tobacco Factory, Raleigh Road, Southville, Bristol BS3 1TF. Our company registered number is 03908285.
2. Our relationship with you
2.1 These terms explain our relationship with you, so it is important you read and understand them. They include important information about how we make our website available, supply software and services, and our duties to you. They tell you about your rights and obligations. If you do not understand what any part of these terms means you should take independent legal advice.
2.2 These terms apply to our relationship with customers operating in the course of their trade or business (i.e. customers who are not consumers). Different terms apply to relationships we have with consumers. If you are a consumer, please contact us by e-mail email@example.com or by telephone 0117 902 2012.
3. Legally binding contract
3.1 When you agree to these terms you enter a legally binding contract with us. You agree these terms when either: (a) you use our website; (b) you click ‘I agree’ on our website to purchase or download software, or purchase services from us; (c) you use a storage device (such as a CD) containing our software that is packaged with these terms; or (d) you confirm to one of our telephone operators or in writing you have reviewed these terms (and any other documents forming part of our contract with you) and wish to proceed with a purchase or download.
3.2 If you use our website or purchase or download software alone from us these terms will normally be the only document that forms your contract with us. If you purchase services from us (whether in addition to software or alone) other documents may also form your contract with us. If you ask us to provide services to you, we will normally issue a proposal to you. Once agreed this proposal will form part of your contract with us.
3.3 No order you submit shall be deemed to be accepted by us unless and until we confirm it in writing (or, in the case of an order for software, until we supply that software to you). In the case of a proposal we submit, your authorisation to proceed with the supply of services and/or software (whether oral or in writing), shall constitute your acceptance of that proposal and these terms. No conduct on our part shall constitute or be deemed to constitute acceptance of any terms you put forward. To be clear, you may only treat us as having accepted any terms you put forward if you have our explicit written agreement to those terms. If there is any inconsistency between our proposal and these terms on the one hand, and your order on the other, then our proposal and terms shall prevail.
3.4 If there is any inconsistency between these terms and any identified special conditions contained in a proposal, those special conditions shall prevail.
3.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documents or information we issue shall be subject to correction without any liability on our part.
3.6 Our employees and agents are not authorised to make any representations concerning our services or software unless we confirm them in writing. In entering into a contract with us you acknowledge that you do not rely on, and waive any claim for breach of, any representations which are not confirmed to you in writing (provided that nothing shall operate to limit or exclude any liability for fraud or fraudulent misrepresentation).
4. Your use of our website
4.1 We make our website available to use (including all information, tools and services available from our website), conditional upon your acceptance of these terms. These terms may change from time to time. By continuing to use our website you agree to the current version of these terms.
4.2 We do not guarantee that our website will always be available, error free, or correct, accurate and up to date, and we reserve the right to limit or deny access to it at any time for any reason, including by reference to user identity, geographic region and legal jurisdiction
4.3 We may update and change the content on our website (including information about our products, services, software, and prices) at any time without giving you notice. This will not change any contract we have already entered with you, but will apply to any future contract we enter into with you.
4.4 We may make third party links and third party tools available through our website. You understand and agree that we do not endorse any such links or tools by making them available, have no liability for them, and it is your responsibility to review and agree any third party terms that apply to their use
4.5 You understand and agree that using the internet, including by browsing the web and using our website, may involve the unencrypted transfer of information over various public networks. It is your sole responsibility to take such security measures (such as using a firewall or anti-virus software) as you consider appropriate in relation your use of the internet, including our website.
4.6 You agree not to reproduce, duplicate, copy, sell, resell or exploit any part or the whole of our website, without our express prior written permission.
4.7 You agree not to use our website or its content: (a) for any unlawful purpose; (b) to violate any international, national, or local regulations, rules, laws, or ordinances; (c) to infringe intellectual property rights; (d) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate in any way; (e) to upload or transmit viruses or any other type of malicious code; (f) to collect or track the personal information of others other than with their consent; or (g) to interfere with or circumvent any of our security features.
4.8 You agree that if our website allows you to upload any form of content you are solely responsible for that content and will reimburse us for any costs or expenses we incur as a result of you uploading it. If you upload any form of content you agree that we may at any time and without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium that content in part or whole. You warrant that any content you upload does not violate any right of any third party (including any intellectual property right), or be unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable.
4.9 You acknowledge that we may, but that we have no obligation to, monitor, edit or remove from our website any user-uploaded content that we consider (in our sole discretion) unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or infringing of any third party rights or these terms.
5. Trial periods
5.1 If we make software or services available to you for a trial period these terms apply during that trial period. If you decide not to purchase or download the relevant software or services from us at the end of the trial period you must tell us, return any software and/or deliverables we have provided to you, and stop using any software you have downloaded or to which you have access and/or deliverables we have provided to you.
6.1 You must pay us all charges in respect of the supply of software or services to you at the rates specified on our website or in our proposal (as applicable), or at such other rates as we may agree with you in writing. Software we provide to you may include third party software or applications (for example, Google Maps or Sage). If it does, your ongoing right to use the third party software or applications will be contingent on your payment of any licence fees levied by those third parties on us for making them available to you. Any rates specified on our website or in our proposal (as applicable) will include a right to use any third party software or applications for one year only, unless otherwise specified. We will notify you at the relevant time of the applicable rates for ongoing use.
6.2 You must pay us all reasonable expenses that we incur in the course of providing services to you (including travel and subsistence), in addition to the fees referred to at paragraph 6.1.
6.3 Where you ask us to provide any services in addition to those specified in our proposal to you and we have agreed to do so in the absence of any specific agreement on fees, you must pay us for those services at our then standard prices.
6.4 We reserve the right, by giving you notice at any time before completion of the supply of any services, to increase the fees payable in respect of the remainder of the services to be provided to reflect any increase in the cost to us which is due to:
6.4.1 any factor beyond our reasonable control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, or increase in the costs of labour or materials); and/or
6.4.2 any delay caused by any of your instructions or your failure to give us adequate information or instructions.
6.5 Unless otherwise agreed in writing, all charges and any other amounts payable by you are expressed exclusive of any value added tax or other applicable sales tax.
6.6 You must make all payments due to us without set-off or counterclaim of any kind.
6.7 You must make all payments due to us in pounds sterling, unless we otherwise agree in writing.
6.8 You must pay all sums due to us for software prior to using it (or at the end of any trial period if we allow you to trial the software). You must pay all sums due to us for services on the dates specified in the relevant proposal (and in the absence of any such dates, within seven (7) days of the date of invoice). We may raise an invoice at the start of each calendar month in respect of all services performed for you in the preceding month.
6.9 In some circumstances we may require you to pay sums on account of the charges or expenses to be incurred (or a proportion of them). If we do so you must pay the sums within seven (7) days of the date of a request in writing from us. We are not obliged to commence any services the subject of such charges (and will have no liability for late or incomplete performance) where you have failed to pay any such sum.
6.10 Without prejudice to any other remedy which we may have, if any sums due to us are not received in cleared funds by the due date for payment, we may:
6.10.1 charge interest on the overdue amount at the rate of four percent (4%) above the base rate of The Royal Bank of Scotland for the time being from the due date until the full amount of the overdue sums has been received in cleared funds;
6.10.2 suspend the performance of any services or obligations required to be performed by us or any software licence until such time as we have received the full amount of the overdue sums (together with any interest) in cleared funds and, at our sole discretion, remotely disable any of our software you are using by whatever means is at our disposal; and/or
6.10.3 terminate your agreement with us in writing where you persistently fail to make such payments due to us on the due date (which shall mean a failure to make any three or more payments due to us by or on the due dates in any period of twelve (12) calendar months.
7. Software licence
7.1 If we provide software to you, you have the right to use it only in accordance with this paragraph 7. All references to ‘software’ in these terms mean the object code only of the program(s) comprising the software. All references to ‘the software’ include any user manuals and/or documentation associated with it we provide to you.
7.2 We hold the copyright and title in (or are the valid licensee of) all software we provide to you. You may not install, run or use any software we provide to you without our permission.
7.3 Grant of licence: In consideration of your agreement to these terms and the payment of any applicable charges for the software we provide to you, we grant you a non-exclusive, revocable right to install, run and use the software in each case as permitted by these terms. Software we provide to you may include third party software or applications. If it does, your right to use the third party software or applications in conjunction with the software may be subject to your agreement of end user licence agreements with those third parties, in addition to these terms. If it is, we will notify you of the relevant end user licence agreements and you may have to click-through or otherwise indicate your agreement. You will be solely liable for any breach of those end user licence agreements.
If software we provide to you includes the right to download and use an app (for example on an iOS or Android device) the continued right to download and use that app will be subject to you continuing to have in place an agreement with us for the provision of ‘Clik Cover’ (or any replacement technical support offering we provide), and any other specific conditions set out on our website or in our proposal (as applicable).
7.4 Your rights under the licence: You may:
7.4.1 use the software in connection with any number of computers under your control and, for the avoidance of doubt, use on networks is allowed (whether local or wide), subject to paragraph 7.4.2;
7.4.2 load the software and use it on or by a maximum of the number of computers/servers/users specified in the relevant proposal, and if you wish to use the software otherwise, you must first obtain and pay for the correct number of separate additional licences;
7.4.3 transfer the software from one computer to another which is also under your control provided that the software is only installed on computers under your control;
7.4.4 make a single back-up copy of the software in support of your permitted use of the software provided you label the back-up copy with any copyright notice we specify from time to time;
7.4.5 use the software only for your internal business purposes;
7.4.6 only use the software contained on one medium if, for any reason, the software package supplied to you includes the same software on more than one medium (and unless you pay a separate licence fee you shall have no rights whatsoever in respect of the software contained on the medium you do not use).
7.5 Restrictions under the licence: You may not and may not permit others to:
7.5.1 use, copy or transfer the software except as permitted by these terms;
7.5.2 distribute, rent, loan, lease, sub-license or otherwise deal in the software;
7.5.3 copy the software other than as set out in paragraph 7.4.4;
7.5.4 alter, adapt, merge, modify or translate the software in any way for any purpose, including, without limitation, for error correction;
7.5.5 reverse-engineer, disassemble or decompile the software, except that you may decompile the software only to the extent permissible by law where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with the software or with another program and such information is not readily available from us or elsewhere;
7.5.6. remove, change or obscure any product identification or notices of proprietary rights and restrictions on or in the software.
7.6 Expiry/termination of the licence: This licence will continue until it expires or is terminated.
7.7 You may terminate this licence at any time by destroying the software together with all copies in any form. You will not be entitled to a refund of any charges you have already paid for the software if you choose to terminate this licence.
7.8 This licence will terminate automatically if you fail to comply with any of its terms.
7.9 On termination or expiry of this licence for any reason you must destroy the software together with all copies in any form, including copies on your hard and back-up disks. If you make any use of the software after termination or expiry of this licence that use will be unlawful.
7.10 Limited warranty: We warrant only to you, as the original licensee, that the medium on which the software is recorded will be free from defects in material and workmanship under normal use for a period of ninety (90) days from the day we despatch it. Our entire liability to you and your exclusive remedy for a breach of this warranty will be, at our option, to either:
7.10.1 repair or replace the software or medium which does not conform with this warranty; or
7.10.2 refund any charges you have paid for the software and terminate this licence;
subject in each case to you returning the software to us not later than ten (10) days after we inform you of the remedy we will provide
7.11 Exclusion of other warranties: Except for the express warranty set out in paragraph 7.10 we make and you receive no other warranties, conditions or representations, express or implied, statutory or otherwise, and (without limitation) the implied terms of satisfactory quality and fitness for a particular purpose are excluded. We do not warrant that the operation of the software will be error free or uninterrupted. It is your responsibility to ensure that the software is suitable for your needs (and we offer a trial period of the software for you to do this) and you assume the entire risk as to the performance and results of the software.
8. Services, services warranty, and returns
8.1 We shall supply and you shall pay for any services in accordance with any applicable proposal (if a proposal is issued) and subject to these terms.
8.2 If any services involve supplying deliverables to you, we shall provide them to you when completed.
8.3 If we have agreed any acceptance testing with you for deliverables in a proposal, you must carry out the acceptance tests using the agreed acceptance criteria within five (5) days of us providing the deliverables to you and must provide us a report accepting or rejecting the deliverables within that period. The deliverables will be accepted when they have passed the acceptance tests. If we do not receive a report within five (5) days of provision of deliverables, you will be deemed to have accepted them.
8.4 You may only reject deliverables where they have failed properly conducted acceptance tests completed in good faith. If you properly reject a deliverable, we shall remedy the defect at no extra charge to you so that the deliverable complies with the relevant agreed proposal in all material respects as soon as reasonably practicable (except where the failure of acceptance is properly attributable to a breach by you of your obligations). The remedy of the relevant defect is your sole and exclusive remedy for a failure of acceptance.
8.5 The specific warranty that applies in respect of software is set out in clause 7. For services we perform for you we warrant that if you demonstrate to our reasonable satisfaction, within ninety (90) days from the date of delivery (or, if applicable, acceptance), any deliverables (other than software) materially fail to comply with their relevant agreed functional specification, we will (at our sole option) correct such defect or replace the relevant deliverables free of charge or provide a refund in respect of the relevant deliverables, provided that:
8.5.1 you have properly installed the deliverables;
8.5.2 you have used the deliverables at all times properly and in accordance with instructions for use;
8.5.3 you have made no alteration, modification or addition to the deliverables without our prior written consent.
8.6 You must send any claim under paragraph 8.5 to us in writing, specifying the nature of the defect, and must grant us access to the deliverables in question and allow the removal of them to enable us to test or to inspect the deliverables at our premises.
8.7 Unless stated explicitly in a proposal or functional specification, we make and you receive about the deliverables no other warranties, conditions or representations, express or implied, statutory or otherwise, and (without limitation) the implied terms of satisfactory quality and fitness for a particular purpose are excluded.
8.8 The remedies specified in paragraph 8.5 are our only liability for and your only remedy in respect of any defect, error or other failure of the deliverables.
8.9 Subject to paragraphs 8.5-8.8, we warrant that we shall perform all services using all reasonable care and skill.
8.10 Where a proposal specifies any date for the completion of services (or parts thereof) or the delivery of any deliverables, time for such completion and delivery shall not be of the essence and we shall have no liability to you arising out of or in connection with any failure to provide the services or deliverables by such dates.
8.11 You may at any time prior to completion of services request in writing that we modify or extend the services, and if you do you must provide us with full particulars of any requested modification or extension and such further information as we may reasonably require. As soon as reasonably practicable following our receipt of such a request we will inform you whether such modification or extension is technically and commercially feasible, and shall inform you of any alterations to our charges and any completion and delivery dates that we judge necessary to make as a result of such request. You may, within fourteen (14) days of receipt of our response accept its terms, after which the proposal shall be deemed to be amended to incorporate the modified or extended services agreed and any altered charges and completion and delivery dates.
8.12 The continued and uninterrupted use of our services (including the service known as ‘Clik Service’) is reliant on the annual purchase of Clik Cover (tech support). Should you purchase any add-on software developed and retailed by us (i.e., Clik Remote, Clik Jobs, Clik Cert and other products as we from time to time develop and offer), it is incumbent on you to purchase Clik Cover for each individual product licence in order for you to receive support and software updates and to ensure that the product will continue to function. Should you purchase an add-on product, the relevant annual Clik Cover will be billed on a pro-rata basis in accordance with your Clik Cover expiry date (i.e., if you purchase Clik Cover for Clik Service in April and then decide to purchase Clik Jobs in August, the Clik Cover for Clik Jobs will be billed for only 9 months and then annually thereafter).
8.13 Software we provide to you may include third party software or applications. If it does, your right to use the third party software or applications in conjunction with the software may be subject to your agreement of end user licence agreements with those third parties, in addition to these terms.
8.14 If you choose to discontinue any end user licence agreement (for example, by choosing not to continue with Clik Cover, or to pay any other applicable renewal fee) you will still be able to use the software without the third party software or applications, but you will not be able to obtain any updates, receive ‘call-in’ support, or use any functionality in the software that links to or depends on the third party software or applications.
8.15.1 Our returns policy applies to all our software products and lasts 14 calendar days from the date of your purchase. After this 14 calendar day period you are unable to cancel your purchase and/or return any software and you will not be entitled to obtain a refund or exchange in respect of any software products you have purchased.
8.15.2 We do not offer refunds for annual update/tech support subscriptions, i.e., once a subscription is paid, it runs until the end of the term. However, we are willing to switch/amend a subscription should you choose to change products and services and you must notify us if you wish to do so.
8.16.1 Subject to the rest of the terms of this clause 8.16, you may request a refund in respect of software you have purchased within 14 calendar days following the date of your purchase. If, after purchase, you have downloaded the software your entitlement to a refund automatically and immediately terminates. Any refund after you have downloaded the software or where the 14 calendar day period after your purchase is exceeded (but the software has not been downloaded), is at our discretion.
8.16.2 Once we have received your request for a refund we will send you an email stating our agreement and the element of the software (if not the whole) which shall be refunded. We will also send you an email should your refund be refused. If a refund (in whole or part) is approved by us, payment will be processed via the original method of payment or as directed by you in writing. Payment will be made within five (5) working days.
8.16.3 If, after five (5) working days, you have not received a refund please, before contacting us, ask your bank if a payment to your account is being processed. If payment is to your credit card company, this can take time before your refund is officially posted. If you’ve checked with your bank and credit card company and still have not received your refund, please contact us at firstname.lastname@example.org.
Our refunds policy available at https://www.cliksoftware.com/refund-policy/ is incorporated in and forms part of these terms.
9. Safety of our personnel
9.1 If any of our representative(s) attend at your premises in connection with the provision of services you must:
9.1.1 take all reasonable steps to ensure the health and safety of such representative(s);
9.1.2 ensure that an adequate policy of insurance is in place in respect of any injury to or death of such representative(s); and
9.1.3 indemnify us and keep us indemnified against all costs, claims expenses (including legal and other professional fees and expenses), losses and other liabilities arising out of or in connection with the personal injury of death of any of our representative(s), unless and to the extent that any such loss, damage, personal injury or death was caused by our negligence of that of our representative(s).
10. Co-operating with us
10.1. You must at all times act reasonably, in good faith and in the spirit of co-operation towards us, our employees and sub-contractors This obligation includes (but is not limited to) behaving respectfully towards us, our employees and sub-contractors; treating us, our employees and sub-contractors politely and fairly; and not subjecting us, our employees or sub-contractors to any form of verbal abuse.
10.2 You must:
10.2.1 provide without charge to us, our employees and sub-contractors all such assistance as is reasonably necessary to enable us to perform our obligations under our contract with you, including computer and technical facilities and office and secretarial services;
10.2.2 make full disclosure to us of all information and material, including where necessary software and content, relevant to the provision of services to you;
10.2.3 ensure that all information you provide to us is true, accurate and complete in all respects;
10.2.4 ensure that all materials you provide to us are free from any defamatory or unlawful content and do not infringe any intellectual property or other rights of any third party and that any adaptation by us of those materials in accordance with your instructions will not infringe the intellectual property rights of any third party;
10.2 5 ensure that all materials you provide to us are provided within sufficient time to enable us to provide the services in accordance with our contract with you;
10.2.6 comply with our recommendations as to your hardware, network and computer operating systems; and
10.2.7 obtain, maintain, and comply with all necessary consents, permissions, permits, and licences in respect of the materials you provide to us and the services we provide to you;
10.2.8 comply with and remain solely responsible for all relevant legislation relating to the conduct of your business (including, without limit, the Data Protection Act 1998), and, for the avoidance of doubt, you acknowledge that we will not be processing any personal data under or in connection with our contract with you; and
10.2.9 indemnify us and keep us indemnified against all costs, claims expenses (including legal and other professional fees and expenses), losses and other liabilities arising out of or in connection with any breach by you of your obligations in this paragraph 10.
10.3 If, in our opinion, you have at any time during our relationship failed to comply with the obligations at clause 10.1, we may (without limiting our remedies set out elsewhere in these terms and without any liability to you) do any or all of the following:
10.3.1 terminate, withdraw or suspend any services that we provide to you at any time without any obligation to provide any refund in respect of those services; or
10.3.2 refuse to:
a. accept any new orders for services that you order from us;
b issue any new proposals for services that you order from us; or
c. accept any renewal of any order or proposal that you have previously ordered from us.
10.4 The rights in clause 10.3.210.3 shall apply regardless of whether or not we have received payment from you in respect of the relevant order, proposal or renewal, or otherwise indicated acceptance of the order, proposal or renewal. If we have received payment from you and subsequently reject an order, proposal or renewal, we will provide a refund of the payment made in respect only of the relevant order, proposal or renewal.
11. Data Protection
11.1 It is acknowledged and understood that you shall be the data controller for any personal data that you provide to us during the use of our services, and in particular for any information transferred to Clik during your use of:
- Clik Jobs
- Clik Service Text Message Service
- Clik Elec Cert App
- Clik Gas Cert App
11.2 Our Data Processing Agreement shall apply to these processing activities and are hereby incorporated into and form part of these terms.
12. Intellectual Property
12.1 In these terms ‘intellectual property’ means patents, trade marks, trade secrets, copyright, database rights, designs, inventions, know how and any other industrial or intellectual property rights of any nature whatsoever, whether registered or capable of registration or not, in any part of the world and including all applications and the right to apply for any of the foregoing rights
12.2 Except where expressly agreed in the proposal, all intellectual property rights in all deliverables shall be owned exclusively by us and may be used by you as follows:
12.2.1 we grant you a perpetual (subject to the rights of termination referred to elsewhere in these terms), non-exclusive, non-transferable, royalty-free (subject to any royalty provisions referred to in the relevant proposal) licence to use the deliverables for your own internal business purposes without any right to sub-license, with effect from the date of receipt by us of all charges due under the relevant proposal attributable to that deliverable;
12.2.2 where any of the deliverables include software you shall comply with the software licence in the form set out in paragraph 7 or otherwise provided by us.
12.3 If we expressly agree in the proposal that you shall own the intellectual property rights in any deliverables the following shall apply:
12.3.1 we shall assign to you those intellectual property rights with effect from the date of receipt of the fees due under the proposal attributable to those deliverables, subject to paragraphs 12.3.2 and 12.3.3;
12.3.2 with effect from the date of assignment you hereby grant us a perpetual, irrevocable, non-exclusive, royalty-free licence to use those deliverables for all purposes necessary to perform our obligations and exercise our rights under our contract with you including (without limitation) a right to sub-licence to our sub-contractors for those purposes; and
12.3.3 notwithstanding paragraph 12.3.1, the intellectual property rights in the background intellectual property and methodology shall be owned exclusively by us and we hereby grant you a licence to use the background intellectual property and methodology on equivalent terms to those specified at paragraph 12.2.
12.4 We warrant that, so far as we are aware, the deliverables including, but not limited to, any software, do not infringe the copyright of any third party.
12.5 11.512.5 If we create any inventions, designs or processes in the performance of the services, you acknowledges that all rights (including, without limitation, intellectual property) in these items shall be our property unless agreed otherwise in writing.
13.1 In the absence of any express provision to the contrary in the proposal either you or we shall be entitled to terminate our contract at any time by giving not less than thirty (30) days’ notice in writing to the other.
13.2 Without prejudice to any other remedy it may have, we may terminate our contract with you or suspend performance of our obligations under it immediately by giving written notice to you if:
13.2.1 you commit a material breach of our contract with you and (if capable of remedy) fail to remedy the breach within thirty (30) days after being given written notice to do so; or
13.2.2 you persistently breach of our contract with you;
13.2.3 if the right to terminate a software licence set out in paragraph 7 arises;
13.2.4 you make any voluntary arrangement with your creditors, or enter administration or go into liquidation (other than for the purposes of solvent amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed, over any of your property or assets, or you cease or threaten to cease to carry on your business, or anything analogous to any of the foregoing occurs under the law of any jurisdiction.
13.3 If either you or we terminate our contract in accordance with this paragraph 13:
13.3.1 notwithstanding any provision in the relevant proposal to the contrary, we shall be entitled to invoice you for all fees attributable to the work undertaken and expenses incurred by us to the date of termination (insofar as such sums have not previously been invoiced) and all invoices shall become immediately due and payable; and
13.3.2 within thirty (30) days following the receipt in cleared funds of the sums referred to in this paragraph 13.3 we shall (at your cost) deliver any deliverables to you that are completed or part completed.
14. Limitation of liability
14.1 We shall not be liable to you (whether by reason of our negligence or that of any of our employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, breach of statutory duty, or otherwise) for any: (a) loss of profits; or (b) damage to reputation; or (c) loss of anticipated savings; or (d) loss of anticipated revenues; or (e) loss of business opportunities; or (f) loss of contracts; or (g) loss of goodwill; or (h) loss or corruption of any data; or (i) any claim, action or demand made against you by any third party; or (j) any indirect loss, damage, cost, expense or claim whatsoever; in each case which arises out of or in connection with our contract with you.
14.2 Our aggregate liability (inclusive of interest and legal and other costs) to you in respect of all claims arising under or in connection with our contract with you (whether by reason of our negligence or that of our employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, breach of statutory duty, or otherwise) shall not in any event exceed the total charges paid by you to us.
14.3 Nothing in our contract with you shall operate to limit or exclude our liability to you for any death or personal injury caused by our negligence or that of any of our employees or agents, for any fraud or fraudulent misrepresentation, or for any other matter in respect of which liability cannot lawfully be limited or excluded.
14.4 You agree that the limitations and exclusions of liability set out in these terms are fair and reasonable, taking account particularly of the following reasons: (a) the fact it is not within our control how you use and/or rely on the software and services we provide to you; (b) the likelihood that any damages awardable to your for our breach would be disproportionately greater than the value we derive from the contract; (c) the likelihood you will be in a better position than us to insure yourself in a cost effective manner against any damage flowing from our breach.
15.1 Each of you and us shall keep confidential the terms of our contract and any and all confidential information that you or we may acquire in relation to the business or affairs of each other. Neither you nor we shall use the other’s confidential information for any purpose other than to perform its obligations under our contract. Each of you and us shall ensure that its officers and employees comply with the provisions of this paragraph 15.1.
15.2 The obligations out in paragraph 15.1 shall not apply to any information which:
15.2.1 is publicly available or becomes publicly available through no act or omission of the receiving party;
15.2.2 is required to be disclosed by law or by order of a court of competent jurisdiction.
15.3 Nothing in this paragraph 15 shall prevent us from exploiting any inventions, software or other materials that we develop during the course of our contract with you or afterwards.
16.1 Transferring rights: You may not assign, sub-contract or otherwise dispose of any of your rights or obligations under your contract with us without our prior written consent. We may assign, sub-contract or otherwise dispose of any of our rights and obligations under our contract with you at any time without your consent.
16.2 No partnership/agency: Nothing in our contract with you shall constitute any partnership between us or be deemed to have created any relationship of agency between us and unless expressly stated in our contract with you neither party shall have the authority to contract on behalf of or otherwise bind the other in any way
16.3 No third party rights: Unless expressly stated in our contract with you, nothing in it shall confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
16.4 Employees: For a period of six (6) months following the termination or expiry of our contract with you for any reason, you must not, directly or indirectly, solicit, or offer employment or engagement to, or employ or engage, any employee or independent contractor who worked for us or on our behalf in connection with our contract with you in the immediately preceding twelve (12) months.
16.5 Publicity: We will not, without your prior written consent, identify you as one of our customer’s in any marketing and publicity we issue.
16.6 Events outside our reasonable control: We shall not be liable for, or be deemed to be in breach of our contract with you as a result of, any delay in performing or failure to perform any of our obligations under our contract with you where that delay or failure is caused by any circumstances beyond our reasonable control.
16.7 Cyber Insurance: We have in place and will maintain a cyber insurance policy with a regulated insurance company at a limit of £250,000 per year to cover cyber and privacy liability in respect of any of our business, operations or products.
16.8 No waiver: No delay or failure on the part of either of us in enforcing any provision in the contract between us shall be deemed to be a waiver or create a precedent or in any way prejudice that party’s rights under the contract. The rights and remedies provided in the contract between us are cumulative and are not exclusive of any rights or remedies provided by law.
16.9 Entire agreement: These terms and the documents referred to in them represent the entire agreement and understanding, and supersede any previous agreements, between us in connection with their subject matter. You acknowledge and agrees that you have not been induced to agree a contract in reliance upon, and in connection with your contract with us, do not have any remedy in respect of, any representation or other statement or promise of any nature whatsoever, other than as expressly set out in our contract.
16.10 Severability: If any provision of our contract with you is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, that provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of our contract with you not affected by such invalidity or unenforceability shall remain in full force and effect. If any provision in our contract with you is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
16.12 Notices: Any notice or consent required or permitted under our contract with you shall be in writing and shall be sent to by first class post, hand delivery or email. Any such notice consent or other document shall be deemed to have been duly received: (a) if dispatched by email – twenty four (24) hours from the time of the despatch (provided no message send failure or out of office response is generated); or (b) if dispatched by prepaid post – three (3) days from the time of posting to the relevant party; or (c) if dispatched by hand delivery – at time of actual delivery.
16.13 Resolving disputes: If any dispute or claim, including a dispute or claim of a non-contractual nature, arises under or in connection with our contract with you, you agree you will attempt to settle it with us through negotiation. Neither of us may commence court proceedings until twenty one (21) days after one of us has made a written offer to the other party to negotiate a settlement to the dispute, provided that nothing in this clause shall prevent either party from seeking an injunction or other judicial relief if in its reasonable judgment such action is necessary to prevent irreparable damage.
16.14 Governing law and jurisdiction: Our contract with you and any dispute or claim, including a dispute or claim of a non-contractual nature, arising under or in connection with our contract with you shall be governed by and construed in accordance with the law of England and Wales and any dispute arising under or in connection with our contract with you shall be subject to the exclusive jurisdiction of the courts of England and Wales, to which each of us irrevocably submit.