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The definitions and rules of interpretation in this clause apply in these Terms & Conditions.
; the person or firm who purchases the Licence from the Supplier.
; means a non - exclusive Licence to use the Software, free of charge for 30 days, subject to these Terms & Conditions.
"Intellectual Property Rights"
; patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get - up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information(including know - how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
; means a non - exclusive licence to use the Software together with any integrated Maintenance Release for an initial period (the "Initial Term") and thereafter from month to month ("Monthly Term") subject to these Terms & Conditions.
; means the annual or monthly fee as set out on website or as agreed between parties.
; release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.
; the Trade Chimp software and any Maintenance Release which is released during the term of the Licence.
; means TradeChimp Management Solutions Limited, Company Registration Number 10566010; whose registered address is 1a Great Hatfield Road, Sigglesthorne, East Yorkshire HU11 5QJ.
In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence for a term of 1 month to use the Software.
In relation to scope of use:
for the purposes of clause 2.1, use of the Software shall be restricted to use of the Software via the Trade Chimp website(the “Portal”) for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
the Customer may not use the Software other than as specified in clause 2.1 and clause 2.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
as the Software may only be used via the Portal, the Customer may not make backup copies of the Software.
the Customer has no right(and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
The Customer shall not:
sub - license, assign or novate the benefit or burden of this Licence in whole or in part;
allow the Software to become the subject of any charge, lien or encumbrance; and
deal in any other manner with any or all of its rights and obligations under this agreement, without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
The Supplier may at any time sub - license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Licence, provided it gives written notice to the Customer.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
The Customer shall:
notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
pay, for broadening the scope of the licences granted under this Licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
3. Free Licence
For new Customers, the Supplier may offer a Free Licence.
Customers using the Software under the Free Licence agree to be bound by these Terms & Conditions with the exception of Clause 5 – Fees, which will only come into force when the Customer enters into the Licence.
Up to and including the 30th day of the Free Licence the Customer may sign up to the Licence.
If the Customer does not sign up to a Licence on or before the 30th day of the Free Licence, the Customers access to the Portal will be suspended and the provisions of Clause 11.4 will apply.
4. Maintenance releases
The Supplier will provide the Customer, via the Portal, with all Maintenance Releases generally made available to its customers. The Supplier will use his reasonable endeavours to ensure that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
5. Licence Fee
The Customer shall, (following the conclusion of any applicable Free Licence), upon entering into the Licence pay to the Supplier the Licence Fee.
Upon conclusion of the Initial Term, unless the Customer terminates the Licence in accordance with Clause 11.2, the Customer agrees to pay the Licence Fee on a monthly basis for each Monthly Term, as set out on the website from time to time. The Licence Fee for each Monthly Term will be payable in advance on or before the first day of each month.
Where the Customer enters into the Licence through a Supplier-authorised sales representative, payment of the Licence Fee will be due within 30 days. In all other cases, payment of the Licence Fee is due immediately and is a condition of the Customer entering into the Licence.
Where applicable, all sums payable under this Licence are inclusive of VAT or any relevant local sales taxes.
All payment will be processed via an online payment software provider.
If the Customer fails to make any Licence Fee payment due to the Supplier under this agreement by the due date for payment, then the Customers access to the Portal will be suspended until payment is received.
Each party shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
7. Supplier's warranties
The Supplier warrants that the Software will be fit for any purpose held out by the Supplier.
The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8. Data Protection
The Customer consents to the Supplier processing data relating to the Customer for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to the Customer that may be inputted in to the Portal.
The Supplier may make such information available to any group company, those who provide products or services to the Supplier, regulatory authorities, potential purchasers of the Supplier and as may be required by law.
The Customer consents to the transfer of such information to the Suppliers business contacts outside the European Economic Area in order to further its business interests even where the country or territory in question does not maintain adequate data protection standards.
9. Limits of liability
Except as expressly stated in clause 9.2:
the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
loss of profits;
loss of anticipated savings;
loss of business opportunity;
loss of goodwill;
loss or corruption of data,
the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Licence Fee; and
the Customer agrees that, in entering into this Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence.
The exclusions in clause 7.3 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
fraud or fraudulent misrepresentation;
breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
Any dates supplied by the Supplier for the delivery of the Software shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
All references to "the Supplier" in this clause 9 shall, for the purposes of this clause and clause 17 only, be treated as including all employees, subcontractors and suppliers of the Supplier, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 17.
10.Intellectual property rights
The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.
11.Duration and termination
Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the other party if:
the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
the Customer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified to do so;
the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer;
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 Customer;
the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(c) to clause 11.1(i) (inclusive);
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
The Customer may not terminate the Licence prior to the expiry of the Initial Term. To terminate the Licence, the Customer must, not earlier than 30 days prior to the expiry of the Initial Term or any Monthly Term, give the Supplier 30 day’s notice, of their intention to not renew the Licence.
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
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.
On termination for any reason:
all rights granted to the Customer under this Licence shall cease;
the Customer shall cease all activities authorised by this Licence;
the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Licence; and
the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) any copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement [including clause 1, clause 6, clause 7 (except clause 7.1), clause 9, clause 11, shall remain in full force and effect.
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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. Entire agreement
These Terms & Conditions are the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
Each party acknowledges that, in entering into these Terms & Conditions it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Licence or not) ("Representation") other than as expressly set out in this Licence or those documents.
Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in these Terms & Conditions.
Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. Third-party rights
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
18. No partnership or agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 4 weeks written notice to the affected party.
Any notice given to a party under or in connection with this contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by fax to its main fax number.
Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
if sent by fax, at 9.00 am on the next Business Day after transmission.
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.
21.Governing law and jurisdiction
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.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation(including non - contractual disputes or claims).
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