Terms and Conditions
Please read these Terms and Conditions, carefully before registering for a chargeable subscription or installing any of the Solution or Services offered on this website operated by OCRex Limited, a company registered in Ireland with company number, 468361 with its registered address at 11/12 Warrington Place, Dublin 2, Ireland and VAT number, IE 9051858N.
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
In this Agreement the following terms shall have the following meanings:
means employees, consultants or contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Solution or Services;
means an unwanted or unintended property of the Solution that can be reproduced and causes the Solution to malfunction but does not affect the availability of the Solution;
means Monday to Friday excluding any national holiday in Melbourne, Arizona, London, Dublin;
means 09.00 to 17.30 local time for the respective location on Business Days;
means any entity or persons to whom the Customer provides its services;
means OCRex Limited;
means any and all information in any form whatsoever relating to the Company or the Customer, or the business, prospective business, finances, technical process, computer software (both source code and object code), IPR or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this Agreement or provision of the Solution or Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
means pure economic loss, losses incurred by any Client or other third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
means the version of the Solution available to the Customer on the Effective Date or subsequently any new version which replaces it during the Term;
means all data imported into the Solution or Services by the Customer, Authorised Users or Clients for the purpose of using the Solution and Services or facilitating use of the Solution and Services;
means the Customer named in the Registration Form;
means the training materials and user manuals relating to the use of the Solution and Services, as well as any additional documentation that the Company specifically creates for the Customer or otherwise provides to the Customer to assist in the correction of any issue with the Solution or Services;
means the data processing agreement located at http://ocrex.com/data-processing-agreement.php as amended from time to time;
means the date set out in the Registration Form;
means maintenance, upgrades, Updates, repairs to hardware and software related to resolving immediate problems causing instability in the non-installed Solution;
means feedback, innovations or suggestions created by the Customer, Clients or Authorised Users regarding the attributes, performance or features of the Solution and Services;
means the fees payable by the Customer during the Term of this Agreement;
means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where the Company ceases to be entitled to access the Internet for any reason beyond its control) transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
means the description of the Solution set out as follows:
AutoRec (UK and Ireland only): https://ocrex.zendesk.com/hc/en-gb/articles/360000535846
Autocaid (US only): http://autocaid.com
means the services set out in section 1 of the SLA for hosting the non-installed Solution;
means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
means a period of 1 month starting from the Effective Date;
means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations, and similar organisations;
means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Maintenance and Support Services”
means the maintenance and support services set out in the SLA for maintenance and support of the Solution;
means the registration form completed by the Customer used to order the Solution and Services or the email confirmation sent to the Customer where orders are completed online;
means any additional fees payable by the Customer during the Term of this Agreement set out in any subsequent order form;
means 1 unless stated otherwise in the Registration Form or otherwise agreed in writing with the Company;
means maintenance, upgrades, Updates, installation of new versions and repairs which are non-critical and not urgent, to hardware and software;
means a modification in the functionality of the non-installed Solution which results in a change in the version number;
means 1 month;
means the Hosting Services and the Maintenance and Support Services set out in the SLA;
means the service level agreement located at http://ocrex.com/service-level-agreement.php as amended from time to time;
means the SaaS software applications AutoEntry or StatementRec or Autocaid or the installed software AutoRec as specified in the Registration Form and described in more detail in the Functional Description;
means the subscription fee set out at http://ocrex.com/statementrec-pricing.php
means the Initial Term plus any Renewal Term together;
“Term and Conditions”
means these terms and conditions;
“Time and Materials Basis”
means the Company’s standard daily consultancy rates;
means all reasonable costs associated with any travel and subsistence expenses incurred by the Company (or its employees, permitted subcontractors or agents) in performing its obligations under this Agreement.
means any new or updated applications services or tools (including any software programmes) made available by the Company as part of the Solution or Services during the Term.
- Services and Solution
- The Customer engages the Company and the Company agrees to provide the Solution and Services in accordance with the terms of this Agreement from the Effective Date for the Term.
- If the Customer wishes to purchase additional Solutions or Services after the Effective Date, such Solutions and Services shall be set out in one or more additional order forms, which will be incorporated into this Agreement.
- Licence to use the Solution and Services
- Subject to the Customer’s payment of the Fees, the Customer, Authorised Users and Clients are granted a non-exclusive, non-transferable licence to use the Solution and Services (including any associated IPR and Confidential Information of the Company) from the Effective Date for the Term. Such licence permits the Customer, Clients and Authorised Users to make copies of software or other information necessary for the Customer to receive the Solution and Services via the Internet. Where a Registration Form includes the AutoRec Solution the Customer is permitted to install one copy of the AutoRec Solution on the Permitted Number of compatible computers during the Term by entering a valid serial number. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1.
- The AutoRec Solution may allow installation and use of parts of the AutoRec Solution on a trial basis (“Evaluation Software”). The Customer may install Evaluation Software on any number of computers as part of an organisational deployment plan for the purposes of demonstration, evaluation, and training only. Any output file created via the Evaluation Software (“Output File”) or other materials produced through use of the Evaluation Software may only be used for internal, non-commercial, and non-production purposes. Use of the Evaluation Software will automatically time out, with or without prior notice. After such time-out use of the Evaluation Software is only permitted once the Customer inputs a valid serial number. Use of all Output Files is at the Customer’s own risk.
- All IPR and title to the Solution, Services and Documentation (save to the extent these incorporate any Customer Data, Customer IPR or third party owned item) shall remain with the Company and/or its licensors and subcontractors and no interest or ownership in the Solution, Services, Documentation, IPR or otherwise is transferred to the Customer under this Agreement. Notwithstanding the Customer’s statutory rights, no right to modify, adapt, or translate the Solution or Services or create derivative works from the Solution or Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Solution or Services.
- Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Solution or Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Solution or Services interoperable with other software the Company will provide access to any relevant source code or information provided that the Customer makes a written request identifying the relevant details of the Solution or Services with which operability is sought and the nature of the information needed. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
- Unless otherwise specified in this Agreement, the Solution and Services are provided and may only be used in conjunction with: (i) the Customer’s existing systems and applications in order to facilitate the Customer’s transactions with its Clients; (ii) providing access to Services solely to Clients and Authorised Users; and (iii) access and use of the Documentation as necessary to enable use of the Solution and Services.
- The Customer may not (i) lease, loan, resell, assign, licence, distribute or otherwise permit access to the Solution and Services; or (ii) use the Solution or Services to provide ancillary services related to the Solution or Service; or (iii) permit access to or use of the Solution or Services by or on behalf of any third party, except as permitted in this Agreement. The Company reserves the right to electronically monitor the Customer’s use of the Solution and Services.
- Notwithstanding clause 3.5 above the Customer may permanently transfer its licence to use the AutoRec Solution and Services to another individual or legal entity provided that: (i) the Customer also transfers this Agreement; (ii) the serial number(s), the AutoRec Solution affixed to media provided by the Company or its authorised distributor, and all other software or hardware bundled, packaged, or pre-installed with the AutoRec Solution, including all copies, Updates, and Prior Versions; and (iii) all copies of font software to such individual or entity. The Customer must not: (i) retain any Updates, Prior Versions, or copies, including backups and copies stored on a computer; and (ii) the receiving party accepts the terms of this Agreement and any other terms and conditions under which the Customer purchased a valid license to the AutoRec Solution. NOTWITHSTANDING THE FOREGOING, THE CUSTOMER MAY NOT TRANSFER EDUCATION, PRE-RELEASE, EVALUATION SOFTWARE, OR NOT FOR RESALE COPIES OF THE AUTOREC SOLUTION OR AUTOREC SOLUTIONS OBTAINED UNDER A COMPANY VOLUME LICENSE PROGRAM EXCEPT AS MAY BE EXPRESSLY PERMITTED BY THE COMPANY WITHIN THE TERMS OF A VOLUME LICENSE PROGRAM. Prior to a transfer the Company may require that the Customer and the receiving party confirm in writing their compliance with this Agreement, provide the Company with information about themselves, and register as end-users of the AutoRec Solution. 4-6 weeks should be allowed for a transfer to become effective.
- The Customer may copy an image of the AutoRec Solution onto computer file server(s) within its Internal Network for the purpose of downloading and installing the AutoRec Solution onto computers within the same Internal Network.
- The Customer may install the AutoRec Solution on computer file server(s) within its Internal Network only for use of the AutoRec Solution initiated by an individual from a computer within the same Internal Network. The total number of users (not the concurrent number of users) able to use the AutoRec Solution on such computer file server(s) may not exceed the Permitted Number. For example: The foregoing does not permit the Customer to install or access (either directly or through commands, data, or instructions) the AutoRec Solution: (i) from or to a computer not part of its Internal Network; (ii) for enabling web hosted workgroups or web hosted services available to the public; (iii) by any individual or entity to use, download, copy, or otherwise benefit from the functionality of the AutoRec Solution unless licensed to do so by the Company; (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users; or (v) for operations not initiated by an individual user (e.g., automated server processing).
- The AutoRec Solution is licensed for use on a specific operating system platform. The Customer must purchase a separate license for use of the AutoRec Solution on each operating system platform. For example: If the Customer wishes to install the Solution on both the Mac OS and Windows operating system platforms on a device that runs both of those platforms (i.e., a dual boot machine), then the Customer must first obtain two separate licenses for the AutoRec Solution. This is true even if two versions of the AutoRec Solution, each designed for a different operating system platform, are delivered to the Customer on the same media.
- The Customer shall not: (i) use or offer the AutoRec Solution on a service bureau basis; or (ii) use Company Runtimes on any non-PC device or with any embedded or device version of any operating system. For the avoidance of doubt, and by example only, the Customer may not use Company Runtimes on any: (a) mobile device, set top box (STB), handheld, phone, web pad, tablet and Tablet PC (other than with Windows XP Tablet PC Edition and its successors), game console, TV, DVD player, media centre (other than with Windows XP Media Center Edition and its successors), electronic billboard or other digital signage, Internet appliance or other Internet-connected device, PDA, medical device, ATM, telematic device, gaming machine, home automation system, kiosk, remote control device, or any other consumer electronics device; or (b) operator-based mobile, cable, satellite, or television system or (c) other closed system device.
- If the AutoRec Solution is an Update to a prior version of the Company’s software (the “Prior Version”), the following apply: use of the Update is conditional upon your retention of the Prior Version. Accordingly, if the Customer validly transfers an Update it must transfer the Prior Version along with it. If the Customer wishes to use an Update in addition to the Prior Version, the Customer may only do so on the same computer on which it installed and is using the Prior Version. Any obligations that the Company may have to support Prior Versions may end upon the availability of an Update. No other use of an Update is permitted. Additional Updates may be licensed to the Customer by the Company with additional or different terms.
- The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
- The Customer is not allowed to remove any proprietary marks or copyright notices from the Solution or Services.
- The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPR.
- The Customer grants the Company a non-exclusive, non-transferable revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Solution and Services.
- The Company may take and maintain technical precautions to protect the Solution and Services from improper or unauthorised use, distribution or copying.
- Term and Termination
- This Agreement shall commence on the Effective Date for the Initial Term. At the expiry of the Initial Term, this Agreement will automatically renew for successive Renewal Terms and continue until either party terminates the Agreement by giving the other 30 days notice in writing prior to the start of a Renewal Term. Neither party may terminate the Agreement without cause during the Initial Term.
- The Company may terminate this Agreement or the provision of any Solution or Services with immediate effect if: (i) the Customer has used or permitted use of the Solution and Services other than in accordance with this Agreement; or (ii) the Company is prohibited under applicable law, or otherwise from providing the Solution or Services.
- Either party may terminate this Agreement immediately, with cause, if the other party (i) ceases or threatens to cease or carry on business; or (ii) is unable to pay its debts or enters into compulsory insolvency or voluntary liquidation; or (iii) convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; (iv) or has an administrator, receiver, manager or similar official appointed; or (v) is affected by a similar event under the law of any other jurisdiction; or (vi) a Force Majeure event lasts for more than 28 days.
- Either party may terminate this Agreement for material breach of any term by giving the breaching party written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 10 days of receipt of the notice.
- Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other and any clauses which by their nature should survive termination or expiry of this Agreement shall survive the expiry or termination of this Agreement and shall remain in force and effect.
- Upon termination of this Agreement the Customer shall promptly pay the Company all unpaid Fees and all licences granted under the Agreement shall terminate on the effective date of termination.
- The Company shall: (i) cease providing the Solution and Services to the Customer; (ii) at the option of the Customer, delete (in accordance with the terms of the DPA) or return all Customer Data stored via the non-installed Solution in the Company’s database in a standard machine readable format, free of charge. If the Customer requires any such Customer Data to be returned in a different format the Company reserves the right to charge for this additional service on a Time and Materials Basis.
- Fees and Invoicing
- The Company shall invoice the Customer the Fees during the Term. All invoices shall be issued and paid in the currency stated in each invoice. All Fees exclude any Value Added Tax, or sales tax legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
- Travel Fees, incidental costs and other expenses shall be invoiced in addition to the Fees in arrears, as and when they arise.
- The Company may increase the Fees upon giving the Customer 90 days prior written notice at any time during the Term.
- Payment Terms
- The Customer shall pay the Company the Fees during the Term as set out in the Registration Form and subject to any payment terms set out in invoices.
- Unless stated otherwise in the Registration Form, payment of all Fees is due immediately at the start of each Renewal Term and shall be without prejudice to any claims or rights which the Customer may have against the Company. If the Customer believes that any invoice is incorrect, it must notify the Company in writing within 7 days of the invoice date.
- Where payment of any Fee is not received on the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Solution and Services and the Company shall be under no obligation to provide any or all of the Solution or Services while the invoice(s) concerned remains unpaid. The Company shall be entitled to charge interest on overdue Fees at the applicable statutory rate.
- The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
- Confidential Information
- Each party may use the Confidential Information of the other only for the purposes of this Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental or other authority with relevant powers to which either party is subject.
- Each party may disclose the Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
- Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
- The obligations of confidentiality under this Agreement do not extend to information that: (i) was in the other party’s lawful possession before the negotiations leading to this Agreement; (ii) is, or after the Effective Date, becomes publicly known other than through any act or omission of the receiving party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- If either party is required to disclose any Confidential Information pursuant to clause 7.4 such party shall, where lawfully permitted to do so: (i) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (ii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
- The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 7 and without limitation, all information falling within the definition of Confidential Information as set out in clause 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is: (i) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or (ii) a trade secret of the disclosing party; and (iii) information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
- Data Protection
- Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
- To the extent that personal data is processed when the Customer, Authorised Users or Clients use the Solution and Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations.
- The Customer shall ensure that: (i) the personal data, which it supplies or discloses to the Company, has been obtained fairly and lawfully; (ii) it will obtain all necessary approvals from persons whose data is being processed; and (iii) it has in place all necessary registrations with authorities to permit the Company to transfer personal data to third parties pursuant to its obligations under this Agreement.
- The Company confirms that it: (i) will only process personal data on behalf of, and in the name of, the Customer; (ii) will only process data in accordance with the instructions of the Customer; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient and appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to personal data, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected.
- In addition to the above obligations, from the 25th of May 2018 the parties shall comply with their respective obligations set out in the DPA. In the event of any conflict between clauses 8.3 and 8.4 of this Agreement and the terms of the DPA, the terms of the DPA shall prevail.
- If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
- Representations and Warranties
- Each party warrants and represents that; (i) it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) its execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party; and (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
- The Company warrants to the Customer that it has the right to licence the Solution and Services.
- The Company warrants and represents that the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice and that the Services will comply with the SLA.
- The Company warrants to the Customer that the non-installed Solution will operate to provide in all material respects the facilities and functions set out in the Functional Description.
- Subject to any mandatory applicable law, the Company warrants to the Customer that the installed Solution will operate to provide in all material respects the facilities and functions set out in the Functional Description for a period of 90 days after the Effective Date. This warranty does not apply to the following, which are made available “as is” and without warranty by the Company: pre-release (beta), trial, starter, evaluation, product sampler, and not for resale (NFR) copies of the Solution including but not limited to Evaluation Software; websites, Company Online Services; third party online services; Certified Document Services and any software made available by the Company for free via web download from a Company website.
- If there is a breach of the above warranties, the Company shall use reasonable commercial endeavours, to correct any material defect or to replace the defective Solution. Notwithstanding the aforesaid, the Company shall only be obliged to remedy any material defect if: (i) the Customer notifies the Company in writing immediately upon discovering the defect; and (ii) following the Company’s examination of the Solution, it is established that such a defect exists.
- The warranties in clauses 9.2 to 9.5 inclusive shall not cover deficiencies or damages relating to: (i) any third party components not provided by the Company; or (ii) any third party provided connectivity necessary for the provision or use of the Solution and Services; or (iii) compliance with third party software or products, non-Company programmes or data used in combination with the Solution or Services except as recommended by the Company, or (iv) a failure of the Solution to conform with the Functional Description caused by the use or operation of the Solution by the Customer with an application or in an environment other than recommended by the Company; or (v) modifications made to the Solution not carried out by the Company.
- Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law. No warranty is made regarding the results the Customer can achieve from using the Solution and Services or that the Solution and Services will operate uninterrupted or error free.
- The Customer warrants that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement.
- The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Solution and Services granted under this Agreement is limited as set out under this Agreement. In particular the Customer shall treat any identification, password or username or other security device for use of the Solution and Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing.
- Third Party Software
- The Solution incorporates third party software which is used within the Solution. The Customer, Authorised Users and Clients use of the Solution acknowledge and agree that use of the Solution will be subject to the terms of any third party licence agreements applicable to such third party software.
- The Customer’s use of ABBYY SDK is “as is.” and is subject to terms of the ABBY SDK EULA. Furthermore ABBYY does not guarantee that ABBYY SDK will carry no errors, nor that it will be liable for any damages, either direct or indirect, including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss resulting from the use of ABBYY SDK, or damages caused by possible errors or misprints in ABBYY SDK. Additionally, if purchased in the United States, ABBYY SDK shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable legislation. If any part of the ABBYY SDK EULA is found void and unenforceable, it will not affect the validity of the balance of the ABBY SDK EULA, which shall remain valid and enforceable according to its terms. The ABBYY SDK EULA shall not prejudice the statutory rights of any party dealing as a consumer.
- The parties do not exclude or limit their liability to each other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct or any claim that cannot be limited or excluded by mandatory applicable law.
- The parties shall not be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
- The parties shall not be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
- Subject to clauses 11.1 to 11.3 inclusive the Company’s total liability to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Customer to the Company during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period as applicable.
- The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users or Clients who access the Services and Solution as if such acts, omissions or negligence had been committed by the Customer itself.
- The Customer shall not raise any claim under this Agreement more than 1 year after (i) the discovery of the circumstances giving rise to a claim; or (ii) the effective date of termination or expiry of this Agreement.
- The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and has not relied on any representation made by the other, their employees or agents.
- The Company, at its own expense, shall: (i) defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any IPR by the Solution or Services (excluding any claim deriving from any Customer provided item); and (ii) pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim; (b) the Company is given sole control of the defence and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
- If all or part of the Solution or Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company shall at its own expense and sole discretion: (i) procure for the Customer the right to continue to use the Solution or Service or the affected part thereof; (ii) replace the Solution or Service or affected part with another suitable non-infringing service or software; (iii) modify the Solution or Services or affected part to make the same non-infringing.
- The Company shall have no obligations under clauses 12.1 and 12.2 above to the extent that a claim is based on: (i) the combination, operation or use of the Solution or Services with other services or software not provided by the Company if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Solution or Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
- The Customer shall indemnify and hold the Company and its employees, subcontractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or breach by the Customer, an Authorised User or a Client of any IPR with respect to use of the Solution or Services outside of the scope of this Agreement; or (ii) use by the Company of any Customer Data or Customer or Client provided item, in particular storage or publication on the Internet of any Illegal Content; or (iii) any access to or use of the Solution or Services by an Authorised User, a Client or a third party; (iv) breaches of data protection law or regulations or the Customer’s obligations under the DPA; and (v) any breach of this Agreement by an Authorised User or a Client. Furthermore, the Company shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet and breaches of third party rights from continuing.
- The Company shall permit the Customer to specify which Authorised Users or Clients may access the Services and Solution through its standard application security options.
- The Customer, Authorised Users and Clients must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
- The Company may suspend access to the Solution and Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services or Solution is in danger of being compromised by acts of the Customer, Authorised Users or Clients.
- Assignment and Relationship between Parties
- No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies.
- The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
- Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
- The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions.
- The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Services.
- Export Rules
- The Customer acknowledges that the AutoRec Solution is subject to U.S. Export Administration Regulations and other export laws, restriction and regulations (together “Export Laws”) and that the Customer, Authorised Users and Clients will comply with the Export Laws. The Customer, Authorised Users and Clients shall not ship, transfer, export or re-export the AutoRec Solution directly or indirectly to (i) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”); (ii) any end user who they know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”); or (iii) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, the Customer, Authorised User or Client are responsible for complying with any local laws in their jurisdiction which may impact on their right to import, export or use the AutoRec Solution. The Customer represents and warrants that: (a) it is not a citizen of, or located within, an Embargoed Country; (b) it will not use the AutoRec Solution for a Prohibited Use; and (c) it is not a Sanctioned Party. All rights to use the AutoRec Solution are granted on condition that such rights are forfeited if the Customers fail to comply with the terms of this Agreement.
- Right to Inspect Licences
- The Customer agrees that, in addition to any license compliance checking performed by the AutoRec Solution, the Company or its authorized representative have the right, no more than once every twelve (12) months, upon giving ten (10) days prior notice to the Customer, to inspect its records, systems, and facilities to verify that its use of the AutoRec Solution is in conformity with its valid licenses from the Company. The Customer shall provide the Company will all records and information requested by the Company in order to verify that its use of the AutoRec Solution is in conformity with its valid licenses from the Company within thirty (30) days of the Company’s request. If verification discloses that the Customer’s use is not in conformity with a valid license, the Customer shall immediately obtain valid licenses to bring its use into conformity.
- Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
- Except with respect to the Customer’s obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
- This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
- Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or acknowledged fax to a party at the address given for that party in the Registration Form or by email to legal@xxxx for the Company and to the email address used for registration of the account for the Customer). Notwithstanding the aforesaid, the Company may change or modify the terms of this Agreement, upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period
- Neither party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid the Company may use the Customer’s name and trademarks (logo only) to list the Customer as a client of the Company on its website and in other marketing materials and information.
- Dispute Resolution
- The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.
- If any such dispute cannot be settled amicably through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief executive officer of the Company and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with clause 20 below.
- Governing Law and Jurisdiction
- This Agreement shall be governed by the laws of the Republic of Ireland. The courts of the Republic of Ireland shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
B. HOSTING SERVICES
- Company Hosting
- If the Company provides Hosting Services for the Solution, the Company shall provide the Hosting Services set out in section 1 of the SLA.
- A non-installed Solution shall be hosted on servers located at the hosting centres used by the Company and the Solution and the Hosting Services shall be made available to the Customer during the Term.
- The Hosting Services shall be provided in accordance with sections 1, 6 and 7 of the SLA.
C. MAINTENANCE AND SUPPORT SERVICES
- Provision of Maintenance and Support Services
- The Company shall provide the Maintenance and Support Services set out in section 3 of the SLA to the Customer during the Term.
- The Maintenance and Support Services shall be provided in accordance with sections 3 to 7 of the SLA.
- The Customer shall notify the Company in writing of all modifications to the hardware configuration and installation.
- The Customer shall permit the Company to access its information and the contact person in order to carry out the Maintenance and Support Services.
E. INTEGRATION SERVICES
- If the Registration Form includes the provision of interfaces or integrations to any third party provider or system to the Customer, the Company shall make all reasonable efforts to ensure the successful operation of the interface or integration. However the successful operation of any interface or integration is dependent upon the technical set up of the third party systems, and the Customer accepts that: (i) the Company cannot be held liable for any failures in the operation of the interface or integration; or (ii) that the services offered on the third party system will be complete or available on the same terms as those set out in these Terms and Conditions.
- In the event of an issue arising with the effective operation of an interface or integration the Company will use all reasonable efforts, in line with the business impact on the Customer, to resolve the issue at the earliest opportunity.
- The Customer acknowledges that: (i) it is responsible for ensuring that it has paid and instructed the third party to cooperate with the Company; and (ii) the Company has no liability whatsoever to the Customer for any problems with any interface or integration resulting from actions or omissions of the Customer or the third party.
THE PARTIES HEREBY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT
TERMS & CONDITIONS