Simply Do Ideas - Terms and Conditions for the Supply of Software and Services
1.1 Definitions. In these Conditions, the following definitions apply:
- Applicable Law: means all applicable legal, statutory and other rules, regulations, instruments and provisions in force from time to time and which the parties and / or this Contract are or may be subject to.
- Authorised User: means those individuals or employees/members of the Customer’s organisation who are authorised by the Customer to use the Software and Services.
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are generally open for non-automated normal business.
- Confidential Information: means any and all confidential information (whether in oral, written or electronic form) given including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party.
- Charges: means the charges payable by the Customer for the supply of the Services as set out in the Order.
- Commencement Date: means the date set out in the Order from which, subject to compliance with this Contract, the Services will be provided to the Customer or as otherwise agreed in writing between the Parties.
- Conditions: means these terms and conditions as amended from time to time in accordance with clause 13.9.
- Content: means text, graphics, logos, photographs, images, moving images (including video), sound, illustrations, software, data, calculations, algorithms, methods, information and other material.
- Contract: means these Conditions and the Order, together with any documents referred to herein, which shall together constitute the contract between the Supplier and the Customer for the supply of Software and Services.
- Control: means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and Controls or Controlled shall be interpreted accordingly.
- Customer the person, firm or company who purchases the access to the Software and Services from the Supplier.
- Customer Default: has the meaning given in clause 4.2.
- Data Protection Laws: means as presently set out within the Data Protection Act 1998, or, from 25 May 2018, the General Data Protection Regulation 2016/679) or any equivalent provision which may replace the General Data Protection Regulation following the formal political separation of the United Kingdom from the European Union.
- Effective Date: has the meaning set out in clause 2.2.
- Initial Term: means the 12 months following the Commencement Date or for such period as agreed in the Order (defined below).
- Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, Software, source codes, and protect the confidentiality of, Confidential Information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
- Order: means the Customer's order for Services set out in the Customer's purchase order form, or the Customer's written acceptance of a quotation by the Supplier, as the case may be.
- Services: means the provision of training and resources, and making the Software accessible to Authorised Users via an online platform.
- Software: means the interactive analysis, presentation and communication software and any updates, upgrades, new versions or releases of the same that is available from the Supplier on an online platform which is accessible over the internet which the Customer and Authorised Users are able to use as part of the Services.
- Submissions: means any user or third-party generated Content emailed or otherwise externally submitted to the Software.
- Supplier: means Simply Do Ideas Limited registered in England and Wales with company number 09760655.
- Term: means the duration that the Services will be provided to the Customer as set out in clause 14.1 (being the Initial Term together with any subsequent Renewal Periods).
- VAT: means United Kingdom value added tax
In these Conditions, unless context otherwise requires, the following rules apply:
- 1.2.1 a person includes a natural person, corporate or unincorporated body (whether having separate legal personality).
- 1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns.
- 1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- 1.2.4 any phrase introduced by the terms including, include, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- 1.2.5 the singular includes the plural and vice versa;
- 1.2.6 clause headings do not affect their interpretation;
- 1.2.7 a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed accepted when the Supplier issues written confirmation of the Order at which point. and on which date the Contract shall come into existence (Effective Date).
2.3 Subject to payment of the Charges set out in clause 5.5, and compliance with this Contract, the Services will be provided from the Commencement Date for the Initial Term at the end of which it will be automatically renewed for successive periods of 12 months (Renewal Periods) unless terminated earlier in accordance with clause 9.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of services and access to software
3.1 The Supplier shall supply to the Customer the Services and access to the Software for the Term, unless terminated otherwise in accordance with clause 9 of these Conditions.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services and/or the Software which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and/or the Software, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier hereby grants to the Customer on, and subject to these Conditions, non-exclusive, non-transferable licences to Authorised Users to access to the Software.
3.6 The rights provided under clause 3.5 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3.7 The Customer’s access and use of the Software shall be limited to Authorised Users.
3.8 The Supplier shall not be responsible or liable for the content or accuracy of any Submissions posted or uploaded by the Customer, Authorised Users or any other user of the Software and online platform, and shall not be responsible for any loss, destruction, alteration or damage of any data or Submissions.
3.9 The Supplier shall not be responsible for any system failure resulting from a Force Majeure Event (as defined below) which prevents the supply of Services or access to Software in accordance with clause 11.
4. Customer's obligations
4.1 The Customer shall:
- 4.1.1 ensure that the terms of the Order are complete and accurate;
- 4.1.2. co-operate with the Supplier in all matters relating to the Services;
- 4.1.3 ensure that each Authorised User keeps:
- a secure password for its use of the Software and Services;
- and its password and log in details confidential.
- 4.1.4 not, and shall procure that its Authorised Users shall not, store, distribute or transmit any virus or material through the Software or online platform that is infringing, gains access, or attempts to gain access to the accounts of other users;
- 4.1.5 be responsible for any Submissions (including, information, content or images) uploaded to the Software and online platform by Authorised Users;
- 4.1.6 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and
- 4.1.7 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default), the Supplier shall, without limiting its other rights or remedies:
- 4.2.1 have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; and
- 4.2.2 not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2.
4.3 The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Price and payment
5.1 The Customer shall pay the Charges for the provision of Services on a subscription basis for the Term in accordance with clauses 5.5 and 5.7.
5.2 Bespoke pricing arrangements and any discounts are at the discretion of the Supplier.
5.3 The Charges are subject to annual adjustment to take account of the Supplier’s costs and related third party costs.
5.4 The monthly subscription Charges for the Services shall be calculated according to the number of Authorised Users permitted to create an account to access the Software as selected by the Customer. The Charges may therefore vary on a monthly basis depending on the number of Authorised Users.
5.5 Unless otherwise agreed in writing, the Customer shall pay twelve (12) months subscription in advance, payable on or before the Commencement Date and (if applicable) on the first day of each Renewal Period.
5.6 Customers have the option to purchase bespoke additional Services, on an ad-hoc basis as set out in the Order, and the additional charges for any such purchases shall be added to the invoice for the month that the bespoke Services are provided.
5.7 The Customer shall pay each invoice submitted by the Supplier:
- 5.7.1 within thirty (30) days of the date of the invoice; and
- 5.7.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
5.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT chargeable for the time being.
5.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 6% per cent per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6. Intellectual property rights
6.1 Except as specified in these Conditions, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 The Supplier assumes no rights in any Submissions uploaded to the Supplier’s platform.
7. Confidential information
7.1 A party (receiving party) shall keep in strict confidence all Confidential Information that has been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other Confidential Information concerning the disclosing party's business, its products and services which the receiving party may obtain.
7.2 The receiving party shall only disclose such Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract.
7.3 The receiving party may also disclose such of the disclosing party's Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
7.4 This clause 7 shall survive termination of the Contract.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude liability for:
- 8.1.1 death or personal injury caused by negligence, or the negligence of its employees, agents or subcontractors; or
- 8.1.2 fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1:
- 8.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
- 8.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total value of Charges received by the Supplier in the twelve-month period prior to the claim arising.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Three (3) months after the Effective Date, without limiting its other rights or remedies, either party may terminate at any time the Contract by giving the other party thirty (30) days written notice.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- 9.2.1 the other party commits a material or persistent breach of any of its obligations under this Contract and (if such a breach is capable of remedy) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
- 9.2.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any competition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice if the Customer:
- 9.3.1 eases or threatens to cease carrying on its business; or
- 9.3.2 undergoes a change of Control that is in the Supplier’s reasonable opinion is likely to have a material adverse effect on the Supplier.
9.4 Termination of this Contract for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
- 10.1.1 the licence and access to the Software and Services to the Authorised User(s) and the Customer shall terminate automatically;
- 10.1.2 the Customer shall immediately pay to the Supplier all the Supplier's outstanding unpaid invoices and interest (if any) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- 10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- 10.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
10.2 In addition to the provisions in clause 10.1 above, on termination of the Contract:
- 10.2.1 with properly served notice without cause under clause 9.1; or
- 10.2.2 as a result of the Supplier’s breach under clause 9.2,
the Supplier may refund any pro-rata charges paid by the Customer in advance that have not been used by the date of termination of the Contract.
11. Data Protection
11.1 Each party will comply with its obligations under the Data Protection Laws.
11.2 Defined terms within the following clauses adopt the same definitions as set out within the Data Protection Laws.
12. Force majeure
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, system downtime, fire, flood, storm or default of suppliers or subcontractors.
12.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 30 days, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13.1 Assignment and other dealings.
- 13.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- 13.1.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
- 13.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
- 13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2.1; 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
- 13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- 13.3.1 If any provision or part-provision of the Contract 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 the Contract.
- 13.3.2 If one party gives notice to the other of the possibility that any provision or part- provision of this Contract 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.
13.4 Entire Agreement. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
13.5 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. Unless otherwise expressly agreed, no failure or delay by a party to exercise any right or remedy provided under the Contract 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.
13.6 Any rights, powers or remedies conferred upon a party by this Contract shall be in addition to and without prejudice to all other rights, powers and remedies available to the party under general law (except as expressly excluded in this Contract).
13.7 No Partnership or Agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.8 Third party rights. Except as expressly provided in this Contract, for the purposes of the Contracts (Rights of Third Parties) Act 1999, this Contract is not intended to and does not give any person who is not a party to the Contract any rights to enforce any of its terms. However, this does not affect any right or remedy of such a person that exists or is available apart from that Act.
13.9 Variation. No variation of this Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed or executed (as the case may be) by, or on behalf of, the Supplier.
13.10 Set Off. Neither party may set off any amount the other owes it against any amount it owes the other party in relation to this Contract unless otherwise agreed.
13.11 All payments under the Contract will be made in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If a party is compelled by law to deduct or withhold any taxes, levies, duties, charges and withholdings of any kind, it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
13.12 Governing law. The Contract, 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 laws of England and Wales.
13.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
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