Terms and Conditions
Terms and Conditions
for the supply and use of the “plentymarkets” software (Software as a Service) by
plentysystems AG, Bürgermeister-Brunner-Straße 15, 34117 Kassel, Germany
1. APPLICATION OF THESE CONDITIONS
1.1 These terms and conditions (the “Conditions”) apply to a contract (the “Contract”) for the supply of the Services defined below by plentysystems AG (the “Provider”) to a customer (the “Customer”).
1.2 These Conditions will also apply to any support or maintenance arrangement entered into by the Customer with the Provider from time to time.
1.3 The online store pages of the Provider will guide the Customer through the steps the Customer needs to take to order the Services (as defined below). The Contract between the Provider and the Customer will only be formed when the Customer has received an e-mail from the Provider confirming the Customer's order for the Services.
2. PURPOSE OF THE CONTRACT
2.1 In consideration of the payment of the fees calculated in accordance with Condition 11 (the “Fees”) by the Customer to the Provider, the Provider will provide the following services (the “Services”):
(a) the grant of a non-exclusive licence to use the Provider’s standard software application known as “plentymarkets” (the “Licensed Software”, which expression shall include new versions, updates or upgrades incorporated as Changes (as defined below) after the date of the Contract pursuant to paragraph (c) below) for the purpose of processing ecommerce transactions through the Online Store and/or Multi-channel Facility (as defined below) ; and
(b) the provision of remote data storage facilities on its servers (the “Servers”) for storing the data which is generated or compiled by the Customer using, or which is required for its use of, the Licensed Software (the “Customer Data”);
(c) the provision of new versions, updates or upgrades of the Licensed Software from time to time and/or an alteration in the manner in which the Provider provides remote data storage facilities on the Servers (each a "Change"); and
(d) any other services that may be agreed between the parties from time to time in writing; on the terms of the Contract incorporating these Conditions. The Customer shall not use or permit any third party to use the Licensed Software except for the purpose specified in Condition 2.1(a). The Licensed Software will enable the Customer to establish an online store ("Online Store") and/or an online list of products which will be linked to various marketplaces ("Multi-channel Facility") and/or other facilities or functionalities (together defined as "System").
2.2 The Provider shall make available to the Customer on its website, the plentymarkets manual, (which as modified and updated from time to time is referred to as the "Manual") which provides comprehensive explanations of the numerous functions and interfaces of the Licensed Software. The Customer must follow the instructions contained in the Manual and failure to do so is a material breach of the Contract by the Customer.
2.3 The Provider is under no obligation to provide or to continue to provide any additional services not specified in the Contract and/or which are provided free of charge and may cease providing them at any time without notice to the Customer. The Customer shall have no claim against the Provider in respect thereof.
3. SOFTWARE LICENCE AND PROVISION OF DATA STORAGE FACILITIES
3.1 The Provider shall, from the time stated in the Contract, make available to the Customer the most recent version of the Licensed Software on the Serversfor use in accordance with these Conditions. The Customer must ensure that it always uses the most recent version of the Licensed Software.
3.2 The Provider shall use reasonable endeavours to ensure that at all times during the period of the Contract the Licensed Software is:
(a) fit for the purpose of concluding e-commerce sales transactions in accordance with the description of the Software published by the Provider in the Manual from time to time (the “Specification”); and
(b) free from Defects (as defined in Condition 6).
3.3 The Provider will provide the Customer with an agreed number of usernames and passwords. The Customer shall promptly on receipt change the usernames and passwords supplied. Further security measures can be agreed. The Customer shall ensure that only the agreed users (“Authorised Users”) use the Services and that they do so in accordance with the Contract. The Customer shall ensure that Authorised Users are, at all times whilst they have access to the Services, the employees or contractors of the Customer. If any password has been provided to an individual that is not an Authorised User, the Customer shall, without delay, disable any such passwords and notify the Provider immediately.
3.4 The Provider shall be entitled to introduce Changes at any time and will amend and update the Manual where necessary to reflect such Changes. Where a Change materially affects the functionality of the Licensed Software, the Provider will give not less than six weeks’ written notice to the Customer before it is introduced.
3.5 If the Provider introduces a Change that would result in a material change in the functionality of the Licensed Software such that the Customer is no longer able to access or use any Customer Data and/or the System produced prior to such introduction, the Customer may notify the Provider in writing accordingly and if the issue cannot be resolved within ten days of the date of such notice, the Customer shall be entitled to terminate the Contract by giving not less than 30 days further written notice to the Provider which will repay, if appropriate, a proportion of the fixed monthly Fees paid by the Customer.
3.6 The Provider will make available on its Servers such amount of disk space for storing the Customer Data in a usable condition in its business as shall have been agreed in the Contract. Details of the performance of the Servers and the storage of the Customer Data are set out in the Manual.
3.7 The System and the Customer Data will be backed up regularly and not less than once on each calendar day.
3.8 The Customer Data will be stored for a period of not more than three years at the expiry of which it will be deleted from the Servers, whether or not the Contract is still in force. The Customer shall be responsible for retaining the Customer Data for any periods that are required by law and shall make its own independent arrangements to back up and store the same.
3.9 The Provider will make available the System and the Customer Data electronically to the Customer at the terminal on the Provider’s router (the “Point of Delivery”) and the Customer shall be responsible for maintaining the internet link to the Servers to facilitate the use of the System and the transmission of the System and Customer Data to the Customer.
3.10 The Provider will give notice to the Customer of any change in the Servers or the Provider’s other computer equipment and will amend and update the Manual where necessary.
3.11 Without prejudice to Conditions 12 and 13, the Customer hereby grants to the Provider the right to access the System and the Customer Data for the purposes of performing any of its obligations under the Contract.
3.12 Title in the Licensed Software shall remain with the Provider at all times.
3.13 The Customer confirms that it is acting on its own behalf and not as agent or otherwise for the benefit of any other person.
4. CUSTOMER’S COMPUTER EQUIPMENT
4.1 The Customer shall ensure that at all times during the Contract its own computer equipment is free from any defect and is suitable for using the Licensed Software and installing additional plugins related to the Licensed Software. The Customer shall comply with all reasonable instructions and recommendations regarding the Customer’s computer equipment. In particular, the Customer shall ensure that its computer equipment, operating system and internet browser comply with the system requirements specified in the Manual.
4.2 The Provider does not provide any software applications to the Customer which enable them to access the Servers. The Customer shall be responsible for installing one of the following internet browsers: Firefox, Safari or Google Chrome and obtaining a licence to use the applicable browser access software.
4.3 The Provider will provide the Services at the Point of Delivery in the manner specified in the Contract such that the Customer will be able to use the Licensed Software and access the System and the Customer Data on the Servers using an internet browser as specified in the Manual. The Provider shall not be responsible for, and shall incur no liability to the Customer in respect of, the condition of the Customer’s computer hardware or software or for the status and quality of the internet connection or other telecommunications system between the Provider and the Customer and/or its Servers.
5. NO USE OF THE LICENSED SOFTWARE ON THE CUSTOMER’S COMPUTER EQUIPMENT
The licence granted under the Contract shall not entitle the Customer to install or load into temporary memory or permanent storage the whole or any part of the Licensed Software on its own computer equipment without the Provider’s prior written consent or unless permitted by the terms of any support agreement entered into separately with the Provider. These Conditions shall apply in the exceptional event that the Customer uses the Licensed Software on its own computer equipment.
6. LIABILITY FOR DEFECTS
6.1 A defect (“Defect”) will arise in the Licensed Software if:
(a) in the course of proper use, it does not perform in any material respect in the manner described in the Manual, or
(b) it is not in any material respect fit for any specific purpose specified in the Manual;
unless the Defect is caused by the improper use or unauthorised amendment of the Licensed Software by the Customer or anyone acting with the authority of the Customer.
6.2 The Provider does not warrant that the Licensed Software will be free from Defects or that its use will be uninterrupted or error-free.
6.3 If a Defect occurs in the Licensed Software, the Provider will at its own cost use reasonable endeavours to remedy the Defect within a reasonable time of receiving written notice thereof in accordance with the Provider’s procedures by repairing the Licensed Software PROVIDED THAT the Provider shall be under no obligation under this Condition unless the Customer provides all the information that may be necessary to enable the Provider to resolve the Defect, including a documented example of any Defect, or sufficient information to enable the Provider to re-create the Defect. The Provider will categorise the Defect referred to in any such notice appropriately, taking into account the interests of the Customer and will respond to a notice of a Defect as follows:
Business Interruption: Reaction: 8 hours / Remedy: 24 hours
A Defect falls within this category if the Licensed Software cannot be used or its use is severely restricted because of, for example, a malfunction, defective work product or response times, and the Defect cannot be resolved by other reasonable organisational means.
Business Disruption: Reaction: 24 hours / Remedy: 3 working days
A Defect falls within this category if the Licensed Software can be used or is not severely restricted but the Defect is significant and cannot be resolved by reasonable organisational means.
Other Defects: Reaction: 2 working days / Remedy: 8 working days
A Defect falls within this category if the use of the Licensed Software is not directly and/or materially restricted, but consists (for example) of badly defined default settings or missing “nice to have” functions.
6.4 The Provider will remedy any Defect in the Licensed Software in such manner as they may reasonably decide. The Customer will promptly apply any patch, bug-fix or new version of the Licensed Software and will comply with any reasonable operating instructions provided by the Provider.
6.5 If the Defect cannot be remedied within a reasonable time or if in the Provider’s opinion the cost of remedying the Defect is unreasonable, the Provider may terminate the Contract by notice in writing to the Customer and, if appropriate, refund a proportion of any fixed monthly Fees paid in advance by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Licensed Software to the date of termination).
6.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract 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.
6.7 The Customer shall use the Provider’s forum or contact the Provider by telephone or email to notify Defects, raise queries or request the provision of additional support services in relation to the Licensed Software.
7. FURTHER SERVICES TO BE PROVIDED BY THE PROVIDER
7.1 Upon and subject to payment of the applicable Fees, the Provider shall deliver to the Customer at the intervals agreed in the Contract a complete copy of the Customer Data in downloadable form in accordance with its obligations under clause 13 (Data Protection).
7.2 The Provider maintains a helpdesk which the Customer may use on payment of the applicable Fees, which are listed in the current price list made available by the Provider.
8. RESTRICTIONS ON THE USE OF THE LICENSED SOFTWARE
8.1 The licence granted pursuant to Condition 2.1(a) gives the Customer the sole right to access and use the Licensed Software on the Server via the internet using an internet browser specified in the Manual and does not entitle the Customer to use the Licensed Software on any other computer equipment.
8.2 The Customer shall ensure that the Licensed Software is not made available to or used by any person other than the Authorised Users in the proper course of the Customer’s business.
8.3 The Customer shall not be entitled to sub-license, assign or otherwise dispose of the Licensed Software to a third party.
8.4 Except as expressly stated in this Condition 8, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, amend, modify, adapt or make error corrections to the Licensed Software in whole or in part. This Condition shall not apply to any amendment or modification of the Licensed Software which is required to correct a Defect that is not corrected by the Provider within a reasonable time after the Customer has notified the Defect to the Provider and required it to be remedied.
8.5 The Customer shall not use the Licensed Software or create, store or use any Customer Data for any unlawful or improper purpose.
8.6 In the event that the Customer is in material breach of its obligations under this Condition 8, the Provider may delete any relevant Customer Data and terminate the Contract.
8.7 In the event that the Customer permits a third party to use the Licensed Software in breach of Conditions 8.2 or 8.3, the Customer shall pay to the Provider on demand a sum equal to the Fees that would have been paid in respect of such third party's use.
8.8 All rights in any System containing Customer Data created by the Customer’s lawful use of the Licensed Software shall belong to the Customer. On termination of the Contract, the Provider shall back up the Customer Data in accordance with any applicable provision of the Contract and give written notice to the Customer that this has been done. The Provider shall be entitled to delete the System and all other Customer Data at any time after the expiry of 15 working days following the date of such notice.
9. LIMITATION OF LIABILITY
9.1 Except as expressly stated in Condition 9.2:
(a) the Provider 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:
(i) special damage even if the Provider was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this Condition 9.1(a) shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of Condition 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this Condition 9.1(a);
(b) the total liability of the Provider, 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 Fees paid for the current year; and
(c) the Customer agrees that, in entering into the Contract, 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 Provider shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions and limitations in Condition 6.5 and Condition 9.1 shall apply to the fullest extent permissible at law, but the Provider does not exclude liability for:
(a) death or personal injury caused by the negligence of the Provider, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) 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;
(d) any other liability which may not be excluded by law.
9.3 All dates supplied by the Provider for the supply of any Services shall be treated as approximate only. The Provider shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4 All references to the “Provider" in this Condition 9 shall, for the purposes of this Condition only, be treated as including all employees, subcontractors and suppliers of the Provider, its holding company and any subsidiaries of its holding company, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Condition 9, in accordance with Condition 20.
9.5 The Customer shall indemnify and hold the Provider harmless against any loss or damage which it may suffer or incur as a result of the Customer's use of the Licensed Software which is otherwise than in accordance with the Contract.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 In these Conditions Intellectual Property Rights means: patents, utility models, rights to inventions, copyright and related rights, trade marks 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.
10.2 The Customer acknowledges that all Intellectual Property Rights in the Licensed Software and any Changes belong and shall belong to the Provider, and the Customer shall have no rights in or to the Licensed Software other than the right to use it in accordance with the terms of the Contract.
10.3 The Provider undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Licensed Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (“IP Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such IP Claim. For the avoidance of doubt, this Condition 10.3 shall not apply where the IP Claim in question is attributable to possession or use of the Licensed Software (or any part thereof) by the Customer other than in accordance with the terms of these Conditions, or use of a non-current release of the Licensed Software.
10.4 If any third party makes an IP Claim, or notifies an intention to make an IP Claim against the Customer, the Provider's obligations under Condition 10.3 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the IP Claim to the Provider, specifying the nature of the IP Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the IP Claim without the prior written consent of the Provider (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Provider and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Provider and its professional advisers to examine them and to take copies (at the Provider's expense) for the purpose of assessing the IP Claim; and
(d) subject to the Provider providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Provider may reasonably request to avoid, dispute, compromise or defend the IP Claim.
10.5 If any IP Claim is made, or in the Provider's reasonable opinion is likely to be made, against the Customer, the Provider may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Licensed Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Licensed Software so that it ceases to be infringing;
(c) replace the Licensed Software with non-infringing software; or
(d) terminate the Contract immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Licensed Software to the date of termination);
provided that if the Provider modifies or replaces the Licensed Software, the modified or replacement Licensed Software must have the same or substantially similar functionality as set out in the Manual and these Conditions shall apply thereto.
10.6 This Condition 10 constitutes the Customer's exclusive remedy and the Provider's only liability in respect of IP Claims and, for the avoidance of doubt, is subject to Condition 9.
11.1 Unless otherwise agreed, in consideration of the provision of the Services, the Customer shall pay Fees calculated at the rates set out in the Provider’s website. By entering into a Contract, the Customer agrees to pay the Fees for the services described therein. The Customer shall pay for any additional services at the rates set out in the price lists set out on the Provider’s website.
11.2 Unless otherwise agreed, Fees will be invoiced to the Customer on or around the 20th of each calendar month and are payable within seven days of receipt of invoice.
11.3 The Provider is entitled to increase the rates of its Fees set out in its price lists at any time to reflect increases in staff and other costs, including (without limitation) the cost of developing the Licensed Software. The Provider will give the Customer written notice of such increases and will publish the revised rates of its Fees on its website. The revised rates will apply from the date on which they are published on the website.
11.4 Any additional Services will be charged on a time and materials basis at the rates of Fees published at the time the Services are provided.
11.5 All sums payable under the Contract are exclusive of VAT or any relevant local sales taxes, which will be payable by the Customer.
11.6 If in any calendar month, the Provider fails to provide any of the Services in accordance with the Contract, the fixed monthly Fees shall be reduced proportionately.
11.7 The Customer shall pay all sums that it owes to the Provider under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
12. DUTIES OF THE CUSTOMER
The Customer shall (without limitation):
(a) keep confidential all identification and authentication codes and passwords and, save as expressly permitted under these Conditions, take all necessary steps to ensure that no third party obtains or is given access to the Licensed Software or the Servers, and promptly inform the Provider if he knows or suspects that the access codes and/or passwords have been disclosed to a third party;
(b) ensure that any conditions of access are fulfilled;
(c) observe all restrictions and obligations in relation to the right to use the Licensed Software and access the Customer Data on the Servers and in particular the Customer will:
(i) not without written authorisation from the Provider, retrieve or cause to be retrieved any information or data, or interfere or cause interference with any programs that are used by the Provider, or access or cause to be accessed any data network of the Provider;
(ii) not misuse any electronic information received by it in the course of the Contract or use it for any commercial purpose;
(iii) notify the Provider as soon as it becomes aware of any unauthorised use of the Licensed Software by any person;
(iv) indemnify and hold harmless the Provider from any unlawful or unauthorised use of the Licensed Software and from any costs, claims, liabilities or expenses incurred as a result of the breach by the Customer of any rights of third parties arising from such use;
(v) ensure that every person who uses the Licensed Software is made aware of the restrictions and obligations arising under this Contract;
(vi) ensure that its website and its use of the Licensed Software are structured in such a way as to avoid an overload of the Servers with scripts or programs that require a high level of computing power or make an above-average use of storage space;
(d) observe and protect the rights of third parties in any data or materials used by it;
(e) obtain all necessary consents from data subjects to the creation, processing or use of their personal data;
(f) maintain state of the art anti-virus software and run virus checks on all data and information prior to sending it to the Provider;
(g) promptly notify the Provider of any defects that arise in the Licensed Software. Should the Customer fail to do this in a timely manner for reasons for which the Provider is not responsible, the Customer shall not be entitled to reduce the Fees payable to the Provider;
(h) secure appropriately at all times any Customer Data prepared using the Licensed Software and sent to the Provider, to ensure that such data and information can be recovered if it is lost or corrupted;
(i) regularly download from the Servers the Customer Data to create backups;
(j) not alter, deface, remove or obscure any copyright warnings, stickers, labels or trade marks belonging to the Provider from the Licensed Software, the Manual or any other documentation supplied by the Provider.
(k) comply with all applicable laws, rules and regulations governing export that apply to the Services and shall not export or re-export, directly or indirectly, the Services or the Customer Data to or access or use the Services in any country or territory for which an export licence or other approval is required without first obtaining such licence or approval.
13. DATA PROTECTION
Customer Data shall at all times remain the property of the Customer or its licensors. Except to the extent the Provider has direct obligations under data protection laws, the Customer acknowledges that the Provider has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use complies with all applicable laws. Except as otherwise expressly agreed in our Agreement, the Provider shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Contract. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data. The Customer shall, without limitation, ensure that it backs up (or procures the back-up of) all Customer Data regularly. The Provider routinely undertakes regular backups of the Servers (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make the Provider responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, the Provider shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
14.1 Each party shall, during the term of any Contract and at all times 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 or any business entity from time to time controlling, controlled by, or under common control with, either 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.
14.2 No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15. DURATION AND TERMINATION
15.1 Unless otherwise agreed, and subject to any right of termination set out in the Conditions, the Contract will have a minimum duration of one month from its date or any commencement date specified therein (the Commencement Date) and will continue thereafter automatically for further periods of one month unless and until terminated by either party giving to the other not less than 30 days prior written notice expiring on the next following anniversary of the Commencement Date.
15.2 The Provider reserves the right to terminate the Contract if the Customer does not generate at least eighty orders through its Online Store or Multi-Channel Facility over any given two-month period. In this case, the Provider will terminate the Contract by giving the Customer 30 days prior written notice.
15.3 15.3Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than sixty days after the due date of such payment;
(b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten working days after being notified in writing to do so;
(c) the other party 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 ;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) 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 that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party 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;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs (c) to Condition (i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(l) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
15.4Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15.5 Termination or expiry of the Contract 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.
16. CONSEQUENCES OF TERMINATION
16.1 On termination for any reason:
(a) all rights granted to the Customer to use the Licensed Software and have access to the Server shall cease;
(b) access to the System will be disabled and the Customer's Online Store and/or the Multi-Channel Facility will be inaccessible to the public;
(c) the System will be deleted thirty days after termination, without giving further notice to the Customer, unless the System is reactivated by the Customer within such period of thirty days;
(d) the Customer Data shall be stored in accordance with Condition 3.8;
(e) the Customer shall immediately pay to the Provider any sums due to the Provider under the Contract; (f)the Customer shall promptly make arrangements to transfer to a third party the hosting and administration of any domain name hosted by the Provider. The Provider may release any domain name for which such arrangements are not made within six months of the termination date of the Contract;
(g) at the request of the Customer and upon payment of the applicable Fee, the Provider will make available all Customer Data to the Customer for download.
16.2Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
The Provider retains the right to make any Changes to the Contract or alteration to Fees in accordance with these Conditions. No other variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. The affected party shall give the other party written notice of any such circumstances as soon as it becomes aware of them. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for more than 60 days, and the affected party is the Provider, the Provider may terminate the Contract by giving 30 days’ written notice to the Customer.
19.1 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 Condition shall not affect the validity and enforceability of the other provision of the Contract.
19.2 If any provision or part-provision of the 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.
20. THIRD-PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
21. NO PARTNERSHIP OR AGENCY
21.1 Nothing in the Contract 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.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.1 Each party represents and warrants to the other that it has the right, power and authority to enter into the Contract and grant to the other the rights (if any) contemplated in the Contract and to perform its obligations under the Contract.
23. ENTIRE AGREEMENT
23.1 These Conditions, any information provided to the Customer in the registration process and any schedules and documents referred to in these Conditions contain 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.
23.2 Each party acknowledges that, in entering into the Contract that 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 the Contract.
23.3 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.
24. GOVERNING LAW AND JURISDICTION
24.1 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 law of England and Wales.
24.2 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).
24.3 Any obligation of the Provider under the Contract to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within England and Wales as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on the Supplier (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
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