Terms of Sale of Services

Background:

These Terms of Sale set out the terms under which Services are sold and provided by Us to customers through this site(s) (“Our Site”).  Please read these Terms of Sale carefully and ensure that you understand them before ordering any Services from Our Site(s).  You will be required to read and accept these Terms of Sale when ordering Services.  If you do not agree to comply with and be bound by these Terms of Sale, you will not be able to order Services through Our Site(s).  These Terms of Sale, as well as any and all Contracts are in the English language only.

1. Definitions

In this Agreement the following definitions shall have the following meanings:

1.2

In this Agreement (except where the context otherwise requires): -

1.2.1

any reference to a clause is to the relevant clause of this Agreement and any reference to a sub‑clause or para­graph is to the relevant sub‑clause or paragraph of the clause in which it appears;

1.2.2

the Clause headings are included for convenience only and shall not affect the interpretation of this Agreement;

1.2.3

use of the singular includes the plural and vice versa;

1.2.4

use of any gender includes the other genders;

1.2.5

references to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended or re-enacted from time to time.

2. Duration

2.1

This Agreement shall endure for the period set out in an Order Confirmation or otherwise (if no such period is set out in an Order Confirmation) for a minimum period of the selected billing cycle (as set out in the order process) and thereafter for successive periods subject in each case to:

2.1.1

agreement of applicable terms for each renewed period (as set out in the order process); and

2.1.2

termination by either party giving not less notice than the length of the selected billing cycle.

2.2

For the avoidance of doubt We may invoice for Charges incurred by the Customer during any notice period.

3. Scope of Agreement

3.1

In consideration of the payment by Customer of the Charges and any other sums due from Customer, We shall supply the Service(s) as described in an Order.

3.2

We shall carry out the obligations set out in clause 3.1 with reasonable skill and care and in accordance with an Order Confirmation.

3.3

Unless expressly agreed in writing by Us time for performance of any obligation under this Agreement shall not be of the essence.

3.4

Customer acknowledges that We will supply Service(s) at the request of Customer and that it is Customer’s responsibility to determine whether the Service(s) are suitable for its requirements.

3.5

The supply of the Service(s) is subject to Customer at all times discharging its obligations under this Agreement.

3.6

Unless expressly confirmed otherwise in writing by Us the provisions of these Terms shall override the provisions of any Order Confirmation to the extent of any conflict or ambiguity between them.

4. Customer’s Obligations

4.1

Customer shall (in each case insofar as is reasonably necessary to enable Us to effectively carry out its obligations under this Agreement):

4.1.2

ensure that its employees or other independent contractors co-operate reasonably with Us and its employees;

4.1.3

promptly furnish Prolateral with such Data, information and documents as requested;

4.1.4

pay all Charges and Rates properly invoiced by Us;

4.1.6

ensure that any IP Rights which We are required to use or modify in order to supply Service(s) are either proprietary to Customer or properly licensed to Customer and that We are properly authorised to use or modify the IP Rights. Customer shall indemnify and hold Us harmless in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of third party IP Rights by Us or Customer;

5. Access

5.1

Access to the Site(s) is permitted on a temporary basis, and We reserve the right to withdraw or amend the Service(s) on the Site without notice.

5.2

You are responsible for making any arrangements necessary for you to have access to the Site. You are also responsible for ensuring that all persons who access the Site through your internet connection are aware of these Terms and that they comply with them.

6. Information

6.1

We process information about you in accordance with our Privacy Policy. By using the Site, you consent to such processing and you warrant that all data provided by you is correct.

7. Eligibility

7.1

Consumers may only purchase Service(s) through Our site(s) if they are at least 18 years of age.

7.2

None of the Service(s) on Our Site may be purchased by anyone under 18 years of age.

7.3

All customers must provide accurate and valid address and contact details during the sign-up process. The accuracy of this information may be subject to verification at any time during the sign-up process and throughout the duration of services provided.

7.4

We reserve the right to request proof of the provided address and contact details, and failure to provide such proof may result in the suspention of service(s) and/or termination of the contract/agreement.

7.5

It is the responsibility of the customer/partner to ensure that address and contact information provided remains accurate and up-to-date.

7.6

For Business customers (B2B) and Partners it is mandatory to use an email address that matches the company's domain name.

7.7

Where appropiate Business customers (B2B) and Partners are required to provided company registration number and registered address details.

8. Services, Pricing and Availability

8.1

We make all reasonable efforts to ensure that all general descriptions of the Service(s) available from Us correspond to the actual Service(s) that will be provided to you, however please note that the exact nature of the Service(s) may vary depending upon your individual requirements and circumstances.

8.2

Please note that sub-Clause 8.1 does not exclude Our responsibility for mistakes due to negligence on Our part and refers only to variations of the correct Service(s), not to different Services altogether.

8.3

Where applicable, the Customer/Partner may have to select the appropriate package of a Service(s).

8.4

We neither represent nor warrant that all Service(s) will be available at all times and cannot necessarily confirm availability until confirming your Order.  Availability indications are not provided on Our Site(s).

8.5

We make all reasonable efforts to ensure that all prices shown on Our Site(s) are correct at the time of going online.  We reserve the right to change prices and to add, alter, or remove special offers from time to time and as necessary.
In the unlikely event that We have shown incorrect pricing information, We will contact you in writing before proceeding with your Order to inform you of the mistake and to ask you how you wish to proceed.  We will give you the option to purchase the Service(s) at the correct price or to cancel your Order (or the affected part thereof).  We will not proceed with processing your Order until you respond.  If We do not receive a response from you within 7 days, We will treat your Order as cancelled and notify you of the same in writing.

8.6

In the event that the price of Service(s) you have ordered changes between your Order being placed and Us processing that Order and taking payment, you will be charged the price shown on Our Site at the time of placing your Order.

8.7

All prices on Our Site(s) exclude VAT.  If the VAT rate changes between your order being placed and Us taking payment, the amount of VAT payable will be automatically adjusted when taking payment.  VAT will be shown in the order process.

9. Orders – How Contracts Are Formed

9.1

Our Site(s) will guide you through the ordering process.  Before submitting your Order to Us you will be given the opportunity to review your Order and amend any errors.  Please ensure that you have checked your Order carefully before submitting it.

9.2

No part of Our Site(s) constitutes a contractual offer capable of acceptance.  Your Order constitutes a contractual offer that We may, at Our sole discretion, accept.  Our acknowledgement of receipt of your Order does not mean that We have accepted it.  Our acceptance is indicated by Us sending you an Order Confirmation by email.  Only once We have sent you an Order Confirmation will there be a legally binding contract between Us and you (“the Contract”).

9.3

Order Confirmations shall contain the following information:

9.3.1

Confirmation of the Service(s) ordered including full details of the main characteristics of those Services;

9.3.2

Fully itemised pricing for the Service(s) ordered including, where appropriate, taxes and other additional charges;

9.3.3

Service(s) information, access credentials and setup information.

9.4

If We, for any reason, do not accept or cannot fulfil your Order, no payment shall be taken under normal circumstances.  If We have taken payment any such sums will be refunded to you as soon as possible and in any event within 14 days.

9.5

You may change your Order at any time before We begin providing the Service(s) by contacting Us.

9.6

If you change your Order, We will confirm all agreed changes in writing.

9.7

If you change your mind, you may cancel your Order or the Contract before or after We begin providing the Service(s) subject to these Terms of Sale.  For details of your cancellation rights, please refer to Clauses 12, 13, 14 and 15.

9.8

We may cancel your Order at any time before We begin providing the Service(s) in the following circumstances:

9.8.1

The required personnel and/or required materials necessary for the provision of the Service(s) are not available; or

9.8.2

An event outside of Our control continues for more than 7 days (please refer to Clause 28 for events outside of Our control).

9.9

If We cancel your Order under sub-Clause 9.8 and We have taken payment any such sums will be refunded to you as soon as possible and in any event within 14 days.  If We cancel your Order, you will be informed by email and the cancellation will be confirmed in writing by email.

9.10

Any refunds due under this Clause 9 will be made using the same payment method that you used when ordering the Service(s).

10. Payment

10.1

Payment for the Service(s) will be due in the form of an advance payment of the total price for the Service(s) you have ordered based on your select billing period.  Your chosen payment method will be charged as indicated.

10.2

We accept the following methods of payment on Our Site:

10.2.1

PayPal & PayPal subscriptions;

10.2.2

Credit & Debit Cards;

10.2.3

Our Partner Credits;

10.2.4

Based on set criteria and contract, BACS payment can also be accepted, please note there can be processing delays with BACS payments;

10.3

We do not charge any additional fees for any of the payment methods listed in sub-Clause 10.2

10.4

If you do not make any payment to Us by the due date as shown in/on the invoice and/or order confirmation We will suspended Your Service(s).

10.5

The provisions of sub-Clause 10.4 will not apply if you have promptly contacted Us to dispute an invoice in good faith.  No interest will accrue while such a dispute is ongoing.

10.6

Once a Partner completes registration the Partner will be allocated to the standard reseller tariff and given methods to add Partner Credits to the system.

10.7

Partner tariffs are discounted Rates from Our recommended retail pricelist (RRP).  Partners can request their own tariff review at any time. 

10.8

Entitlement to different tariffs/partner levels is subject to a tariff review and based on the volume of recurring annual sales with Us. 

10.9

Tariffs/Partner levels will be reviewed annually (Every 3 months in the first year) or at the request of the Partner at any time. 

10.10

Changes to a Partners tariff/partner levels will be done so giving 14 days’ notice in writing by email.  

11. Provision of the Services

11.1

As required by law, We will provide the Service(s) with reasonable skill and care, consistent with Our code of best practices.  We will begin by providing the Service(s) on the date agreed when you make your Order (which We shall confirm in the Order Confirmation).   We will use all reasonable endeavours to provide the Service(s) with reasonable skill and care, commensurate with best trade practice.

11.2

We will continue providing the Service(s) for the length of the billing period as set out in the Order.

11.3

For Service(s) created using Partner Credits we will continue providing Service(s) and consuming Partner Credits while the Partner’s Partner Credit balance is sufficient.

11.4

We will make every reasonable effort to provide the Service(s) in a timely manner.  We cannot, however, be held responsible for any delays if an event outside of Our control occurs.  Please refer to Clause 28 for events outside of Our control.

11.5

If We require any information or action from you in order to provide the Service(s), We will inform you of this as soon as is reasonably possible.  Depending upon the nature of the Service(s) you have ordered, We may require information or action such as additional configuration information and/or external changes by You for the Service(s) to work.  An example of external changes could be amending DNS records for Your domain name.

11.6

If the information you provide or the action you take under sub-Clause 11.5 is delayed, incomplete or otherwise incorrect We will not be responsible for any delay caused as a result.  If additional work is required from Us to correct or compensate for a mistake made as a result of delayed, incomplete or otherwise incorrect information or action that you have provided or taken, We may charge you a reasonable additional sum for that work.

11.7

In certain circumstances, for example where there is a delay in you sending Us information or taking action required under sub-Clause 11.5, We may suspend the Service(s) (and will inform you of that suspension by email).

11.8

In certain circumstances, for example where We encounter a technical problem, We may need to suspend or otherwise interrupt the Service(s) to resolve the issue.  Unless the issue is an emergency that requires immediate action We will inform you in advance by email before suspending or interrupting the Service(s).

11.9

In certain circumstances, for example where We suspend the Service(s) for investigation due to abuse (please refer to the service(s) acceptable use policy), We will inform you of such suspensions.

11.10

If the Service(s) are suspended or interrupted under sub-Clauses 11.7, 11.8, or 11.9 you will not be required to pay for them during the period of suspension.  You must, however, pay any sums that may already be due by the appropriate due date(s).

11.11

If you do not pay Us for the Service(s) as required by Clause 10, We may suspend the Service(s) until you have paid any and all outstanding sums due.  If this happens, we will inform you by email.

11.12

We will provide Partners access through which the Partner will be able to configure and white-label the Portal.

11.13

We will be responsible for regular email communication with all End-Users of the service(s) i.e. provision of login details upon registration, emails related to the provision and usage of service(s). The Partner agrees that We have the right to communicate with those End-Users.

12. Cancelling the Services – Business to Business (B2B)

12.1

Cancellation of Contracts shall be subject to the specific terms governing the Service(s) in question and may be subject to a minimum contract duration.  Details of the relevant duration, cancellation provisions and minimum notice periods will be provided Our Order Confirmation.

12.2

If you wish to cancel under this Clause 12, you may inform Us of your cancellation in any way you wish, however for your convenience We offer a cancellation process on Our Site.

12.3

We may ask you why you have chosen to cancel and may use any answers you provide to improve Our service(s) in the future, however please note that you are under no obligation to provide any details if you do not wish to.

12.4

Eligibility for refunds may vary according to the Service(s) ordered.  You will be required to pay for Services supplied up until the point at which you inform Us that you wish to cancel (please note that this may include charges for preparatory work that We have undertaken where We have reasonably incurred costs).  Such sums will be deducted from any refund due to you or, if no refund is due, We will invoice you for the relevant sums.  Details of the relevant terms will be provided and confirmed in Our Order Confirmation.

12.5

Refunds under this Clause 12 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which you inform Us that you wish to cancel.

12.6

Refunds under this Clause 12 will be made using the same payment method that you used when ordering the Services.

13. Ending the Contract Because of Something We Have Done (or Will Do) – Business to Business (B2B)

13.1

You may end the Contract immediately at any time by giving Us notice in the following circumstances:

13.1.1

We breach the Contract in a material way and fail to remedy the breach within 30 days of you asking Us to do so in writing;

13.1.2

We go into liquidation or have a receiver or administrator appointed over Our assets;

13.1.3

We change these Terms to your material disadvantage;

13.1.4

We are adversely affected by an event outside of Our control [that continues for more than 30 days] (as under sub-Clause 28.2.5).

13.2

If you wish to cancel under this Clause 13, you may inform Us of your cancellation in any way you wish, however for your convenience We offer a cancellation process on Our Site.

13.3

We may ask you why you have chosen to cancel and may use any answers you provide to improve Our service(s) in the future, however please note that you are under no obligation to provide any details if you do not wish to.

13.4

Eligibility for refunds may vary according to the Service(s) ordered.  You will be required to pay for Service(s) supplied up until the point at which you inform Us that you wish to cancel (please note that this may include charges for preparatory work that We have undertaken where We have reasonably incurred costs).  Such sums will be deducted from any refund due to you or, if no refund is due, We will invoice you for the relevant sums.

13.5

Refunds under this Clause 13 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which you inform Us that you wish to cancel.

13.6

Refunds under this Clause 13 will be made using the same payment method that you used when ordering the Service(s).

14. Your Legal Right to Cancel (Cooling Off Period) – Private Consumers (B2C)

14.1

If you are a consumer in the European Union, you have a legal right to a “cooling off” period within which you can cancel the Contract for any reason.  This period begins once your Order is accepted and We have sent you an Order Confirmation, i.e. when the Contract between you and Us is formed.  The period ends at the end of 14 calendar days after that date.

14.2

If you wish to exercise your right to cancel under this Clause 11, you must inform Us of your decision within the cooling off period.  You may do so in any way you wish, however for your convenience We offer a cancellation process on Our Site.  Cancellation by email or by post is effective from the date on which you send Us your message.  Please note that the cooling off period lasts for whole calendar days.  If, for example, you send Us an email or letter by 23:59 on the final day of the cooling off period, your cancellation will be valid and accepted.

14.3

We may ask you why you have chosen to cancel and may use any answers you provide to improve Our service(s) in the future, however please note that you are under no obligation to provide any details if you do not wish to.

14.4

If you cancel after provision of the Service(s) has begun you will still be required to pay for the Service(s) provided up until the point at which you inform Us that you wish to cancel.  The amount due shall be calculated in proportion to the full price of the Service(s) provided.  Any sums that have already been paid for the Service(s) shall be refunded subject to deductions calculated in accordance with the foregoing.  Refunds, where applicable, will be issued within 14 days.  Refunds will be made using the same payment method you used when ordering the Service(s).

15. Cancellation After the Legal Cancellation Period – Private Consumers (B2C)

15.1

Cancellation of Contracts after the 14-calendar day cooling off period has elapsed shall be subject to the specific terms governing those Services and may be subject to a minimum contract duration.  Details of the relevant duration, cancellation provisions and minimum notice periods will be provided in Our Order Confirmation.

15.2

If you wish to cancel under this Clause 15, you must inform Us of your decision to do so.  You may do so in any way you wish, however for your convenience We offer a cancellation process on Our Site.

15.3

We may ask you why you have chosen to cancel and may use any answers you provide to improve Our service(s) in the future, however please note that you are under no obligation to provide any details if you do not wish to.

15.4

You may be entitled to cancel immediately by giving Us notice in the following circumstances:

15.4.1

We breach the Contract in a material way and fail to remedy the breach within 30 days of you asking Us to do so in writing; or

15.4.2

We go into liquidation or have a receiver or administrator appointed over Our assets; or

15.4.3

We change these Terms to your material disadvantage; or

15.4.4

We are adversely affected by an event outside of Our control as under sub-Clause 28.2.5.

15.5

Eligibility for refunds may vary according to the Service(s) ordered.  You will be required to pay for Services supplied up until the point at which you inform Us that you wish to cancel (please note that this may include charges for preparatory work that We have undertaken where We have reasonably incurred costs).  Such sums will be deducted from any refund due to you or, if no refund is due, We will invoice you for the relevant sums.  If you are cancelling due to Our failure to comply with these Terms of Sale or the Contract, you will not be required to make any payment to Us (unless such failure is due to an event outside of Our control or is due to your failure to comply with any of your obligations).

15.6

Refunds under this Clause 15 will be issued to you within 14 days.  Refunds will be made using the same payment method you used when ordering the Service(s).

16. Our Rights to Cancel

16.1

For cancellations before we begin providing the Service(s), please refer to sub-Clause 9.8.

16.2

We may cancel the Service(s) after We have begun providing them due to an Event outside of Our control (as under sub-Clause 28.2.4), or due to the non-availability of required personnel and/or required materials necessary for the provision of the Service(s).  In such cases, you will only be required to pay for Service(s) that We have already provided up until the point at which We inform you that We are cancelling the contract.  Such sums will be deducted from any refund due to you or, if no refund is due, We will invoice you for the relevant sums.

16.3

Once We have begun providing the Service(s), We may cancel the Contract at any time and will give you at least 30 day’s notice of such cancellation.  You will only be required to pay for Service(s) that you have received.  Such sums will be deducted from any refund due to you or, if no refund is due, We will invoice you for the relevant sums.

16.4

Refunds due under this Clause 16 will be issued to you within 14 days.  Refunds will be made using the same payment method you used when ordering the Service(s).

16.5

We may cancel immediately (without refund) by giving you notice in the following circumstances:

16.5.1

You fail to make a payment by the due date as set out in Clause 10.

16.5.2

You breach the contract in a material way and fail to remedy the breach within 7 days of Us asking you to do so in writing.

16.5.3

Following investigation of a service(s) suspended for abuse (please refer to the Service(s) acceptable use policy).

17. Problems with the Services

17.1

We always use reasonable endeavours to ensure that Our Service(s) are trouble-free.  If, however, there is a problem with the Service(s) please contact Us as soon as is reasonable possible via Our support system or contact numbers.

17.2

We will use reasonable endeavours to remedy problems with the Service(s) as quickly as is reasonably possible and practical.

17.3

We will not charge you for remedying problems under this Clause 17 where the problems have been caused by Us, any of Our agents or sub-contractors, or where nobody is at fault.  If We determine that a problem has been caused by you, including your provision of incorrect or incomplete information or taking of incorrect action, sub-Clause 11.6 will apply and We may charge you for the remedial work.

18. Our Liability

18.1

Subject to sub-Clause[s] 18.2 We will not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, interruption to business, for any loss of business opportunity, or for any indirect or consequential loss arising out of or in connection with any contract between you and Us.

18.2

Nothing in these Terms of Service seeks to limit or exclude Our liability for death or personal injury caused by Our negligence (including that of Our employees, agents or sub-contractors); for fraud or fraudulent misrepresentation; or for any other matter in respect of which liability cannot be excluded or restricted by law.

19. Personnel

19.1

We shall ensure that Our personnel engaged in supplying Services have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the computer industry for similar services.

20. Change Control

20.1

If either party identifies a requirement for a change to the Service(s) it shall send a Change Request to the other party detailing the change requirements.

20.2

If sent by Us, the Change Request shall state the effect such a change shall have upon the Service(s) and Charges. If sent by Customer, the receipt of the Change Request by Us will constitute a request to Us to state in writing the effect such a change shall have upon the Service(s) and Charges. We shall use reasonable endeavours to supply such details within seven (7) working days from receipt of a Change Request.

20.3

Where a change to the Charges is required the additional cost shall be calculated using the Rates.  The parties will then decide whether or not to implement the change.  If the change is implemented, the amended service(s) and charges (as applicable) shall then become the Services and Charges for the purpose of this Agreement.

21. License – End User

21.1

Upon payment in full of any due Charges, We grant to the Customer who accepts a perpetual non-exclusive, non-transferable Licence to use Deliverables for its own internal business purposes and in accordance with any licence restrictions set out in this clause 21 and/or in an Order Confirmation. Customer may not disclose or make available Deliverables to any other entity whatsoever nor permit others to use it outside the scope of this Licence.

21.2

Customer agrees that breach of this clause 21 may cause loss and damage to Us and that We may terminate this licence forthwith upon any breach by Customer of the terms of this Agreement. The provisions of this clause 21 will survive the expiry or termination of this Agreement.

22. License – Partner

22.1

Upon payment in full for any due Charges (Partner Credits) We grant the Partner who accepts a perpetual non-exclusive, non-transferable Licence to use and white label Services for its own business purposes and in accordance with any license restrictions set out in this clause 22 and/or in the Order Confirmation.

22.2

The Partner is permitted to resell the Service(s) that have been made available to the Partner

22.3

The Partner is not allowed to modify the Service(s) beyond the access made available for white-labelling or branding.

22.4

The Partner is permitted to use NFR licenses for demonstration and testing purposes.

22.5

The Partner is not permitted to assign the NFR licenses/Services to End-Users and not permitted to resell/charge for NFR licenses/Services.

22.6

The Partner understands that NFR licenses can be withdrawn at anytime should they not meet the criteria as defined based on their partner level status.

22.7

The Partner agrees that a breach of this clause 22 may cause loss and damage to Us and that We may terminate this licence forthwith upon any breach by the Partner or their End-Users.

22.8

All Customer records and data relating to registered service(s) via a Partner will be owned by Us.

23. Charges

23.1

In consideration of Us supplying Services, Customer or Partner shall pay to Us the Charges specified in an Order Confirmation and subject to the terms set out in clause 24.

23.2

Additional Services supplied by Us at Customer’s or Partner’s request shall be charged in accordance with Charges set out in an Order Confirmation or otherwise in accordance with Rates calculated upon a time and materials basis.

24. Terms of Payment

24.1

The Charges, Rates and other sums are expressed exclusive of all duties and taxes including without limitation value added tax which shall be paid by Customer at the rate and in the manner provided by the law governing this Agreement.

24.2

Payment of sums due from Customer to Us shall be made within fourteen (14) days of the receipt of an invoice from Us.  All payments hereunder shall be made in Pounds Sterling.

24.3

In the event that Customer fails to pay any sum by the due date We reserve the right to charge interest on the outstanding amount in accordance with The Late Payment of Commercial Debts Regulations 2002.

24.4

Notwithstanding clause 24.3, if Customer fails to pay any sum by the due date We may at its option and without prejudice to any other remedy at any time after payment has become due, terminate or suspend performance of this Agreement.

24.5

With effect from the beginning of each anniversary (subject to the billing cycle selected in the Order) of the date of this Agreement We may (upon 60 days written notice to Customer) vary Charges in effect during the previous period and shall notify such variation in writing/email to the Customer.

24.6

If We shall terminate this Agreement for any reason, any sums (including interest for the late payment) will immediately become payable in full.

25. IP Rights

25.1

Customer/Partner acknowledges that any and all of the IP Rights subsisting in or used in connection with the Service(s) shall be and shall remain the sole property of Us or such other party as may be identified therein or thereon (“Owner”) and Customer shall not at any time dispute such ownership.

25.2

In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, Customer acknowledges that the same shall be the property of Prolateral or any applicable Owner unless otherwise agreed in writing by Us.

26. Indemnities

26.1

Customer/Partner undertakes fully and effectively to indemnify and keep indemnified at all times Prolateral against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Us directly or indirectly in respect of:

26.1.1

any breach by Customer/Partner of any of the provisions of this Agreement or of any law, code or regulation relating to this Agreement; and

26.1.2

work done in accordance with Customer’s specifications involving infringement of any IP Rights.

27. Warranties and Liability

27.1

Except as expressly provided in this Agreement no warranty, condition, undertaking or term, expressed or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of any Deliverables, goods or Services provided hereunder will be assumed by Us and except as expressly provided in this Agreement all such warranties, conditions, undertaking and terms are hereby excluded.

27.2

Nothing in the Agreement shall exclude or restrict either Party’s liability for:

27.2.1

fraud;

27.2.2

death or personal injury resulting from the negligence of a Party or its employees while acting in the course of their employment; or

27.2.3

any other liability that cannot be limited or excluded by law.

27.3

Subject to clause 27.2, the Our liability to Customer/Partner in contract, tort (including negligence), misrepresentation (whether innocent or negligent) breach of statutory duty or otherwise arising out of or in connection with the Software, and the Services, or other performance or non-performance of the Supplier’s obligations under the Agreement shall:

27.3.1

be limited to 50% of the aggregate of all Licence Fees, Support Fees and Charges paid by the Client under the Agreement for the preceding twelve months in respect of any one incident or any series of connected incidents;

27.3.2

not extend to any:

(a)

loss of profits;

(b)

loss of revenue;

(c)

loss of business;

(d)

loss of goodwill;

(e)

loss of contracts;

(f)

loss of anticipated savings;

(g)

loss of production;

(h)

loss of or corruption to date; or

(i)

any other special, indirect or consequential loss or damage whatsoever, whether sustained by the Client or any other person and even if foreseeable or if the Supplier has been advised of their possibility

27.4

Each party agrees that the limitations of liability contained in this clause 26 have been considered and agreed between the parties in the context of the other provisions of this Agreement and satisfy the requirement of reasonableness within the meaning of sub-section 2(2) and Section 11 of the Unfair Contract Terms Act 1977.

27.5

The parties expressly agree that should any limitation or provision contained in this Agreement be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.

28. Force Majeure

28.1

We will not be liable for any failure or delay in performing Our obligations where that failure or delay results from any cause that is beyond Our reasonable control.  Such causes include, but are not limited to: power failure, internet service provider failure, industrial action by third parties, lock outs and industrial disputes, civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism, acts of war, rebellion, civil commotion, governmental action, epidemic or other natural disaster, other constituted body (“Force Majeure”), or any other event that is beyond Our reasonable control.

28.2

If any event described under this Clause 28 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms of Sale:

28.2.1

We will inform you as soon as is reasonably possible;

28.2.2

Our obligations under these Terms of Service (and therefore the Contract) will be suspended and any time limits that We are bound by will be extended accordingly;

28.2.3

We will inform you when the event outside of Our control is over and provide details of any new dates, times or availability of Service(s) as necessary;

28.2.4

If the event outside of Our control continues for more than 5 days We may cancel the Contract and inform you of the cancellation.  Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible and, in any event, no later than 14 calendar days after the date on which We inform you of the cancellation;

28.2.5

If an event outside of Our control occurs [and continues for more than 14 days] and you wish to cancel the Contract as a result, you may do so in any way you wish, however for your convenience We offer a cancellation form on Our Site(s). Any refunds due to you as a result of such cancellation will be paid to you as soon as is reasonably possible and, in any event, no later than 14 calendar days after the date on which you inform Us that you wish to cancel.

29. Termination and Suspension

29.1

Either party may forthwith terminate this Agreement by written notice to the other if any of the following events occur:

29.1.1

If either party commits any breach of the terms or conditions of this Agreement and fails to remedy such breach within fourteen (14) days after receiving written notice requiring remedy;

29.1.2

If the customer commits any breach of the acceptable use policies for each Service(s) as set out in the Order Confirmation.

29.1.3

If either party becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if the other party is unable to pay its debts in accordance with the law relating to this Agreement;

29.1.3

A Force Majeure continues for a period of more than 3 months.

29.2

Without prejudice to any right of termination either party shall be entitled by immediate notice to suspend performance of some or all of the Service(s) specified in this Agreement upon the occurrence of circumstances specified in clause 29.1, and the Agreement will in any event be deemed suspended in the event of Force Majeure.

29.3

Termination or suspension of this Agreement will be without prejudice to any accrued rights or obligations of either party.

29.4

Upon termination by either party Us shall be entitled to charge Customer its reasonable transfer and set up charges including any such charges incurred by Us on transfer of the supply of Service(s) to a third party.

30. How We Use Your Personal Information (Data Protection)

30.1

All personal information that We may collect (including, but not limited to, your name, address and telephone number) will be collected, used and held in accordance with the provisions of the Data Protection Act 1998 and GDPR and your rights under those Acts.

30.2

We may use your personal information to:

30.2.1

Provide Our Service(s) to you;

30.2.2

Process your Order (including payment) for the Service(s); and

30.2.3

Inform you of new products and/or services available from Us (if you opt or have previously opted to receive it).  You may request that We stop sending you this information at any time.

30.3

In certain circumstances (if, for example, you wish to purchase Services on credit), and with your consent, We may pass your personal information on to credit reference agencies.  These agencies are also bound by the Data Protection Act 1998 and should use and hold your personal information accordingly.

30.4

Some of Our Cloud services are located outside the European Economic Area to provide better fault tolerant service(s), so it may be necessary to transfer Information to those data centres in accordance for providing those service(s).

30.5

If We intend to process Information other than as set out above Customer will receive notice and be given the opportunity to decline the processing.

31. Data Retention

31.1

We will retain Personal Data for the period necessary to fulfil the purposes of this Agreement and Order Confirmation unless a longer retention period is required or permitted by law.

31.2

Personal Data and Financial Data will be retained for 7 years to satisfy UK Tax laws.

32. Data Retention of Traffic Data and/or Service Data

32.1

In exercise of the powers conferred in the Data Retention and Investigatory Powers Act 2014 (‘the Act’) the UK Secretary of State considers that it is necessary and proportionate, for one or more of the purposes mentioned in (or specified for the purposes of) paragraphs (a) to (h) of section 22(2) of the Regulation of Investigatory Powers Act 2000, to require Us to retain relevant communications data.

32.2

The duty of Us to retain communications data extends only to:

(a)

Internet Access to Our Service(s)

(b)

Internet Email Service(s)

(c)

Other service(s) where relevant

32.3

Data retained under Section 31 is subject to the requirements and restrictions set out in the Data Retention Regulations 2014 and in subsections of 32.3.

32.3.1

Data necessary to trace and identify the source of a communication

(a)

The user ID allocated.

(b)

The source email address

(c)

The name and address of the Customer/EndUser

(d)

The used IP Address (Internet Protocol) that was allocated at the time of the communication.

32.3.2

Data necessary to identify the destination of a communication

(a)

The email address(es)

(b)

The IP Address of the downstream server for delivery

32.3.3

Data necessary to identify the date, time and duration of a communication

32.3.4

Data necessary to identify the type of communication

32.4

Data will be retained for a period of 12 months.

33. Confidential Information

33.1

All information, data, drawings, specifications, documentation, software listings, source or object code which either party may have imparted and may from time to time impart to the other party relating to this Agreement in whatever media is proprietary and confidential. The parties hereby agree that they shall use the same solely in accordance with the provisions of this Agreement and shall not at any time during or after expiry or termination of this Agreement disclose the same whether directly or indirectly to any third party without the prior written consent of the other party. 

33.2

The foregoing provisions shall not prevent the disclosure or use by either party of any information which is or hereafter through no fault of that party becomes public knowledge or to the extent permitted by law or to professional advisers bound by professional duties of confidentiality.

34. Restrictive Covenant

34.1

Customer/Partner undertakes that (for a period of 6 months after the termination or expiry of this Agreement) it shall not solicit or entice away or engage any personnel of Ours or offer or cause to be offered any employment to any such personnel. If Customer/Partner breaches this restriction it shall pay to Us as compensation a sum equivalent to the annual salary paid to the personnel by Us.

35. Entire Agreement

35.1

This Agreement:

35.1.1

represents the whole agreement and understanding between the parties in respect of the matters referred to herein; and

35.1.2

shall, except in the case of fraud, override and no reliance shall be placed upon any other verbal or written representations, warranties or understandings in respect of the subject matter of this Agreement including, without limitation, any conflicting provisions of any terms of purchase notified by Customer.

35.2

The remedies available to the parties are exclusively those available under this Agreement.

35.3

The parties acknowledge that they have expressly considered and agreed the terms of this clause 33.

36. Communication and Contact Details

36.1

If you wish to contact Us with general questions or complaints, you may contact Us by the Support service function on Our site(s).

36.2

For matters relating to Our Service(s) or your Order, please contact Us by the Support service function on Our site(s).

36.3

For matters relating to cancellations, please contact Us by the Support service function on Our site(s).

37. Complaints and Feedback

37.1

We always welcome feedback from Our Customers and Partners, whilst We always use all reasonable endeavours to ensure that your experience as a customer of Ours is a positive one, We nevertheless want to hear from you if you have any cause for complaint.

37.2

All complaints are handled in accordance with Our complaints handling policy and procedure.

37.3

If you wish to complain about any aspect of your dealings with Us, please contact Us.

38. General

38.1

No amendment to this Agreement shall be binding unless made in writing and signed by both Customer Representative and Our authorised representative.

38.2

Customer shall not sub-contract, assign, charge or otherwise transfer to a third party any of its rights or obligations hereunder without the prior written consent of Us.

38.3

No waiver of any breach of the other party's obligations hereunder shall represent a waiver of the waiving party's rights hereunder or of any subsequent breach.

38.4

The parties respectively shall and shall procure that any other necessary party shall execute and do all such documents, acts and things as may reasonably be required on or subsequent to completion of this Agreement for securing each of the obligations of the parties under this Agreement.

38.5

None of the provisions of this Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Agreement.

38.6

Any notice to effect suspension or termination of the whole or any part of this Agreement:

(i)

shall be made in writing/email and either delivered personally or sent by first class recorded delivery to the party to whom the notice is addressed at its address as set out in this Agreement or such other address as one party may specify by notice in writing to the other;

(ii)

in the absence of evidence of earlier receipt notice shall be deemed to have been duly given:

(a)

if delivered personally, when left at the address;

(b)

if sent by first class recorded delivery, at the time recorded by the delivery agent.

38.7

For the avoidance of doubt electronic mail shall be deemed to be “writing” for the purpose of this Agreement but this shall not prejudice the express requirements for delivery of notices under clause 36.6.

38.8

This Agreement shall be binding on and shall continue for the benefit of the permitted successors and permitted assigns (as the case may be) of each of the parties hereto.

38.9

All provisions of this Agreement shall so far as they are capable of being performed and observed continue in full force and effect notwithstanding any expiry or earlier termination.

39. Law and Jurisdiction

39.1

This Agreement shall be governed by and construed in accordance with English law and each party to this Agreement submits to the exclusive jurisdiction of the English courts.