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(1) B2B WAVE LTD, a company incorporated in UK (registration number 10023457) (the “Provider”)
(2) The company that is willing to use the Platform (the “Customer”)
The provider operates B2BWave.com platform and provides the Support Services and the Customer wishes to be granted access to the platform and to service the support services, on the terms of this Agreement.
1. Definitions and interpretation
1.1 In this Agreement:
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity
“Agreement” means these Terms and software as a service agreement (including the Schedules) and any amendments to it from time to time
“Business Day” means any week day, other than a bank or public holiday in England
“Business Hours” means between 09:00 and 17:30 (London time) on a Business Day
“Charges” means the amounts payable by the Customer to the Provider under or in relation to this Agreement (as set out in Schedule 3)
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly)
“Customer Confidential Information” means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as “confidential” or described as “confidential”
(b) the Customer Materials
"Customer Materials" all works and materials:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account or by any person or application granted access at the customer's platform (eg the customer's dealers) ; and
(b) otherwise provided by the Customer to the Provider in connection with this Agreement;
“Defect” means a defect, error or bug having an adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in Schedule 1
"Documentation" means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)
“Minimum Term” means the period specified as such in Schedule 1
“Personal Data” has the meaning given to it in the Data Protection Act 1998
"Permitted Purpose" means allowing the Customer to upload his product details and letting his dealers or guests to view the products and place orders
“Platform” means the software platform known as B2BWave that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under this Agreement;
“Schedule” means a schedule attached to this Agreement
“Services” means all the services provided or to be provided by the Provider to the Customer under this Agreement, including the Support Services
"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 2
“Term” means the term of this Agreement
“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
This Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter, unless terminated in accordance with Clause 13.
3. The Platform
3.1 The Platform will automatically generate an account for the Customer promptly following the Effective Date, enabling the Customer to access the Platform.
3.2 Subject to the limitations set out in Clause 3.3
and the prohibitions set out in Clause [3.4], the Provider hereby
grants to the Customer a non-exclusive, non – transferrable and limited licence to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.
The Provider is responsible for all Customers’ use of the Platform. The Provider controls each Customer’s level of access to the Services at all times and can revoke or change a Customer’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Customer or shall have that different level of access, as the case may be.
If there is any dispute between the Provider and a Customer regarding access to any Service, the Provider shall decide what access or level of access to the relevant Data or Services that Customer shall have, if any.
It is highlighted that B2B WAVE reserves the right to delete inactive accounts. All B2B WAVE free of charge accounts that remain inactive more than three months can be deleted.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Platform may only be used by the named users identified in Schedule 1, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein
(b) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:
(i) where the Customer is a company, the Customer's officers
(ii) where the Customer is a partnership, the Customer's partners and
(iii) where the Customer is a limited liability partnership, the Customer's members
(c) the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule 4, and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy
3.4 Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform
(c) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation
(d) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation
3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform. The Customer must not interrupt, impair or render the Provider less efficient, to transfer files that contain viruses, trojans or other harmful programs, to penetrate or attempt to penetrate any security measures, to disseminate any content which is defamatory, obscene, or may have the effect of being harassing, threatening or abusive to an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability or otherwise, to advertise or promote third party or Customers’ own products or services.
3.9 The Customer must not use the Platform:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
The Customer complies with all applicable laws from his home nation, country, state and city in which Customer is present while using the software or B2B Wave Services. Customer agrees to compensate and defend us fully against any claims or legal proceedings brought against the Provider by any other person as a result of his breach of this agreement.
The Customer agrees to provide true, accurate, complete and updated information about Customer and update them whenever necessary. B2B WAVE is not obligated to monitor or control the accuracy of information provided by Customer. If any information provided by the Customer is not in accordance with these provisions or if B2B WAVE has reasonable grounds to suspect that such information do not agree, the Company has the right to refuse Customers’ access in the software. In this case, the Customer shall not be entitled to any indemnity or compensation for the refusal, suspension or cancellation of Customers’ registration.
4. Support Services and Upgrades
4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 2.
4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
5. Customer Materials
5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
5.2 Subject to Clause 5.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
5.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes
(b) infringe any person's Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in any jurisdiction and under any applicable law
5.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, the Provider may:
(a) delete or amend the relevant Customer Materials; and/or
(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
5.5 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of this Agreement for the purposes of Clause 13.
5.6 The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.
6. Trial period
The first 15 days of the Term shall be a trial period, during which all of the provisions of this Agreement shall apply, save as follows:
(a) the Customer shall have no obligation to pay in respect of the trial period;
(b) either party may terminate the Agreement immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay will arise)
7.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule 3.
7.2 The Customer will pay the Charges to the Provider within 15 days of the date of issue of an invoice issued in accordance with Clause 7.1.
7.3 All Charges stated in or in relation to this Agreement are stated inclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.
7.4 Charges must be paid by bank transfer or by credit card (using such payment details as are notified by the Provider to the Customer from time to time).
7.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:
(a) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7.6 The Provider may vary the Charges on and from any anniversary of the Effective Date by giving to the Customer not less than 45 days' written notice of the variation.
7.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under this Agreement are overdue by more than 45 days.
8.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
8.2 The Provider warrants and represents to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement. The Customer becomes subject to by virtue of these Terms, without limiting Customers’ own personal obligations under these Terms.
(b) that it will perform its obligations under this Agreement with reasonable care and skill
(c) that the Platform will operate without Defects and will perform substantially in accordance with the Documentation (subject to any Upgrades)
(d) that the Platform will be hosted in accordance with the requirements set out in Schedule 1, and will be available to the Customer in accordance with the uptime commitments given in Schedule 2
(e) the Platform (excluding for the avoidance of doubt the Customer Materials) will not infringe any person's Intellectual Property Rights in any jurisdiction and under any applicable law
Customer guarantees, warrants and represents that Customer is acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms. It is Customer’s responsibility to check that storage of and access to Customer Data via the Software and the Website will comply with laws applicable to him (including any laws requiring Customer to retain records).
B2B WAVE gives no warranty about the Services. Without limiting the foregoing, B2B WAVE does not warrant that the Services will meet Customers’ requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.
8.3 The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs
(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in Schedule 1; and
(c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
(d) the Customer is authorised to use the Services and the Website and to access the information and Data that Customers’ input into the Website, including any information or Data input into the Website by any person the Customer has authorised to use the Service. The Customer is also authorised to access the processed information and Data that is made available to the Customer through Customers’ use of the Website and the Services (whether that information and Data is Customer’ own or that of anyone else).
(e) the Provider has no responsibility to any person other than the Customer and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Customer. If the Customer uses the Services or accesses the Website on behalf of or for the benefit of anyone other than the Customer (whether a body corporate or otherwise) he agrees that:
i. the Customer is responsible for ensuring that the Customer has the right to do so.
ii. the Customer is responsible for authorising any person who is given access to information or Data, and agrees that the Provider has no obligation to provide any person access to such information or Data without Customers’ authorisation and may refer any requests for information to the Customer to address.
8.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause.
9.2 The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 8.2(e).
10. Limitations and exclusions of liability
10.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Agreement:
(a) are subject to Clause 10.1
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
10.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
10.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.
10.5 Neither party will be liable for any loss of or damage to goodwill or reputation.
10.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.
10.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.
10.8 Neither party will be liable for any losses arising out of a Force Majeure Event.
10.9 Neither party's liability in relation to any event or series of related events will exceed the greater of:
(a) the total amount paid and payable by the Customer to the Provider under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.
10.10 Neither party's aggregate liability under the Agreement and any collateral contracts will exceed the greater of:
(a) the total amount paid and payable by the Customer to the Provider under the Agreement.
11. Data protection
11.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
11.2 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.
11.3 Accuracy of Data:
When the Customer inputs any Data onto the Website Customer agrees and acknowledges that Customer is responsible for ensuring the accuracy of such Data. The Provider is under no obligation to ensure that Customer’s Data on the Website is an accurate representation of Customers’ actual business data and recommends that Customer performs a full stock take to ensure Customers’ Data represents an accurate representation of Customer s’actual stocks and products. The Provider has no obligation to provide support, maintenance, modifications, or new releases under this agreement. The Provider may from time to time issue upgraded versions of the application.
12.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 12
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
(c) without prejudice to the generality of Clause 12.1(b), deploy and maintain the security systems and technologies detailed in Schedule 1 in relation to the Customer Confidential Information held on the Platform.
12.2 Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.
12.3 The obligations set out in this Clause 12 shall not apply to:
(a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence)
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer
(c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body
12.4 Access Conditions:
12.4.1 The Customer must ensure that all usernames and passwords required to access the Services are kept secure and confidential. The Customer must immediately notify the Provider of any unauthorised use of his passwords or any other breach of security and the Provider will reset his password and the Customer must take all other actions that the Provider reasonably deems necessary to maintain or enhance the security of Customer’s computing systems and networks and Customers’ access to the Services. The Customer acknowledges that the Provider has limited control over the nature and content of information and chat transmitted or received by him or other users. The Provider does not monitor such content in the usual course of business and will not be liable for any such content, and its accuracy. If the Customer has a complaint about another user please contact the Provider via the app or website.
12.4.2 As a condition of these Terms, when accessing and using the Services, Customer must:
i. not attempt to undermine the security or integrity of the Providers’ computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
ii. not use, or misuse, the Services in any way which may impair the functionality of the Services, Website or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website, including by misusing the Services in a manner that materially exceeds reasonable usage or use patterns over any month or by using the Services in a malicious, fraudulent or unlawful manner;
iii. not attempt to gain unauthorised access to any materials other than those to which he has been given express permission to access or to the computer system on which the Services are hosted;
iv. not transmit, or input into the Website, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which he do not have the right to use); and
v. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation. The Customer must not sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this agreement with or to anyone else, disclose the results of any benchmarking of the application, or use such results for his own competing software development activities or attempt to discover the softwares’s source code.
13.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 15 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach).
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved
(ii) ceases to conduct all (or substantially all) of its business
(iii) is or becomes unable to pay its debts as they fall due
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.3 Either party may terminate this Agreement by giving at least 30 days' written notice of termination to the other party.
13.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 30 days' written notice of termination to the Customer.
13.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.
13.6 The Provider may terminate the Agreement and delete free of charge accounts that remain inactive more than three months. The Customer shall receive previous notice prior to any termination of the account.
14. Effects of termination
14.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.5, 9, 10, 12, 14 and 17.
14.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
14.3 Subject to Clause 14.4, within 30 days following the termination of the Agreement, the Provider will:
(a) irrevocably delete from the Platform all Customer Confidential Information; and
(b) irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer (as CSV or XLS file for data and PNG or JPG files for images) or dispose of as the Customer may instruct all documents and materials containing Customer Confidential Information.
14.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of this Agreement if:
(a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
(b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
15.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be sent by email, for the attention of the relevant person, and to the relevant email address given below (or as notified by one party to the other in accordance with this Clause).
firstname.lastname@example.org with subject "Notice of Customer"
the email the customer used to register
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is sent byemail, at the time of the transmission (providing the sending party retains written evidence of the transmission).
15.3 Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
16. Force Majeure Event
16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach. If either party waives any breach of these Terms, this will not constitute a waiver of any other breach.
17.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under this Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.
17.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.6 Subject to Clause 10.1:
(a) this Agreement and the acceptable use policy referred to in herein constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
17.7 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
The customer has indicated the acceptance to this Agreement by clicking "Sign Up" at the Platform registration form.
The Minimum Term shall be the period of 30 days following the end of the trial period referred to in Clause 6.
The platform allows the customer to showcase products, and allow his dealers to place orders.
The information the customer can enter about products are: product title & description, main product image and detailed product images, prices per price group, price per customer, discounts, discount per date and discount per quantity.
The customer can also control the privacy of his content, making it completely public, or allowing only to specific customers its access.
The customer's dealers can place orders online and get notified by the customer about their progress.
The platform currently does not handle online or offline payments with any methods.
The Platform will be designed to interface with the following systems, applications, programs and software:
Mac OSX, Windows XP+ with internet browsers:
Safari 5+, Internet Explorer 8+, Opera 12+, Firefox 10+, Chrome 10+ running on a desktop computer with recommended resolution at least 1280x1024
The Platform will be hosted at a facility meeting the following requirements:
Linux web server protected by firewall, access by authorised personnel with multiple security steps required.
The customer can add as many users for the administration section of the panel as he wants as long as their operation does not worsen the experience of other platform's users.
The dealers each customer is allowed to have are limited to 10 only for the startup package.
The Customer may add or delete users using the administration panel.
Number of maximum concurrent users: 20
The Customer may add or delete concurrent user licences by contacting us.
Service Level Agreement
1.1 In this Schedule:
"New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and
"Protected Functionality" means allowing products data entry, platform privacy and receiving orders from customer's dealers
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2.1 The Provider will make available, during Business Hours, a telephone and email helpdesk facility for the purposes of:
(a) assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer's other systems;
(b) assisting the Customer with the proper use of the Platform; and/or
(c) determining the causes of errors and fixing errors in the Platform.
2.2 In the case of technical problems the Customer must make all reasonable efforts to investigate and diagnose problems before contacting the Provider. If Customer still needs technical help, the Customer must make all requests for Support Services through the email email@example.com, and all such requests must include at least the following information: event that was caused, browser used, OS used, URL of the event and products & dealers if known.
3. Response and resolution times
3.1 The Provider will:
(a) use reasonable endeavours to respond to requests for Support Services made through the helpdesk; and
(b) use reasonable endeavours to resolve issues raised by the Customer,
promptly / in accordance with the following response time matrix].
Customer cannot access the platform
Customer cannot add products
Wrong calculation of an amount
A specific text does not show correctly at a specific web browser
5 working days
3.2 The Provider will determine, acting reasonably, in to which severity category an issue raised through the Support Services falls.
3.3 All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.
4. Limits on Support Services
4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs 2 and 3 during any 1 week exceed 4 hours, then:
(a) the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that
(b) the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard hourly rate from time to time.
4.2 The Provider shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:
(a) the improper use of the Platform; or
(b) the use of the Platform otherwise than in accordance with the Documentation.
If for any reason the Provider has to interrupt the Services for longer periods than Customer would normally expect, the Provider will use reasonable endeavors to publish in advance details of such activity on the Website.
5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes the appearance and/or functionality of the Platform.
5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality.
5.3 The Provider will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade.
5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
(a) the Upgrade introduces New Functionality to the Platform;
(b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade
(c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and
(d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.
6. Uptime commitment
6.1 The Provider shall use all reasonable endeavours ensure that the Platform is available 99% of the time during each calendar month, subject to Paragraph 8.
6.2 Platform uptime shall be calculated using the following methodology: number of minutes the platform is available / total number of minutes for current month
6.3 In the event that, during a calendar month entirely within the Term, the Platform fails to meet the availability commitment set out in Paragraph 6.1 then the Provider shall issue service credits calculated in accordance with Paragraph 6.4 to the Customer, such service credits to be deducted by the Provider from future Charges.
6.4 Subject to Paragraph 6.6, the services credits referred to in Paragraph 6.3 and due in respect of a calendar month shall be calculated as follows:
service credits = (100 - a) x b
a = the actual percentage availability of the Platform during the relevant calendar month; and
b = the Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of VAT and other taxes).
6.5 The maximum service credits available to the Customer in respect of any calendar month shall be the total Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of VAT and other taxes).
6.6 Subject to Clause 10.1, then the award of service credits under this Paragraph 6 shall be the exclusive remedy of the Customer in the case of a failure of the provider to meet the uptime commitment in Paragraph 6.1 except in the case of a failure constituting a material breach of this Agreement.
7. Back-up and restoration
7.1 Subject to Paragraph 7.2, the Provider will:
(a) make back-ups of the Customer Materials stored on the Platform on a daily basis, and will retain such back-ups for
Database transactions (eg orders) at least 2 weeks
Product and Platform images at least 1 day
7.2 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph 2, the Provider shall if so directed by the Customer use reasonable endeavours promptly to restore the Customer Materials from the most recent available back-up copy.
8. Scheduled maintenance
8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out and such suspension to be for not more than 8 hours in each calendar month.
8.2 The Provider must give to the Customer at least 4 days' written notice of schedule maintenance, including full details of the expected Platform downtime.
8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6.
1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
1.2 The Charges under the Agreement will consist of the following elements:
(a) access Charges, in respect of access to and use of the Platform;
(b) support Charges, in respect of the Support Services; and
(c) other Charges.
2. Access Charges
The Charges in respect of access to and use of the Platform shall be made up of fixed Charges.
The fixed Charge will be:
£60 (per calendar month) for the Business Plan (max 2000 products and 300 orders per month)
Which shall be invoiced by the Provider at any time following the end of the trial period in respect of which the licence Charges are incurred [(such amount to be pro-rated by the Provider in the event that this Agreement came into force or was terminated during a calendar month)].
3. Support Charges
Support charges are included to access charges for a maximum amount 4 hours/week. Total hours per month should not exceed 8 hours.
4. Other Charges
4.1 In addition to the Charges detailed in Paragraphs  and  above, the Provider will invoice in respect of, and the Customer shall pay to the Provider:
(a) Charges payable under Paragraphs  and  of Schedule  (if required); and
(b) all other Charges that are agreed between the parties in writing from time to time.
4.2 Where other Charges are to be calculated by reference to an hourly or daily rate, the following rates shall apply as at the date of this Agreement: £ 40/hour for support & £ 90/hour for development (prices do not include VAT).
Acceptable Use Policy
(1) This Policy
This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services (the “Service”) and any content that you may submit to the Service (“Content”).
By using the Service, you agree to the rules set out in this Policy
(2) General restrictions
You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.
You must not use the Service according to paragraph 3 of the Terms.
(3) Unlawful and illegal material
You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).
Content (and its publication on the Service) must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;
(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime;
(g) be in contempt of any court, or in breach of any court order;
(h) be in breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) be in breach of official secrets legislation; or
(k) be in breach of any contractual obligation owed to any person.
You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
(4) Data mining
You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.
(5) Graphic material
Content must not depict violence in an explicit, graphic or gratuitous manner.
Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.
(6) Harmful software
You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.
You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.
(7) Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in the Content must be true; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true.
(8) Negligent advice
Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:
(a) illness, injury or death; or
(b) any other loss or damage.
(9) Marketing and spam
Content must not constitute spam.
You must not use the Service to transmit or send unsolicited commercial communications.
You must not use the Service to market, distribute or post chain letters, ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar schemes, programs or materials.
You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
(11) Professional advice
You must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.
Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.
Content must not be grossly offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
Content should not cause annoyance, inconvenience or needless anxiety.
Do not flame or conduct flame wars on the Service (“flaming” is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).
Do not troll on the Service (“trolling” is the practice of deliberately upsetting or offending other users).
You must not flood the Service with Content focusing upon one particular subject or subject area, whether alone or in coordination with other users.
Content must not duplicate existing Content on the Service.
You must submit Content to the appropriate part of the Service.
Do not unnecessarily submit textual content in CAPITAL LETTERS.
You should use appropriate and informative titles for all Content.
You must at all times be courteous and polite to other Service users.
You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy above.
(14) Breaches of this Policy
We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.
Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:
(a) delete or edit any of your Content;
(b) send you one or more formal warnings;
(c) temporarily suspend your access to a part or all of the Service; and/or
(d) permanently prohibit you from using a part or all of the Service.
(15) Banned users
Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).
Notwithstanding the provisions of this Policy, we do not actively monitor Content.
(17) Report abuse
If you become aware of any material on the Service that contravenes this Policy, you must notify us by email.