As a result of you (“Customer”) and COMPLEAT SOFTWARE LIMITED a company incorporated in England and Wales (registered no. 03659980) whose principal place of business is at Apex Business Centre, 1 Watervole Way, Balby, Doncaster, DN4 5JP (“COMPLEAT”) signing or otherwise accepting an Order Form a Software Quotation and Project Estimate in connection with COMPLEAT Services, these are the terms and conditions (referred to in and amended by any Order Form Software Quotation and Project Estimate) upon which COMPLEAT shall supply those services to you. In the absence of any other written and signed agreement intended by the parties to be the sole agreement with respect to COMPLEAT Services, these terms (and any applicable Order Form) shall apply to the exclusion of any other terms and conditions, including any such terms forming part of or purporting to apply by reason of any purchase order or process initiated or issued by you to COMPLEAT in connection with COMPLEAT Services.
1.1 In these terms, unless the context otherwise requires, the following words and expressions mean:
Any person, partnership, joint venture, corporation, subsidiary, or other form of enterprise, controlling, controlled by, or under common control with, the Customer or COMPLEAT.
The form and terms of a document agreed, entered into or accepted (including without limitation by any process for acceptance used by the Customer on any COMPLEAT website) for the purposes of identification in connection with these terms.
The date upon which the URL to enable the Customer to have access to its Customer account on the SaaS Service is despatched to the Customer by COMPLEAT or as otherwise specified in any Order Form.
“COMPLEAT Intellectual Property”
COMPLEAT Intellectual Property work product comprising or created pursuant to the Services, the Software or any Order Form which may include original work and materials undertaken by COMPLEAT either previously or in performing its obligations under these terms.
Non-public information that a Disclosing Party designates as being confidential to a Receiving Party or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party and includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party software or hardware or any products, Disclosing Party's business policies, plans or practices, its personnel, customers or suppliers and information received from others that Disclosing Party is obligated to treat as confidential.
Any information, data, editorial content or intellectual property in any form, including without limitation articles, video and other media publications, provided to COMPLEAT by the Customer for the development of or integration into or use with or communication through the Software or Services under these terms.
Information relating to the Customer, including without limitation, its employees, customers, business and activities, including such data otherwise governed by applicable data protection legislation, posted or submitted to any COMPLEAT Service by a Customer or Customer User.
“Customer Personal Data”
Personal data, including sensitive personal data, relating to employees, contractors and customers of the Customer.
An employee or contractor of the Customer who has satisfactorily completed training, and who has an individualised login identification and password, to have access to, use of and enter data using any COMPLEAT Service or Software "Data", "Processing", "Personal Data", “Data Controller”, “Data Processor”, “Seventh Principle” and “Information Commissioner” bear the meanings set out in the DPA.
Any database that COMPLEAT has spent, or continues to spend, material time and resources on the selection and arrangement of data as an intellectual creation on any website or computer system or network it uses in connection with any COMPLEAT Service, excluding any database created solely by operation of any third party software.
A party to these terms and its Affiliates who disclose Confidential Information to another party.
"DPA" means the Data Protection Act 1998 as this Act is for the time being in force and includes any subordinate legislation made under such Act and any provision amending, superseding or re-enacting it.
"e-Invoicing" means the e-Invoicing service offered by Compleat.
The inability of the Customer to use a normally available facility or function of the Software through the SaaS Services due to a fault in the Software or the SaaS Services for which COMPLEAT is responsible under these terms.
As specified in www.compleatsoftware.com/compleat-saas-service-terms services from time to time.
All intellectual property rights protected by law throughout the world whether registered or not, including without limitation all copyrights, copyright registrations and applications, trademark rights, registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author's rights, algorithms, rights in packaging, goodwill, corporate, trade and product branding and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of England or of any other state, country or legal jurisdiction.
A party to these terms and its Affiliates who receive Confidential Information from another party.
The provision for the Customer by COMPLEAT or its contractors of the System Environment to allow the Customer over the internet to access and use the Software subject to the service support and the service inclusions and exclusions set out in www.compleatsoftware.com/compleat-saas-service-terms.
The services agreed to be provided by COMPLEAT to the Customer under these terms or as agreed for the purposes of any Software Quotation and Project Estimate, including without limitation, the SaaS Services, the implementation of any Software, the support and maintenance of any SaaS Services or any Third Party Service Support (if applicable), training or other services specified in any Order Form.
The service levels for the SaaS Service set out in www.compleatsoftware.com/compleat-saas-service-terms services from time to time.
“Software Quotation and Project Estimate” or “Order Form”
Any electronic or hard copy document in the Agreed Form setting out such matters as the Software to which access using the SaaS Service is to be provided by COMPLEAT, the Commencement Date, the initial Subscription Period, Subscription Fees and any additional Services to be provided by COMPLEAT and in the event of any conflict or inconsistency between applicable Order Forms the latter signed by the Customer and COMPLEAT shall take precedence and be effective between the parties.
COMPLEAT software applications and processes supplied by COMPLEAT to the Customer and installed by COMPLEAT on the SaaS Service for use by the Customer under these terms including such software specified in any Order Form.
The facilities and functions of the Software that the Customer shall have access to and use of using the SaaS Services as specified in the applicable specification sheet published by COMPLEAT from time to time.
The fees and charges specified in any Order Form or any renewal to be paid by the Customer to COMPLEAT from time to time under these terms for the SaaS Service and other Services to be provided during any Subscription Period.
Any period in respect of which the fees set by COMPLEAT from time to time for the SaaS Service and other subscription Services paid or payable by the Customer under these terms including any such period specified in any Order Form. Unless any Order Form specifies to the contrary the minimum Subscription Period shall be one year.
Comments for improvements or modifications or other feedback which the Customer may from time to time provide to COMPLEAT with respect to Confidential Information concerning the Services or the Software.
Any Customer User(s) approved by COMPLEAT (the number, identity and qualifications, if any, of which shall be specified in the Order Form) to exercise system administration rights as defined and permitted by COMPLEAT from time to time.
A system of integrated computer hardware, operating systems software, computer peripherals and facilities provided by COMPLEAT or its contractors to allow the Customer over the internet to access and use the Software.
A dispute between the parties that is of a technical nature concerning the interpretation of these terms, or any document created pursuant to or incorporated by reference into these terms or relating to the functions or capabilities of the Software or the Services or any similar or related matter or that the parties agree is of a technical nature.
“Third Party Service(s)”
Any third party internet accessible service specified in the Order Form to which COMPLEAT provides to the Customer on any SaaS Services website or other communications facilities a link or access.
“Third Party Service(s) Support”
The support services to be provided by COMPLEAT in connection with Third Party Services selected in the Order Form, as specified in www.compleatsoftware.com/compleat-saas-service-terms services from time to time.
COMPLEAT’s own corporate, trade and product branding, trademarks, service marks or other similar pre-existing Intellectual Property rights owned by COMPLEAT from time to time, including the trade mark “COMPLEAT”.
Is a new version of the Software released generally to its commercial users other than a version which includes substantial new functionality as compared to the version already in use by the Customer or which is intended for use with a different operating system or different equipment to that which the Customer is currently licensed or permitted to use the Software with under this agreement or any relevant licence.
1.2 Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and un-incorporate and (in each case) vice versa.
1.3 Where any provision in or schedule to these terms refers to or requires any action consent or notice to be in writing this shall be deemed to include or allow as the case may be writing created transmitted or stored in electronic form including without limitation by email.
2. COMPLEAT KEY RESPONSIBILITIES
2.1 COMPLEAT shall, subject to and in accordance with these terms and any applicable Order Form.
2.1.1 from the Commencement Date, provide or procure the provision of the SaaS Service.
2.1.2 provide any other Services specified in any Order Form.
2.1.3 with the full co-operation and assistance of the Customer ensure that any Customer Content is fairly and accurately incorporated in the Software and/or SaaS Services.
2.2 If requested by the Customer, COMPLEAT shall provide or procure the provision of training in the use and operation of any relevant COMPLEAT Service and Software, and if offered by COMPLEAT, agreed Third Party Services at its standard fees and charges (including expenses) from time to time. COMPLEAT will use reasonable efforts to train the Customer's employees in the subject matter of the particular training course taking into account the level of skill and competence of each of the Customer's employees attending such a course but does not guarantee any resultant level of competence of any of the Customer's employees who attend such training. The Customer will ensure that its employees or Customer Users using the Software or Third Party Services on or in connection with any COMPLEAT Service are trained to a sufficient level to use them competently.
2.3 COMPLEAT shall:
2.3.1 provide the Services with all reasonable skill and care.
2.3.2 provide suitably skilled, trained and knowledgeable personnel to carry out the Services.
2.3.3 use all reasonable commercial efforts to provide SaaS Services in accordance with and subject to the Service Levels and the Incident Priorities for any Subscription Period.
3. CUSTOMER KEY RESPONSIBILITIES
3.1 Unless otherwise agreed in writing by COMPLEAT, the Customer shall, subject to and in accordance with these terms and any applicable Order Form:
3.1.1 obtain maintain and provide to COMPLEAT all necessary authorisations consent licences and services required for COMPLEAT to possess, install, operate, maintain, host, use or integrate any third party software (not being part of the System Environment) required by the Customer for use in conjunction with the Software on the SaaS Services.
3.1.2 if applicable, deliver in a timely manner any Customer Content and any required updates of Customer Content to COMPLEAT for inclusion in the Software or the Services.
3.1.3 provide COMPLEAT with any information the Customer is aware of which COMPLEAT may reasonably require from time to time to enable it to perform its obligations under these terms or any Order Form.
3.1.4 procure and/or supply, and if necessary, install, support and maintain all software, licenses, hardware, network infrastructure, services and environmental and operational conditions required from the connection to the internet of COMPLEAT’s computer system providing any COMPLEAT Service to and at the Customer’s premises or elsewhere for it to use such Service.
3.1.5 maintain a minimum of two System Administrators at any time. In the event that the number of authorised System Administrators falls below two then Customer shall ensure that other Customer personnel receive the necessary training, at the expense of the Customer, until they have been approved by Compleat. The System Administrator(s) shall also triage any support cases in advance of accessing the Compleat Service Support function.
3.1.6 promptly notify COMPLEAT of any changes the Customer requires in the number of active and/or named Customer Users and System Administrators authorized by COMPLEAT to have access to any relevant COMPLEAT Service (during any Subscription Period, if applicable).
3.1.7 ensure that only adequately trained and authorised persons are permitted to use any relevant COMPLEAT Service and that Customer Users operate the Software and Third Party Service and the Services in accordance with this agreement and operating procedures, guidelines, codes of conduct and processes reasonably specified from time to time by COMPLEAT.
3.1.8 provide reasonable support to COMPLEAT in managing and monitoring of the quality of the SaaS Service and in planning and implementing any agreed enhancements to the Services.
3.1.9 be deemed to have accepted any relevant COMPLEAT Service for all purposes under this Agreement upon any use thereof for commercial production.
3.2 The Customer acknowledges and agrees that COMPLEAT’s ability to deliver the Services also depends upon the Customer’s full and timely cooperation, as well as the accuracy and completeness of any information the Customer provides. COMPLEAT is not responsible for any loss suffered by the Customer if the Customer does not provide it with this cooperation and information.
3.3 The Customer shall, for the purposes of this agreement and if required by any Order Form, afford to the authorised personnel of COMPLEAT during normal working hours or as otherwise agreed access to any agreed Customer premises and shall provide adequate free working space and such other facilities at such premises as may be reasonably requested by COMPLEAT for it to provide applicable Services. The Customer shall comply with its obligations under applicable health and safety regulations with respect to the provision of such access and facilities to COMPLEAT. COMPLEAT will take all practical steps to ensure that its personnel will, whenever on Customer’s premises, obey all reasonable security and health and safety standards, procedures and directions notified to it by Customer.
3.4 The Customer acknowledges and agrees that it is solely responsible for complying with any laws or paying any taxes duties and tariffs applicable in any way to its use of any relevant COMPLEAT Service (other than taxes on the net income of COMPLEAT) and will hold harmless protect indemnify and defend COMPLEAT and its subcontractors from any claim action suit penalty tax fine or tariff arising from such use of a COMPLEAT Service or exercise of internet electronic commerce and/or any failure to comply with any such laws taxes duties and tariffs. This indemnity will survive any termination of these terms.
4. SUBSCRIPTION FEES AND PAYMENT
4.1 Unless otherwise agreed in any Order Form, Subscriptions, eInvoicing Fees and other fees for Services shall be invoiced to and paid by the Customer in advance of their supply or, if applicable, the Subscription Period to which they relate. The Customer is required to commit to and pay for any minimum Service period agreed in any Order Form. All payments shall be made by the Customer within fourteen (14) days of the date of the appropriate tax invoice issued by COMPLEAT.
4.2 Unless otherwise agreed in any Order Form, all Services shall be charged on a time and materials basis. Any estimated fee is based on the number of days estimated by COMPLEAT as being required for the provision of the relevant agreed Services. If a fee estimate is provided, then COMPLEAT shall be entitled to charge the Customer for any additional days required in order to complete the provision of agreed Services. COMPLEAT shall also be entitled to charge for additional days attributable to any changes agreed by the parties to Statements of Work or Services to be delivered under these terms or to any breach of these terms by the Customer.
4.3 Unless otherwise agreed, the Customer shall reimburse COMPLEAT for any reasonable expenses necessarily incurred by COMPLEAT in connection with the provision of the Services.
4.4 The Subscription Fees and other fees for Services are exclusive of Value Added Tax (VAT) or other Government imposed excises or taxes (if any) which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law. Any amount payable by the Customer under this clause is payable upon demand by COMPLEAT whether such demand is made by means of an invoice or otherwise. All sums payable to COMPLEAT under this agreement shall be paid free and clear of all deductions or withholdings unless the deduction or withholding is required by law. If any deduction or withholding is required by law to be made from any such sum the Customer shall pay such additional amount as shall be required to ensure that the net amount received by COMPLEAT will equal the full amount which would have been received by it had no such deduction or withholding been made. All payments to be made by the Customer under this Agreement shall be made without any deduction or set-off.
4.5 The Customer acknowledges and agrees that if any invoice is not paid on the due payment date then COMPLEAT shall be under no obligation to continue to provide Services to the Customer and delivery of such services may be suspended (without prejudice to COMPLEAT’s rights under clause 11) unless and until the relevant invoice shall be paid in full. The Customer shall indemnify COMPLEAT against all legal and other fees and expenses incurred or charged by it in relation to the collection of any overdue accounts under this Agreement or to re-active any Service suspended under this clause 4.5.
5.1 This Clause 5 only applies if the Agreement particulars provide that Compleat will provide e-Invoicing to the Customer.
5.2 The Customer shall pay for e-Invoicing by way of transactional credits. The Customer must purchase these in advance in such amounts as Compleat shall specify from time to time, and may purchase such transactional credits as it wishes at any time.
5.3 Following the approval by the Customer of an invoice processed by Compleat using eInvoicing, Compleat shall debit, from the balance of unused transaction credit held to the account of the Customer, the applicable processing charge for that invoice as agreed between Compleat and the Customer.
5.4 If the transaction credit held to the account of the Customer becomes exhausted, Compleat shall not be obliged to process further invoices until the Customer has purchased sufficient additional transactional credits to meet the cost of processing the invoices submitted.
5.5 In the event that the Customer fails to make any payment of the e-Invoicing charges by the due date for payment, Compleat shall continue to process invoices submitted by the Customer using e-Invoicing but shall not be obliged to deliver the invoices to the Customer unless and until the Customer has paid those charges in full.
5.6 All e-Invoicing transactional credits purchased by the Customer must be used within three (3) years of the date of purchase, after which time any unused transaction credits will be forfeited.
5.7 The Customer shall send all invoices for processing by means of a pdf file attached to an email message (“the invoice pdf”).
5.8 Compleat will use all reasonable endeavours to process each invoice submitted by the Customer using eInvoicing. If for any reason Compleat is unable to process any given invoice it shall at its discretion forward the invoice pdf either into its own applications or to one of its business partners for processing.
5.9 Compleat will use all reasonable endeavours to ensure that each invoice submitted by the Customer is processed accurately in all respects, in both form and content. However, Compleat gives no warranty, promise or representation regarding the accuracy of any invoice and it is the responsibility of the Customer to verify that each invoice is correct using the designated approval process stipulated by Compleat. If any invoice is found to be inaccurate Compleat will reissue it in accordance with the approval process, but under no circumstances will Compleat be liable to the Customer for any financial or other loss, damage, costs or expenses suffered or incurred by the Customer as a result of any inaccuracy in any invoice processed by Compleat.
5.10 Compleat will retain all data provided by the Customer in connection with the processing of invoices, together with all back-up copies of such data produced by it for security purposes;
5.10.1 for a period of not less than seven (7) years from the date of processing on condition that the Customer maintains its subscription to eInvoicing; and
5.10.2 for a period of not less than sixty (60) days following the effective date of termination of the Contract or (if earlier) the effective date of termination of the Customer’s subscription to eInvoicing for the purpose of enabling the Customer to recover such data, which it may do on request. If the Customer has made no such request by the end of the said period of sixty days, Compleat may delete such data in full.
5.11 Compleat may also use data provided by all Customers in connection with the processing of invoices in order to compile aggregated financial and management information which Compleat is then free to use as it shall think fit from time to time for its own business purposes. However, Compleat undertakes not to identify the Customer directly or indirectly in, or as a source of, such financial or management information, nor to include in such information any data, material or text from which it would be possible in any way to identify the Customer, whether alone or in conjunction with other material or documentation.
6. RIGHTS IN SERVICES, SOFTWARE AND DATA
6.1 Subject to any special terms that COMPLEAT may agree with the Customer in any Order Form, the Customer acknowledges and agrees that COMPLEAT Intellectual Property whenever created shall remain the exclusive property of COMPLEAT and the Customer shall have no rights in respect thereof save as may be granted to it by COMPLEAT pursuant to these terms or in accordance with any licence or agreement which COMPLEAT may enter into with the Customer from time to time. For the avoidance of doubt, COMPLEAT Intellectual Property shall include, without limitation, original work specifically undertaken by COMPLEAT for the purposes of fulfilling its obligations under these terms and in order to meet any facilities or functionality required by the Customer in any Software whether or not such original work is identified under any Order Form, specification or other documentation. The Customer agrees to use the COMPLEAT Intellectual Property only as provided in these terms and to not use it to develop software for third parties or for any other purpose without the prior written authorisation of COMPLEAT.
6.2 The Customer acknowledges and agrees that, subject to clauses 6.3 and 12.3.
6.2.1 all intellectual property rights of any kind in any Database and all COMPLEAT Intellectual Property shall be the exclusive property of COMPLEAT.
6.2.2 COMPLEAT has spent and continues to spend, considerable time and resources to collate, compile and reformat the contents of any Database and accordingly all intellectual property rights of any kind in such contents shall be the exclusive property of COMPLEAT.
6.2.3 COMPLEAT grants to the Customer a non-transferable perpetual licence to possess and use for its own internal purposes only all data, reports and information, including without limitation Customer Data, derived from any Database by the Customer through its lawful and proper use of the Services during such Subscription Periods in respect of which the Customer shall have paid to COMPLEAT in advance all applicable Subscription Fees.
6.3 COMPLEAT acknowledges and agrees that copyright in Customer Content and Customer Data may belong to the Customer or a third party and for the avoidance of doubt asserts no claim pursuant to these terms inconsistent with any such rights.
6.4 If COMPLEAT provides or makes available to the Customer as part of or in connection with the Services data reports or information the use of which is subject to conditions or restrictions, third party or otherwise notified to the Customer, the Customer agrees to comply with such conditions or restrictions.
6.5 The Customer agrees that it will not make more copies of data reports or information provided to it or made available to Customer as part of or in connection with the Services than is reasonably necessary for its own internal purposes.
6.6 The Customer agrees:
6.6.1 to not copy data reports or information provided or made available to Customer as part of or in connection with the Services to create a complete or material reconstruction of any Database.
6.6.2 to not use data reports or information provided or made available to Customer as part of or in connection with the Services to provide data reports or information to any third party or to provide any service in both cases competing with any COMPLEAT Service.
6.7 The Customer shall:
6.7.1 not remove or interfere with any Trade Marks, copyright or Trade Mark notices affixed or installed by COMPLEAT on any Service or other COMPLEAT Intellectual Property.
6.7.2 without prejudice to the foregoing take all such other reasonable steps to protect the confidential information and intellectual property rights of COMPLEAT in the COMPLEAT Intellectual Property in its possession or control from access use or copying not authorised by these terms.
6.8 The Customer acknowledges and agrees that COMPLEAT Services may use Customer User activity monitoring, metering and analysis software to avoid any unintentional violation of licence or Service usage terms and that such software may access and use Customer’s internal network, servers and internet connections for such purposes and for the purpose of accessing and transmitting licence or usage related data at the time of installation, activation, registration or update of Services or Software and validating the authenticity of such licence or usage related data to protect COMPLEAT against unauthorised, unlicensed or illegal use of such Services.
6.9 If, at any time that COMPLEAT is providing any Service to the Customer, the Customer requests that COMPLEAT provide it with a copy of Customer Data held by COMPLEAT on such Service, COMPLEAT shall provide the Customer with a copy of such Customer Data as at the date of the request, or at such other date as is agreed, provided that the Customer shall have paid to COMPLEAT.
6.9.1 any data transfer fee specified by COMPLEAT from time to time or as otherwise agreed (together with the cost of any medium upon which such data is transferred).
6.9.2 all other invoices issued by COMPLEAT to the Customer with respect to the Services.
6.9.3 any fees or charges at COMPLEAT’s then applicable rates raised by COMPLEAT for the provision of any assistance reasonably requested by the Customer and provided or to be provided by COMPLEAT in connection with the transfer of such Customer Data.
6.10 Clause 5 shall survive any termination of these terms.
7. SERVICE USE
7.1 The Customer unconditionally represents warrants and undertakes that all Customer Content including without limitation any elements of text, graphics, photos, designs, trademarks, or other artwork supplied to COMPLEAT for the development of or integration into or use with or communication through the Services or the Software.
7.1.1 are owned by the Customer or that the Customer has permission from the rightful owner to use such Customer Content in the Services or Software in the manner and for the purposes required or approved by the Customer from time to time.
7.1.2 are in no way whatsoever a violation or infringement of any third party Intellectual Property, right of privacy or publicity or any other rights of any person and that they are not obscene, libellous or defamatory or in any other way unlawful and will not in any way inhibit restrict or impair the free and/or unrestricted performance by COMPLEAT of any rights or obligations it has under these terms.
7.2 The Customer represents and warrants that:
7.2.1 it possesses the legal right and ability to enter into and comply with these terms and any licence conditions attaching from time to time to their use of any applicable third party software.
7.2.2 it will use the Services, the Software and any applicable Third Party Services for lawful purposes only and in accordance with all applicable laws, regulations and licences.
7.2.3 it will not attempt to decompile, reverse engineer or hack any website or computer network COMPLEAT uses in connection with the Services or to defeat or overcome any encryption and/or other technical protection methods implemented by COMPLEAT with respect to any such website or network and/or data transmitted, processed or stored by COMPLEAT or other users of such website or network.
7.2.4 it will not use any automatic or manual device or process nor take any steps (including penetration testing, without the prior written authority of COMPLEAT to interfere with or in any manner compromise any security measures or the proper working of any website or computer network COMPLEAT uses in connection with the Services or any other individual’s or entity’s computer using any such website or network or Services.
7.2.5 it will ensure that Customer Users do not use any other individual’s or entity’s login or identity or any unauthorised or inadequately licensed computer, device or facility to access or use any relevant COMPLEAT Service or any website or computer network COMPLEAT uses in connection with such Services and that only System Administrators login and exercise System Administrator rights and privileges on any such website or network.
7.2.6 it will not collect any information or communication about COMPLEAT or users of the Services by monitoring, interdicting or intercepting any process of the Services, the Software or any applicable Third Party Services.
7.2.7 it will not use any process, facility, device or software code or instruction that is designed or intended to be used to provide a means of surreptitious or unauthorised access or that is designed or intended to distort, delete, damage or disassemble the Software, any applicable Third Party Services, the Services or any website or computer network COMPLEAT uses in connection with the Services.
7.2.8 it will not use the Software, the Services or any applicable Third Party Services to develop, generate, transmit or store information that infringes any third party’s intellectual property or other proprietary right or is defamatory, harmful, abusive, obscene or hateful or performs any unsolicited commercial communication not permitted by applicable law or is harassment or a violation of privacy or threatens others or impersonates any other person or steals or assumes any person’s identity (whether a real identity or online nickname or alias); and
7.2.9 if requested by COMPLEAT on reasonable grounds it will provide true, accurate, current and complete information on its use of any website or computer network COMPLEAT uses in connection with the Services.
7.3 COMPLEAT reserves the right to involve, and cooperate with, law enforcement authorities in prosecuting Customer Users who have participated in actions that may involve breaches of this clause 7.
7.4 If COMPLEAT has reasonable grounds to suspect that the Customers representations, warranties or promises are inaccurate or breached, COMPLEAT may suspend (without prejudice to any right to terminate) the Customer’s rights, benefits or services under or terminate these terms and any licence attaching from time to time to the use of the Software or Services.
7.5 The Customer hereby agrees to hold harmless protect indemnify and defend COMPLEAT and its subcontractors from any liability (including legal and administrative fees and costs on a full indemnity basis) or any claim, prosecution or suit, threatened or actual, arising from any breach by the Customer of its obligations under this clause 6 or from any use by COMPLEAT of Customer Content authorised by the Customer.
7.6 The foregoing warranties, promises and indemnities in this clause 7 shall survive any termination of these terms.
8. DISPUTE RESOLUTION
Each party shall use its best endeavours to resolve amicably and expeditiously any dispute which may arise between them concerning these terms, any Order Form or any documents incorporated by reference therein. If a dispute cannot be resolved amicably within 7 days of such dispute being notified in writing by one party to the other for the purposes of this clause, then the dispute shall be determined as follows.
8.1 If the dispute is a Technical Dispute then the parties shall attempt to settle the dispute by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing to the other party to the dispute requesting a mediation. A copy of the request shall be sent to CEDR Solve. The mediation will start not later than 10 Working Days after the date the notice. If the matter has not been resolved by mediation within 30 days of the initiation of such procedure, or if a party will not properly participate in the mediation procedure within 5 days of a request by the other party, the dispute shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of those courts for such purpose.
8.2 Non-technical disputes shall be referred as a matter of urgency to the managing directors or appropriate senior management of each party and if they cannot resolve such dispute within 21 days of it being referred to them then the dispute shall be determined by the English Courts and the parties hereby submit to the non-exclusive jurisdiction of those courts for such purpose.
9. LIABILITY AND LIMITATIONS
CUSTOMER’S ATTENTION IS EXPRESSLY DRAWN TO THE PROVISIONS OF THIS CLAUSE
9.1 Limitation of liability
The obligations accepted by COMPLEAT in clause 2.1 are in lieu of all other warranties or conditions of any kind, express or implied, regarding any software, services, data, reports or documentation, including any SaaS Services provided or procured by COMPLEAT including warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for a particular purpose. Nor are there any warranties or conditions created by course of dealing, course of performance, or trade usage. Further COMPLEAT does not represent or warrant that the Software, any relevant COMPLEAT Service or any applicable Third Party Software or Third Party Service will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error-free, or will operate without packet loss, nor does COMPLEAT warrant or guarantee any connection to or transmission from the internet.
The Software, Services and any applicable Third Party Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. COMPLEAT is not responsible and shall have no liability of any kind for any delays, delivery failures or other damage or loss resulting in any way from such use.
COMPLEAT accepts no liability of any kind whatsoever, including liability for negligence, for the continuing existence, operation, interoperability, facilities or functions or consequences direct or indirect of any Customer using the internet or any other electronic communications facility.
In no event shall COMPLEAT be liable for indirect, consequential, or incidental damages (including damages for loss of business profits or anticipated savings, business interruption or loss of business information) however caused (including negligence) arising out of the relationship between COMPLEAT and the Customer even if it has been advised of the possibility of such damages.
In any event COMPLEAT’s cumulative liability under these terms or any transaction contemplated hereunder or for any software data report or information or service provided to the Customer or any defect or failure therein or arising from any court of competent jurisdiction holding any of the above warranties or disclaimers or limitations of liability invalid, including any cause of action in contract, tort or strict liability, shall be limited to the amount of fees paid by the Customer to COMPLEAT under these terms during the 12 months prior to such event. COMPLEAT’s limitation of liability is cumulative with all COMPLEAT expenditures to address liability being aggregated to determine satisfaction of the limit. The Customer releases COMPLEAT from all obligations, liabilities, claims or demands in excess of the limitation. The parties acknowledge that other parts of these terms rely upon the inclusion of this clause 8 and the resulting allocation of risks.
Nothing in these terms shall exclude or limit the liability of COMPLEAT, its service entities and personnel for fraud or death or personal injury caused by their negligence or the negligence of their employees’ agents or contractors or where such exclusion or limitation is prohibited by applicable law, and then only to the extent of the prohibition.
9.2 Customer acknowledges and agrees that COMPLEAT has no liability of any nature whatsoever.
9.2.1 to any person for the content of any third party communications publications or sources from which any data, reports or information is provided through Customer’s use of the Services and, if applicable, any Third Party Services; or
9.2.2 for such data, reports or information including without limitation its accuracy, quality, integrity, reliability or appropriateness for any purpose and the Customer shall be solely responsible and liable for any use it makes of such data, reports or information including any breach of copyright or other right obligation or duty recognised by the laws of any jurisdiction
9.3 COMPLEAT does not give any opinions or advice concerning the use or non-use of any data reports or information provided or available to Customer through its use of the Services or, if applicable, any Third Party Services. Such data reports or information may need further expert or specialist advice or interpretation to be obtained by the Customer before they can be fully or partly understood or assessed or use made of or reliance placed on them.
9.4 COMPLEAT accepts no liability for any claim notified to it more than six months after the date of receipt by the Customer from COMPLEAT of the data report or information in respect of which the claim arises.
9.5 Notwithstanding any other provision of these terms COMPLEAT does not warrant that use or operation of the Software, any applicable Third Party Services or any relevant COMPLEAT Service will be uninterrupted or error-free.
9.6 As some jurisdictions do not allow some of the exclusions set out in this clause 9, some of these exclusions may not apply to you. In the event that any court of competent jurisdiction rules any other limitation of liability invalid or unenforceable, COMPLEAT’s total aggregate liability shall not exceed the total sum which COMPLEAT may recover with respect to its liability for such loss or damage under its professional indemnity insurance (which is at the date of this agreement is with respect to general third party not less than £1,000,000 per occurrence or series of occurrences arising from the one event and with respect to professional indemnity not less than £1,000,000 for any one claim or series of claims arising out of one incident or event).
9.7 For the avoidance of doubt, time shall not be of the essence of this contract. If COMPLEAT shall fail to provide access to or use of the Software, any Service or any applicable Third Party Service by any agreed date, other than as a consequence of any act or omission of the Customer (whether or not such act or omission constitutes a breach of these terms) or a third party over which COMPLEAT has no control or responsibility, then COMPLEAT shall provide such resources as may be at its disposal and reasonably required in order to provide access to or use of the Software or such Services within the shortest possible time thereafter and compliance by COMPLEAT with this clause shall be in full and final settlement of any liability it may have for any loss or damage suffered by the Customer as a result of such failure by COMPLEAT.
9.8 The Customer and COMPLEAT agree that all terms and limitations of these terms, including the warranty and liability limitations and exclusions, are fair and reasonable in light of the amounts to be paid by the Customer, the nature of the Services, the strength of the bargaining position of each party, the alternative ways the Customers’ needs could have been met and the potential benefits and risks for both party in entering into these terms.
10. FORCE MAJEURE
Notwithstanding anything else contained in these terms, neither party shall be liable for any delay in performing its obligations under these terms or any Order Form if such delay is caused by circumstances beyond its reasonable control and any delay caused by any act or omission of the other party (whether or not such act or omission constitutes a breach of these terms) or a third party provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve that party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned.
The performance of the affected party’s obligations shall be suspended during the period that the relevant circumstances persist and, if applicable to any obligation under these terms or an Order Form, the affected party shall be granted an extension of time for performance equal to the period of the delay. Except where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of these terms and by law) any costs arising from such delay shall be borne by the party incurring the same. Both parties will in any event use all reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of their obligations under these terms as soon as reasonably possible.
11.1 Confidential Information and Exclusions.
If any party has any doubts about what constitutes Confidential Information, then such party agrees to consult with the other party before acting in any manner that may breach its obligations under these terms.
Confidential Information shall not include any information, however designated, that
11.1.1 is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed to Disclosing Party.
11.1.2 became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to or prior to or in contemplation of these terms.
11.1.3 became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party.
11.1.4 is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; or
11.1.5 constitutes Suggestions (as defined in clause 11.4 of these terms).
11.2 Obligations Regarding Confidential Information.
Receiving Party shall:
11.2.1 refrain from disclosing any Confidential Information of the Disclosing Party to third parties for ten (10) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party.
11.2.2 take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party and shall procure that all of its directors, employees, professional advisers and sub-contractors who have access to any information of the disclosing party to which the obligations of clause 11 apply shall be made aware of those obligations.
11.2.3 not disclose any Confidential Information to its sub-contractors without first obtaining their written agreement to confidentiality obligations no less onerous than those set out in this clause 11.
Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either.
11.2.4 gives the Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent; or
11.2.5 obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in clause.
11.2.6 Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-know basis. The Receiving Party will have executed or shall execute appropriate written agreements with third parties sufficient to enable Receiving Party to enforce all the provisions of these terms.
11.2.7 Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this clause 11 by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
11.2.8 Upon termination of these terms for any reason, Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same.
The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.
The Customer may from time to time provide Suggestions to COMPLEAT. Both parties agree that all Suggestions are and shall be given entirely voluntarily. Suggestions, even if designated as confidential by the Customer, shall not, absent a separate written agreement, create any confidentiality obligation for COMPLEAT. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, COMPLEAT shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Suggestions provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
11.5 Use of Data
Provided that all Customer Data disclosed or made available pursuant to this clause 11.5 to any third party shall not identify such data with the Customer nor specifically identify any individual, company or entity, COMPLEAT may access, process, use and disclose to third parties data posted by or on behalf of the Customer on any website or computer network COMPLEAT uses in connection with the Services (including Customer personnel data) as reasonably necessary to operate or maintain the Services or the Software (including virus scanning), to comply with obligations of confidentiality COMPLEAT has to the Customer or other customers, to evaluate or improve the performance and implementation of and to promote and market the Services or the Software, to perform statistical analyses and other data mining activities and to present such data in whatever format COMPLEAT requires to measure, amongst other things, interest in and use of the Services or the Software and to develop and design new products and services.
12.1 Unless otherwise agreed, the SaaS Service shall commence on the Commencement Date and shall continue thereafter only during such periods in respect of which the applicable Subscription Fee shall have been paid in full to COMPLEAT or an accredited COMPLEAT partner unless and until terminated under clause 12.2. Unless the parties otherwise agree in writing, at the end of any Subscription Period this agreement and the relevant COMPLEAT Services will automatically be extended for a subsequent minimum Subscription Period unless the Customer gives not less than 45 days notice of termination with effect at the expiry of the then current Subscription Period.
12.2 Either party may terminate these terms by written notice to the other if:
12.2.1 the other party commits any breach of any provision of these terms or any effective Order Form which is capable of remedy (including for the avoidance of doubt any breach referred to in clause 12.2.2) and that other party fails to remedy the breach within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
12.2.2 the other party commits any breach of any provision of these terms which constitutes a material breach (material breach for this purpose meaning a breach that has caused or, with the passage of time, will cause substantial harm to the interests of the aggrieved party or if it involves knowing and unauthorised infringement of the aggrieved party’s intellectual property, or if it involves knowing or grossly negligent unauthorised disclosure or use of the aggrieved party’s confidential information, or if it involves a continuing failure after warning to pay any undisputed fees when due, or if the aggregate effect of non-material breaches by the same party satisfies these standards for materiality).
12.2.3 the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order (or have an administrator appointed) or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
12.2.4 there are no outstanding Services agreed to be provided under these terms.
12.3 Upon any termination of these terms:
12.3.1 provisions regarding fees and expenses, rights arising from Services, confidentiality and protection of intellectual property, limitations of liability, obligations on termination and any provisions specified as surviving will remain in effect.
12.3.2 subject as otherwise provided in these terms and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under these terms.
12.3.3 Save only as expressly provided otherwise in these terms, no part of any license fees , Subscription Fees, SaaS Services, Services or any other fees paid under these terms shall be repayable on termination of this Agreement for any reason.
12.3.4 In the event the Customer requires a historical record of transactions processed through the Software then these may be provided by Compleat in a media form to be agreed between the parties and at a fee which shall be agreed between the parties subject to a minimum charge of one days Services.
13.1 Neither party has been induced to enter into these terms by a statement or promise which it does not contain. These terms and any applicable Order Form constitutes the entire agreement between COMPLEAT and the Customer with respect to the supply of Services and supersedes all previous communications, representations and agreements either written or oral (save for fraudulent misrepresentation) with respect thereto. This shall not exclude any liability which a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of these terms. The application of any general terms and conditions upon which the Customer trades or which it seeks to impose by inclusion in any purchase order or by way of course of trading or otherwise are excluded and shall be of no effect.
13.2 The Customer may not assign, transfer or otherwise dispose of any of its rights or obligations under these terms without the prior written consent of COMPLEAT such consent not to be unreasonably withheld or delayed. Subject to the foregoing, these terms will bind and inure to the benefit of any successors and assigns. COMPLEAT may use subcontractors in the performance of the Services but will remain liable to the Customer in accordance with this agreement for the Services provided.
13.3 This agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
13.4 Each provision of these terms shall be construed separately and notwithstanding that the whole or any part of any such provision may be held by anybody of competent jurisdiction to be illegal invalid or unenforceable the other provisions of these terms and the remainder of the provision in question shall continue in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
13.5 The relationship of COMPLEAT to the Customer is solely that of independent contractor, and nothing contained herein is intended or will be construed as establishing an employment, joint venture, partnership, commission agency and or other business relationship between the parties.
13.6 Any variation of this agreement or any Order Form must be in writing, expressly state that it forms part of the contractual arrangements between the parties and be signed by an authorised representative of each of the parties. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
13.7 The Customer agrees that COMPLEAT may refer to the Customer as a customer of COMPLEAT and as a user of its Software in COMPLEAT marketing and public relations material. For the avoidance of doubt, this clause 13.7 does not give either party the right to disclose Confidential Information.
13.8 The parties confirm their intent not to confer any rights on any third parties by virtue of this agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement.
13.9 COMPLEAT in its sole discretion may accept, by notice in writing to the Customer to that effect, that a facsimile or scanned copy of an original signature transmitted or emailed to it by the Customer is effective to create a binding agreement as if the document bearing the original signature was sent to it.
14 DATA PROTECTION
14.1 The Customer acknowledges that in connection with the performance of their respective obligations under these terms the Customer is a Data Controller and COMPLEAT is a Data Processor and COMPLEAT and any outsource web site hosting entity that it may use in connection with the Services may carry out Processing on Customer Personal Data. COMPLEAT shall carry out such operations in compliance with any applicable data protection legislation in force from time to time, and shall, without limitation to the foregoing.
14.1.1 taking into account the state of technological development at any time and the cost of implementing any measures take at all relevant times appropriate technical and organisational measures against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, such measures to ensure a level of security appropriate to the risks represented by the Processing, the harm that may result from a breach of security and the nature of the data to be protected.
14.1.2 take reasonable steps to ensure the reliability of COMPLEAT’s staff who have access to Customer Personal Data.
14.1.3 comply with obligations with respect to Customer Personal Data equivalent to those imposed on a Data Controller by the Seventh Principle of the DPA.
14.2 COMPLEAT shall only disclose Customer Personal Data with the prior written approval of the Customer, subject to the non-disclosure exemptions set out within the DPA. In the event that COMPLEAT receives a request for subject access from an individual about whom COMPLEAT holds Customer Personal Data for the purposes of fulfilling its obligations under these terms, or a request for such information from the Information Commissioner, then, subject to complying with its obligations under the DPA, COMPLEAT shall promptly notify such employee of the Customer as is nominated for this purpose of such request and respond promptly to any request for information made by the Customer in respect of such subject access request or request for information from the Information Commissioner.
14.3 The Customer acknowledges that it is solely responsible for the creation of all Customer Personal Data upon which COMPLEAT and any outsource web site hosting entity that COMPLEAT may use in connection with the Services carries out Processing under these terms. The Customer shall make obtain and maintain all necessary notifications authorisations and consents the Customer is required to have for the Processing of Customer Personal Data to be carried out by CIP and any such outsource web site hosting entity under these terms. COMPLEAT acknowledges that Customer Personal Data in the possession of COMPLEAT and any such outsource web site hosting entity shall at all times remain the property of Customer.
14.4 The Customer hereby instructs COMPLEAT and any outsource web site hosting entity that COMPLEAT may use in connection with the Services to carry out such Processing on Customer Personal Data as is reasonably required by COMPLEAT to perform its obligations under these terms and COMPLEAT agrees to Processing Customer Personal Data solely in accordance with such instruction. The Customer may vary the instruction given by this clause 14.4 with respect to the Processing of Customer Personal Data at any time by written notice to COMPLEAT provided that COMPLEAT shall have no liability of any kind to the Customer for any loss or damage suffered by or claim made by any person against the Customer arising directly or indirectly from COMPLEAT complying with such notice.
15.1 Any document notice claim or demand to be given served or made by either party to the other in connection with these terms shall be sufficiently given served or made by delivering or sending the same by hand or courier, recorded delivery or registered air mail post, facsimile or email to the registered office or any notified address of the party to whom it is addressed.
15.2 Any such document notice claim or demand shall be deemed to be given served or made:
15.2.1 if delivered, at the time of delivery.
15.2.2 if sent by courier, at the expiration of 12 hours of the same having been despatched.
15.2.3 if posted, at the expiration of 2 days after the envelope containing the same shall have been posted.
15.2.4 if sent by facsimile, upon completion of transmission.
15.2.5 if sent by email, upon completion of transmission, provided a confirmation notice is also sent by one other method contemplated by this clause 15.2.
16. ELECTRONIC AGREEMENTS
The Customer acknowledges and agrees that:
16.1 by accessing, using, receiving or downloading any Software and by making electronic transmissions to COMPLEAT in connection therewith this agreement and any other licence, usage or other conditions attaching from time to time to the use of Software or Services are legally binding upon it whether or not an authorised employee agent or contractor of the Customer clicked on any electronic button or such similar links as may be designated by COMPLEAT to accept this agreement or gain access to and use any Software or Service using the internet or other electronic forms of communication.
16.2 pursuant to any applicable statutes, regulations, rules, ordinances or other laws, it accepts the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, contractual terms, records of transactions and other data initiated or completed through electronic means with CIP; and
16.3 it hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention or filing of electronic or non-electronic records.
Last updated: 27 February 2019