Date Published : 1st April 2018
Version : v1.0
1.1 Except to the extent expressly provided otherwise, in this Agreement: "Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time; "Provider" means Repton Project Limited, a company incorporated in England and Wales, registration number 06794065, having its registered office at Mercury House, Shipstones Business Centre, Northgate, New Basford, Nottingham, NG7 7FN, United Kingdom; "Customer" means the person who registers to use the Service, and includes any entity on whose behalf that person registers to use the Service. "User" means any person or entity other than the customer that uses the service with the authorisation of the Customer. "Services" means Project on Demand, as specified in which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement; "Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of:
- any act or omission of the Customer or any person authorised by the Customer to use the Platform or Services;
- any use of the Platform or Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
- a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
- an incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not specified as compatible in the hosted Services Specification;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); "Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades; "Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts; "Business Day" means any weekday other than a bank or public holiday in England; "Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day; "Charges" means the following amounts:
- the amounts posted on our site, excluding any taxes and duties payable by the Customer in accordance with the fee schedule; and
- any use of the Platform or Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
"Customer Confidential Information" means:
- any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
- was marked as "confidential"; or
- should have been reasonably understood by the Provider to be confidential; and
- the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Customer;
"Documentation" means the documentation for the Services produced by the Provider and delivered or made available by the Provider to the Customer;
"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 the internet or any public telecommunications network, hacker attacks, denial of service 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);
"Permitted Purpose" means to use the Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
"Personal Data" has the meaning given to it in the General Data Protection Regulation Act 2016;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to main body of this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major upgrade of any Platform software and/or Hardware.
2.1 This document was created using a template from SEQ Legal (www.seqlegal.com).
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force for a period of twelve calendar months from the Effective Date and then indefinitely subject to termination in accordance with Clause 18.
4.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
- the Services may only be used by the officers, employees, agents and subcontractors of the Customer;
- the Services must not be used at any point in time by more than the number of users licenced by this agreement providing that the Customer may add or remove user licences;
- the Customer is responsible for all Users of the Service;
- the customer is responsible for the control of all Users access rights to the Service.
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Services;
- the Customer must not permit any unauthorised person to access or use the Services; and
- the Customer must not republish or redistribute any content or material from the Services.
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Services using an administrator Account.
4.6 The Provider shall use reasonable endeavours to maintain the availability of the Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Services, but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer's computer systems or networks;
- any breach by the Customer of this Agreement; or
- scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with the acceptable usage policy set out within Clause 13 of this agreement, and must ensure that all persons using the Services with the authority of the Customer or by means of an administrator Account comply with acceptable usage policy set out within Clause 13 of this agreement;
4.9 The Customer must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services.
4.10 The Customer must not use the Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
4.13 The Provider has the right, in their sole discretion, to revise, update, or otherwise modify the Services or alter access to the Services. For material changes, to the extent reasonably possible, the Provider will provide the Customer with reasonable notice either posted on the website and/or via email. The Customer may reject any changes to the Services by discontinuing use of the Services to which such changes relate. Continued use of the Services will constitute acceptance of and agreement to such changes.
5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall where practicable give to the Customer at least 5 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services, without prejudice to the Provider's other notice obligations under this main body of this Agreement.
5.3 The Provider shall give to the Customer at least 5 Business Days’ prior written notice of the application of an Upgrade to the Platform.
5.4 The Provider shall provide the Maintenance Services with reasonable skill and care.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill and care.
6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
7.2 The Customer warrants to the Provider that the Customer Data or the use of the Customer Data by the Provider in accordance with this Agreement will not:
- breach the provisions of any law, statute or regulation;
- infringe the Intellectual Property Rights or other legal rights of any person; or
- give rise to any cause of action against the Provider,
- in each case in any jurisdiction and under any applicable law.
7.3 The Provider does not make any guarantees that there will be no loss of Data. The Provider expressly excludes liability for any loss of Data no matter how caused. The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Services to the state they were in at the time the back-up was taken.
7.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
7.5 The Title to, and all Intellectual Property Rights of the Customer Data remain the Customers’ property. However, the Customer and/or Users’ access to the Customer Data is contingent on full payment of all outstanding Charges in respect to the Service.
8. No assignment of Intellectual Property Rights
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9.1 The Customer is allowed to use the Services for a trail period of 30 days without charge and without obligation to continue the use the Services.
9.2 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
9.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
9.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation following the initial 12 Month period.
10.1 The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
10.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 11.
10.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
10.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
- charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
- claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11. Provider's confidentiality obligations
11.1 The Provider must:
- keep the Customer Confidential Information strictly confidential;
- not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
- use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
- act in good faith at all times in relation to the Customer Confidential Information; and
- not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
- is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
- is or becomes publicly known through no act or default of the Provider; or
- is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
11.5 The provisions of this Clause 11 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.
12. Data protection
12.1 The Customer warrants to the Provider 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, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998 and the General Data Protection Regulation 2018).
12.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
- it will act only on instructions from the Customer in relation to the processing of that Personal Data; and
- it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data;
13. Usage Limitations
Use of the Service may be subject to limitations, including but not limited to monthly volumes that the customer and/or Users are permitted to make against the Service. Any such limitations will be advised.
14.1 The Provider warrants to the Customer that:
- the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
- the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
- the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
14.4 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
- modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
- procure for the Customer the right to use the Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in 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 or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be entirely secure.
15.3 The Customer acknowledges that the Services require a copy of the Microsoft Silverlight application to be installed on any client computer. The Provider gives no warranty or representation regarding any availability or use of the Microsoft Silverlight application, and the Provider does not warrant or represent that the Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16. Limitations and exclusions of liability
16.1 Nothing in this Agreement will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
- are subject to Clause 16.1; and
- govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
16.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
16.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
16.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.
16.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
16.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 16.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.
16.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
16.10 The Provider to the Customer in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement in the 6 month period preceding the commencement of the event or events.
16.11 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement in the 6 month period preceding the commencement of the event or events.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
- promptly notify the other; and
- inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 Either party may terminate this Agreement following the initial 12 month period by giving to the other party at least 30 days' written notice of termination.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- 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
- if that other party is an individual:
- that other party dies;
- as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
- that other party is the subject of a bankruptcy petition or order.
18.4 Upon termination of this Agreement the Provider will permanently delete all Customer Data by giving the Customer at least 30 days' written notice of deletion.
19. Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23.
19.2 The termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within 30 days following the termination of this Agreement for any reason:
- the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
- the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties' other legal rights.
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 20.2:
- delivered personally or sent by recorded signed-for post, in which case the notice shall be deemed to be received upon delivery; or
- as deemed appropriate by the Provider sent by electronic communication (email) in which case the notice shall be deemed to be received 1 Business Day following transmission.
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.2 The Provider's contact details for notices under this Clause 20 are as follows:
Repton Projects Limited,
Telephone : +44 (0) 845 194 7041
20.3 The addressee and contact details set out in Clause 20.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
21.1 The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 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.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with English law.
22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.