These terms and conditions (the “Terms and Conditions”) govern the provision, use of, and/or access to the Products and together with the Order Form, constitute a binding legal agreement between you as the customer identified in the Order Form (“Customer”) and Soft Tech (this “Agreement”). In the event of a conflict between these Terms and Conditions and the Order Form, the Order Form shall prevail to the extent of the conflict.
Customer agrees that by either: 1) signing the Order Form; or 2) accessing, downloading, installing, using, or receiving any of the Products; it is agreeing to be bound by the terms of this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
“Affiliates” means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time, where “control” means direct or indirect ownership of at least 50% of the voting shares of any body corporate, or any comparable equity or ownership interest or the legal power to direct or cause the direction of the general management of any organisation (including any partnership, firm, trust, body corporate, government, government body, authority, agency, unincorporated body or association);
“Authorised Users” means any of Customer’s employees, agents and non-employee consultants authorised or enabled by Customer to access and/or use the Software;
“Business Day” means a day, other than a Saturday, Sunday or public holiday in the Location, when banks are open for business;
“Business Hours” means the normal business hours of Soft Tech on any Business Day;
“Contract Start Date” means such date as is specified on the Order Form;
“Content” means any catalogues, databases, templates, or other data or content in any format which Soft Tech makes accessible to Customer during the Term as specified in the Order Form.
“Customer Data” means any non-Soft Tech data inputted by Customer or Authorised Users, or by Soft Tech on Customer’s behalf, into the Software or for the purpose of using the Software or facilitating Customer’s use of the Software;
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the Location including, where applicable, the General Data Protection Regulation ((EU) 2016/679); the UK’s Data Protection Act 2018; UK GDPR; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
“Documentation” means specifications, manuals, handbooks, maintenance libraries, and other publications or media in whatever form supplied or made available to Customer or to which Customer has been given access to in connection with the Products. Documentation includes but is not limited to the information accessible to Customer at the Website.
“Fees” means the fees specified in the Order Form;
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software (including source code, object code, firmware, operating systems and specifications), database rights, rights to use, and preserve the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Licence” means the Customer’s right to use the Software specified as a License in the Order Form and Licensed Software shall be interpreted accordingly.
“Location” means the country the Customer’s address stated on the Order Form is located in;
“Maintenance” means the Software updates, Content access rights, Content updates, and standard level of Soft Tech support during Business Hours linked to a License(s), as specified in the Order Form .
“Minimum Period” unless stated otherwise in the Order Form, means a period of 12 months from the Contract Start Date;
“Order Form” means the “Order Form” entered into between Customer and Soft Tech for the Products;
“Payment Date” means a due date for payment of Fees in accordance with the Order Form;
“Permitted Purpose” means Customer’s normal internal business purposes;
“Products” means the Software, Content, Maintenance, and/or Services specified in the Order Form.
“Services” means the training, consultancy, configuration, customisation, onboarding, or similar such services set out in the Order Form.
“Soft Tech” means the Soft Tech entity specified in the Order Form;
“Software” means the software specified on the Order Form;
“Subscription” means any combination of the Software access rights, Content access rights, Software and Content updates, and standard Soft Tech support during Business Hours specified as a Subscription in the Order Form.
“Term” has the meaning given in Clause 11.1;
“Third Party Software” means software programs proprietary to third parties; and
“Year” means a period of 12 months beginning on the Contract Start Date or any anniversary of the Contract Start Date.
2. THE PRODUCTS
2.1 The Order Form states whether:
(a) Software access is provided as a Subscription; or
(b) Software usage is authorised under a Licence.
2.2 A Licence does not include any Customer rights to Software updates, Content access rights, Content updates, or any Soft Tech support. Maintenance is therefore commonly purchased with Licences.
2.3 In consideration of Customer’s payment of the Fees, and subject at all times to Customer’s compliance with the terms of this Agreement, Soft Tech grants Customer:
(a) a non-exclusive, non-transferable, non-sub-licensable right to permit Authorised Users to access the Subscriptions and Maintenance for the Permitted Purpose from the Location during the Term on the terms of this Agreement (including the Documentation); and
(b) a perpetual, non-exclusive, non-transferable, non-sub-licensable right to permit Authorised Users to use the Licences for the Permitted Purpose in the Location on the terms of this Agreement (including the Documentation).
2.4 Authorised Users who are ordinarily based in the Location shall be permitted, acting reasonably, to access and use the Products while outside the Location from time to time, provided such access and use is made on a limited basis during business travel.
2.5 Customer is responsible for all acts and omissions of each Authorised User and any and all use of the Products by such Authorised Users.
2.6 Soft Tech’s support obligations for Maintenance are only in respect of the most current version of the Software and Content.
2.7 If Customer’s Maintenance lapses for less than 12 months, Customer may reinstate Maintenance by paying the Maintenance fees that would have been due for the whole lapsed period and a reinstatement administrative fee of ten percent (10%) of the annual Maintenance fees. Where Maintenance has lapsed for more than 12 months, the Customer will have to purchase a new Software License, with Maintenance, at the then current price in Soft Tech’s price book.
3. RESTRICTIONS ON USE
3.1 Customer shall not use the Software or Content for any purpose other than the Permitted Purpose or use, copy, sell, transfer, rent, lease, distribute or deal with the Software or Content in any way other than as expressly permitted by this Agreement.
3.2 Customer shall not permit the use of the Software or Content by, or for the benefit of, any person other than Authorised Users as necessary for such Authorised Users’ performance of their duties to Customer. Customer shall only allow Authorised Users access to the Software and/or Content for the duration and in the quantity specified in this Agreement.
3.3 Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Software and Content and notify Soft Tech immediately in the event of any such unauthorised access or use.
3.4 Customer may not, and shall not attempt to, copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the Software or Content in whole or in part.
3.5 Customer shall not, and shall ensure that all Authorised Users shall not, access all or any part of the Software or Content in order to build a product or service which competes with the Software or Content.
3.6 Customer shall not access, store, distribute, transmit or permit the introduction of any viruses, or any material during the course of its use of the Subscriptions that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Soft Tech reserves the right, without liability or prejudice to its other rights exercisable against Customer, to disable Customer’s access to any material that breaches the provisions of this section.
3.7 Customer shall not use original versions of any Customer Data with the Products. Customer should only use copies of Customer Data with the Products. Customer shall be responsible for maintaining the originals of all such Customer Data. If Customer uses any original versions of Customer Data with the Products it does so at its own risk and understands that Soft Tech will not be responsible or liable for any loss, corruption, or unavailability of such original Customer Data resulting from its use with the Products.
3.8 Customer is responsible for retaining and keeping in good working order all software or hardware dongles, software activation keys, and/or other materials provided by Soft Tech for the activation and proper functioning of the Products. Soft Tech is not required to provide new or replacement versions of any such materials unless they are proven to have been issued defective.
4. PROVISION OF SERVICES
4.1 In consideration of Customer’s payment of the Fees, and subject at all times to Customer’s compliance with the terms of this Agreement, Soft Tech will provide Customer with the Services described in the Order form (including any statement of works attached to or incorporated into such Order Form), according to the terms of the Agreement.
4.2 Any timelines, resources or costs specified for a Service or otherwise concerning a Service are Soft Tech’s good faith estimates and do not constitute a warranty of price or completion of Services within a specified time.
4.3 All Services are subject to such limitations and conditions as are notified by Soft Tech from time to time.
4.4 Soft Tech is not liable to the Customer for any delay or failure to perform its obligations under this Agreement if the delay or failure is caused or contributed to by an event that is beyond Soft Tech’s reasonable control (including events caused or contributed to by third parties, software malfunction or the Customer’s failure to comply with this Agreement).
4.5 All Services are deemed to be completed on Soft Tech providing a notice of completion to the Customer.
5. CUSTOMER’S OBLIGATIONS
5.1 Customer shall provide Soft Tech with
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by Soft Tech in order to discharge Soft Tech’s obligations under this Agreement, including but not limited to Customer Data, security access information and configuration services.
5.2 Customer shall:
(a) without affecting Customer’s other obligations under this Agreement, comply with all applicable laws and regulations with respect to Customer’s activities under this Agreement;
(b) carry out its responsibilities set out in this Agreement in a timely and efficient manner;
(c) ensure that the Authorised Users use the Products in accordance with the terms and conditions of this Agreement;
(d) obtain and maintain all necessary licences, consents, and permissions necessary for Soft Tech and its contractors and agents to perform their obligations under this Agreement;
(e) ensure that its network and systems comply with the relevant specifications provided by Soft Tech from time to time; and
(f) from time to time check the Documentation and Website for any updates relating to the Products or this Agreement.
5.3 Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.4 Customer shall be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Soft Tech’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.
5.5 Customer shall:
(a) for named user Subscription access, not allow anyone other than the individual named user to access the relevant Subscription, ensure that each Authorised User keeps a secure password for their use of the Subscriptions, and ensure that each Authorised User shall keep their password confidential and not share it with anyone else. In order to transfer a Subscription from one named user to another, the original named user Subscription must first be permanently de-activated. Customer accepts that it may take up to 24 hours for such transfer to take effect;
(b) for non-named user Software/Subscription access, ensure that the maximum number of Authorised Users shall not exceed the maximum number of users specified in the Order Form. Soft Tech allows the transfer of usage rights of such non-named user Software between Authorised Users, however Customer accepts that it may take up to 24 hours for such transfer to take effect;
(c) keep a complete and accurate record of Customer’s use of the Software and its Authorised Users, and produce such record to us on request from time to time; and
(d) without prejudice to any other rights or remedies available to Soft Tech, pay, for broadening the scope of the rights granted under this Agreement to cover any unauthorised use (whether identified pursuant to Clause 6 or otherwise), an amount equal to the fees which Soft Tech would have levied (in accordance with Soft Tech’s normal commercial terms then current) had Soft Tech licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in Clause 10.4, from the date of commencement of unauthorised use.
CUSTOMER SHALL PERMIT SOFT TECH TO INSPECT AND HAVE ACCESS TO ANY PREMISES (AND TO THE COMPUTER EQUIPMENT LOCATED THERE) AT OR ON WHICH THE SOFTWARE AND/OR CONTENT IS BEING KEPT OR USED, AND HAVE ACCESS TO ANY RECORDS KEPT IN CONNECTION WITH THIS AGREEMENT, FOR THE PURPOSES OF ENSURING CUSTOMER’S COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, PROVIDED THAT SOFT TECH PROVIDES REASONABLE ADVANCE NOTICE TO CUSTOMER OF SUCH INSPECTIONS, WHICH SHALL TAKE PLACE DURING BUSINESS HOURS.
7. INTELLECTUAL PROPERTY
7.1 Customer acknowledges and agrees that Soft Tech (or its licensors) retain ownership of all rights including Intellectual Property Rights in the Products and Documentation and all enhancements, updates, developments, releases and modifications thereof, and that Customer shall have no rights in or to the Products other than the right to use, access, or receive the benefit of the relevant Products in accordance with the terms of this Agreement.
7.2 Customer agrees to do or procure to be done all such further acts and things and the execution of all such other documents as may be required from time to time to give full effect to the foregoing.
7.3 Soft Tech agrees to indemnify Customer for costs and damages (including legal fees) finally awarded for third party claims based on a finding of infringement of any patent, copyright, or trademark resulting from Customer’s use of the Products (or any part thereof) in accordance with the terms of this Agreement and the Documentation (“Claim”). Customer shall tender the defence to Soft Tech, and Soft Tech may elect to take control of the defence of a Claim at its discretion. If Soft Tech assumes the defence, then it will have sole authority to retain counsel, prepare and present the defence, and settle the Claim.
This Clause 7.3 shall not apply where the Claim in question is attributable to: i) possession or use of the Products (or any part thereof) other than in accordance with the terms of this Agreement (including the Documentation); ii) use of the Products in combination with any hardware, software, data, or workflows not supplied or specified by Soft Tech; iii) Soft Tech’s compliance with Customer’s specifications where such specifications require Soft Tech to modify the Products; or iv) use of a non-current release of a Product (provided a current release has been made available to Customer).
7.4 If any third party makes a Claim, or notifies an intention to make a Claim, Soft Tech’s obligations under Clause 7.3 are conditional on:
(a) as soon as reasonably practicable, Customer giving written notice of the Claim to Soft Tech, specifying the nature of the Claim in reasonable detail;
(b) Customer not making any admission of liability, agreement or compromise in relation to the Claim without Soft Tech’s prior written consent;
(c) Customer giving Soft Tech and its professional advisers access at reasonable times (on reasonable prior notice) to Customer’s premises and officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within its power or control, so as to enable Soft Tech and its professional advisers to examine them and to take copies (at Soft Tech’s expense) for the purpose of assessing, defending and settling the Claim; and
(d) Customer taking such action as Soft Tech may reasonably request to avoid, dispute, compromise or defend the Claim.
7.5 If any Claim is made, or in Soft Tech’s reasonable opinion is likely to be made, Soft Tech may at its sole option and expense:
(a) procure the right for Customer to continue to use the Products (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the Products so that it ceases to be infringing;
(c) replace the Products with non-infringing Products; or
(d) terminate this Agreement immediately by notice in writing to Customer and refund any of the Fee paid by Customer as at the date of termination (less a reasonable sum in respect of Customer’s use of the Products prior to the date of termination) on return of the Products.
7.6 Notwithstanding any other provision in this Agreement, Clause 7.3 shall not apply to the extent that any Claim arises directly or indirectly through the possession or use of any Third Party Software or through the breach of any applicable third party terms by Customer.
7.7 This Clause 7 constitutes Customer’s exclusive remedy and Soft Tech’s only liability in respect of Claims.
8. WARRANTIES AND LIABILITY
8.1 Soft Tech:
(a) warrants that the Licensed Software when used in accordance with this Agreement and the Documentation, will perform substantially in accordance with the Documentation for ninety (90) days from first receipt (“Warranty Period”);
(i) As Customer’s exclusive remedy, if Soft Tech is notified in writing during the Warranty Period, Soft Tech will make reasonable efforts to correct errors in the Licensed Software that prevent it performing substantially as described in the Documentation or, at its option, Soft Tech will replace the Licensed Software. This warranty does not cover any errors or failure in the Software when caused directly or indirectly by incompatibility with or failures of hardware, other software, firmware products or data supplied by Customer or any third party;
(b) undertakes to use commercially reasonable efforts to make available the Subscriptions and Maintenance to the Customer during the Term, except during maintenance (whether planned or unscheduled) periods; and
(c) undertakes that the Services shall be performed in a professionally competent and workmanlike manner.
8.2 The express terms of this Agreement are, to the extent legally permitted, in lieu of all other conditions, warranties, undertakings, obligations or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.3 AS THE PURCHASER, CUSTOMER ACKNOWLEDGES THAT NO PROMISE, REPRESENTATION OR UNDERTAKING HAS BEEN MADE BY SOFT TECH TO ANY PERSON OR COMPANY ON ITS BEHALF IN RELATION TO THE FITNESS FOR PURPOSE OF, OR ANY CONSEQUENCE OR BENEFITS TO BE OBTAINED FROM, THE DELIVERY AND USE OF THE PRODUCTS OR ANY ACCOMPANYING MANUALS OR WRITTEN MATERIALS. SUBJECT TO THE EXPRESS TERMS OF THIS AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS” AND SOFT TECH GIVES NO REPRESENATION OR WARRANTY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR PURPOSE OF THE SOFTWARE NOR DOES SOFT TECH WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER CONFIRMS THAT IT HAS RELIED UPON ITS OWN SKILL AND JUDGEMENT IN DECIDING TO ACQUIRE THE PRODUCTS AND ANY ACCOMPANYING MANUALS OR WRITTEN MATERIALS FOR ITS USE. CUSTOMER ACCEPTS RESPONSIBILITY FOR THE SELECTION OF THE PRODUCTS TO ACHIEVE ITS INTENDED RESULTS AND ACKNOWLEDGES THAT THE PRODUCTS HAVE NOT BEEN DEVELOPED TO MEET ITS INDIVIDUAL REQUIREMENTS.
8.4 Soft Tech does not warrant that:
(a) the information obtained through the Products will meet Customer’s requirements; or
(b) the Products will be free from vulnerabilities or viruses.
8.5 Soft Tech is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.6 Soft Tech shall in no circumstances be liable to Customer or any person claiming under or through Customer, whether in contract, tort (including negligence, breach of statutory duty, or otherwise), arising under or in connection with this Agreement for any loss of profits, sales, business, economic advantage or opportunity, or revenue, business interruption, loss of anticipated savings, loss or corruption of data or information, loss of business opportunity, goodwill or reputation, in each case whether direct or indirect, or for any other special, indirect, punitive, exemplary, or consequential loss, damage or expenses. Other than the losses for which Soft Tech is not liable, Soft Tech’s maximum aggregate liability under or in connection with this Agreement, including in respect of Claims, whether in contract, tort (including negligence) or otherwise, with respect to losses suffered or incurred by Customer in any Year, shall in all circumstances be limited to a sum equal to the Fees actually received by Soft Tech under this Agreement during that Year. Soft Tech shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
8.7 Nothing in this Agreement shall limit or exclude Soft Tech’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation, breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 or any other liability that cannot be excluded or limited by applicable law.
9. THIRD PARTY PROVIDERS
9.1 Customer acknowledges and agrees that the Products may include or reference Third Party Software, the quality and accuracy of which is out of Soft Tech’s control. Soft Tech will under no circumstances be liable to Customer in respect of any actions, proceedings, claims, demands, damages or costs (including legal fees) of any nature, whether direct or indirect, arising from any deficiency or inaccuracy in Third Party Software. Customer acknowledges that its use of Third Party Software may be subject to additional terms imposed by the relevant third party and that its agreement to such terms may be required in order to use the Software as envisaged by this Agreement.
9.2 Customer shall indemnify and hold Soft Tech harmless against any loss or damage which it may suffer or incur as a result of Customer’s breach of any third party terms to which Customer is bound pursuant to Clause 9.1, howsoever arising. Soft Tech may treat any breach by Customer of such third party terms as a breach of this Agreement.
10. FEES AND TAXES
10.1 Customer agrees to pay the Fees as set out in the Order Form.
10.2 Unless otherwise stated in the Order Form:
(a) all Fees shall be invoiced monthly following the Contract Start Date; and
(b) all Fees must be paid by Customer within 15 days of receipt of Soft Tech’s invoice.
10.3 Unless specified otherwise in the Order Form, Soft Tech reserves the right to increase the Fees on an annual basis with effect from 1 January by the percentage increase in an appropriate local consumer prices index in the preceding 12-month period plus a percentage mark-up determined at Soft Tech’s sole discretion.
10.4 If Customer fails to make any payment due by the due date for payment, then (without limiting Soft Tech’s other remedies), Soft Tech may reclaim debt recovery costs in accordance with statute and/or charge statutory interest, such interest to accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.
10.5 Soft Tech reserves the right to amend the Fees and/or general pricing for the Products at any time, provided that Soft Tech gives at least three (3) months’ prior written notice of such pricing/Fee change, and no such pricing/Fee change takes effect during the Minimum Period.
10.6 In respect of any partly or fully cloud based applications only, if, at any time whilst using the Subscription, Customer exceeds any amount of disk storage space which has been agreed between the parties, Soft Tech shall charge Customer, and Customer shall pay, Soft Tech’s then current excess data storage fees.
10.7 The Fees do not include any local, state, provincial, federal or national sales, use, excise, personal property, value-added, import/export, digital, or other similar taxes or duties, which may be assessed in connection with the Products. If any such taxes or duties are applicable they will be added to Soft Tech’s invoices to Customer. If Soft Tech must initially pay such assessments, Customer agrees to reimburse Soft Tech within thirty (30) days after receipt of Soft Tech’s invoice. Taxes based upon Soft Tech’s income are the sole responsibility of Soft Tech.
10.8 The Fees are completely net of any amounts in respect of any withholding taxes that may be applicable upon payments by Customer. If any withholding taxes are deemed to be applicable on settlements made by Customer to Soft Tech, Customer agrees that it shall on its own accord gross-up the Fees due under this Agreement in a fashion that net amounts received after such withholding yield back the prices and rates under the Agreement. In such case, Customer shall deduct the withholding taxes from such grossed-up amounts and pay such withholding taxes directly to the appropriate governmental authority.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Contract Start Date and shall continue for the Minimum Period and thereafter until terminated in accordance with this Clause 11 (Term and Termination) (the “Term”).
11.2 Either party may terminate this Agreement without cause at any time following expiry of the Minimum Period by giving the other party at least three months’ prior written notice. Customer will remain liable for Fees for the period up to and including the month in which the effective date of termination occurs.
11.3 Either party may terminate this Agreement immediately by written notice to the other party if the other party commits a material or persistent breach of this Agreement which it fails to remedy (if capable of remediation) within thirty (30) days of notice requiring it to do so. Any failure by Customer to pay any Fees by the applicable due date shall be deemed a material breach of this Agreement for the purposes of this Clause 11.3.
11.4 Soft Tech may terminate this Agreement immediately by written notice if Customer has a receiver, administrative receiver or an administrator appointed, passes a resolution for winding up or are subject to an order to that effect from a court of competent jurisdiction, becomes subject to an administration order, enters into a voluntary arrangement with its creditors, or anything equivalent to any of the foregoing occurring under national or local law (except where for the purposes of a solvent and bona fide amalgamation or reorganisation).
11.5 On termination for any reason:
(a) all rights granted to Customer under this Agreement shall cease;
(b) Customer must immediately cease all activities authorised by this Agreement;
(c) Customer must immediately and permanently delete or remove the Software and Content from all computer equipment it has been installed on, and immediately destroy or return to Soft Tech (at Soft Tech’s option) all copies of the Software and Content in Customer’s possession, custody or control;
(d) Customer must immediately pay any sums due under this Agreement, which shall include any Fees for the period up to and including the month in which the effective date of termination occurs;
(e) Soft Tech may take such measures as it deems reasonable and appropriate to prevent Customer accessing, downloading, installing or using the Products;
(f) any provision of this Agreement that is expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect; and
(g) such termination shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry including the right to claim damages in respect of any breach of the Agreement.
Each party shall, during the Term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
13. DATA PROTECTION
13.1 Both parties shall comply with all applicable requirements of Data Protection Legislation. This Clause 13 is in addition to, and does not relieve, remove or replace, either party’s obligations or rights under Data Protection Legislation.
13.2 Both parties acknowledge that:
(a) if Soft Tech processes any personal data on Customer’s behalf when performing Soft Tech’s obligations under this Agreement, Customer is the controller and Soft Tech is the processor for the purposes of Data Protection Legislation;
(b) Schedule 1 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject; and
(c) the personal data may be transferred or stored outside the UK, the EEA and/or the Location in order to perform Soft Tech’s obligations under this Agreement.
13.3 Without prejudice to the generality of Clause 13.1, Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Soft Tech for the duration and purposes of this Agreement so that Soft Tech may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf.
13.4 Without prejudice to the generality of Clause 13.1, Soft Tech shall, in relation to any personal data processed on Customer’s behalf in connection with the performance of Soft Tech’s obligations under this Agreement:
(a) process that personal data only on Customer’s written instructions unless Soft Tech is required by any applicable laws to process personal data;
(b) not transfer any personal data outside of the UK or the European Economic Area unless the following conditions are fulfilled:
(i) Customer or Soft Tech has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Soft Tech complies with its obligations under Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Soft Tech complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the personal data;
(c) assist Customer, at Customer’s cost, in responding to any request from a data subject and in ensuring compliance with Customer’s obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify Customer without undue delay on becoming aware of a personal data breach;
(e) at Customer’s written direction, delete or return personal data and copies thereof to Customer on termination of the Agreement, unless Soft Tech is required by any applicable laws to retain the personal data; and
(f) maintain complete and accurate records and information to demonstrate Soft Tech’s compliance with this Clause 13 and immediately inform Customer if, in Soft Tech’s reasonable opinion, an instruction infringes Data Protection Legislation.
13.5 Both parties shall ensure that they have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of that party’s systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by that party).
13.6 Customer consents to Soft Tech appointing any third party processors of personal data under this Agreement. Soft Tech confirms that it will enter into written agreements with the third party processors which reflect the requirements of Data Protection Legislation. As between Customer and Soft Tech, Soft Tech shall remain fully liable for all acts or omissions of any third party processors appointed by Soft Tech pursuant to this Clause 13.6.
13.7 Without prejudice to the provisions of Clause 16, Soft Tech may, at any time on not less than 30 days’ written notice, revise this Clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
14. USAGE DATA
14.1 Customer hereby consents to Soft Tech’s use of the Software and other software tools (including cookies) to collect data relating to the way Customer and its Authorised Users use the Products (“Usage Data”). Usage Data may include:
(a) statistical data relating to how the Products are used by Soft Tech’s customers; and
(b) anonymised versions of the designs, projects, used catalogues and other business related information, each of which is collected from Customer’s use of the Products.
14.2 Customer hereby further consents to Soft Tech’s storage, retention, processing and use of the Usage Data for the purposes of (1) detecting and preventing breaches of network security, the law, or this Agreement; (2) capacity planning and the operation and improvement of the Products and any of Soft Tech’s current or future products and services; and (3) customising, obtaining feedback on and marketing the Software and any of Soft Tech’s current or future products and services.
14.3 For the avoidance of doubt, with respect to Usage Data, Soft Tech shall at all times comply with Data Protection Legislation and its obligations under Clause 13. To the extent Usage Data contains any personal data, this Clause 14 shall be considered to be Customer’s written instructions for the purposes of Clause 13.4(a).
15.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
15.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
Soft Tech may update the terms of this Agreement at any time on 30 days’ written notice to Customer. Customer’s continued use of any Products following the receipt (or deemed receipt) of such notice shall constitute Customer’s acceptance to the terms of this Agreement, as varied. If Customer does not wish to accept the terms of the Agreement (as varied) Customer must immediately notify Soft Tech of such non-acceptance and stop accessing and using the Products. Following any notice of non-acceptance, Soft Tech shall discuss whether (at its sole discretion) any alternative arrangements can be made, failing which Soft Tech shall notify Customer that the Agreement shall be terminated.
17. EVENTS OUTSIDE SOFT TECH’S CONTROL
Soft Tech will not be liable or responsible for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond Soft Tech’s reasonable control. In such circumstances Soft Tech’s obligations under this Agreement will be suspended and the time for the performance of Soft Tech’s obligations will be extended for the duration of the event outside of its control.
18.1 Customer shall not assign, transfer, sub-license, novate, charge or otherwise deal with any or all of its rights or obligations under this Agreement in whole or in part without Soft Tech’s prior written consent. Soft Tech may at any time assign, transfer, sub-license, novate, charge or otherwise deal with any or all of its rights and obligations under this Agreement.
18.2 Notwithstanding the confidentiality restrictions in this Agreement Soft Tech may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party as is appropriate to disclose for the purposes of the proposed assignment.
19.1 Any notice given to Customer under or in connection with this Agreement shall be sent by email to Customer’s email address as provided in the Order Form. Any notice given to Soft Tech under or in connection with this Agreement shall be sent by email to Soft Tech’s email address as provided in the Order Form.
19.2 Any notice shall be deemed to have been served at the time of transmission, or, if this time falls outside Business Hours, when Business Hours resume.
19.3 Where any provision of this Agreement requires notice to be made in writing, such notice may be made by email in accordance with this Clause 19.
20. THIRD PARTIES
This Agreement does not confer any rights on any person or party (other than Customer and Soft Tech and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Soft Tech and Customer and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to the Products. Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set out in this Agreement. Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this Clause 21 shall limit or exclude any liability for fraud.
22. LEGACY TERMS AND CONDITIONS
If Soft Tech (or an Affiliate) and Customer (or an Affiliate) have any agreements in place prior to the Contract Start Date (“Legacy Agreements”) in respect of products or services similar to the Products, Soft Tech and Customer agree (where applicable on behalf of their respective Affiliates who they each confirm they have authorization to act on behalf of) to these Terms and Conditions replacing the terms and conditions governing the Legacy Agreements as of the Contract Start Date.
23. NO EXCLUSIVITY
Subject to Clause 3.5, this Agreement shall not prevent either party from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted and, if possible, shall be replaced with a lawful provision which as closely as possible gives effect to the intention of the parties, and where possible that shall not affect the validity and enforceability of the rest of the Agreement.
25. RIGHTS CUMULATIVE
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26. NO PARTNERSHIP
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27. NO WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
28. GOVERNING LAW AND JURISDICTION
28.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
28.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the Contract Start Date.
PROCESSING OF PERSONAL DATA
1. The nature and purpose of personal data processing
Soft Tech will process personal data in accordance with this Agreement from the Contract Start Date until the expiry or valid termination of this Agreement.
Soft Tech shall process personal data for the following purposes:
• to provide services to Customer (including updates and troubleshooting);
• to provide support to Customer;
• to improve and develop Soft Tech’s products;
• to personalise Soft Tech’s products; and
• to operate Soft Tech’s business (including meeting legal obligations and analysing performance).
2. The types of personal data to be processed:
Soft Tech will process the following categories of personal data:
• email addresses;
• telephone numbers; and
• postal addresses.
3. The categories of data subjects to whom personal data relates
• Soft Tech will process personal data relating to Customer, Customer’s employees and end customers.