1.1 The definitions and rules of interpretation in this clause apply in these terms of business.
You/Your: a party to which We supply any goods or services.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.
Modification: any Maintenance Release.
Open-Source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
Software: the computer programs and any Modification We supply which is acquired by You.
Specification: the document detailing the specification of the Software.
We/Us/Our: Infinity Contact Centre Software Limited (company registration: 03571737).
1.2 The headings in these terms of business do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these terms of business.
1.3 Unless the context otherwise requires:
(a) references to We and You include permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
(c) references to one gender includes a reference to the other genders; and
(d) references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them.
1.4 In the case of conflict or ambiguity between any provision contained in the body of these terms of business and any provision contained in any software supply or rental agreement schedules or appendices, the provision in the body of these terms of business shall take precedence.
1.5 Words in the singular include the plural and those in the plural include the singular.
2. SUPPLIER’S WARRANTIES
2.1 We warrant that the Software will conform in all material respects to the Specification for a period of [90 days] from the date on which You start using the Software (Warranty Period). If, within the Warranty Period, We are notified by You in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from You, or anyone acting with the authority of You, having amended the Software or used it outside the terms of these terms of business for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software We have not provided, or it has not been loaded onto Supplier-specified or suitably configured equipment, We shall have the option, to do one of the following:
(a) repair the Software;
(b) replace the Software; or
(c) terminate these terms of business immediately by notice in writing to You and refund any of the fee paid by You as at the date of termination (less a reasonable sum in respect of Your use of the Software to the date of termination) on return of the Software and all copies thereof,
provided You provide all the information that may be necessary to assist Us in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable We to re-create the defect or fault.
2.2 We do not warrant that the use of the Software will be uninterrupted or error-free.
2.3 You accept responsibility for the selection of the Software to achieve its intended results and acknowledge that the Software has not been developed to meet Your individual requirements.
2.4 Any Open-Source Software provided by Us may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 2.5.
2.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these terms of business or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
3. LIMITS OF LIABILITY
3.1 Except as expressly stated in clause 3.2:
(a) We shall not in any circumstances have any liability for any losses or damages which may be suffered by You (or any person claiming under or through You), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if We were aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this clause 3.1(a) shall not prevent claims for loss of or damage to Your tangible property that fall within the terms of clause 3.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 3.1(a);
(b) the total liability of Us, whether in contract, tort (including negligence) or otherwise and whether in connection with these terms of business or any collateral contract, shall in no circumstances exceed a sum equal to the fee; and
(c) You agree that, in entering into these terms of business, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these terms of business or (if you did rely on any representations, whether written or oral, not expressly set out in these terms of business) that you shall have no remedy in respect of such representations and (in either case) We shall have no liability in any circumstances otherwise than in accordance with the express terms of these terms of business.
3.2 The exclusions in clause 2.5 and clause 3.1 shall apply to the fullest extent permissible at law, but We do not exclude liability for:
(a) death or personal injury caused by the negligence of Us, Our officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) 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
(d) any other liability which may not be excluded by law.
3.3 All dates supplied by Us for the delivery of the Software or the provision of Services shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
3.4 All references to “We/Us/Our” in this clause 3 shall, for the purposes of this clause and clause 10 only, be treated as including all employees, subcontractors and suppliers of Us, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 10.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 You acknowledge that all Intellectual Property Rights in the Software and any Modifications or developments thereof belong and shall belong to Us, and You shall have no rights in or to the Software other than the right to use it in accordance with the terms of these terms of business.
4.2 We undertake at Our own expense to defend You or, at Our option, settle any claim or action brought against You alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of these terms of business infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against You as a result of or in connection with any such Claim. For the avoidance of doubt, clause 4.2 shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by You other than in accordance with the terms of these terms of business, use of the Software in combination with any hardware or software not supplied or specified by Us if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.[/vc_column_text][/vc_column]
(a) as soon as reasonably practicable, giving written notice of the Claim to Us, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Us (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving Us and Our professional advisers access at reasonable times (on reasonable prior notice) to Your premises and Your officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of You, so as to enable Us and its professional advisers to examine them and to take copies (at Our expense) for the purpose of assessing the Claim; and
(d) subject to Us providing security to You to Your reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as We may reasonably request to avoid, dispute, compromise or defend the Claim.
4.4 If any Claim is made, or in Our reasonable opinion is likely to be made, against You, We may at Our sole option and expense:
(a) procure for You the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of these terms of business;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate these terms of business (and any contracts or course of dealings to which they apply) immediately by notice in writing to You and refund any of the Fee paid by You as at the date of termination (less a reasonable sum in respect of Your use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if We modify or replace the Software, the modified or replacement Software must comply with the warranties contained in clause 2.1 and You shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of these terms of business been references to the date on which such modification or replacement was made.
4.5 Notwithstanding any other provision in these terms of business, clause 4.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any Open-Source Software incorporated into the Software or through the breach of any third party licence relating to any Open-Source Software so incorporated.
4.6 This clause 4 constitutes Your exclusive remedy and Our only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 3.1.
No failure or delay by a party to exercise any right or remedy provided under these terms of business or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in these terms of business, the rights and remedies provided under these terms of business are in addition to, and not exclusive of, any rights or remedies provided by law.
7. ENTIRE AGREEMENT
7.1 These terms of business, the schedules and the documents annexed as appendices to these terms of business or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
7.2 Each party acknowledges that, in entering into these terms of business and the documents annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to these terms of business or not) (Representation) other than as expressly set out in these terms of business or those documents.
7.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in these terms of business.
7.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of these terms of business shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.1 If any court or competent authority finds that any provision of these terms of business (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these terms of business shall not be affected.
9.2 If any invalid, unenforceable or illegal provision of these terms of business would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10. THIRD-PARTY RIGHTS
A person who is not a party to these terms of business shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms of business, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
11. NO PARTNERSHIP OR AGENCY
Nothing in these terms of business is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
12. FORCE MAJEURE
Neither party shall in any circumstances be in breach of these terms of business nor liable for delay in performing, or failure to perform, any of its obligations under these terms of business if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for [NUMBER] weeks/months, the party not affected may terminate these terms of business by giving [14 days’] written notice to the other party.
13.1 Any notice or other communication required to be given under these terms of business shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication as set out below:
(a) Us: 3rd Floor, Quayside Tower, Broad Street, Birmingham, UK, B1 2HF.
(b) You: at Your registered office.
or as otherwise specified by the relevant party by notice in writing to each other party.
13.2 Any notice or other communication shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this clause;
(b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
(c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
13.3 A notice or other communication required to be given under these terms of business shall not be validly given if sent by e-mail.
13.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14. GOVERNING LAW AND JURISDICTION
14.1 These terms of business 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 law of England and Wales.
14.2 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 these terms of business or its subject matter or formation (including non-contractual disputes or claims).