TERMS & CONDITIONS
Please read these Terms and Conditions carefully before deciding to enter into a contract to use the Solution and Services of Fusion Ticket Solutions Ltd of 24 Stanton Close, Earley, Reading, RG7 7DX, a company registered in England with registered number 7439885. By clicking the “accept” button in our Application Form you agree to be legally bound by these Terms and Conditions, as they may be modified and posted on our website from time to time.
If you do not wish to be bound by these Terms and Conditions you may not use our Solution and Services.
You can print out these Terms and Conditions by clicking on the print icon on your browser.
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Definitions
In this Agreement the following terms shall have the following meanings:
‘Annual Fee’
means the annual fee set out in the Application Form payable for the use of the Services during the Term;
‘Agreement’
means these Terms and Conditions and the Schedules, together;
‘Amateur Group’
means an organisation comprising members not individually paid for their services to the group;
‘Authorised Users’
means employees, consultants or contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Services online;
‘Charities’
means organisations established for charitable purposes only;
‘Company’
means Fusion Ticket Solutions Ltd;
‘Confidential Information’
means any and all information in any form relating to the Company or the Customer, or the business, prospective business, technical process, computer software (both source code and object code), IPR or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Solution or Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from such information and shall include but not be limited to names, addresses, bank details, mailing lists, organisation charts, information relating to products, services, research, technology, customers, business plans, promotional and marketing materials, financial information and business information;
‘Consequential Loss’
means pure economic loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
‘Customer’
means a person or organisation registering with the Company for the purposes of using or intending to use the Hosting Services;
‘Customer Data’
means all data imported into the Solution or Services or generated by the Solution or Services that constitutes personally identifiable information of the Customer, including without limitation, financial information;
‘Disclosure Request’
means a request under the Freedom of Information Act 2000 or similar legislation, including without limitation the Environmental Information Regulations 2004 or the Data Protection Act 1998 for a party to disclose Confidential Information, including for the avoidance of doubt a request to disclose whether or not such information is actually held by a party;
‘Documentation’
means the online help files, training files or written instructions manuals relating to the use of the Services, as well as any additional documentation that the Company specifically creates for the Customer or otherwise provides to the Customer to assist in the corrections of any issue with the Services;
‘Functional Description’
means the description of the Solution set out in section 5 of this Agreement;
‘Effective Date’
means the date that the Solution and Software is made available to the Customer;
‘Event’
means an occasion to be promoted for which tickets and or places are to be offered;
‘Fees’
means the fees set out in the Application Form payable by the Customer during the Term of this Agreement, plus any Other Fees added to this Agreement during the Term;
‘Force Majeure’
means anything outside the reasonable control of a party, including but not limited to fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where the Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data) transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
‘Hosting Services’
means the services set out in section 10 of this Agreement for hosting the Solution;
‘Illegal Content’
means any data or content which promotes terrorism, is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
‘IPR’
means intellectual property rights, which include but are not limited to all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
‘Maintenance and Support Services’
means the maintenance and support services set out in section 10 of this Agreement for maintenance and support of the Solution;
‘Application Form’
means the signed order form applicable to this Agreement;
‘Other Fees’
means any additional fees payable by the Customer during the Term of this Agreement set out in any subsequent application form signed by the parties and added to this Agreement after the Effective Date. The amount of such additional fees shall be set out in such application form;
‘Other Services’
means any additional services to be provided to the Customer during the Term of this Agreement set out in any subsequent application form signed by the parties and added to this Agreement after the Effective Date;
‘Schedules’
means the Application Form;
‘Seats Sold’
means seats or places purchased for promoted Events;
‘Services’
means the Maintenance and Support Services and the Hosting Services, plus any Other Services added to this Agreement during the Term;
‘Solution’
means the software application Fusion Ticket described in more detail in the Functional Description;
‘Term and Conditions’
means this Agreement excluding the Application Form;
‘Term’
means the period starting from the Effective Date and ending on the date that this Agreement is terminated;
‘Time Validity’
means the period for which the Services will be provided as specified in the Application Form;
‘Travel Fees’
means all reasonable costs associated with any travel and subsistence expenses incurred by the Company (or its employees, permitted subcontractors or agents) in performing its obligations under this Agreement.
Services and Solution
The Customer engages the Company and the Company agrees to provide the Solution and Services in accordance with the terms of this Agreement from the Effective Date for the Term.
If the Customer wishes to purchase additional Services after the Effective Date, such Services shall be set out.
Licence to use the Solution and Services
The Customer and Authorised Users are granted a non-exclusive, non-transferable licence to use the Solution and Services (including any associated IPR and Confidential Information) from the Effective Date for the Term. Such licence permits the Customer to access the software or other information necessary for the Customer to receive the Solution and Services via the Internet. No additional implied rights are granted beyond those specifically mentioned in this section 3.1.
The parties acknowledge that the Solution and Services include third party owned open source components. Where such third party open source components are incorporated into the Solution or Services use of these components will be subject to the terms of any applicable GPL Licence or any third party licence granted to the Company.
Unless otherwise specified in this Agreement, the Solution and Services are provided and may only be used in conjunction with (i) the Customer’s existing systems and applications in order to facilitate the Customer’s transactions with its clients; (ii) providing access to Services solely to Authorised Users; and (iii) access and use of the Documentation as necessary to enable use of the Services. The Customer may not (i) lease, loan, resell, assign, licence, distribute or otherwise permit access to the Solution and Services; or (ii) use the Solution or Services to provide ancillary services related to the Solution or Service; or (iii) permit access to or use of the Solution or Services by or on behalf of any third party, except as permitted in this Agreement. The Company reserves the right to electronically monitor the Customer’s use of the Solution and Services.
All IPR and title to the Solution, Services and Documentation (save to the extent these incorporate any Customer Data, IPR, or trade mark, or third party owned software) shall remain with the Company and/or its licensors and subcontractors and no interest or ownership in the Solution, Services, the IPR or otherwise is transferred to the Customer under this Agreement.
Notwithstanding the Customer’s statutory rights, other than language translation no right to modify or adapt, the Solution or Services or create derivative works from the Solution or Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain any source code for the software comprised within the Solution or Services. Customers shall have no FTP or similar access to the files from which the Solution is constituted.
Subject to the statutory rights of the Customer, disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Solution or Services is prohibited.
The Customer is not allowed to remove any proprietary marks or copyright notices from the Solution or Services and must display a “powered by Fusion Ticket” logo on all websites on which the Solution and Services are used.
The Customer shall own and retain sole ownership of all Customer Data and its pre-existing IPR.
The Customer grants the Company a non-exclusive, non-transferable revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
The Company can disable the Services if the Customer breaches any of the terms of this Agreement and in particular if the Customer promotes the use of illegal or pornographic films, until such breach ceases to continue.
Term and Termination
This Agreement shall commence on the Effective Date for the Term.
Either party may terminate this Agreement immediately, with cause, if the other party (i) ceases or threatens to cease or carry on business; or (ii) is unable to pay its debts; or (iii) enters into compulsory insolvency or voluntary liquidation; or (iv) has an administrator, receiver, manager or similar official appointed; or (v) is affected by a similar event under the law of any other jurisdiction; or (vi) a Force Majeure event lasts for more than 28 days
Either party may terminate this Agreement for material breach of any term by giving the breaching party written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 10 days of receipt of the notice.
The Company can terminate this Agreement with immediate effect if the Customer has used or permitted use of the Solution and Services other than in accordance with this Agreement.
Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. The following sections shall survive the expiry or termination of this Agreement and shall remain in full force and effect, 3 (Licence), 4 (Term and Termination), 7 (Fees and Invoicing), 8 (Payment Terms), 9 (Data Protection), 12 (Liability), 13 (indemnities), 15 (Confidential Information), 16 (Assignment and Relationship between the Parties) and 18 (miscellaneous).
Upon termination of this Agreement the Company shall immediately cease providing the Solution and Services to the Customer and all licences granted hereunder shall terminate. The Customer shall promptly pay the Company all unpaid Fees. The Company will return Customer Data stored in the Company’s database. Such data shall be returned in its then current format, free of charge. If the Customer requires the data to be returned in a different format the Company reserves the right to charge for this additional service. Provided that this Agreement has not been terminated due to the Customer’s breach of contract, the Company will provide reasonable assistance and information to enable the Customer Data to be transitioned to a new platform. Such assistance will be charged for on a time and materials basis.
Functional Description
The Solution provides software for a ticket box office and online ticket sales service for Events organised and promoted by the Customer.
The Solution provides a web-based shop and point of sale box office with form based administration permitting the setting up of Events with multiple seating categories, ticket discounts, electronic payment handlers, optional seating plans, a choice of delivery methods and multiple points of sale. It is the responsibility of the Customer to manage the administration, promote Events and handle all consumer transactions that utilise the Solution. The Solution is based on but not necessarily identical to the open source Fusion Ticket software.
Free Trial Period
Subject to section 6.2 below, all Customers may use the Solution and Services free of charge until they have published or promoted 4 events in total during the Term. Once four Events have been promoted or published, an Annual Fee shall be become payable for continued use of the Solution and Services.
Amateur Groups and Charities are permitted to use the Solution and Services free of charge in each calendar year of the Term, provided that they do not publish or promote more than 4 Events in total in any calendar year. If this maximum is exceeded in any calendar year, the Customer will automatically be upgraded and become liable to pay an Annual Fee for use of the Solution and Services in any relevant calendar year.
Fees and Invoicing
Details of our prices and the procedure for payment are displayed on our website at www.fusionticket.com You must pay using Paypal at the time of ordering. The price for the Solution and Services is the price in force at the date and time of your order. The Company may change the price of the Solution and Services before you place an order. The Company is entitled to refuse any order placed by you.
The Company shall invoice the Customer the Fees set out in the Application Form. All invoices shall be issued in US dollars. All Fees exclude any Value Added Tax legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
If the number of Events promoted or published, Seats Sold or Time Validity exceeds those specified in the Application Form during the Term the Customer will be required to purchase an upgrade or additional capability. Customers will be contacted via an online dialogue box within the Solution detailing the available upgrade and price options. To ensure that the Customer continues to receive uninterrupted Services, payment should be made by Paypal at the time of ordering the amended Services. Prices for Services not shown in the dialogue box will be provided on application. The Company may refuse to provide prices for Services not relevant to the Solution.
Fees shall be invoiced electronically as set out in the Application Form or any subsequent application form.
The Company may on each subsequent anniversary of the Effective Date, increase the Fees by no more than 2% above the UK Retail Price Index.
Payment Terms
The Customer shall pay the Company the Fees for the provision of the Solution and Services under this Agreement.
Fees become payable immediately upon the conclusion of the Free Trial at which time the Customer will be contacted via an online dialogue box within the Solution asking the Customer to complete payment for continued use of the Services or to confirm their termination of the Agreement.
Fees are payable annually in advance unless specified otherwise in the dialogue box.
The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
Data Protection
Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
To the extent that personal data is processed using the Solution and Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. The Company agrees that it will only process personal data on behalf of, and in the name of, the Customer.
The Customer shall ensure that the personal data, which it supplies or discloses to the Company, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit the Company to transfer personal data to third parties pursuant to its obligations under this Agreement.
The Company confirms that it (i) merely acts as a data processor; (ii) will only process data in accordance with the instructions of the data controller; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.
If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
Service Levels
The Company reserves the right to change or modify the service levels specified in this section 10 and will post changes or modifications thereto, on our website. Except as set forth in this Agreement, the Company makes no claims regarding the availability or performance of its network or servers. Specific terms/points may be adjusted on an individual basis by the Company and the Customer entering into a specific service level agreement which must be signed and agreed between the parties in writing. The terms of any individual service level agreement shall prevail over the terms of this section 10.
The Company uses servers from established providers that strive to maintain extremely high service levels by the use of fault redundant hardware and comprehensive monitoring systems. Uptime can however be affected or influenced by external factors. Customers shall not receive any credits under this Agreement in connection with any failure or deficiency of the network caused by Force Majeure or resulting from acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, earthquake, tornado, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
The Services may be subject to outages resulting from both technical and personnel resource limitations. An "outage” is defined as an instance in which a Customer is unable to transmit and receive IP packets due to a service failure for more than 15 consecutive minutes, excluding service failures relating to the Company’s scheduled maintenance and upgrades.
Faulty hardware is rare, but cannot be predicted nor avoided. Faulty hardware affecting performance levels of equipment will be replaced as soon as possible, this includes hardware issues that cause server crashes or speed issues. Hardware failure resulting in complete network/server outage/downtime will also be corrected as soon as possible. Router failure may require on-site engineers or backbone provider emergency personnel to correct the problem. Router failure is governed by current contracts with external companies and backbone providers in regard to the emergency repair service in case of such an issue.
The Company shall not be liable for any connectivity issues affecting the availability of the Solution or Services caused by the Customer not using suitable hardware, software and telecommunications equipment to access the Internet and the Solution and Services.
Representations and Warranties
Each party warrants and represents that (i) it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) its execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party; and (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
The Company warrants and represents that it has the right to licence the Solution and Services.
Provided that the Customer is paying a Fee for the use of the Services, the Company warrants and represents that the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice and that the Services will comply with the service levels set out in section 10 of this Agreement.
Provided that the Customer is paying a Fee for the use of the Solution, the Company warrants and represents that the Solution will operate to provide in all material respects the facilities and functions implemented by the Company as set out in the Functional Description. If there is a breach of this warranty, the Company shall use reasonable commercial endeavours, to correct any material defect or to replace the defective Solution. Notwithstanding the aforesaid, the Company shall only be obliged to remedy any material defect if (i) the Customer notifies the Company in writing immediately upon discovering the defect; and (ii) following the Company’s examination of the Solution, it is established that such a defect exists.
The warranties in sections 1.2 to 11.4 inclusive shall not cover deficiencies or damages relating to (i) any third party components not provided by the Company; or (ii) any third party provided connectivity necessary for the provision or use of the Solution and Services; or (iii) compliance with third party software or products, non-Company programmes or data used in combination with the Solution or Services, or (iv) a failure of the Solution to conform with the Functional Description caused by the use or operation of the Solution by the Customer with an application or in an environment other than that set out in the Agreement; or (v) modifications made to the Solution not carried out by the Company.
Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to all implied warranties of satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law. No warranty is made regarding the results the Customer can achieve from using the Solution and Services nor that the Solution and Services will operate uninterrupted or error free.
No warranties are given for use of the Solution and Services during any free trial periods.
The Customer warrants that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement.
The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Solution and Services granted under this Agreement is limited as set out under this Agreement. In particular the Customer shall treat any identification, password or username or other security device for use of the Solution and Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing.
Liability
The parties do not exclude or limit their liability to each other for fraud, death or personal injury caused by any negligent act.
The parties shall not be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
The parties shall not be liable for any loss of profits (whether direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
Subject to sections 12.1 to 12.3 inclusive the Company’s total liability to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement, including any indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Customer to the Company during the 12 month period prior to the date on which any such claim arose.
The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users who access the Services and Solutions as if such acts, omissions or negligence had been committed by the Customer itself.
The Customer shall not raise any claim under this Agreement more than 1 year after (i) the discovery of the circumstances giving rise to a claim; or (ii) the effective date of termination or expiry of this Agreement.
The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and has not relied on any representation made by the other, their employees or agents.
Indemnities
The Company, at its own expense, shall (i) defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any IPR by the Solution or Services (excluding any claim deriving from any Customer provided item); and (ii) pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim; (b) the Company is given sole control of the defence and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
If all or part of the Solution or Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company shall at its own expense and sole discretion (i) procure for the Customer the right to continue to use the Solution or Service or the affected part thereof; (ii) replace the Solution or Service or affected part with another suitable non-infringing service or software; (iii) modify the Solution or Services or affected part to make the same non-infringing.
The Company shall have no obligations under sections 13.1 and 13.2 above to the extent that a claim is based on (i) the combination, operation or use of the Solution or Services with other services or software not provided by the Company if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Solution or Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
The Customer shall indemnify and hold the Company and its employees and sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from (i) any claimed infringement or violation by the Customer or an Authorised User of any IPR with respect to use of the Solution or Services outside of the scope of this Agreement; or (ii) use by the Company of any Customer Data or Customer provided item, including in particular storage or publication on the Internet of any Illegal Content; or (iii) any access to or use of the Solution or Services by an Authorised User or an unauthorised third party; (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer or an Authorised User; and (v) any breach of this Agreement by an Authorised User. Furthermore, the Company shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet and breaches of third party rights from continuing.
Subject to sections 13.1 to 13.4 inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceedings or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from and failure by the first party to comply with the terms of this Agreement or otherwise. This indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
Security and Customer Technical Infrastructure
The Company shall permit the Customer to specify which Authorised Users may access the Services and Solution through its standard application security options.
The Customer, Authorised Users must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
The Customer is responsible for ensuring that its computer system meets all relevant technical specifications necessary to use the Solution and Services. The Company does not guarantee or warranty that the Solution or Services will be free from infection, viruses and/or other code that has contaminating or destructive properties. You are responsible for implementing sufficient procedures and virus checks to satisfy your particular requirements for the accuracy of data input and output.
The Company may suspend access to the Solution and Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services or Solution is in danger of being compromised by acts of the Customer or Authorised Users. The Company shall where possible give the Customer 24 hours prior written notice, before suspending access to the Services and Solution, giving specific details of its reasons.
Confidential Information
Each party may use the Confidential Information of the disclosing party only for the purposes of this Agreement. Each party must keep confidential all Confidential Information of the disclosing party except to the extent (if any) that the recipient of any Confidential Information is required by law or any regulatory, governmental or other authority with relevant powers to which either party is subject (except in relation to Disclosure Requests which shall be subject to sections 15.5 and 15.6 below) to disclose the Confidential Information.
A receiving party may disclose the Confidential Information of the disclosing party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement.
Both parties agree to return or destroy all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
The obligation of confidentiality under this Agreement does not extend to information that (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the Effective Date, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.
If either party receives a Disclosure Request such party shall (i) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (ii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this section 15 and without limitation, all information falling within the definition of Confidential Information as set out in section 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is (i) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or (ii) a trade secret of the disclosing party; and (iii) information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
Assignment and Relationship between Parties
No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies.
The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.
Contacts
The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions.
The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Services.
Miscellaneous
Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
Except with respect to the Customer’s obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to a Force Majeure event, then that party’s obligation will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
In the event of any inconsistency between the contents of the Terms and Conditions and the Application Form, the Terms and Conditions shall prevail followed by the Application Form. If after the Effective Date any subsequent application form is signed by the parties and added to this Agreement during the Term and there is a conflict between the terms of such subsequent application form, its attachments and the Terms and Conditions, the Terms and Conditions shall prevail over the terms of the subsequent application form and its attachments, unless specifically stated otherwise in the application form.
This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or acknowledged fax to a party at the address given for that party in the Application Form.
Neither party shall make any public statement, press release or other announcement relating to the terms margin-top: 0.21cm orArial, sans-serif existencP CLASS=e ofwestern this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid the Company may use the Customer’s name and trade marks (logo only) to list the Customer as a client of the Company on its website and in other marketing materials and information.
Dispute Resolution
The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.
If any such dispute cannot be settled amicably through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief technology officer of the Company and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with section 20 below.
Governing Law and Jurisdiction
This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
