Terms & Conditions
MultiFreight
Terms & Conditions
Terms and Conditions relating to the provision of Hosted Services:
The Supplier’s attention is particularly drawn to clause 11 (Limitation of Liability).
(1) MultiFreight Ltd incorporated and registered in England and Wales with company number 2917939 whose registered office is at Multifreight House, Cromwell Court, Ipswich, Suffolk, IP1 1XB ( Supplier).
(2) The person whose name and address is set out in the Outline Proposal (Customer).
AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreement: mean the agreement entered into between the Supplier and the Customer incorporating those terms and conditions and the Outline Proposal.
Authorised Users: those employees, agents and independent contractors of the Customer who are entitled to use the Software through the Hosted Services under this agreement, as further described in clause 2.2.
Business Day: any day which is not a Saturday, Sunday or public holiday.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.2.
Customer Data: the data inputted into by the Customer, Authorised Users, or by the Supplier on the Customer’s behalf for the purpose of using the Hosted Services or facilitating the Customer’s use of the Hosted Services.
Hosted Services: the subscription services provided by the Supplier to the Customer under this agreement. More particularly described in the Outline Proposal.
Normal Business Hours: [9.00am to 5.00pm] local UK time, each Business Day.
Outline Proposal: the specification of the Hosted Services provided to the Customer by the Supplier, to which this agreement is annexed.
Software: the online software application provided by the Supplier as part of the Hosted Services.
Start Date: the date of this agreement or such other date as may be specified in the Outline Proposal.
Support Services Policy: the Supplier’s policy for providing support in relation to the Hosted Services which are contained in the Outline Proposal.
User Fees: the monthly subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Outline Proposal and clause 3.
User Subscription: the user subscription purchased by the Customer pursuant to clause 3.1 which enables Authorised Users to access and use the Hosted Services in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
2. HOSTED SERVICES
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.1 and clause 4.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Hosted Services during the continuance of this agreement solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Hosted Services shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Hosted Services;
2.2.3 each Authorised User shall keep a secure password for his use of the Hosted Services and Documentation, and that each Authorised User shall keep his password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
2.2.5 it shall permit the Supplier to audit the Hosted Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Outline Proposal within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not:
2.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
2.3.1.1 and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.3.1.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.3.2 access all or any part of the Hosted Services in order to build a product or service which competes with the Hosted Services;
2.3.3 use the Hosted Services to provide services to third parties;
2.3.4 subject to clause 16.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Hosted Services available to any third party except the Authorised Users;
2.3.5 attempt to obtain, or assist third parties in obtaining, access to the Hosted Services, other than as provided under this clause 2.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hosted Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.5 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. CHARGES AND PAYMENT
3.1 The Customer shall pay the User Fee monthly in arrearsfor each Authorised User.
3.2 The User Fee is calculated by reference to the Authorised Users who were registered for the Hosted Services in the month prior to invoice subject to clause 4 below, save in the case of the first payment only where the User Fee shall be calculated by reference to the number of Authorised Users specified in the Outline Proposal.
3.3 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
3.4 The Supplier shall invoice the Customer monthly in arrears for all Hosted Services to be performed by the Supplier in the subsequent month. Each invoice is due and payable 7 days after the invoice date. If the Supplier has not received payment within five days after the due date, and without prejudice to any other rights and remedies of the Supplier:
3.4.1 the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Hosted Services and the Supplier shall be under no obligation to provide any or all of the Hosted Services while the invoice(s) concerned remain unpaid; and
3.4.2 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC Plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
3.5 The Supplier shall be entitled to increase User Fees annually, upon not less than 30 days prior written notice to the Customer.
3.6 If paying by direct debit, please note that Multifreight Ltd. has appointed the BACS Approved Direct Debit Bureau, Eazy Collect Services Limited (www.eazycollect.co.uk), to collect your payments. SCS-Multifreight will be shown on your bank statement for these direct debit payments.
4. ADDITIONAL AUTHORISED USERS
4.1 The Customer shall have the ability to purchase additional User Subscriptions in excess of the number stated in the Outline Proposal or reduce the number of Authorised Users. The Customer shall be charged the User Fee by the Supplier in respect of each additional Authorised User.
4.2 If during a month, the Customer increases or decreases the number of Authorised Users under this clause then the amount charged to the Customer in its next invoice shall be for the highest number of Authorised Users registered during the month to which the invoice relates.
4.3 The Customer will be charged the full Monthly User Fee for each additional Authorised User whether or not the additional Authorised User has been registered for a whole month or a part month.
5. HOSTED SERVICES
5.1 The Supplier shall, during the Subscription Term, provide the Hosted Services to the Customer on and subject to the terms of this agreement.
5.2 The Supplier shall use commercially reasonable endeavours to make the Hosted Services available 24 hours a day, seven days a week, except for:
5.2.1 planned maintenance carried out as far as possible outside business hours.
5.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours notice in advance.
5.3 The Supplier will, as part of the Hosted Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
6. CUSTOMER DATA
6.1 The Customer shall own all rights, 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 the Customer Data.
6.2 The Supplier shall not be liable for any loss, damage or destruction of any of the Customer Data and the Customer is responsible for ensuring adequate back-up of the Customer Data.
6.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and the Customer shall comply with the Data Protection Act 1998 in respect of such data.
7. SUPPLIER’S OBLIGATIONS
7.1 The Supplier undertakes that the Hosted Services will be performed with reasonable skill and care.
7.2 Notwithstanding the foregoing, the Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communication networks and facilities including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall provide the Supplier with all necessary co-operation in relation to this agreement; and all necessary access to such information as may be required by the Supplier in order to render the Hosted Services.
8.2 The Customer shall ensure that all the Authorised Users use the Hosted Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this Agreement.
9. CONFIDENTIALITY
9.1 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party.
9.2 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.3 This clause 9 shall survive termination of this agreement, however arising.
10. INDEMNITY
10.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software or Hosted Services.
10.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.2.1 the Supplier is given prompt notice of any such claim;
10.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
10.2.3 the Supplier is given sole authority to defend or settle the claim.
10.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.3.1 a modification of the Hosted Services by anyone other than the Supplier; or
10.3.2 the Customer’s use of the Hosted Services in a manner contrary to the instruction given to the Customer by the Supplier; or
10.3.3 the Customer’s use of the Hosted Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
10.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in this agreement:
11.1.1 the Customer assumes sole responsibility for results obtained from the use of the Software and the Hosted Services by the Customer. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and
11.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
11.2 Nothing in this agreement excludes the liability of the Supplier:
11.2.1 for death or personal injury caused by the Supplier’s negligence; or
11.2.2 for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.2:
11.3.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
11.3.2 the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to two times the price paid for the Services during the 6 months preceding the date on which the claim arose.
12. TERM AND TERMINATION
12.1 This agreement shall commence on the Start Date and subject to clause 12.2 shall continue thereafter until terminated by either party by providing the other with not less than 30 days’ prior written notice of termination, provided that such termination shall take effect at the end of a period to which a User Fee paid by the Customer relates.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement immediately without liability to the other if:
12.2.1 the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
12.2.2 either party enters into insolvency proceedings, is wound up or enters into an agreement with their creditors.
12.3 On termination of this agreement for any reason:
12.3.1 all licences granted under this agreement shall immediately terminate;
12.3.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
12.3.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14. SEVERANCE
If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15. ENTIRE AGREEMENT
15.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
16. ASSIGNMENT
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
16.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17. NO PARTNERSHIP OR AGENCY
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).
18. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
19. NOTICES
19.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
19.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
20.2 The parties irrevocably agree that the courts of England 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 date stated at the beginning of it.
Terms and conditions for the provision of support and maintenance services between:
(1) Multifreight Ltd incorporated and registered in England and Wales with company number 2917939 whose registered office is at MultiFreight House, Cromwell Court, Ipswich Suffolk IP1 1XB (Supplier).
(2) (Customer)
The Customer’s attention is particularly drawn to the provision of clause 6.
The Supplier has supplied and licensed the Software to the Customer under the terms of the Licence and has agreed to provide support and maintenance for such Software on the terms set out in the Contract.
AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in the Contract.
“Charges:” the charges payable for the Services under the Outline Specification.
“Contract” the contract between the Supplier and the Customer for the Services, consisting of the Outline Proposal and these terms and conditions.
“Contract Year:” any 12-month period ending on any anniversary of the date of this agreement.
“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.
“Licence:” the licence entered into between the Supplier and the Customer in respect of the Services.
“Maintenance Release:” a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software.
“Outline Proposal:” The proposal between the Supplier and the Customer setting out the Services, which for the avoidance of doubt form part d of the Contract.
“Services:” the services as set out in the Outline Proposal
“Software: ” has the same meaning as in the Licence.
“Standard Support Hours:” [9.00 am to 5.00 pm] Monday to Friday, except on days which are bank holidays in England.
“Term:” shall commence on the date of the Contract and, subject to termination in accordance with the provisions of the Contract, shall continue for a fixed term of one year. After expiry of the fixed term, the supply of the Services shall continue under the Contract from year to year until terminated by either party giving the other no less than 12 months prior written notice to the other to expire at the end of the next Contract Year of the Term.
“Third-Party Licences:” any open-source software licences incorporated into the Software including the general public licence (if applicable), and any proprietary third-party software licences.
“Third-Party Software:” any open-source software incorporated into the Software and any proprietary third-party software.
2. THE SERVICES
2.1 The Supplier shall supply, and the Customer shall take and pay for, the Services during the Standard Support Hours throughout the Term.
2.2 The Supplier shall have no obligation to provide the Services where faults arise from:
2.2.1 misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by the Supplier), including failure or fluctuation of electrical power;
2.2.2 use of the Software in combination with any equipment or software not designated by the Supplier for use with the Software, or any fault in any such equipment or software;
2.2.3 relocation or installation of the Software by any person other than the Supplier or a person acting under the Supplier’s instructions;
2.2.4 any breach of the Customer’s obligations under this agreement or having the Software maintained by a third party;
2.2.5 any modification, change or update not authorised by the Supplier;
2.2.6 operator error;
2.2.7 the Customer failing to maintain or install any Maintenance Releases to the Software; or
2.2.8 any failure or fault of any Third Party Software.
3. CHARGES
3.1 In consideration of the Services, the Customer shall pay the Charges set out in the Outline Proposal annually in advance within 7 days of the date of the Supplier’s invoice.
3.2 The Customer shall pay all costs (at the Supplier’s then prevailing rates) and expenses incurred by the Supplier for:
3.2.1 work carried out by the Supplier in connection with any fault which is not covered by this agreement:
3.2.2 incurred wholly and exclusively for the purpose of providing on-site support as part of the Services;
3.2.3 incurred for the supply of the Services outside of the Standard Support Hours;
3.2.4 limitation of the Supplier of any new Maintenance Release.
3.3 If the Customer fails to pay any amount payable by it under this agreement, the Supplier may charge the Customer interest on the overdue amount, payable by the Customer immediately on demand, from the due date up to the date of actual payment at the rate of 4% a year above the base rate for the time being of HSBC Plc. Such interest shall accrue on a daily basis and be compounded quarterly.
3.4 All amounts payable under the Contract shall be exclusive of VAT.
3.5 The Supplier may increase the charges with effect from each anniversary of the date of the Contract. As standard we review the Office of National Statistics website www.ons.gov.uk for the latest RPI of which the increase is based upon.
3.6 The Customer may not withhold payment of any sum by reason of any set-off of any claim or dispute with the Supplier whether relating to the quality or performance of the Services or otherwise.
3.7 If paying by direct debit, please note that Multifreight Ltd. has appointed the BACS Approved Direct Debit Bureau, Eazy Collect Services Limited (www.eazycollect.co.uk), to collect your payments. SCS-Multifreight will be shown on your bank statement for these direct debit payments.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 All Intellectual Property Rights in the Software shall belong to the Supplier, and the Customer shall have no rights in respect of any of the Software except as expressly granted under this agreement.
5. THE CUSTOMER’S RESPONSIBILITIES
5.1 The Customer shall ensure that the Software is operated in a proper manner by the Customer’s employees.
5.2 The Customer shall:
5.2.1 co-operate with the Supplier in performing the Services and provide any assistance or information as may reasonably be required by the Supplier, including in relation to the diagnosis of any faults;
5.2.2 report faults promptly to the Supplier; and
5.2.3 keep full backup copies of all of its data.
5.3 The Customer shall ensure that the Software is kept up to date and maintained, and any Maintenance Releases provided by the Supplier are installed. Failure to maintain the Software will be deemed a material breach and the Supplier may terminate this agreement in accordance with clause 8.
6. LIMITS OF LIABILITY
6.1 Except as expressly stated in clause 6.2:
6.1.1 the Supplier shall have no liability for any loss or damage which may be suffered by the Customer (or any person claiming under or through the Customer), 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:
6.1.1.1 special damage, even though the Supplier was aware of the circumstances in which such special damage could arise;
6.1.1.2 loss of profits;
6.1.1.3 loss of anticipated savings;
6.1.1.4 loss of business opportunity;
6.1.1.5 loss of or goodwill;
6.1.1.6 loss of, or damage to (including corruption of), data;
provided that this clause 6.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 6.1.3 or any other claims for direct financial loss that are not excluded above;
6.1.2 the Customer agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than in accordance with the express terms of the Contract; and
6.1.3 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with the Contract or any collateral contract, shall in no circumstances exceed a sum equal to twice the Charges paid by the Customer in respect of the Contract Year in which the liability arises.
6.2 The Supplier does not exclude liability for death or personal injury or any other liability which cannot be excluded by law.
6.3 All dates supplied by the Supplier for the provision of Services shall be treated as approximate only. The Supplier shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
6.4 The Customer shall comply with the Third-Party Licences and shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with the Customer’s breach of the terms of any such Third-Party Licences.
6.5 The Supplier may treat the Customer’s breach of any Third-Party Licence as a breach of this licence.
7. ASSIGNMENT AND SUBCONTRACTING
7.1 The Customer shall not assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed).
7.2 The Supplier may at any time assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this agreement, provided it gives written notice to the Customer.
8. TERMINATION
8.1 Without prejudice to any rights that have accrued under the Contract or any of its rights or remedies, either party may at any time terminate the Contract with immediate effect by giving written notice to the other party if:
8.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after the due date;
8.1.2 the other party commits a material breach of any term of the Contract (other than failure to pay any amounts due under the Contract) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
8.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
8.1.4 the other party commences insolvency proceedings, is wound up or enters into an arrangement with its creditors.
8.2 The Contract shall automatically terminate on termination or expiry of the Licence.
8.3 On termination of the Contract for any reason, the Customer’s right to receive the Services shall cease automatically and each party shall as soon as reasonably practicable return all of the other party’s equipment and materials.
8.4 On termination of this agreement for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to the Supplier. The Supplier shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.
9. SEVERANCE
If any court or competent authority finds that any provision of this agreement (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 the Contract shall not be affected.
10. THIRD-PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
11. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under this agreement 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 180 days or more, the party not affected may terminate the Contract by giving 30 days’ written notice to the other party.
12. GOVERNING LAW AND JURISDICTION
The Contract 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.
The Customer’s attention is drawn particularly to the provision of clause 9.
1. INTERPRETATION
The definitions and rules of interpretation in this clause apply in this licence.
“Fee:” the fee specified in the Outline Proposal.
“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 Agreement:” the form of maintenance agreement for the Software
“Maintenance Release:” release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“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).
“Outline Proposal:” the specification of the Software as agreed between the parties
“Software: ” the computer programs as set out in the Outline Proposal and any Maintenance Release
“Source Code Materials:” the source code of the Software, and all technical information and documentation required to enable the Customer to modify and operate it.
“Third-Party Licences:” any licences relating to any open-source software, including the general public licence (if applicable), and any proprietary Third-Party Software licences.
“Third-Party Software:” any open-source software relating to the supplier software and any proprietary third-party software.
2. INTERPRETATION
The Supplier shall deliver one copy of the Software in executable form to the Customer at the address for the Customer (stated above).
3. LICENCE
In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence for the full period of the copyright in the Software commencing on and including the date of this licence to use the Software subject to clause 11.
4. FEES
4.1 The Customer shall pay to the Supplier the Fee.
4.2 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4.3 If the Customer fails to pay any amount payable by it under this licence the Supplier may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of HSBC plc. Such interest shall accrue on a daily basis and be compounded quarterly.
4.4 If paying by direct debit, please note that Multifreight Ltd. has appointed the BACS Approved Direct Debit Bureau, Eazy Collect Services Limited (www.eazycollect.co.uk), to collect your payments. SCS-Multifreight will be shown on your bank statement for these direct debit payments.
5. SCOPE OF USE
5.1 For the purposes of clause 3, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
5.2 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer.
6. MAINTENANCE RELEASES
The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
7. CONFIDENTIALITY AND PUBLICITY
7.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) 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, without limitation, 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 licence, 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.
7.2 The terms of this licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
8. SUPPLIER’S WARRANTIES
8.1 The Supplier warrants that the Software will conform in all material respects to the Outline Proposal for a period of 90 days from the date of this licence (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier 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 the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence 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 not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:
8.1.1 repair the Software;
8.1.2 replace the Software; or
8.1.3 terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
8.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
8.4 Any Open-Source Software provided by the Supplier 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 8.5.
8.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence 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.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in clause 9.2:
9.1.1 the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), 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:
9.1.1.1 special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
9.1.1.2 loss of profits;
9.1.1.3 loss of anticipated savings;
9.1.1.4 loss of business opportunity;
9.1.1.5 loss of goodwill;
9.1.1.6 loss or corruption of data,
9.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to twice the Fee; and
9.1.3 the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in clause 8.5 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents or fraud or fraudulent misrepresentation.
9.3 All dates supplied by the Supplier for the delivery of the Software [or the provision of Services] shall be treated as approximate only. The Supplier shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4 The Customer shall comply with the Third-Party Licences and shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of such terms.
9.5 The Supplier may treat the Customer’s breach of any Third-Party Licence as a breach of this licence.
10. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that all Intellectual Property Rights in the Software and any Modifications belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
11. DURATION AND TERMINATION
11.1 Either party may at any time terminate the licence with immediate effect by giving written notice to the other party if:
11.1.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
11.1.2 the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified [in writing] to do so;
11.1.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
11.1.4 any party commences insolvency proceedings, is wound up or enters into an agreement with its creditors;
11.1.5 the Maintenance Agreement terminating for any reason.
11.2 Termination by either party in accordance with the rights contained in this clause 11 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
11.3 On termination for any reason:
11.3.1 all rights granted to the Customer under this licence shall cease;
11.3.2 the Customer shall cease all activities authorised by this licence;
11.3.3 the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
11.3.4 the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
11.4 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
12. ASSIGNMENT
The Customer shall not sub-license, assign or novate the benefit or burden of this licence in whole or in part; or allow the Software to become the subject of any charge, lien or encumbrance; or deal in any other manner with any or all of its rights and obligations under this agreement.
13. ENTIRE AGREEMENT
This licence, and the documents 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.
14. SEVERANCE
If any court or competent authority finds that any provision of this agreement (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 this agreement shall not be affected.
15. GOVERNING LAW AND JURISDICTION
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 law of England and Wales.