Terms and Conditions of Use
- Definitions and interpretation
- In these Conditions the following definitions apply:
Additional User means a User above the number of Users specified in the applicable ordering document.
Conditions means the Supplier’s terms and conditions of supply set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Services, plans, software, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between the Supplier and the Customer for the supply and purchase of Services incorporating these Conditions and the Order;
Data Protection Laws means, as binding on either party or the Services:(a) the GDPR;(b) the Data Protection Act 2018;(c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Force Majeure means an event or sequence of events beyond a party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract [including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay];
Initial Subscription Period means the period from the Start Date to the Initial Expiry as specified in the applicable order
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:(a) whether registered or not;(b) including any applications to protect or register such rights;(c) including all renewals and extensions of such rights or applications;(d) whether vested, contingent or future;(e) to which the relevant party is or may be entitled, and(f) in whichever part of the world existing;
Price has the meaning set out in clause 3.1;
Renewal Period means each successive 12-month period following the expiry of the Initial Subscription Period.
Services means the Services set out the Schedule and to be performed by the Supplier for the Customer;
Specification means the description or specification of the Services set out or referred to in the Order;
Supplier means CONSILIUM SYSTEMS LIMITED, Company number 10852641, and the registered office address is: 83 Ducie Street, Manchester, England, M1 2JQ ;
Trial Period Means a period during which the Customer may trial the Software without charge, the length of which will be notified to the customer.
- In these Conditions the following definitions apply:
- Application of these Conditions
- These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
- No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
- No variation of these Conditions or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
- Each Order by the Customer to the Supplier shall be an offer to purchase software subject to these Conditions.
- The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
- Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
- Software Licence
- Supplier grants Customer a non-exclusive, non-transferable, limited licence to use for the number of Users specified in the applicable ordering document.
- Customers may not make any copies of the Software. Backups are provided from the hosted service if required.
- Other restrictions – Customer may not publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer Software to third parties, nor reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software. Customer may not reproduce any portion of the Software or otherwise create derivative works of the Software. Customer agrees to notify its employees and agents who may have access to the Software of the restrictions contained herein and to ensure their compliance with these restrictions.
- Title – Customer hereby acknowledges and agrees that all right, title and interest in and to the Software, the Documentation and any other related materials are, and shall remain, vested solely in the Supplier and other software owners, if any, and Customer shall not hold itself out as having any ownership or other rights with respect thereto. Except as expressly permitted herein, Customer agrees that it shall make no use of the Software, the Documentation or any other related materials without Supplier’s prior written consent. Any and all goodwill associated with such rights shall inure directly and exclusively to the benefit of Supplier.
- Trial Terms - Save for the provisions in respect of Charges, the terms of this Agreement shall apply to Customer during any Trial Period. This Agreement will terminate at the end of the Trial Period and Customer’s licence and right to use the Software will cease at the end of the Trial Period unless a further Trial Period is agreed or where Customer subscribes to the Software from the expiry date of any such Trial Period.
- The price payable by the Customer for use of the Software will be as specified in the applicable ordering document will cover the Software licence as provided in this document.
- The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
- Where Supplier wishes to make no increase in the Charges and/or Additional User fees (“Proposed Charges”) for a Renewal Period then unless notice of termination is served by Customer in accordance with clause 9, then the Term shall be deemed to be extended for the Renewal Period.
- Where Supplier wishes to modify the Charges for the Renewal Period (“Proposed Charges”) in respect of any Software, Supplier will endeavour to issue Customer with a renewal notification specifying the Proposed Charges not less than 1 calendar month before the end of the Initial Subscription Period (or Renewal Period, if applicable).
- Customer is deemed to agree to extend the Agreement for the Renewal Period and to pay the Proposed Charges for each relevant Software for the Renewal Period on the expiry of the “Renewal Notice Period” (being 1 calendar month after the date of the Renewal Notification, unless Supplier has prior to that date received notice in writing that Customer does not accept the Proposed Charges)
- The Supplier shall invoice the Customer for the Services at any time after performance of the Services.
- The Customer shall pay all invoices:
- in full without deduction either by Direct Debit on a monthly or annual basis or alternatively on an online payment by card.
- Time for payment is of the essence. Where sums due under these Conditions are not paid in full by the due date the Supplier may withdraw access to the software with immediate effect
- Limitation of liability
- The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 6.
- The Supplier shall not be liable for consequential, indirect or special losses.
- The Supplier shall not be liable for any of the following (whether direct or
- 6.3.1 loss of profit;
- loss or corruption of data;
- loss of use;
- loss of production;
- loss of contract;
- loss of opportunity;
- loss of savings, discount or rebate (whether actual or anticipated);
- harm to reputation or loss of goodwill.
- The limitations of liability set out in in this contract shall not apply in respect of any indemnities given by either party under the Contract.
- Notwithstanding any other provision of the Contract, the liability of the parties
limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- any other losses which cannot be excluded or limited by applicable law;
- any losses caused by wilful misconduct.
- Confidentiality and announcements
- The Customer shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Contract.
- This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
- The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
- To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of the provisions of this contract.
- Force Majeure
- Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like.
- The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing. The Customer may still be liable for any costs incurred by the Supplier.
- Dispute resolution
- The Supplier will try to resolve any disputes with the Customer quickly and efficiently in the event that the Customer is unhappy with the Product, the Services or any other matter
- The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
- The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
- Entire agreement
- The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
- Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
- Set off
- The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
- No partnership or agency The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
- If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
- If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
- No failure, delay or omission by the Contract in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
- No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
- A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.