Terms & Conditions
FLUENT TECHNOLOGY STANDARD TERMS
AND CONDITIONS OF BUSINESS
(Version Date 21st
January 2013)
INTRODUCTION
These terms
and conditions (which together comprise the
Agreement) are the terms upon which Fluent Technology Limited (referred to in this Agreement as
Fluent) supplies software and
services to its customers (Customers).
The
first section of the Agreement
consists of the Base Terms: these
apply to every supply of software and services by Fluent to a Customer, without
exception.
The
second section consists of the
General Terms, which are contractual
terms which may or may not apply to particular Customers. The extent to which
any of the General Terms apply to a specific Customer will be agreed by the
Customer and Fluent and detailed in a contract information form (Contract Information Form).
Finally,
the third section contains
Definitions which explain the meaning
of the defined terms used in this Agreement. Defined terms are identifiable
throughout the Agreement by the capitalisation of their initial letters.
Specific
commercial issues, such as prices, timetables for development or installation
(where relevant) or types of software and/or services to be supplied, are agreed
by Fluent and each Customer on a transaction by transaction basis, and are
detailed in the Contract Information Form.
A specimen
Contract Information Form is detailed at the
fourth section of this Agreement.
BASE TERMS
1.
SOFTWARE
LICENCE TERMS
1.1.
In consideration of
the payments
to be made by
the Customer to Fluent pursuant to this
Agreement (the sufficiency of which Fluent hereby acknowledges) and subject to
receipt of payment in full, Fluent:
1.1.1.
hereby grants to the Customer on and subject to the
terms and conditions of this Agreement a personal, non-exclusive,
non-transferable and non-assignable licence from Acceptance for the Term to
allow Users to access the Base Software and to use the Base Software in object
code only (such use, the Use); and
1.1.2.
will grant and assign to the
Customer
all
Intellectual Property Rights in the Bespoke Software.
1.2.
The
Customer shall be solely responsible for its actions and the actions of its
Users while using the Base Software. The Customer shall (and shall procure that
any and all Users shall):
1.2.1.
not attempt
to duplicate, modify or distribute any portion of the Base Software,
1.2.2.
not reverse
engineer, decompile, disassemble, or adapt any portion of the Base Software,
except as specifically permitted by applicable law (but then only if and to the
extent that the Customer first notifies Fluent of the Customer’s requirements
regarding the inter-operability or functional compatibility before engaging in
any such activity, and gives Fluent the opportunity to provide the Customer with
the information necessary to achieve such inter-operability or compatibility),
1.2.3.
not use the
Software to provide software related services to third parties (including in the
operation of a service bureau),
1.2.4.
not attempt
to obtain, or assist others in obtaining, unauthorised access to the Software;
1.2.5.
not remove
any proprietary notices from the Base Software;
1.2.6.
abide by
all local and international laws and regulations applicable to the Customer’s
Use of the Software, including all laws regarding the transmission of technical
data exported from the United Kingdom through the Software;
1.2.7.
not upload
or distribute in any way files that contain viruses, corrupted files, or any
other similar software or programs that may damage the operation of the Software
or another's computer;
1.2.8.
ensure that
the administration functionality of the Base Software is used in a proper manner
by competent trained employees only or by persons under their supervision;
1.2.9.
not
transmit or post any material that encourages conduct that could constitute a
criminal offense or give rise to civil liability;
1.2.10.
where the Software is provided as
Software as a Service, not in any circumstances use, nor allow any third party
to use, any "webcrawler", "crawler", "spider" or similar technology in relation
to the Site; or
1.2.11.
comply with all regulations, policies
and procedures of networks connected to the Software. The Customer acknowledges
and agrees that Fluent neither endorses the contents of any User communications
nor assumes any responsibility for any threatening, libellous, obscene,
harassing or offensive material contained therein, any infringement of third
party intellectual property rights arising therefrom or any crime facilitated
thereby.
1.3.
The
Customer acknowledges that, where the Software includes a SVG mapping module,
the module uses the W3C SVG standard to provide vector based maps. To view these
maps the Software currently requires the freely available Adobe SVG plug-in. Adobe have indicated that they will
cease to support this plug-in, however current indications from Adobe are that
they will continue to make it available indefinitely. In the event that the
plug-in ceases to be available or will not run on a future operating system
Fluent will use all reasonable endeavours either to upgrade the mapping to work
with a supported technology, or (where Fluent, acting reasonably, believes that
such upgrading of mapping will be unsuccessful or of inferior quality) to supply
software development services to the Customer to assist with the development
and/or integration of other third party mapping products. All such services will
be supplied on a time and materials basis at Fluent’s then standard rates.
1.4.
Fluent and
the Customer acknowledge that the following terms shall apply in relation to
Users whom the Customer authorises to Use the Software as a registered and
accredited User with a log-in ability and an account (each such a
Registered User):
1.4.1.
the licence
granted in clause 1.1.1 of these Base Terms shall permit no more than the agreed
number of Registered Users to be concurrent/active on the Software at any one
time;
1.4.2.
Fluent
shall issue to the Customer, or shall authorise a Customer administrator to
issue, a password for each Registered User and will maintain Customer passwords
as confidential and will not disclose them to third parties provided that:
1.4.2.1.
the
Customer shall procure that each Registered User shall maintain the
confidentiality of its password, and
the Customer shall ensure that each password is used only by the authorised
Registered User;
1.4.2.2.
the Customer is entirely responsible for
any and all activities of Registered Users;
1.4.2.3.
the Customer agrees to immediately notify
Fluent upon becoming aware of any unauthorised use of any password of a
Registered User or any other breach of security known to Customer;
1.4.2.4.
Fluent
shall have no liability for any loss or damage arising from Customer's failure
to comply with the requirements detailed in this paragraph 1.4.2;
1.4.3.
in relation
to Users with read-only access to the Software and no password or log-in
ability, the licence granted in clause 1.1.1 of these Base Terms permits access
by an unlimited amount of such Users.
2.
IMPLEMENTATION AND EXTRA SERVICES
2.1.
Fluent will
agree with the Customer the scope, timing and content of any implementation
services required by the Customer (such services, upon agreement by both parties
in writing, the Implementation Services).
The Parties will also agree Fees payable in respect of any Implementation
Services (and in the absence of any such agreement, Fluent shall provide the
Implementation Services on a time and materials basis at Fluent’s then current
rates).
2.2.
As part of
the identification of the Implementation Services, the parties shall agree on
the configuration and customisation services to be carried out and then agree
the form of any acceptance tests required to demonstrate that the Software
materially meets the requirements of the Functional Specification. For the
avoidance of doubt, the form of acceptance tests must be agreed by the parties
prior to completion of the configuration and customisation element of the
Implementation Services.
2.3.
Where the
Software is not provided as Software as a Service, Fluent will deliver the
Software to the Customer and the Customer shall run acceptance tests, agreed in
accordance with clause 2.2, within fourteen days of delivery.
2.4.
If, during
the fourteen days of Customer testing, the Customer can reasonably demonstrate
that the Software does not operate materially in accordance with the Functional
Specification, the Customer must notify Fluent within those fourteen days of
testing to avail of remedial work. Upon such notification, the provisions of
clause 5.4 shall apply.
2.5.
Acceptance
will occur upon the earlier of:
2.5.1.
the expiry
of fourteen days from delivery of the Software by Fluent for testing by the
Customer; or
2.5.2.
the
Customer’s putting the Software to use for the Customer’s normal business
procedures; or
2.5.3.
the
Customer’s confirmation to Fluent that the acceptance tests demonstrate that the
Software materially meets the requirements of the Functional Specification; or
2.5.4.
where the
Software is provided as Software as a Service, on the date that access to the
Software is provided by Fluent.
2.6.
Fluent
shall not be obliged to provide Hosting Services, Maintenance Services and/or
Extra Services where this has not been agreed in the Contract Information Form
or in accordance with clause 2.11 – 2.13 below. In the event that the Customer
does not elect to have Maintenance Services at the time of signing this
Agreement, then any maintenance subsequently requested by the Customer (Ad Hoc Maintenance) may be provided
on the basis set out the Contract Information Form. For the avoidance of doubt,
Fluent is not obliged to provide Ad Hoc Maintenance and will do so at its sole
discretion. Where Fluent does carry out Ad Hoc Maintenance, it is not bound by
any target response or target resolution times or maintenance provisions set out
in Clause 1 of the General Terms and is not obliged to answer requests for
maintenance outside normal office hours.
2.7.
The
Customer acknowledges that Fluent’s ability to provide the Implementation
Services is dependent upon:
2.7.1.
the
reasonably full and timely co-operation of the Customer (which the Customer
agrees to provide);
2.7.2.
the
Customer’s fulfilment of any requirements imposed on it as part of the agreement
of the scope of the Implementation Services; and
2.7.3.
the
accuracy and completeness of any information and data the Customer provides to
Fluent.
2.8.
The
Customer acknowledges and agrees as reasonable that:
2.8.1.
where the
Customer’s failure to perform any task required of it by these clauses 2.1 to
2.7, and/or the Customer’s delay or unreasonable withholding of approval,
prevents Fluent from fulfilling the Implementation Services, Fluent shall be
relieved from its obligation to provide the Implementation Services. Upon the
Customer’s subsequently remedying any such failure, delay or unreasonable
withholding of approval the parties will act in good faith and use all
reasonable endeavours to agree a new timetable for the provision of the
Implementation Services. Upon such new timetable being agreed, Fluent and the
Customer shall use all reasonable endeavours to comply with it
provided that to the extent that Fluent, in meeting the requirements of the new timetable,
reasonably determines that it needs to deploy extra resources to meet such
timetable, the Customer shall pay Fluent in full for such extra resources on a
time and materials basis at Fluent’s standard rates applicable at that date; and
2.8.2.
where the
Customer requires Fluent to provide any resources or services as part of the
Implementation Services which are beyond the scope agreed in accordance with
clause 2.1 of these Base Terms, Fluent shall charge for any such resources or
services on a time and materials basis at Fluent’s standard rates applicable at
that date.
2.9.
Where the
Functional Specification has not been fully agreed by the Commencement Date, the
Functional Specification existing at the Commencement Date shall be deemed the
Initial Specification. Following the
Commencement Date, any requested variation of the Initial Specification by the
Customer (including any investigations and/or assessments by Fluent as part of
agreeing any proposed variation) shall be deemed, at Fluent’s option, to be
either a modification of the Initial Specification (Modification) or a request for Extra Services.
2.10.
Where the
Customer requires any extra services which fall outside the scope of this
Agreement, such services will be Extra
Services. For the avoidance of doubt, the Extra Services will include:
2.10.1.
any
services falling outside the scope of any Implementation Services, Maintenance
Services and/or the Hosting Services as stated in the Contract Information Form;
2.10.2.
maintenance
support outside of normal office hours; and
2.10.3.
the
provision of any bespoke customization, release or upgrade of the Software to
the Customer, to the extent that the same is not provided to Fluent’s other
customers.
2.11.
The
Customer may from time to time specify certain Extra Services and/or a
Modification it requires Fluent to perform. As soon as reasonably practicable
after such instruction (and in any case within 14 days), Fluent shall provide
for the Customer’s approval:
2.11.1.
a cost
estimate (Cost Estimate), specifying
in detail the estimated fees payable for the requested Extra Services and/or
Modification;
2.11.2.
a project
timetable (Project Timetable) for the
fulfilment of the requested Extra Services and/or Modification.
2.12.
Within 14
days of receipt of the Project Timetable and the Cost Estimate the Customer
shall either notify Fluent of its approval, refuse the required services and/or
Modification, or query the Cost Estimate and/or require such amendments to the
Project Timetable as it may reasonably determine and Fluent will make any such
amendment as soon as possible, and resubmit the Cost Estimate and/or the Project
Timetable (as the case may be) for the Customer’s approval, whereupon the
provisions of this clause 2.12 shall reapply.
2.13.
Upon
notification of the Customer’s approval, Fluent shall commence the provision of
the Extra Services and/or Modification in accordance with the Project Timetable.
The Customer shall pay Fluent in accordance with the Cost Estimate and the terms
of this Agreement (or, where the Cost Estimate and/or the Project Timetable has
not been approved but the Extra Services and/or Modification commenced, on a
time and materials basis at Fluent’s then standard rates).
3.
PRICES,
TAXES AND PAYMENT
3.1.
The Fees
will be agreed by Fluent and the Customer prior to entry into an Agreement and
detailed in the Contract Information Form (and in the absence of any such
agreement Fluent will provide the Software and/or Services on a time and
materials basis at its then current rates). Fees
for any Extra Services and/or Modification will be paid in accordance with
clause 2.13.
3.2.
Rates are
fixed for the first Year. Fluent may increase the rates for subsequent Years by
notification to the Customer no later than one month before the end of any Year,
provided that any price adjustments are subject to a cap of either the increase
(if any) in the all-items retail price index (published by the Office for
National Statistics), or 5%, whichever is the higher.
3.3.
Unless
otherwise agreed by Fluent and the Customer and recorded in the Contract
Information Form, the Customer agrees to pay all invoiced Fees and additional
charges (including expenses) within thirty days of Fluent's invoice date.
Time shall be of the essence in relation
to the Customer’s obligation so to pay, and in the event that the Customer fails
to pay any sum when due:
3.3.1.
Fluent may
without notice suspend its obligations under this Agreement (and any such
suspension will not constitute a termination of the Agreement and Fluent may
require the Customer to pay a
reconnection fee to recommence the provision of the Software where it is
provided as Software as a Service, together with all relevant Fees); and/or
3.3.2.
Fluent may
by written notice terminate forthwith the licence granted at clause 1.1.1 of
these Base Terms, whereupon the Customer will promptly cease use of the Base
Software and return any property of Fluent to Fluent and Fluent shall have no
liability for any such action; and/or
3.3.3.
Fluent may
withhold the assignment of Bespoke Software until such time as all outstanding
invoiced Fees and additional charges are paid to Fluent; and/or
3.3.4.
Fluent may
charge the Customer interest on sums due in accordance with the Late Payment of
Commercial Debts (Interest) Act 1998, compounded monthly, from the due date for
payment until payment has been made, together with any additional costs and
expenses (including any legal costs) incurred by Fluent in recovering the sums
due from the Customer.
3.4.
All Fees
and any additional charges shall be exclusive of value added tax or any other
tax, duty, levy, fee or charge which shall be added to invoices at the rate
applicable at the date of invoice and which shall be payable by the Customer.
3.5.
Without
prejudice to any other rights or remedies available to Fluent, Fluent shall be
entitled to levy interest on any Fees or additional charge overdue at the rate
of eight per cent (both before and after judgment) and to recover all costs and
expenses incurred by Fluent in collecting the amount unpaid.
4
INTELLECTUAL PROPERTY RIGHTS
4.1
Fluent
shall licence the use of the Base Software to the Customer in accordance with
the provisions of clause 1 of these Base Terms. The Customer acknowledges that
it hereby acquires only the right to access and Use the Base Software in
accordance with this Agreement, and that all Intellectual Property Rights in the
Base Software (including the source code of the Base Software) and (save to the
extend expressly agreed by Fluent) all Intellectual Property Rights in the
provision of any Extra Services shall remain vested in Fluent or where relevant
Fluent’s licensors. Nothing in this
Agreement shall confer on the Customer or any User any right, title or interest
in the Base Software (except the rights of use as set out in this Agreement), or
to any source code within the Base Software.
4.2
In
accordance with the provisions of clause 1 of these Base Terms and upon receipt
by Fluent of all payments due by the Customer Fluent shall assign any
Intellectual Property Rights created as part of the development of the Bespoke
Software and/or (where Fluent and the Customer expressly so agree) provision of
any Extra Services) and these shall vest in and belong to the Customer.
4.3
The
Software may include components licensed to Fluent by third parties. To the
extent that the terms of any such license impose any obligation on the Customer
which is in addition to any obligation imposed on the Customer by this Agreement
(Third Party Obligation) the Customer
undertakes fully to comply with and fulfil all requirements of any such Third
Party Obligation.
4.4
In the
event that the Customer’s use of the Software is held by a court of competent
jurisdiction or is believed by Fluent to infringe the Intellectual Property
Rights of any third party, Fluent shall have the option, acting at all times
reasonably and in good faith and at its sole expense, as soon as reasonably
practicable to:
4.4.1
modify or
amend the Software or the infringing part(s) thereof in order to avoid any
further infringement;
4.4.2
procure for
the Customer the right to continue using the Software or infringing part(s)
thereof;
4.4.3
substitute
the Software or infringing part(s) thereof with other software or documentation
suitable for the provision of the Software in accordance with this Agreement and
this shall be Fluent’s sole liability, and the Customer’s sole remedy, for
infringement of Intellectual Property Rights of any third party.
4.5
For the
avoidance of doubt, Fluent shall have no liability in this regard in the event
of any claim of infringement arising from:
4.5.1
Fluent’s
compliance with the designs, specifications, instructions, or technical
information of the Customer or any third party;
4.5.2
modifications made by the Customer or a third party to the Software; or
4.5.3
the
Customer’s non-compliance with this Agreement.
4.6
The
Customer warrants that it is able to grant to, and hereby grants to, Fluent for
the Term a non-exclusive, world-wide, royalty-free licence to use the Customer’s
IPRs to the extent necessary for Fluent to perform its obligations under the
Agreement. Customer shall indemnify
Fluent and keep Fluent at all times fully and effectively indemnified against
and any all loss, liability, cost or expense (including reasonable legal
expenses) howsoever incurred by Fluent and whether directly or indirectly
arising out of any breach of this clause 4.5.
5
WARRANTIES
AND LIABILITY
5.1
Fluent
warrants to the Customer that:
5.1.1
Subject to
clause 5.2 the Software will function in accordance with the Functional
Specification for a period of 60 days after Acceptance; and
5.1.2
the
Services will be provided in a professional manner in accordance with software
industry standards.
5.2
Where the
Software is provided as Software as a Service and where the Customer has elected
for the provision of Hosting Services in the Contract Information Form, the
provisions of clause 2.2 of the General Terms shall apply.
5.3
Fluent
shall not be liable:
5.3.1
for any
breach of this Agreement (including
any breach of the warranties in this clause 5) for any breach or loss suffered
by the Customer or other third party if and to the extent that such breach
and/or loss arises from the following:
5.3.1.1
the
incorrect use, abuse or corruption of the Software;
5.3.1.2
any use of
or access to the Software by any User which is not expressly permitted by this
Agreement;
5.3.1.3
any failure
by the Customer to follow Fluent’s reasonable instructions and/ or advice;
5.3.1.4
the act or omission of any third party
provider of any product, service or solution; and/or
5.3.1.5
where the
Software is provided as Software as a Service, any failure of the internet
and/or any software or equipment of the Customer or any third party which
enables access to the Site;
5.3.2
for any
loss, expense, cost, liability or sum incurred (whether directly or indirectly)
by the Customer and/or any third party as a result of:
5.3.2.1
the
performance or failure to perform of any third party product or services;
5.3.2.2
any act or
omission, or operation failure, of any website (including any software used in
such website) which is co-hosted with the Site and/or with any website through
which the Customer accesses the Software;
5.3.2.3
any
unauthorised access to and/or use of any website and/or software by a third party (whether by automated
means or not).
5.4
In the
event that Fluent receives written notification from the Customer of any breach
of the warranty set out in clause 5.1, or in the event that clause 2.4 applies,
Fluent shall as soon as reasonably possible and in any event within 30 days of
the date of such notification and at its own expense use reasonable endeavours
to remedy the same and for the avoidance of doubt, such work undertaken to
remedy the same does not constitute Maintenance Services, Extra Services or Ad
Hoc Maintenance as defined in this Agreement.
The Customer shall reasonably cooperate with Fluent, at no out-of-pocket
cost to the Customer, in remedying the alleged breach, including but not limited
to providing reasonably sufficient information to Fluent to enable it to isolate
and correct any claimed non-compliance of the Software with the Functional
Specification.
5.5
Fluent
makes no warranty or representation not expressly set forth in this Agreement. To the maximum extent permitted by
law, and except for the warranties expressly set forth herein, Fluent disclaims
any and all other warranties and conditions, whether express, implied, or
statutory, including but not limited to implied warranties (if any) of
merchantability, non-infringement, fitness for a particular purpose and
satisfactory quality.
5.6
Fluent’s
liability will be limited as follows:
5.6.1
nothing in
this Agreement shall limit Fluent’s liability for death or personal injury
caused by the negligence of Fluent or its employees, or for any liability which
may not be limited under governing law;
5.6.2
subject to
clause 5.6.1 above, Fluent shall not be liable in contract, tort, or in relation
to breach of statutory duty or any other right of action for the following
losses:
5.6.2.1
loss of,
damage to or corruption or destruction of, data or other information belonging
to the Customer or any other third party;
5.6.2.2
loss of or
damage to software;
5.6.2.3
any
economic losses, including loss of revenues, profits, contracts, goodwill,
reputation, business, use of money
or anticipated savings;
5.6.2.4
loss of use
or downtime;
5.6.2.5
damages
relating to the procurement by the Customer of any substitute products or
services; and
5.6.2.6
any
special, incidental, indirect or consequential losses (whether or not such loss
or damage is of the type specified in clauses 5.6.2.1 to 5.6.2.5 above);
5.6.3
subject to
clause 5.6.1 above, the aggregate liability of Fluent in respect of any loss or
damage suffered by the Customer and arising out of or in connection with this
Agreement shall not exceed the amount of the total Fees actually paid in
accordance with this Agreement by the Customer to Fluent at the point in time
that such liability is incurred (and for the avoidance of doubt the Customer
will act at all times to mitigate any such loss or damage).
5.7
The
Customer agrees and acknowledges:
5.7.1
that it is
in a better position than Fluent to foresee and evaluate any potential damage or
loss which the Customer may suffer in connection with the Software and/or the
Services;
5.7.2
that Fluent
cannot adequately insure its potential liability to the Customer; and
5.7.3
that the
Fees payable by the Customer have been calculated on the basis that Fluent shall
exclude liability in accordance with the provisions of this clause 5.
5.8
In relation
to Third Parties, the Customer acknowledges and accepts as reasonable that:
5.8.1
Fluent
excludes all liability to the maximum extent permitted by applicable law for any
loss whatsoever incurred by the Customer as a result of any act or omission of
any Third Party, or of the failure, suspension and/or termination of any
facility or service provided by any Third Party, or the breach by any Third
Party of any relevant Third Party Licence (each such act, omission, failure,
suspension or termination a Third Party
Breach); and
5.8.2
any Third
Party Breach shall not constitute a breach by Fluent of the provisions of this
Agreement.
5.9
Each
provision of this clause 5 shall be construed separately and shall continue and
survive even if for any reason one or other of those provisions is held invalid
or unenforceable in any circumstances.
6
CONFIDENTIALITY AND DATA PROTECTION
6.1
In relation
to either Party, Confidential Information
as used in this Agreement shall mean any and all information relating to that
Party (or to any holding company and/or subsidiary of that Party, as those terms
are defined by the Companies Act 2006 (as amended)) which is disclosed before or
after the Commencement Date by that Party (Discloser) to the other Party (Recipient), and which is provided,
either directly or indirectly, in writing, orally or by inspection, and being
any and all information which is specified as confidential or which a reasonably
prudent person should know is expected to be treated as confidential (including
financial information, customer lists, business forecasts, sales and
merchandising, and marketing plans and information). For the avoidance of doubt
Fluent’s Intellectual Property Rights (to the extent disclosed to the Customer)
constitute Confidential Information of Fluent.
6.2
Each Party
agrees that:
6.2.1
it will not
use any Confidential Information of the other Party for any purpose, nor
disclose any such Confidential Information to any third party without the other
Party’s prior consent (and in the event that such consent is given Recipient
will ensure, prior to such disclosure, that each such third party is made aware
of the confidential nature of the Confidential Information and agrees in writing
to be bound by conditions of secrecy no less strict than those set out in this
Agreement);
6.2.2
it shall
disclose Confidential Information of the other Party only to those of its
employees who need to know such information, and that it will procure that such
employees agree, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those of this Agreement;
6.2.3
without
affecting any rights or remedies that Discloser may have, that damages would not
be an adequate remedy for any breach by Recipient of the provisions of this
Agreement and Discloser shall be entitled to the remedies of injunction,
specific performance and other equitable relief for any threatened or actual
breach of the provisions of this letter by Recipient and that no proof of
special damages shall be necessary for the enforcement of this Agreement;
6.2.4
in the
event that it is Recipient, it will give notice to Discloser of any unauthorized
use or disclosure of the Confidential Information by it, and/or any employee of
it and/or any third party to whom it has disclosed Confidential Information, as
soon as reasonably practicable after becoming aware of the same, and that it
will provide all reasonable assistance to Discloser in remedying any such
unauthorized use or disclosure of the Confidential Information; and
6.2.5
that its
obligations hereunder shall survive for a period of six years from the date of
last disclosure to it of Confidential Information of the other Party.
6.3
Information
shall not be deemed to be Confidential Information to the extent that:
6.3.1
it was in
the public domain at or subsequent to the time it was communicated to Recipient
by Discloser through no fault of Recipient;
6.3.2
it was
rightfully in Recipient's possession free of any obligation of confidence at or
subsequent to the time it was communicated to Recipient by Discloser;
6.3.3
it was
communicated by the Discloser to an unaffiliated third party free of any
obligation of confidence; or
6.3.4
the
communication was in response to a valid order by a court or other governmental
body or was otherwise required by law.
6.4
Each of
Fluent and the Customer shall in the performance of their obligations imposed by
this Agreement at all times comply with any provision of the DPA which binds
them (including in relation to the Customer Data).
6.5
As between
the Customer and Fluent, the Customer shall own Customer Data. Except as
permitted in this Agreement, Fluent will not edit, delete or disclose the
contents of the Customer Data unless authorised by the Customer or unless Fluent
is required to do so by law or in the good faith belief that such action is
necessary to conform to applicable laws or comply with legal process served on
Fluent.
6.6
The
Customer acknowledges that certain personal information of its employees and
contractors may be communicated to Fluent in the course of the execution and
performance of the Agreement and hereby warrants that it has obtained the
consent of its employees and contractors for the processing of such personal
data by Fluent for the purposes of the performance of the Agreement, and for the
purposes of contacting the Customer in relation to other goods and services
which may be of interest to Customer. All such personal data will, at all times,
be processed in accordance with Fluent’s privacy policy in force from time to
time (available at
www.fluenttechnology.com/Privacy-policy.aspx ).
6.7
Fluent may
provide user statistical information such as usage or traffic patterns in
aggregate form to third parties, but such information will not include
personally identifying information. The Customer consents to, and warrants that
it has obtained all consents necessary to allow, Fluent’s accessing Customer
Data to respond to service or technical problems with the Software. The Customer
is solely responsible for the accuracy, quality, integrity, legality,
reliability, appropriateness and copyright of all Customer Data.
6.8
Fluent
reserves the right to establish a maximum amount of memory or other computer
storage and a maximum amount of Customer Data that the Customer may store, post
or transmit on or through the Software.
6.9
Fluent
shall retain the Customer Data for a minimum period of ninety days after
expiration or termination of this Agreement, unless otherwise agreed with the
Customer. The Customer may request that Fluent conduct a mass export of the
Customer Data, and Fluent may agree to provide such services at its then current
rates.
7
TERM AND
TERMINATION
7.1
This
Agreement shall commence on the Commencement Date and continue, subject to
earlier termination in accordance with this clause 7, for the Term. At the end
of the Term, the Agreement shall continue in force for successive periods equal
in length to the Term until terminated by either Party giving two months’
written notice.
7.2
If either
Party materially breaches or materially fails to observe (together
Breach) any provision of this
Agreement the other Party may (if the Breach is capable of remedy) give notice
of the Breach and the Party in breach shall have 28 days from receipt of the
notice in which to remedy the Breach.
Should the Breach fail to be remedied in this period or if the Breach is
not capable of remedy, then the Party not in breach may terminate the Agreement
with immediate effect.
7.3
If either
Party becomes insolvent or bankrupt or (being a company) makes an arrangement
with its creditors or has an administrative receiver or administrator appointed
or commences to be wound up (other than for the purpose of amalgamation or
reconstruction) the other Party may without replacing or reducing any other of
its rights terminate the Agreement with immediate effect by written notice.
7.4
Upon
expiration or the earlier termination of this Agreement the licence granted in
accordance with clause 1 of these Base Terms will terminate, unless expressly
otherwise agreed by Fluent in writing.
7.5
The
provisions of clauses 4, 5, 6, 7 and 8.8 of these Base Terms will survive
expiration or termination of this Agreement.
8
GENERAL
8.1
Except for
a Party's payment obligations, neither Party shall be liable for delay in
performing the obligations or for the failure to perform obligations if the
delay or failure results from any cause beyond its reasonable control (including
acts of God, fire, explosion, war, terrorism, embargo, and any governmental
action (Force Majeure Event)). The
Party claiming a Force Majeure Event shall take all action which is reasonable
under the circumstances to overcome any such cause of prevention or delay and to
proceed with the performance of its obligations hereunder. Notice of any Force
Majeure Event and any abatement thereof shall forthwith be given to the other
Party by the Party claiming the benefit of this clause 8.1.
8.2
A person
who is not a party to the Agreement shall have no rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any of its terms.
8.3
The
Customer may not transfer, assign or novate the whole or any part of the
Agreement or the benefit of it or any right under it without Fluent’s prior
written approval.
8.4
A failure
at any time to enforce any provision of the Agreement shall in no way affect the
right at a later date to require complete performance of the Agreement, nor
shall the waiver of the breach of any provision be taken or held to be a waiver
of any subsequent breach of the provision, or be a waiver of the provision
itself.
8.5
Nothing in
this Agreement shall create or shall be deemed to create a partnership or the
relationship of employer and employee between the Parties.
8.6
Fluent may
modify the terms of this Agreement from time to time without notice. Fluent
recommends to its Customers that they review the terms on a regular basis on
Fluent’s website. The Customer understands and agrees that any order placed with
Fluent following changes having been posted by Fluent will be deemed acceptance
of all such changes.
8.7
If any
provision of this Agreement or part thereof should be found to be invalid,
ineffective or unenforceable under any applicable statute or regulation, the
remainder of the provisions shall stand in full force and effect.
8.8
The
Agreement is governed by Northern Irish law.
All disputes, claims or proceedings between the parties relating to the
validity construction or performance of this Agreement shall be subject to the
jurisdiction of the courts of Northern Ireland to which the parties hereto
irrevocably submit.
GENERAL
TERMS – These General Terms only apply if Maintenance Services and/or Hosting
Services are elected in the Contract Information Form.
1.
MAINTENANCE
SERVICES
1.1.
General Description
1.1.1.
The Maintenance Services may include some or all of the
following:
1.1.1.1.
(unless otherwise agreed and stated in
the Contract Information Form) software maintenance
releases (applied by Fluent outside of business hours), including at Fluent’s
sole discretion patches and fixes in respect of the Software;
1.1.1.2.
service monitoring – monitoring of the Software to ensure availability;
1.1.1.3.
disaster recovery support – in the event of server/service failure reinstating
the Software;
1.1.1.4.
user support – telephone/email support Monday to Friday 9am to 5pm excluding
public/bank holidays to the Customer’s system administrators to provide help and
assistance with both technical queries and system functional queries;
1.1.1.5.
data maintenance support – functionality is provided to allow the Customer’s
system administrators to update existing or add new datasets. In addition, in some circumstances,
such as when a new dataset is large or complex, Fluent will provide support to
the Customer’s administrators with uploading/configuring new or existing
datasets. In these cases any such work will be costed and implemented on a time
and materials basis at Fluent’s then standard rates; and
1.1.1.6.
where applicable, geographic configuration support for the number of boundaries
and backgrounds included in the Software at the point of Acceptance. In the
event that the Customer notifies Fluent that it wishes to add new geographic
boundaries in the future, Fluent shall provide support thereto to the Customer,
and any such work will be costed and implemented on a time and materials basis
at Fluent’s then standard rates.
1.2.
Maintenance Services - First line Technical Support
1.2.1.
Fluent’s Maintenance Services may
include:
1.2.1.1.
email and a telephone help-desk to provide first-line technical support for the
Software to the Customer; and
1.2.1.2.
via remote diagnosis and (where reasonably possible) correction of faults by
code updates.
1.2.2.
Fluent shall only provide support in
respect of software as currently forming part of the Software.
1.2.3.
Fluent will respond to all support
requests as quickly as is reasonably possible and aims to support the following
target response times (unless otherwise agreed by Fluent and the Customer) once
a request from the Customer has been recorded:
|
Priority |
Initial Target Response |
Target Resolution |
|
A – Critical |
Within 2 hours |
Within 4 hours thereafter |
|
B – Significant impact |
Within 4 hours |
Within 8 hours thereafter |
|
C – Minor impact |
Within 4 hours |
Within 24 hours thereafter |
|
D – Low priority |
Within 24 hours |
By agreement. |
1.3.
Customer Obligations
1.3.1.
During the Term the Customer shall:
1.3.1.1.
provide Fluent (so far as the Customer is able) upon reasonable request with a
documented example of any fault in
respect of which a request for diagnosis and rectification has been made by the
Customer; and
1.3.1.2.
co-operate fully with Fluent’s personnel in the diagnosis of any fault in the
Software and perform such tests of the Software as Fluent shall request in the
evaluation of any request for support by the Customer.
1.4.
Exclusions
1.4.1.
Fluent will not be obliged to diagnose and rectify any
fault in the Software resulting from:
1.4.1.1.
any modifications of the Software made by any person other than Fluent:
1.4.1.2.
minor defects in the Software which do not significantly affect or impair the
Use of the Software;
1.4.1.3.
any incorrect or improper use of the Software, or any use of the Software for
any purpose for which it was not designed; or
1.4.1.4.
the failure by the Customer to implement recommendations
in respect of any solutions to faults previously advised by Fluent.
1.4.2.
Fluent may, upon the Customer’s request, diagnose and
(where possible) rectify any fault described in clause 1.4.1, and the Customer
will pay for any such work on a time and materials basis at Fluent’s then
current rates.
1.4.3.
Services provided by Fluent in accordance with clause
5.4 for warranty fixes are separate and distinct from Maintenance Services,
Extra Services or Ad Hoc Maintenance. Accordingly, during the warranty period
set out in clause 5.1 Fluent is only obliged to remedy defects in the Software
where it is notified by the Customer that the Software is not functioning in
accordance with the Functional Specification. For the avoidance of doubt the
warranty in this Agreement does not entitle the Customer to any element of
Maintenance Services as specified above or in the Contract Information Form,
Extra Services or Ad Hoc Maintenance.
2.
HOSTING
SERVICES
2.1.
General Description
2.1.1.
The Hosting Services may include the following:
2.1.1.1.
managed operating system maintenance patching and backups of both the operating
system and the data;
2.1.1.2.
port monitoring, so that in the event of failure of the Software as a Service
then the system will automatically try to correct itself and notify an engineer;
2.1.1.3.
secure hosting environment with fully redundant network and services(resilient
routers, switches, DNS etc);
2.1.1.4.
resilient power and bandwidth providers, so that if the data centre loses
internet access from the primary provider then a secondary provider
automatically provides service in order to try to ensure no down time);
2.1.1.5.
fully managed firewall for server protection;
2.1.1.6.
up to an agreed amount per month of out-going internet traffic (incoming is
free).
2.2.
Availability and Maintenance
2.2.1.
Fluent will use all reasonable
endeavours to ensure that the Software as a Service is available for use for
99.5% of the time during normal office hours in any one month.
2.2.2.
In the event of non-availability of the
Software as a Service, the Customer shall contact Fluent, and the provisions of
clauses 1.1 and 1.2 of these General Terms shall apply at Fluent’s discretion.
Fluent is under no obligation to respond to non-availability of the Software as
a Service outside Fluent’s normal office hours.
2.2.3.
From time to time Fluent may need to
carry out scheduled maintenance on the Software as a Service, which may require
its temporary suspension. Any such suspension shall not constitute
non-availability for the purposes of clause 2.2.1 above, provided that Fluent
uses reasonable endeavours to keep disruption to a minimum, and to carry out
work during periods of low activity.
2.2.4.
The Customer and Fluent agree that the
amount of Fees payable for, and the quality commitments given by Fluent in
relation to, the provision of the Software as a Service and the Support Service
(including in particular the hosting services detailed in this clause 2) have
been calculated on the amount of usage of the Software as a Service as envisaged
by the parties at the Commencement Date. In the event that such usage materially
increases, including where Fluent has to procure additional hardware to meet the
Customer’s usage requirements, then, Fluent reserves the right to increase the
Fee thereafter to take into account any usage increase. The Customer
acknowledges that Fluent’s right to do so is reasonable and undertakes to pay
such increased Fee. Fluent will monitor usage of the Software as a Service, and
will discuss any scalability requirements of the Customer upon the Customer’s
reasonable request.
2.2.5.
In order for the continued upgrading of
data centre facilities, the Customer acknowledges and agrees that changes may be
made to the provision of the hosting services, URLs and IP addresses. In each
case Fluent will use reasonable endeavours to give reasonable advance notice and
use reasonable endeavours to minimise the effect (if any) that such change will
have on the provision of the Services.
2.2.6.
If during the Term the Customer wishes to discontinue
the Hosting Services and move the hosting to a third party, Fluent shall provide
support and assistance to the Customer to help facilitate the move (subject
always to Fluent being able to review the licensing and maintenance arrangements
and costs in order to facilitate the new hosting infrastructure and the
continued supply of Services not included in this clause 2, to amend its charges
where it reasonably deems necessary to do so and also to charge for time spent
supporting the move on a time and materials basis at Fluent’s then standard
rates).
2.2.7.
The
Customer shall (and shall procure that any and all Users shall):
2.2.7.1.
not store,
distribute or transmit any material to the Software that is unlawful, harmful,
threatening, defamatory, obscene, harassing or racially or ethnically offensive,
facilitates illegal activity, depicts sexually explicit images, or promotes
unlawful violence, discrimination based on race, gender, colour, religious
belief, sexual orientation, disability, or any other illegal activities, or
2.2.7.2.
not
transmit or post any material that encourages conduct that could constitute a
criminal offense or give rise to civil liability and Fluent may remove any
violating content posted on the Software as a Service or transmitted through the
Software as a Service, without notice to the Customer.
2.2.8.
Fluent will
maintain the Software as a Service at a reputable third party internet service
provider and hosting facility, to be subject to commercially reasonable security
precautions to prevent unauthorised access to the Software as a Service. The
Customer acknowledges that, notwithstanding such security precautions, use of or
connection to the internet provides the opportunity for unauthorised third
parties to circumvent such precautions and illegally gain access to the Software
as a Service and Customer Data. Accordingly, and notwithstanding any other
provision of this Agreement, Fluent cannot and does not guarantee, and will not
be liable in any way to the Customer or any other party for the privacy,
security or authenticity of any information transmitted over the internet
(including any Customer Data submitted through the Software as a Service).
2.2.9.
The
Customer acknowledges that Fluent’s provision of the Software as a Service is
contingent upon compliance with the hosting facility network provider’s
acceptable use policy, as Fluent shall communicate to the Customer (AUP). In order to enable Fluent’s
continued provision of the Software as a Service and the Services, and
irrespective of any other provision of this Agreement, the Customer agrees and
acknowledges as reasonable that:
2.2.9.1.
the
Customer will comply both with any obligation imposed on Fluent by, and with the
exercise of any right afforded the network provider by, the AUP, in each case as
if the Customer were Fluent for the purposes of the AUP;
2.2.9.2.
Fluent may
suspend the provision of Software as a Service and/or the Services without
telling the Customer and without liability (provided that Fluent shall, where
practicable, give the Customer reasonable prior notice) if:
2.2.9.2.1.
the
Software as a Service is being used in violation of the AUP;
2.2.9.2.2.
the
Customer does not cooperate with the network provider’s investigation of any
suspected violation of the AUP;
2.2.9.2.3.
there is an
attack on servers or other event for which Fluent reasonably believes that the
suspension of the Services is necessary to protect the Customer or the network;
or
2.2.9.2.4.
if required
by law or regulation or as compelled by a law enforcement or government agency;
and
2.2.9.3.
the
Customer will indemnify and keep indemnified Fluent against any and all loss,
liability, cost or expense (including reasonable legal expenses) howsoever
incurred by Fluent and whether directly or indirectly arising out of any breach
of the AUP or a breach of a third party’s rights by the Customer, any User or
any User’s content, data or equipment.
DEFINITIONS
1
In this
Agreement the following words shall have the following meanings:
Acceptance means (where
no Implementation Services are being provided, and/or the Software is provided
as Software as a Service) the Commencement Date, or (where Implementation
Services are being provided and or the Software is not provided as Software as a
Service) the point in time detailed in clause 2.5 of the Base Terms.
Base Software
means
software programs forming part of the Software which are not Bespoke Software,
and/or which are used by Fluent in its business generally and which are either
proprietary to Fluent or which are proprietary to a Third Party (including open
source), which have been licensed by Fluent and are capable of sub-licence to
the Customer.
Bespoke Software
means
the software code and design elements created by Fluent specifically for the Customer
in accordance with this Agreement.
Commencement Date means the
date specified as such in the Contract Information Form.
Contract Information Form means the
contract information form agreed by Fluent and each Customer, and incorporating
the terms of this Agreement (in the format as detailed in the fourth section of
this Agreement, as the same may be amended by Fluent from time to time).
Customer Data means any
and all data, information and material entered by or on behalf of the Customer
(including by any User) into the Software in accordance with this Agreement.
Customer IPRs means any
Intellectual Property Rights belonging or licensed to the Customer the use of
which by Fluent is required in order to enable Fluent to provide the Software in
accordance with this Agreement (but excluding any Intellectual Property Rights
licensed to the Customer by Fluent under the terms of this Agreement).
DPA means the
Data Protection Act 1998 and the Privacy and Electronic Communications
Regulations 2003.
Extra Services means the
services described at clause 2 of the Base Terms.
Fees means the
fees payable by the Customer to Fluent in accordance with this Agreement, as
stated in the Contract Information Form.
Functional Specification means either
(in the event that the Customer requires customization as part of the
Implementation Services) the specification of functionality as agreed by the
Customer and Fluent in writing, or (in event that no such customisation is
required) Fluent’s specification for the Software from time to time existing.
Hosting Services means the
services detailed in clause 2 of the General Terms.
Implementation Services means the
services agreed in accordance with clause 2.1 of the Base Terms.
Intellectual Property Rights means
patents, patent applications, and patent rights, copyrights, copyright
applications, and copyright registrations, trademarks, trademark applications,
trademark registrations, and trademark rights, trade secrets, and all other
intellectual property and proprietary information rights as may exist now or
hereafter come into existence, all modifications, continuations, renewals, and
extensions of any of the foregoing, and all claims, actions, causes of action,
damages, costs, expenses, profits, penalties, recoveries, and remedies relating
to any past, present, or future infringement of any of the foregoing, arising
under the laws of any country, state, or jurisdiction in the world.
Maintenance Services means the
services detailed in clause 1 of the General Terms.
Parties means the
parties to this Agreement and Party
shall mean either of them.
Registered User shall have
the meaning given in clause 1 of the Base Terms.
Services means each
of the Implementation Services, the Hosting Services, the Extra Services and the
Maintenance Services.
Site means the
website at which Fluent provides access to the Software.
Software means the
Software provided by Fluent as stated in the Contract Information Form, the
Bespoke Software created by Fluent for the Customer and (where Fluent provides
the Software as Software as a Service) shall include the Software as a Service.
Software as a Service means the
facility by which the Customer can Use the Software via the internet in
accordance with this Agreement.
Term means the
term of this Agreement as specified in the Contract Information Form.
Third Party means any
third party licensing or providing directly or indirectly to Fluent any element
of the Software (including any component service, software, hardware or
facility).
Third Party Licence
means any
agreement between Fluent and a Third Party.
Use shall have
the meaning given it in clause 1.1 of the Base Terms.
User shall mean
any user of the Software (and shall include Registered Users, where the
provisions of clause 1.4 of the Base Terms apply).
Year
means the
period of a calendar year commencing either on the Commencement Date or any
anniversary thereof.
2
In this
Agreement (except where the context otherwise requires) reference to a clause
means a reference to a clause of this Agreement; the clause headings are
included for convenience only and shall not affect the interpretation of this
Agreement; use of the singular includes the plural and vice versa; use of any
gender includes the other genders; any reference to a statute, statutory
provision or subordinate legislation (legislation)
shall (except where the context otherwise requires) be construed as referring to
such legislation as amended and enforced from time to time and to any
legislation which (either with or without modification) re-enacts, consolidates
or enacts in rewritten form any such legislation and any former legislation
which it re-enacts, consolidates or enacts in rewritten form; any phrase
introduced by the term including,
include,
in particular or any similar expression shall be construed as illustrative and shall not limit the
sense of the words preceding those terms.
CONTRACT
INFORMATION FORM
|
COMMENCEMENT DATE |
[insert required commencement date here] |
|||
|
SOFTWARE |
[insert details of licensed software here: are there any restrictions on user numbers?] |
|||
|
SERVICES |
|
Summary |
Please select Services required
ü |
|
|
Software
development |
|
[ ] |
||
|
Implementation Services |
|
[
] |
||
|
Maintenance
Services - First Line Technical Support |
|
[
] |
||
|
Hosting
Services |
|
[
] |
||
|
Extra
Services / consultancy |
Follow
procedure set out in clauses 2.11 – 2.13 of the Base Terms of this Agreement |
[
] |
||
|
TERM |
[insert length of initial term here] |
|||
|
FEES |
|
£ |
Payment Terms |
|
|
Software development |
|
|
||
|
Implementation Services |
|
|
||
|
Maintenance
Services - First Line Technical Support |
|
|
||
|
Hosting
Services |
|
|
||
|
Extra
Services / consultancy |
Follow
procedure set out in clauses 2.11 – 2.13 of the Base Terms of this Agreement |
|
||
|
Ad Hoc Maintenance*
(*see clause 2.6 of Base Terms for further details) |
Standard
rate per call/email to Fluent £…………………
Fluent
hourly rate to address issue £…………………. |
[Insert, in each case, whether you want
up-front payment or payment on invoice] |
||
|
ANY OTHER
PROVISIONS |
[insert any other specific required provisions here] |
|||
|
The
contents of this contract information form incorporate Fluent Technology
Limited’s standard terms and conditions of business, a copy of which is
available upon request and can be found at www.fluenttechnology.com/Terms.aspx
. |
||||