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Terms & Conditions of IRIS OpenBooks

These are the terms and conditions on which we permit you to access the IRIS OpenBooks hosted software. Please read these terms and conditions carefully. By using the Software, you agree to be bound by these terms and conditions. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SOFTWARE.

1. Definitions & Interpretation

1.1 Definitions

"Acceptance Date" means the date on which the Software is accepted or deemed to be accepted by You pursuant to clause 3;

"Agreement" means the agreement between us on you on the terms of these Terms and Conditions;

"Charges" means any charges due under these Terms and Conditions and includes the Hosting and Support Fee, any administration fee payable for the benefit of spreading payments over a period of time subject to Our confirmation that You are entitled to do so, or any other charge or expense payable under these Terms and Conditions, invoiced by Us and calculated in accordance with Our current standard rates from time to time, details of which are available on request;

"Commencement Date" means the date of acceptance of these Terms and Conditions by you;

"Current Release" means the most recent version of the Software which has been made available by Us, which from time to time is publicly marketed and offered for purchase by Us in the course of Our normal business;

"Documentation" means (where available) the operating manuals, user instructions, technical literature and other related materials We supply to You in any form pursuant to these Terms and Conditions for aiding the use of the Software, including any part or copy of them and any Third Party Software documentation;

"Group Company" means (in relation to each party) any subsidiary, group or parent company from time to time of a party (as such words are defined in the Companies Act 2006);

"Hosting and Support Fee" means the annual, quarterly or monthly fee payable for the Hosting Services and Support as specified to You by Us on the Website or in any invoice;

"Hosting Services" means the service provided to allow You to access the Software Materials from a remote location;

"Initial Term" means the period of twelve (12) months from the Commencement Date unless specified otherwise on the Website or in any invoice;

"IPR" means all intellectual property rights including, without limitation, all patents, copyright, design rights, database rights (including rights in the design or structure of any database) trade marks, confidential know-how, database rights and all other similar rights (whether registered or unregistered) and all applications for the same anywhere in the world;

"License" means the License specified in clause 2;

"Licensed Companies" means the number of companies, restricted to Affiliates (as such term is defined in the Companies Act 2006) and each such company must be notified to Us in writing pursuant to clauses 4.3 and 15;

"Maintenance Release" means any release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a Current Release;

"Renewal Term" means the period defined in clause 12.1;

"Software" means IRIS OpenBooks, Maintenance Releases and any copies of the same supplied by Us but excluding source code material and all preparatory design material;

"Software Materials" means the Software and any Third Party Software;

"Specification" means the functional specification (if any) for the Software or minimum and/or optimum system environment or hardware specifications for use of the Software published by Us in hard copy format or on the Website;

"Standard Support Hours" means the standard hours during which the Support will be provided as specified in clause 7.4;

"Support" means the support service comprising advice by telephone, facsimile,post, email, the Website or other means available to Us (excluding on site visits) as may be appropriate and necessary to resolve Your difficulties and queries in relation to the Software and Hosting Services. Such advice will be provided to Your contacts as notified to us in accordance with any procedure specified by us;

"Term" means the Initial Term and any Renewal Term;

"Terms and Conditions" means these terms and conditions for the supply of Software, Hosting Services and Support as may be amended by Us from time to time and any other documents expressly incorporated by Us;

"Third Party Software" means all software owned by a third party but legally licensed for use or distribution by Us or You (as the case may be) as part of or for use within the Software Materials or through the Hosting Services;

"UK" means the United Kingdom;

"Users" means any employee, client, temporary staff agent or contractor of Yours that accesses the Software Materials via the Hosting Services with Your permission;

"Website" means the website specified on Our invoice or stationary sent to You from time to time.

 

1.2 Interpretation

In the event of any conflict or inconsistency between any of the parts of these Terms and Conditions (unless expressly stated otherwise) the terms of the part first appearing below shall prevail to the extent of the inconsistency:

1.2.1 the terms and conditions of the main body of these Terms and Conditions;

1.2.2 the Schedules;

1.2.3 any other documents expressly incorporated in these Terms and Conditions by Us.

2. Grant of License

2.1 Subject to the terms of these Terms and Conditions, in consideration of the payment to Us by You of the Hosting and Support Fee, We grant You a non-exclusive and non-transferable license ('the License') during the Term to use and access the Software through the Hosting Services for Your internal business purposes only.

2.2 We may use a third party hosting service provider in order to provide the Hosting Services. If We do, then the standard terms and conditions of that third party hosting service provider will apply and will take precedence over the terms of these Terms and Conditions, except for clause 9, which shall take precedence over the standard terms and conditions of that third party hosting service provider. The terms of these Terms and Conditions will also apply to the extent that they do not directly conflict with the terms of the third party hosting service provider.

3. Acceptance

You will be deemed to have accepted the Software on use of the Software by You in a live environment.

4. Permitted Use

4.1 The License will be restricted to the license metrics paid for by You.

4.2 It is Your obligation to ensure that the invoice and/or any other written notification We send or give to You confirming the licence metrics correctly state the information set out in them. If the license metrics specified in those documents change during the Term of these Terms and Conditions, You may write to Us to request a change to them. You may increase the number of Licensed Companies covered by the License at any time during the term of these Terms and Conditions and upon payment of any additional sums due for the remainder of the current invoicing period, but may only decrease the number of Licensed Companies at the start of a Renewal Term. If there is any change to the license metrics or variables relating to the Software Materials, Hosting Services or Support and/or the Charges due under these Terms and Conditions, We will issue You with a revised invoice and/or take any changes into account in the renewal invoice issued to You before the commencement of the Renewal Term.

4.3 Employees of any Group Company are not permitted to access the Software Materials via the Hosting Services, unless that company has been licensed to use the Software Materials via the Hosting Services in accordance with these Terms and Conditions.

4.4 You may access and use the Software via the Hosting Services for processing Your own data for Your own business purposes only.

4.5 You shall not:

4.5.1 use or attempt to use the Software or any of the Software's output or permit any third party to do so to provide a data processing service to any third party or contrary to any other restrictions stated in these Terms and Conditions without Our prior written consent. Use of the Software in the course of providing your own services to your clients does not constitute use contrary to this clause 4.5.1;

4.5.2 translate or adapt the Software for any purpose nor arrange or create derivative works based on the Software without Our express prior written consent in each case;

4.5.3 transfer or distribute (whether by license, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber all or any part of the Software to any other person or use the Software on behalf of any third party or make available the same to any third party;

4.5.4 make, or permit any third party to make for any purpose (including without limitation for error correction), any alterations, modifications, additions or enhancements to the Software;

4.5.5 yourself or permit any third party to, alter, adapt, make error corrections to, decompile, reverse engineer or disassemble the Software or any part or permit the Software to be combined with any other programs;

4.6 You shall follow all lawful and reasonable instructions and directions given by Us from time to time in relation to the use of the Software Materials and Hosting Services.

4.7 We shall be entitled to inspect Your use of the Software Materials and Hosting Services at any time without prior notice. If necessary, We may require You to operate and run a tool or programme provided by Us on Your equipment in order to verify that Your use of the Software Materials and Hosting Services complies with the terms of these Terms and Conditions.

4.8 You shall use appropriate hardware and software to access the Software Materials in accordance with the specifications notified to You and will take appropriate security precautions to prevent unauthorised access to Your computer systems.

4.9 You may not access or use the Software Materials other than as specified in these Terms and Conditions without Our prior written consent, and You acknowledge that additional fees may be payable on any change of use authorised or approved by Us.

4.10 You shall not make or permit others to make any copies of the Documentation without Our prior written consent, excluding the printing of help files which is permitted in so far as the making of such copies are necessary for the use of the Software Materials permitted by the License. Such copies will belong to Us.

5. Hosting Services

5.1 Unless otherwise specified on the Website or in the Documentation, we shall use reasonable endeavours to maintain twenty four (24) hour online presence for the Software Materials. However, we cannot guarantee continuous, uninterrupted use. There will be times when We will be required to interrupt the provision of the Hosting Services in order to carry out routine maintenance, repairs, reconfigurations or upgrades on a regular basis or in circumstances beyond Our control. We shall notify You in advance of any planned interruptions.

5.2 We may suspend the Hosting Services without notice and without any liability to You if:

5.2.1 the Hosting Services or Software Materials are being used in breach of these Terms and Conditions (including without limitation failure to pay any Charges);

5.2.2 There is a breach of security in respect of which We reasonably believe that the suspension of the Hosting Services is necessary to protect Your or Our network or a third party network;

5.2.3 Due to unavailability of third party networks and/or services, including without limitation telecommunications and ISP services;

5.2.4 if required by law, regulation or court order or as compelled by a law enforcement or government agency or other relevant regulatory agency.

5.3 In the event the Hosting Services are suspended due to Your act or omission, We reserve the right to charge You for a reconnection fee prior to resuming provision of the Hosting Services.

5.4 We may from time to time upgrade Our hosting facility and it may become necessary to relocate the hosting equipment within the same location or to another location. In each such case, We shall give You reasonable advance notice and use reasonable endeavours to minimise the effect that any such change will have on the Hosting Services.

5.5 You shall (a) provide a communications device of the type specified by Us; and (b) arrange appropriate internet access for all Users. Such internet access shall be in accordance with the Specification (if applicable). We shall not be liable for any failure to provide the Hosting Services if You fail to comply with this clause.

5.6 We shall use commercially reasonable efforts to safeguard and accurately maintain Your data stored on the Software in accordance with general industry standards.

5.7 The provision of the Hosting Services is subject to any limit on the amount of disk space and/or bandwidth available to You as specified in the invoice or on the Website or Documentation. If You exceed this usage limit You may, at Our discretion, either (a) purchase extra disk or bandwidth capacity at Our standard rates from time to time, where possible or (b) purge unwanted data from the system with Our guidance, for which We shall be entitled to charge in accordance with Our standard daily rates for those services from time to time. Repeated or material breaches of this clause 5.7 may result in termination of these Terms and Conditions by us under clause 12.4.1.

6. Proprietary rights

6.1 All copyright, database rights and other IPR in the Software, Hosting Services or Documentation and rights in any copies of them shall belong to Us or our third party licensors and You shall have no rights in respect of any of them except the right, as expressly granted under these Terms and Conditions, to use them in accordance with these Terms and Conditions. You shall do or procure to be done all such further acts and things and shall execute or procure the execution of all such other documents as We may from time to time require for the purpose of giving Us the full benefit of the provisions of this clause.

6.2 You agree not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the Software Materials or which is visible during its operation or which is on any physical media or on any Documentation. You agree to include Our proprietary marks in any copies of the Documentation made by You in compliance with these Terms and Conditions.

6.3 You shall notify Us immediately if You become aware of any unauthorised access to, use, of any part of the Software Materials or Documentation.

6.4 You are solely responsible for the accuracy and reliability of any data uploaded by you onto the Software and retain all IPR in such data.

7. Support

7.1 In consideration of Your payment of the Hosting and Support Fee and the performance of all Your other obligations pursuant to these Terms and Conditions, We agree to provide the Support in accordance with the terms of these Terms and Conditions.

7.2 Maintenance Releases or details of such releases may be issued at Our discretion.

7.3 Support covers assistance in relation to (i) availability of the Hosting Service and (ii) significant operational errors that make the Software unusable when operated in conformity with the online user instructions in the help function in the program or the Documentation (as the case may be), and for both (i) and (ii) as may be stated otherwise on the Website. Such errors or unavailability shall be notified by You to Our Customer Support Department as published on the Website. We will use reasonable endeavours to attempt to correct or assist You to avoid errors or unavailability thought to be suitable to the problem or at Our option resort to other means toward a mutually satisfactory solution. For the avoidance of doubt, Support does not include support for Third Party Software unless expressly stated in the invoice or on the Website.

7.4 The Support will be provided during the hours published on the Website excluding UK public holidays and where applicable any Republic of Ireland public holidays and any company shutdowns. Any such company shutdowns will be notified in advance on the Website.

7.5 The provision of any Support outside the Standard Support Hours is at Our sole discretion. Charges in respect of all time spent in providing any Support outside the Standard Support Hours will be invoiced to You at Our discretion at Our then current rates.

7.6 We will use reasonable endeavours to provide the Support promptly having regard to the availability of personnel, necessary supplies and facilities.

7.7 If You make unreasonable, excessive or inappropriate use of the Support, then We may at Our absolute discretion either suspend or charge extra for such Support and invoice You, and You agree to pay, for the additional Charges in respect of time spent supplying such Support at the then current rates.

7.8 The Support is compulsory as part of the supply of the Software and provision of Hosting Services.

7.9 We will use reasonable endeavours to ensure that the Hosting Services and Support are supplied promptly or (if applicable) by any dates as agreed by the parties, having regard to the availability of Consultants or other personnel, but any delivery dates or times quoted will be estimates only and time will not be of the essence.

8. Customer obligations

8.1 You undertake:

8.1.1 to satisfy Yourself that the Software Materials meet the needs of Your business. If You are not qualified to make these assessments Yourself, it is Your responsibility to engage the services of someone with requisite expertise who can make that assessment for You;

8.1.2 ensure that the licence metrics do not at any time exceed those set out in the invoice;

8.1.3 to maintain accurate and up-to-date records of the number and locations of all Users;

8.1.4 to ensure each User keeps a secure password for their own use and access to the Software Materials and/or Hosting Services only and does not disclose it to any third party. No User should use any password except their own;

8.1.5 not to store, distribute or transmit any viruses or unsolicited emails, or any material through the Hosting Services that are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitate illegal activity; depict sexually explicit images; or promote unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, breach third party intellectual property rights; include personal data of any person that was not collected or is not being stored in accordance with applicable legislation and guidance from regulatory authorities, breach third party confidentiality or privacy rights or any other illegal or actionable activities;

8.1.6 not to carry out any activity that damages, disables, overburdens or impairs the Software, Hosting Service or Website or interferes with Our other customers' use of the Hosting Services;

8.1.7 to comply with any acceptable usage policy as may be notified to You by Us from time to time;

8.1.8 to comply with all licensing terms in respect of any Third Party Software whether procured or licensed by You or Us not and to ensure such licensing terms permit You to allow Us to host such Third Party Software as part of the Hosting Services. You will indemnify Us for any breach of this clause 8.1.8;

8.1.9 not to provide or otherwise make available the Software Materials in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) in any form to any person other than Your employees, temporary staff, agents or sub-contractors who need it for the purposes of these Terms and Conditions without Our prior written consent;

8.1.10 to accept full responsibility for the acts or omissions of any of Your employees, sub-contractors, consultants and/or agents given access to the Software Materials as if they were Your acts or omissions;

8.1.11 to comply with all applicable laws and regulations in relation to Your activities under these Terms and Conditions;

8.1.12 to allow Us to study Your information and data used with the Software for the purpose of rectifying any problems with the Software in relation to provision of Support;

8.1.13 to ensure that the operating system and compiler and any other software with which the Software will be used is either Your property or it is legally licensed to You for use with the Software. You will indemnify Us in respect of any claims by third parties and all related costs, expenses or damages in the event of any alleged violation of third party proprietary right which results in any claims against Us;

8.1.14 to ensure that Users log in using their own username and password only and do not share usernames and passwords, If You believe that any other User or a third party may have obtained a User's username or password, please report the matter to Us immediately by telephoning Our help desk;

8.1.15 to be responsible for ensuring that the Software Materials and Hosting Services are compatible with Your existing systems and software. We shall not be required to configure the Software Materials, Hosting Services or Your systems and software to be compatible with one another. If, in Our sole discretion, We agree to do so, You shall pay Us additional Charges in respect of time spent on such services at the then current rate;

8.1.16 not to bypass any security and/or access feature of the Hosting Services or Software Materials;

8.1.17 to be solely responsible for the accuracy of Your data and for procuring any third party licences or consents required to allow storage of Your data on the Software Materials and Hosting Services; and

8.1.18 not to dispute Our or our third party licensors' ownership of the IPR in the Software Materials during the term of this Agreement;

8.1.19 to use reasonable endeavours to ensure that Your own system or equipment does not contain any trojan horse, worm, logic bomb, time bomb, back door, trap door or other common viruses.

8.2 In relation to the Support, You shall:

8.2.1 use all reasonable endeavours to ensure that the Materials are used in a proper manner by competent trained employees only or by persons under their supervision;

8.2.2 notify Us promptly by notice in writing if the Software is not operating correctly or of any other problem with the Software or problems with the availability of the Hosting Services;

8.2.3 co-operate to a reasonable extent with Our staff as reasonably required to perform the Support;

8.2.4 designate primary and secondary contacts and procure that those contacts shall be those who deal with Us with regard to any matters reported in connection with the Support and the only contacts authorised to use the telephone helpline, and inform Us as soon as reasonably possible if contacts or their details change

8.3 If any of Our staff work on Your premises, You will ensure that Our staff are provided with suitable and safe office accommodation, suitable services (including telephone,facsimile and photocopying facilities) and any computing and ancillary facilities, and use free of charge such items, third party software, facilities and services (if any) as may be required to perform the Support.

8.4 We reserve the right to refuse to provide any Hosting Services or Support to You, if in Our sole opinion You are abusive to Our staff, do not comply with clause 8.3 or Your other obligations under these Terms and Conditions.

8.5 You shall indemnify Us against any losses, damages, costs (including legal and other professional fees) and expenses incurred by or awarded against Us as a result of Your breach of these Terms and Conditions or any negligent or wrongful act by You or Your Users or Licensed Companies.

8.6 You hereby acknowledge and agree that these Terms and Conditions will not be enforceable against any Group or associated company of the Iris Group, and Your sole recourse and/or any rights or remedies You may have whether in contract, tort or otherwise arising from Our failure to comply with the terms of these Terms and Conditions will be against Us alone.

8.7 You will promptly provide Us with full and accurate information, data and explanations as and when required. Where applicable You will also provide Us appropriate test scripts, tests and test data.

8.8 You shall procure all necessary rights from third parties (including, without limitation intellectual property licences in relation to computer software) which are from time to time required in order for Us to be able to provide the Hosting Services or Support.

8.9 If We are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of Our obligations under these Terms and Conditions, by reason of Your acts or omissions (including the provision of any incorrect or inadequate data or the provision delay or failure to provide information or instructions or perform Your obligations under these Terms and Conditions),then You shall pay Us any additional reasonable costs and expenses incurred by or on Our behalf and any timetable agreed for the performance by Us of any of Our obligations shall be extended accordingly.

8.10 You accept and acknowledge that We are not responsible for the acts or omissions of any third party suppliers, including but not limited to telecommunications and internet service providers and/or Your third party suppliers.

8.11 You shall not re-sell or permit the resale directly or indirectly (whether or not for profit) of the Software Materials or Hosting Services (or any part of either) to any third party, or to allow any third party to receive or make use of the Software Materials or Hosting Services (or any part of either) directly or indirectly (whether or not for profit). This does not affect your right to permit access to Users in the course of your business.

8.12 We shall follow the archiving procedure for Your data as may be notified to You. In the event of any loss or damage to Your data, Your sole and exclusive remedy shall be for Us to use reasonable endeavours to restore the lost or damaged data from the latest back-up of such data maintained by us in accordance with the archiving procedure. Subject to clause 11.1, We shall not be responsible for any loss,destruction, alteration or disclosure of Your data caused by any third party (except those third parties sub-contracted by Us to perform services related to Your data maintenance and/or back-up.)

9. Payment terms

9.1 You agree to pay Us the Charges within 30 days of the date of invoice or if agreed otherwise in accordance with the terms for payment set out in the Schedule any invoice We send to You.

9.2 Where the Term is for periods of 3 months or less:

9.2.1 You agree to pay Us the Charges invoiced by Us monthly in advance in three (3) equal instalments, the first such payment being due on or prior to the Commencement Date and subsequent payments being due monthly thereafter on the same day each month until expiry of the Term.

9.2.2 Activation of the Hosting Services will automatically expire at the end of the Term.

9.3 All Charges payable by You to Us should be paid in full in accordance with terms stated on Our invoice.

9.4 All amounts due under these Terms and Conditions are exclusive of VAT and any other taxes, duties or levies and where relevant are exclusive of any travel, subsistence and other out-of-pocket expenses reasonably incurred by Us, which We shall be entitled to invoice to You, and You agree to pay, at Our then current rates.

9.5 We will be entitled to increase any Charges due under these Terms and Conditions, by giving You notice in the renewal invoice We send to You or if sooner by giving You thirty (30) days prior notice of such increase. In the event that You pay any amount due under these Terms and Conditions in instalments You agree that any increase in price during any relevant Term due to any change requested by You will be applied pro-rata to all subsequent instalments.

9.6 We will not activate the Hosting Services in respect of the Software Materials until payment of all Charges due under these Terms and Conditions have been received by Us in full and in cleared funds.

9.7 If any payment due under these Terms and Conditions or any other Agreement with Us is or are in arrears, We reserve the right without prejudice to any other right or remedy to:

9.7.1 charge interest on such overdue sum on a daily basis from the original due date until payment is received in full as well as after any judgment at a rate of 3% per annum above Lloyds TSB plc's base lending rate in force from time to time and alternatively reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or

9.7.2 suspend the provision of the Hosting Services and Support under these Terms and Conditions on seven (7) days' prior notice to You; and/or

9.7.3 withhold the activation of the Hosting Services until any outstanding payment is both received and cleared; and/or

9.7.4 terminate these Terms and Conditions pursuant to clause 12.

9.8 You will notify Us in writing within fourteen (14) days of receipt of an invoice if You consider such invoice incorrect or invalid for any reason and the reasons for withholding payment, failing which such invoice will be deemed accepted and You will make full payment in accordance with it.

9.9 We reserve the right to refuse to provide the Hosting Services and/or Support at any time without refunding the Charges paid by You, if any attempt is made, other than by Us, to tamper with the Hosting Services or Software Materials, or if You have failed to pay an invoice from Us in accordance with these Terms and Conditions or where, in Our reasonable opinion, Your system and/or the equipment has ceased to be capable of receiving the Hosting Services and running the Software Materials successfully for any reason.

9.10 If Your use of the storage facilities of the Software and/or Hosting Services is unreasonable,excessive or inappropriate, then We may at Our absolute discretion either suspend or make extra Charges for such Hosting Services and invoice You, and You agree to pay, for the additional Charges at the then current rates.

10. Warranty

10.1 We warrant the functionality of the Software, when properly used in conjunction with the Hosting Services and in conformity with the user guide in the help function in the Software and/or the Documentation, will, for a period of three (3) months from the Acceptance Date, operate substantially in accordance with the Specification or Documentation.

10.2 Our obligation and Your exclusive remedy under the warranty given in clause 10.1 is at Our option either repair (by way of Maintenance Release) within a reasonable period of time, or replace the Software in whole or in part, and in the case of Third Party Software the supply of a corrected version where available from the supplier of the same. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated in these Terms and Conditions whether by statute, common law or otherwise, are hereby excluded including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

10.3 We will have no liability or obligation under clauses 10.1 or 10.2 unless prior written notice of any alleged default is received from You within fourteen (14) days of the Acceptance Date in the case of Software. The warranty in clause 10.1 shall not apply to any Software developed or modified under the Agreement or in respect of any previous software licensed by Us to You in respect of which the originally agreed warranty period has expired.

10.4 You acknowledge that it is Your responsibility to ensure that the facilities and functions of the Software Materials meet Your requirements and that We will not be liable for any failure of the Software Materials to provide any facility or function not described in the Specification or Documentation or for any failure of the Software Materials attributable to any modification to the Software or the equipment by persons other than Our staff or combination of the Software Materials with other software or equipment without Our express prior written consent, or for the results of, loss or damage arising from any Support We have given to help You to develop or implement back-up routines.

10.5 We will use reasonable care and skill in performing and providing the Hosting Services and Support. We will use reasonable endeavours to provide the Hosting Services and Support in accordance with any service levels which may be specified on the Website.

10.6 We will investigate any problem or error in any provision of Hosting Services or Support provided that You notify Us in writing within seven (7) days following performance or delivery giving Us all necessary information to be able to investigate the problem, breach or error and limit Our liability to the right to re-perform the Hosting Service or Support.

10.7 We will not be liable for breach of the warranties in clause 10.5 unless You notify Us in accordance with clause 10.6 or if the error or failure has been caused by incorrect use or abuse or corruption of the Software Materials, Hosting Services or Support.

10.8 Except as provided in these Terms and Conditions no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, availability, reliability, suitability, performance, freedom from errors or viruses, security or fitness for purpose of the Support or Hosting Services is given or assumed by Us.

11. Liability

11.1 Nothing in these Terms and Conditions shall in any way exclude or limit Our liability for death or personal injury caused by negligence, or liability for fraudulent misrepresentation, or for any breach of Our obligations as to title under section 12 of the Sale of Goods Act 1979 or section 2 of Supply of Goods and Services Act 1982 or for any other liability which by law it is not possible to exclude or limit. We exclude all other liability for any loss or damage whatsoever arising in connection with the Software, Hosting Service and/or Support, even if we have been advised of the possibility of such liability. The remainder of this clause 11 is subject to this sub-clause 11.1.

11.2 Our liability for the loss or damage to tangible property, during the repair or upgrade of the Software Materials whether or not the same are under warranty, shall be limited in accordance with clause 11.3 of these Terms and Conditions.

11.3 Subject to sub-clause 11.6 below, Our total liability for direct losses in contract, tort, misrepresentation or otherwise in connection with these Terms and Conditions or the provision of the Software Materials, Hosting Services and Support for anyone event or a series of related events shall be limited to the total Charges and resulting sums paid (excluding VAT and expenses) by You to Us in the 12 months before the event(s) complained of.

11.4 We shall have no liability to You in respect of defaults covered by clause 11.3 unless You notify Us within six (6) months of the date You became aware of the circumstances giving rise to the event(s) complained of. We shall have not less than ninety (90) days following written notice by You (or such other notice period notified to You) in which to remedy any default.

11.5 In no event will We be liable to You in contract, tort, misrepresentation or otherwise, for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, nor for any direct or indirect loss of profit, loss of anticipated profits, loss of revenue, loss of anticipated revenue, loss of savings or anticipated savings, loss of business opportunity, increases in cost of working whether anticipated or not, loss or corruption of data, loss of use or loss of operating time and any costs and expenses associated therewith, loss or damage to Software or data which it contains during repair or upgrade whether or not the same are under warranty, the cost of purchasing elsewhere, depletion of goodwill or reputation or otherwise which arise out of or in connection with these Terms and Conditions and whether or not foreseeable or made known to Us.

11.6 You will indemnify and keep Us (and any of Our Group Companies) indemnified against any loss, damage, claim or expense arising out of (i) the physical injury of or death of any of Our consultants, employees, agents or authorised representatives arising by reason of defective equipment supplied by You, Your failure to provide a safe place of work or otherwise by reason of any negligent act or default on Your part or Your employees, agents or authorised representatives; (ii) Your failure to comply with the terms and conditions governing the use of any Third Party Software; (c) any claim that the storage of Your data via the Hosting Services and/or Software Materials by Us infringes the intellectual property rights of any third party.

12. Term & Termination

12.1 This Agreement will commence on the Commencement Date. The License, Hosting Services and Support will continue for the Initial Term and unless terminated earlier in accordance with these terms, shall automatically renew on expiry of the Initial Term for subsequent periods of one (1) year ("Renewal Term") provided that You have not breached these Terms and Conditions. You will pay any Charges due to Us in respect of such Renewal Term in accordance with Our invoice and sub-clause 12.3 below.

12.2 We may terminate this Agreement (or at Our discretion, the supply to You of any Software Licenses,Hosting Services or Support) (a) immediately if You fail to pay any sum due to Us under these Terms and Conditions and such sum remains unpaid for fourteen (14) days after notice has been given to You that such sum has not been paid or (b) on thirty (30) days prior written notice provided that We refund to You pro rata any monies paid by You in advance.

12.3 You may only terminate this Agreement by giving not less than ninety (90) days' prior written notice to take affect at the expiry of the Initial Period or any Renewal Term, but will not be entitled to any refund of any Charges paid under these Terms and Conditions. In the absence of such notice this Agreement will automatically renew on expiry of the Initial Term or Renewal Term as described in clause 12.1.

12.4 Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if the other:

12.4.1 is in material breach of these Terms and Conditions and either that breach is incapable of remedy, or the other party fails to remedy the breach within thirty (30) days of receipt of written notice setting out the breach and indicating that failure to remedy the breach may result in termination of this Agreement;

12.4.2 becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or notice has been received of a pending appointment of or the appointment of a receiver, manager, administrator or administrative receiver over all or any part of its undertaking, assets or income, intends to pass or has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order, or has ceased or threatened to cease to trade.

12.5 Termination of the Agreement, however caused, shall not affect the rights of either party under these Terms and Conditions which may have accrued up to the date of termination.

12.6 On termination of this Agreement however caused the License shall terminate and accordingly Your right to use the Software Materials via the Hosting Services will automatically cease. If the Agreement is terminated by You pursuant to clause 12.4.1, We will, at Our sole discretion, either make Your data available to You in standard readable form via email, CD-ROM or DVD or allow You 30 days' access to the Hosting Services following such termination to retrieve and store a read only copy of Your data. If the Agreement is terminated by Us or by You under any other clause, then We reserve the right to make a reasonable charge for such service or access.

13. Force majeure

No party shall be liable to the other for any delay or non-performance of its obligations under these Terms and Conditions arising from any cause beyond its control. For the avoidance of doubt, nothing in this clause 13 shall excuse You from any payment obligations under these Terms and Conditions. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate this Agreement forthwith by prior written notice without prejudice to the accrued rights of either party.

14. Assignment

We may assign, sub-contract or otherwise transfer any of Our rights or obligations under these Terms and Conditions without Your consent. You may only assign, sub-contract or otherwise transfer any of Your rights or obligations with Our prior written consent. Nothing in this clause 14 prevents you from granting Users access to the Software and Hosting Services on these Terms and Conditions.

15. Notices

15.1 Any notice required to be given pursuant to these Terms and Conditions shall unless otherwise stated in it, be in writing, sent to the other party marked for the attention of the person at the address specified in these Terms and Conditions (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause).

15.2 For the purpose of notices to be given by Us in writing, the expression "writing" or "written" shall be deemed to include email communications or facsimile transmissions. At Our option, We may send You written notice addressed to the facsimile number or by email at the email address You supply to Us.

15.3 A correctly addressed notice sent by first-class post shall be deemed to have been delivered 72 hours after posting, correctly directed faxes shall be deemed to have been received instantaneously on transmission, and correctly addressed emails shall be deemed to have been delivered 24 hours after sending.

16. Severability

If any provision of these Terms and Conditions is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

18. Entire Agreement

18.1 These Terms and Conditions and any document expressly incorporated in it contains the entire and only agreement between the parties and supersedes all previous agreements between the parties with respect to the subject matter hereof. Each party acknowledges that in entering into this Agreement, it has not relied on any representation, undertaking, promise or statement whether oral or in writing which is not expressly set out in these Terms and Conditions. Except as expressly provided in these Terms and Conditions all conditions, warranties, stipulations and other statements whatsoever that would otherwise be implied or imposed by statute, at common law, or otherwise howsoever are excluded to the fullest extent permitted bylaw. Nothing in the foregoing shall however affect any liability for fraudulent misrepresentation.

18.2 You will be notified of any changes to these Terms and Conditions on the Website. Changes to the Agreement will take effect from the date of commencement of the Renewal Term or if sooner after thirty (30) days of notice being given to You pursuant to this clause.

19. Third party rights

A person who is not party to these Terms and Conditions shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions.

20. Data Protection

20.1 Each party shall comply with the Data Protection Act 1998 ("Act"). Neither party shall by any act or omission, put the other party in breach of the Act and each party shall do and execute, or arrange to be done and executed each act, document and thing necessary or desirable to ensure that it does not put the other party in breach of the Act. You shall indemnify Us for any breach by You of this clause 20.1.

20.2 We will use Your personal details and any information We obtain from other sources to provide You with Our goods and services, for administration and customer services, to analyse Your purchasing preferences and to ensure that the content, services and direct marketing that We offer are tailored to Your needs and interests. We may keep Your information for a reasonable period for these purposes. We may disclose Your personal information to any member of Our group, which means Our subsidiaries, Our ultimate holding company and its subsidiaries as defined in section 1159 of the Companies Act 2006, to joint venture partners and resellers of any of Our group companies, Our service providers, partners and agents for these purposes. They or We may use Your information to write, phone or contact You by other means to offer products and services or promotions. Any information provided to third parties for this purpose will be under Our strict supervision and within the requirements of the Act. We may transfer Your information outside the UK if necessary for the above purposes and You acknowledge that if the receiving country is outside the European Economic Area, it may not have the same standards of data protection as the UK. We may record telephone calls to improve Our service to You and assist with training. The information You give Us is not sold on to other companies and We have a serious and dedicated commitments to the security of Your information. By submitting Your personal details You confirm that You consent to the contents of this clause.

20.3 You have a right at any time to stop Us from contacting You for direct marketing by writing to Us at Our registered office.

21. Confidentiality

21.1 Both parties agree not to use or disclose confidential information relating to or owned by the other, received or disclosed to it by the other party during the term of this Agreement, save for use or disclosure required in order to perform their respective obligations under these Terms and Conditions. Disclosure shall be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.

21.2 The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal requirement, or is independently developed by the receiving party.

21.3 Any confidential information will be returned or destroyed by the receiving party forthwith at the prior written request of the owner.

21.4 We will be allowed to refer to You in any publicity.

21.5 In the event that the parties execute a separate confidentiality agreement, the terms of that agreement shall prevail.

22. Governing law

These Terms and Conditions shall be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.

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