Terms
and Conditions
Introduction
and interpretation
These terms and
conditions shall apply to any agreements entered into by ActivePoint Inc. for
the supply of any products, services and supporting documentation. Each individual agreement will begin with a
front sheet (‘order acknowledgement’) stating the details specific to that
agreement. The order acknowledgement,
these terms and conditions and any other schedules and appendices shall
together be called the ‘Agreement’.
1
) Definitions
In this agreement,
unless the context otherwise requires so, the following expressions have the
following meanings:
‘Customer’ Means the company that is provided with
the software/services
‘Software’ Converted PDF documents to a web enabled
format and the software allowing them to be viewed on-line.
a) In
an event of any conflict or inconsistency between any provision of the clauses
and provision of any schedules or appendices to this agreement the clauses
shall prevail.
2)
Products
and services provided
In consideration of payment of
the page rate fee and upon the terms of this agreement ActivePoint Inc. hereby
agrees to:
a) Grant
a limited use license of the software that enables the web enabled documents to
be viewed on-line.
b) Provide
access to the proofing version of the customers bespoke software via a website
link to allow the product to be proofed sufficiently before upload.
c) Any
amendments that need to be made are chargeable at ActivePoint Inc.’s standard
rates.
d) On
confirmation by the customer that the product has been checked and is passed as
correct, ActivePoint agrees to upload the software to an agreed live site.
3)
Payment
a) Payments
of all fees provided for under this agreement shall be made in full and free from
any deductions, rights of set-off, counterclaims or liens.
b) Final
payments are to be made by the customer and to arrive at the ActivePoint Inc.
offices within 7 days from the date of uploading the software to a live site or
the date of invoice.
c) If
any sum payable under this agreement is not paid within 14 days of the date on
which it is due, ActivePoint Inc. reserves the right (in addition to its other
rights) to charge interest on a daily basis, before and after judgement, from
the due date of payment until the actual date of payment at a rate of two
percent over the then current LIBOR on the outstanding balance until payment is
received in full by ActivePoint Inc. and to recover from the customer all costs
and expenses incurred in the recovery of any overdue money from the
customer. In addition, Activepoint will
be under no obligation to supply the services while any invoice for any fees
remains unpaid 14 days after the due date.
All outstanding sums due to ActivePoint Inc. from the customer shall be
paid by the customer before the services can recommence.
d) Unless
specifically stated otherwise in this agreement, all fees are non-refundable.
e) Provided
that no sums are payable to Activepoint from the customer under this agreement
the customer may terminate this agreement at any time by giving ActivePoint
Inc. 30 days written notice. If sums are
payable, the contract may be terminated by agreement between parties provided
all outstanding sums are paid in full.
4)
Warranty
a) Subject
to clause 4(b) ActivePoint Inc. warrants that on the date of upload and
throughout the time that ActivePoint Inc. provides support services to the
customer:
i) The
product will provide functionality contained in the documentation in all
material respects provided the product is used within an operating system, on
equipment and in an environment approved by ActivePoint Inc.
ii) ActivePoint
Inc. has taken reasonable precautions to ensure that the software does not
contain any viruses and will run virus checks prior to uploading the software
iii) It
will provide reasonable skill and care when providing any services to the
customer.
iv) The
above comprise the ‘Principal Warranty’
b) The
customer acknowledges that the products are a bespoke program prepared to meet
the customer’s individual requirements whether or not such requirements are set
in any part of this agreement, and that it is the responsibility of the
customer to ensure that the facilities and functions described in the
documentation and described by ActivePoint Inc. in this agreement meet its
requirements. ActivePoint Inc. shall not
be liable for any failure of the product to provide any facility or function
not specified in the documentation or by ActivePoint Inc. in the agreement. The customer also acknowledges that it is not
possible to test the product in advance in every possible operating combination
and environment or to produce the product error free.
c) If
ActivePoint Inc. receives written notice of any breach of the principal
warranty from the customer then ActivePoint Inc. shall at its own expense and
within a reasonable time after receiving the notice remedy the defect in
question provided that the alleged breach can be reproduced by Activepoint
Inc. Activepoint Inc. shall always be
afforded a reasonable opportunity and a reasonable period of time in which to
correct any such breach. When notifying
a defect the customer shall (so far as it is able) provide Activepoint Inc.
with a documented example.
d) Notwithstanding
anything else contained in this agreement, Activepoint Inc. will not be liable
at any time for loss, damages, or costs arising out of misuse, abuse or
mismanagement of the software.
Activepoint Inc. shall have no liability under the principal warranty
other than to remedy any breach in accordance with clause 4 (c) above and by
the provision of materials and services within a reasonable time and without
charge to the customer.
e) Except
as expressly stated in this agreement ActivePoint Inc. gives no warranty,
condition, undertaking or term, express or implied, statutory or otherwise, as
to the condition, performance, satisfactory quality or fitness for purpose of
the product and/or services and all such warranties, conditions, undertakings
and terms are excluded to the fullest extent permitted by law.
f) We will not be liable to You in
contract, tort or otherwise for any loss of profits, business, contracts,
production, revenues, anticipated savings or for any increased costs or any
indirect, special or consequential damages in connection with or arising out of
this Agreement.
5)
Proprietary
rights
a) Activepoint
Inc. shall own and shall retain title to all Intellectual Property Rights in
the software and any other items supplied under or created by Activepoint Inc.
as a result of this agreement and any copies thereof.
b) The
customer shall notify ActivePoint Inc. promptly in writing if the customer
becomes aware of any unauthorised use of any part of the software.
c) The
customer will permit Activepoint Inc. access to check/update the software and
its use at an agreed time that will not cause disruption to its use.
6)
Intellectual
property rights indemnity
a) In
the event of any infringement of any third party’s Intellectual Property
Rights, ActivePoint Inc. may at its own expense (i) modify or replace the
software or any infringing part of it with a compatible, functionally
equivalent and non-infringing software product or (ii) secure the right of the
customer to continue using the software.
Should options (i) or (ii) not be reasonably available within 90 days of
the notification of the infringement to ActivePoint Inc. then this agreement
may be terminated at the option of either party upon 30 days prior written
notice. In these circumstances ActivePoint
Inc. shall be liable only to reimburse to the customer all monies received in
advance for associated services not at the time already supplied.
7)
Confidentiality
a) Neither
party shall use or disclose any confidential information of the other party
including but not limited to any business information and employee personal
data except as necessary for the performance of this agreement, or as required
by law.
b) This
clause shall not prevent the disclosure or use by either party of any
information which is or becomes, through no fault of that party, public
knowledge or to the extent permitted by law.
c) ActivePoint
Inc. shall be entitled to announce the existence of this agreement subject to
the consent of the customer and the customer’s approval of the terms of any
announcements (neither of which may be unreasonably withheld or delayed),
ActivePoint Inc. shall be entitled to disclose and/or publicise details of its
arrangements with the customer.
8)
Alterations
Subject always to
clause 5, the customer may combine the use of the software, at its own expense
and responsibility, with other programs to form a combined work. Where such other programs are the property of
a third party the customer shall be responsible for obtaining all necessary
consents to their use with the software.
9)
Liability
a)
You agree with Us that if you suffer
any loss or damage as a result of Our breach of the terms of this Agreement, or
as a result of Our negligence or breach of statutory duty, then Our aggregate
liability in respect of all such losses or damage will be limited to the
smallest of the following:
i)
the actual amount of any loss or
damage You suffer;
ii)
the total of the monies paid to Us
under this Agreement at the date of the loss.
b)
nothing in this clause 4 shall exclude
Our liability for death or personal injury caused by negligence.
c)
Subject to clause 9b and whether or
not ActivePoint Inc. has been advised of the possibility of such loss or damage
ActivePoint Inc. shall not be liable to the customer, whether such losses or
damages arise due to negligence, breach of contract, misrepresentation
(excluding fraudulent misrepresentation) or for any other reason, in respect
of:
i)
The following whether direct or
indirect:
(1)
loss of profits;
(2)
loss of anticipated savings;
(3)
loss of business; and/or
ii)
any type of indirect loss or damage
howsoever caused.
d)
You agree and accept that the
limitations on liability contained in this clause 9 are fair and reasonable.
e)
If Activepoint Inc. is prevented or
delayed from performing any of its obligations under this agreement by reason of
any act, default or omission of the customer and/or its employees, agents or
subcontractors, then:
f)
The customer shall pay Activepoint
Inc. at ActivePoint’s then standard rate of charges any additional costs,
expenses, liabilities (whether under the terms of this agreement or otherwise)
which ActivePoint Inc. has reasonably incurred or sustained as a result of such
act or omission or default of the customer and or its employees, agents or
subcontractors;
10)
General
a) A
delay or failure by either party to exercise any right shall not be treated as
a waiver of any such right or any other rights. A consent by either party to a
breach of any express or implied term of this agreement shall not constitute a
consent to any subsequent breach.
b) This
agreement supersedes all prior agreements between the parties and constitutes
the entire agreement between the parties relating to the subject matter
hereof. No addition to or modification
of any provision of this agreement shall be binding upon the parties unless
made in writing signed by a duly authorised representative of each of the
parties.
c) The
customer hereby acknowledges that it has not been induced to enter into this
agreement by any prior representations whether oral or in writing, except as
specifically contained, or referred to, in this agreement and the customer
hereby waives any claim for breach of any such representations (other than
fraudulent misrepresentations) which are not so specifically mentioned.
d) The
headings to the clauses of this agreement are for ease of reference only and
shall not affect the interpretation or construction of this agreement.
e) This
agreement may be executed in counterpart form and signatures evidenced by
facsimile transmission shall be treated as original.
f) If
any provision of this agreement is invalid or unenforceable at law, then such
provision shall be severed and the remainder of this agreement shall continue
in full force and effect.
g) This
agreement and any matters relating to it shall be interpreted under the laws of