ParetoPost™ Terms and Conditions

 

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IMPORTANT:

Extra Resource Limited (t/a Document Genetics) agrees to provide and the customer agrees to accept the ParetoPost™ services defined in this Agreement subject to the terms and conditions overleaf.

 

Name: ________________________________                    ERL Name:      Rob Hunt

 

Signature: _____________________________                     Signature:        ____________________

 

Title: _________________________________                     Title:                Director

 

Date: _________________________________                    Date:               15/01/2013

 

Definitions

a)             "Agreement" means the terms and conditions set out below.

b)             “Contract Details” means the ParetoPost™ Contract Details contained within page two (2) of this Agreement.

c)             “Commencement Date” means the date shown in the Contract Details.

d)             "ERL” means Extra Resource Limited (trading as Document Genetics) whose registered office address is Hall Farm, Sywell Airport, Sywell, Northamptonshire, NN6 0BN. Registered in England &Wales No 3715580, VAT Registration No GB-721 4244 70.

e)             “Fee” means the fee shown in the Contract Details.

f)             "Intellectual Property Rights": means all patents, rights to inventions, copyright and related rights, trade marks and services marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

g)             “Click(s)” is a discrete PDF document not exceeding ten (10) pages and is the method by which ParetoPost™ is charged.

h)             "ParetoPost™" means the ParetoPost™ software as a service to be provided to You by ERL; further information about ParetoPost™ can be found at www.paretopost.co.uk.

i)              “Recipient” is any person, company, or entity who receives or uses ParetoPost™ services that is not You.

j)              “Services” means the services provided to You via a unique URL assigned to You by ERL.

k)             “Term” means the term specified in the Contract Details or, if no term is specified, the term is as per clause 2.1.

l)              "You/Your" means the person, company or entity who purchases ParetoPost™ from ERL as specified in the Contract Details.

1.         Software Access

1.1                   Subject to the restrictions set out in this Agreement, ERL hereby grants to You a non-exclusive, non-transferable right to use ParetoPost™ during the Term (and any subsequent renewal term) solely for Your internal business operations. The rights to access the Services granted under this clause are granted to You only, and shall not be considered granted to Your subsidiary or holding company (if any).

2.          Duration and payments

2.1           ParetoPost™, for which payment is required, is available for fixed 12 month, 24 month, 36 month, 48 month or 60 month contract terms. Unless specifically stated to the contrary, the minimum contract term for ParetoPost™ shall be 12 months.

2.2                          Unless specifically stated to the contrary, or agreed by ERL in writing, ParetoPost™ is not available on a trial basis. It is Your responsibility to ensure that ParetoPost™ is suitable for your technical requirements.

2.3           In consideration of the rights and obligations contained in this Agreement, You shall pay the Fee without any right of deduction or set-off. Unless otherwise stipulated in the Contract Details, the Fee is payable quarterly in advance commencing on the Commencement Date.

2.4           Excess Clicks remaining after the Term will not be credited back to You. However, upon agreement of extended or new contract terms between ERL and You, the excess Clicks may (in ERL’s discretion) be carried forward to be included in the extended or new contract terms.

2.5           Clicks are supplied in their entirety for the term of the contract:

2.5.1       For the avoidance of doubt, an agreement consisting of one thousand (1,000) Clicks per month over a thirty six (36) month contract term will mean that thirty six thousand (36,000) Clicks will be credited to your ParetoPost™ agreement.

2.5.2       Excess Clicks can be purchased, at the prevailing rate, at any time during the contract term.

2.6          Prices are exclusive of VAT (which will be applied in accordance with the legislation in force from time to time) and which You shall be additionally liable to pay to ERL.

2.7          Ledger accounts are opened subject to satisfactory references.

2.8          With the exception of payments made via standing order, payment terms are strictly 30 days from date of invoice although ERL reserve the right to change these terms. The Customer should be aware that late or non-payment may result in ParetoPost™ being suspended or withdrawn.

2.9          Without prejudice to any other right or remedy ERL reserves the right to suspend ParetoPost™ or to terminate the Agreement if there is any outstanding liability owing to ERL by You, or if in ERL’s opinion You will not be able to meet any future or existing commitment to it.

2.10        Interest shall accrue on overdue amounts at an annual rate equal to 4% per annum over the then current base lending rate of HSBC Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.         Cancellation & Termination

3.1           ERL reserves the right to cancel Your ParetoPost™ service provided that ERL give twelve (12) months’ written notice.  If ERL exercises its right in this clause, it will refund to You any amount of the Fee that has been paid in advance and relates to unused Clicks as at the date of termination.

3.2           ERL may terminate this Agreement with immediate effect by giving written notice to You if:

3.2.1             You commit any serious or persistent breach of any of the terms of this Agreement and that breach (if capable of remedy) is not remedied within 7 work­ing days of notice being given by ERL requiring it to be remedied;

3.2.2                   an order is made or a resolution is passed for Your winding-up or an order is made for the appointment of an administrator to manage Your affairs, business and property, or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by You or Your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administra­tive receiver is appointed in respect of any or all of Your assets or under­taking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or You take or suffer any similar or analogous action in consequence of debt or (being an individual) are deemed either unable to pay Your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to whom any of the foregoing apply or (being an limited liability partnership) suffer any similar or analogous event to those listed above; or

3.2.3                You undergo a change of control, where “control” has the meaning given in section 1124 of the Corporation Tax Act 2010.

3.3                  On termination of this Agreement for any reason:

3.3.2                all licences and rights granted under this Agreement shall immediately terminate;

3.3.3                You shall return and make no further use of any property, documentation and other items (and all copies of them) belonging to ERL;

3.3.4                ERL may destroy or otherwise dispose of any of Your data or input in ERL’s possession unless ERL receives, no later than 10 days after the effective date of the termination of this Agreement, a written request from You for the return of Your data or input. ERL shall use reasonable commercial endeavours to deliver Your data and/or input to You within 30 days of receipt of Your written request, provided that You have, at that time, paid all Fees and any charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by ERL in returning or disposing of Your data or input.

3.4                  The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

4.         Appropriate Service use

4.1           ERL does not allow any content which breaches our Acceptable Use Policy (clause 24) to be stored within ParetoPost™. ERL reserves the right to remove content from ParetoPost™ or suspend ParetoPost™ immediately where it reasonably suspects that any content breaches the Acceptable Use Policy.

4.2           ERL shall notify You if it becomes aware of any allegation that You breach the Acceptable Use Policy.

4.3           Refusal of the ParetoPost™ service based on the content being contrary to our Acceptable Use Policy is entirely at the discretion of ERL.

4.4           ERL reserves the right to move Your data to a different server with any prior notice.

4.5           You shall indemnify ERL against all damages, losses and expenses that ERL suffers as a result of any action or claim that the data, content and/or any other material breaches the Acceptable Use Policy.

4.6           In the event that ERL removes data or content from ParetoPost™ and later reinstates such content and/or resumes ParetoPost™, You shall indemnify ERL against all damages, losses and expenses arising as a result of any action or claim that such content and/or any other material breaches the Acceptable Use Policy.

4.7           You shall not:

4.7.1          except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

4.7.1.1          attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of ParetoPost™ in any form or media or by any means;

4.7.1.2          attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of ParetoPost™;

4.7.2               access all or any part of the ParetoPost™ in order to build a product or service which competes with the business of ERL;

4.7.3               license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make ParetoPost™ available to any third, party except your employees, unless written permission is specifically granted by ERL.

4.7.4               attempt to obtain, or assist third parties in obtaining, access to ParetoPost™ other than as provided under this Agreement.

4.8                  You shall use all reasonable endeavours to prevent any unauthorised access to, or use of ParetoPost™ in the event of any such unauthorised access or use, promptly notify ERL.

5.         Scheduled maintenance

5.1           To guarantee optimal performance of ParetoPost™, it may be necessary for ERL to perform routine maintenance. Such maintenance often requires taking ParetoPost™ off-line, typically performed during off-peak hours. ERL will give You advance notice of maintenance requiring ParetoPost™ to be taken off-line whenever possible.

6.         Support

6.1           We will endeavour to provide a continuous high quality service. If You experience problems with ParetoPost™, You should contact ERL support.

6.1.1        ERL’s support is limited to support during ERL’s regular working hours (09.00 to 17.00, Monday to Friday, excluding Public Holidays and the Christmas shutdown typically between and including 24th December and 1st January). Telephone support shall consist of advice and guidance to the customer on operation of ParetoPost™, common operation methods and any other matters relating to ParetoPost™ supplied by ERL and covered by this Agreement

6.1.2        Additional services may be provided or the telephone support service offered out of normal office hours by ERL at a rate to be agreed between the parties.

6.1.3        No representation and/or warranty are given by ERL that a solution will be found to any problem brought to its attention. ERL’s obligations are limited to the provision of advice and guidance only.

6.1.4        ERL will not provide support for Recipients of ParetoPost™ services.

7.         Storage Usage

7.1           If You exceed the limit of ten (10) gigabytes of stored data within ParetoPost™ then we will automatically charge You for the additional space, in one gigabyte increments, at the prevailing rate per gigabyte.

8.         Data

8.1           All data created or stored by You within ParetoPost™ is Your property. Save as set out in clause 25. ERL does not own and is not responsible for any of Your content within ParetoPost™.

8.2           Subject to clause 11, in the event of loss of or damage to your data because of a failure in ParetoPost™, ERL will make reasonable commercial efforts to assist you in the restoration of your data, however You accept full responsibility for maintaining adequate backup copies of all Your data prior to uploading into ParetoPost™.

8.3           You shall indemnify ERL against all damages, losses and expenses arising as a result of any action or claim that all or part of Your content within ParetoPost™ infringes the Intellectual Property Rights of a third party.

9.         Uploading data to ParetoPost™

9.1           ERL will provide a file transfer protocol (“FTP”) site for the purpose of uploading Your data into ParetoPost™. You accept full responsibility for the successful transmission of Your data to the assigned ERL FTP server via the FTP site.

9.2           You accept full responsibility for the correct format (as set out in the Bulk Importer User Guide supplied to You by ERL) of Your data to allow successful FTP transmission to ParetoPost™.

10.       ERL Disclaimers and Warranties

10.1         ERL cannot guarantee that it can replace lost data. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by ERL.

10.2         ERL makes no warranties or representations that ParetoPost™ will be uninterrupted or error-free. You accept all ParetoPost™ services provided hereunder "as is" without warranty of any kind.

11.       Liability

11.1         Subject to clause 11.4, ERL shall not be liable for any loss or damage of whatsoever nature suffered by You arising out of or in connection with any breach of this Agreement by You or any negligent or tortious act, misrepresentation, error or omission made by You or on Your behalf.

11.2         Subject to clause 11.4, ERL will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by You or for any wasted management time or failure to make anticipated savings or liability You incur to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.

11.3         Subject to clause 11.4, no matter how many claims are made and whatever the basis of such claims, ERL's maximum aggregate liability to You under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by other provisions in this Agreement) whether such claim arises in contract, tort (including negligence) or otherwise, shall not exceed a sum equal to 125% (one hundred and twenty five percent) of the amount of the Fees paid in the 12 months preceding the claim.

11.3.1      In the case where Fees are paid in advance for the term of the contract, the Fees paid in the 12 months preceding the claim, shall be calculated on a pro-rata basis based on the total value of the contract.

11.4         Nothing in this Agreement shall limit ERL’s liability for death or personal injury resulting from the negligence of ERL, its employees or its sub-contractors, or for fraud.

11.5         ERL shall not be liable for any interruptions to ParetoPost™ or outages arising directly or indirectly from:-

11.5.1      interruptions to the flow of data to or from the internet;

11.5.2      changes, updates or repairs to the network or software which it uses as a platform to provide ParetoPost™";

11.5.3      the effects of the failure or interruption of services provided by third parties;

11.5.4      factors outside of ERL's reasonable control;

11.5.5      Your actions or omissions (including, without limitation, breach of Your obligations set out in the Agreement) or those of any third parties;

11.5.6      problems with Your equipment and/or third party equipment;

12.       Force Majeure

12.1         ERL shall not be responsible for any failure to provide ParetoPost™ services or perform any obligation under the Agreement because of any act of God, strike, lock-outs or other industrial disputes (whether involving the workforce of ERL (or any other party) or compliance with any law of governmental or any other order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers, work stoppage, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar events beyond its reasonable control.

13.       Non-Waiver

13.1         The failure of ERL to require Your performance of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by ERL of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

14.       Survival

14.1         The provisions, terms, conditions, representations, warranties, covenants, and obligations contained in or imposed by this Agreement which by their performance after the termination of this Agreement, shall be and remain enforceable notwithstanding termination of the Agreement for any reason.

15.       Notice

15.1          Any notice or other communication required to be given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service providing proof of postage or by email at the address details provided in the Contract Details or such other address as one party may notify to the other in writing from time to time, or sent by fax to the other party's main fax number.

15.2          Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by email, on the day of transmission.

15.3          This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.       Governing Law

16.1         This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

17.       Legal Fees

17.1         If any legal action or proceeding, including arbitration, relating to the performance or the enforcement of any provision of this Agreement is brought by any party to this Agreement, the prevailing party shall be entitled to recover reasonable legal fees, expert witness fees, costs and disbursements, in addition to any other relief to which the prevailing party may be entitled.

18.       Assignment

18.1         ERL reserves the right to assign, sub-license, or transfer its rights or obligations under this Agreement to any third party without Your consent.

18.2         You shall not assign, sub-license, or transfer Your rights or obligations under this Agreement to any third party without the prior written consent of ERL. However, in the event that ERL consents to such an assignment, sub-license or transfer, then this Agreement shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Consent will be given providing such assignee agrees in writing to be bound by these terms and conditions.

19.       Entire Agreement

19.1          This Agreement, and any documents referred to in it, constitute the entire agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2          Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

20.       Relationship of the Parties

20.1         Nothing in this Agreement shall be construed as creating an agency relationship, partnership or joint venture between ERL and You.

21.       Joint and Several Obligations

21.1         If any party consists of more than one person or entity, their obligations here under are joint and several.

22.       Third Party Rights

22.1         This Agreement does not provide and shall not be constructed to grant any third parties with any remedy, claim, right and/or cause of action or privilege regarding this Agreement.

23.       Severability

23.1         In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. ERL will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of ERL as reflected in the original provision.

24.       Acceptable use policy

24.1         ERL reserves the right to suspend or cancel Your access to ParetoPost™ provided by ERL, where ERL decides that the account has been inappropriately used. ERL reserves the right to refuse access to ParetoPost™ to anyone.

24.1.1      You must not use ParetoPost™: (i) in any way that is unlawful, illegal, immoral, fraudulent or harmful; or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

24.1.2      You must not use ParetoPost™ to store, host, copy, distribute, display, publish, transmit or send content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against You or ERL or a third party (in each case in any jurisdiction and under any applicable law).

25.       Intellectual Property Rights

25.1         All Intellectual Property Rights in the ParetoPost™ software and in the Services shall remain with ERL and no interest or ownership therein is conveyed to the You under this Agreement. No right to modify, adapt, or translate ParetoPost™ or create derivative works there from is granted to You. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that You have any right to obtain source code for the software comprised within the ParetoPost™. The Intellectual Property Rights in all source code within ParetoPost™ software remains with ERL.

25.2         Whereby any custom modifications are made to ParetoPost™, whether charged to You or provided free of charge, the Intellectual Property Rights in such modifications shall remain entirely with ERL.

26.       Backup and restoration

26.1         Subject at all times to clauses 10 and 11 ParetoPost™ will be hosted, and all backups stored, within the United Kingdom.

26.2         ERL will:(a) make backups of Your data stored within ParetoPost™ on a seven (7) day rolling basis, storing the most recent 5 daily backups. (b) every week, ERL will additionally make backups of Your data stored within ParetoPost™ on a four (4) week rolling basis.

26.3         In the event of the loss of, or corruption of Your data stored within the ParetoPost™ (under 26.1), being notified by You to ERL, ERL shall if so directed by You use reasonable endeavours to promptly restore Your data stored within ParetoPost™ from the most recent, or most appropriate, available backup copy.

26.4         You understand that, in addition to backups made by ERL, You should make regular backups of Your data and that ERL cannot be held responsible in the event of loss of data stored within ParetoPost™.

27.       Confidentiality

27.1          A party ("Receiving Party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Agreement.