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TERMS AND CONDITIONS FOR USE OF Amplified Cloud /AKA iDirres SOFTWARE |
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Please read these terms and
conditions carefully, as they contain important information about the
Customer’s rights and obligations. In
particular, Cogitar draws the Customer’s attention to clause 5.4 and clause 13.
IF This order relates to an Amplified Cloud /AKA iDirres single user
system please read: Where mentioned in the
attached terms and conditions you accept the
following change; Base System is taken to mean ONE
(1) licence NOT to five (5) licences as per the
Amplified Cloud /AKA iDirres 5 user system.
You agree that any other reference to
five licences or base systems is changed and
amended to be taken as one (1) user licence only.
1
Definitions and Interpretation
1.1
In these terms and conditions the
following words and phrases shall have the following meanings, unless the
context otherwise requires:
Additional
Licencesmeans a licence purchased by
the Customer for blocks of additional Authorised Users (in excess of the five
Authorised Users included in the licence for the Base System) to use the Online
Service;
Authorised
Users means such number of persons as
are specified in the Order Form who are licensed to use the Online Service or
such other number of persons as may be agreed between the parties from time to
time in accordance with clause 2.7;
Base
System means the core system of
the Software which includes the database, support system website, shopping
cart, hosting fees and five licences for Authorised Users;
Cogitar
means Cogitar Software Limited
(company number: 04915506) whose registered office is at 9-13 Thorne Road,
Doncaster, South Yorkshire, DN1 2HJ;
Cogitar’s
Website means the website at www.cogitar.net
and www.Amplified Cloud /AKA iDirres.net or such other website as Cogitar may notify to the Customer
from time to time;
Contract
means these terms and conditions and the Order Form;
Customer’s
Datameans any data information or
material that the Customer inputs, processes or creates in the course of using
the Online Service.
Customer’s
Representative means the person
appointed by the Customer under clause 5.1 to act as the first line of support
to users of the Online Service;
Excess
Storage Fees means Cogitar’s charges
for storage of Customer Data in excess of 100MB from time to time in force as
set out on Cogitar’s Website;
Fees
means the Monthly Fee, Excess Storage Fees, Set Up Fee
and any other fees or charges payable under the Contract;
Intellectual Property Rights
all
copyrights, patents, utility models, trade marks, service marks, registered
designs, moral rights, design rights (whether registered or unregistered),
technical information, know-how, database rights, semiconductor topography
rights, business names and logos, computer data, generic rights, proprietary
information rights and all other similar proprietary rights (and all
applications and rights to apply for registration or protection of any of the
foregoing) as may exist anywhere in the world;
Minimum
Specification means the minimum specification
that a computer system must have in order to be able to use the Online Service,
as set out on Cogitar’s Website;
Monthly
Fee means the fee paid by the Customer
to have access to the Online Service for a calendar month as set out in the
Order Form until varied by Cogitar in accordance with clause 3.1 or increased
due to the purchase of Additional Licences by the Customer in accordance with clause
2.7;
Normal
Working Hours means 9am to 5pm on
Working Days;
Online
Service means the Software provided by
Cogitar to the Customer online via Cogitar’s Website;
Order
Form means Cogitar’s order form for
the Software as attached to the Contract;
Operating Rules
means any Cogitar’s rules or
protocols, in whatever form recorded, that affect the Customer’s access to or
use of the Online Service, as published by Cogitar from time to time on
Cogitar’s Website;
Set
Up Fee means the fee payable by the
Customer to Cogitar for the Set Up Services as set out in the Order Form;
Set
Up Services means the initial configuration
of the Online Service by Cogitar to allow the Customer to use the Online
Service;
Software
means Amplified Cloud /AKA iDirres software and if appropriate updates
thereto;
Support
Service means the support service for
the Online Service and the Software provided by Cogitar in accordance with
clause 7;
Updates
means any new or updated software made available by
Cogitar to the Customer as part of the Online Service;
Working
Days means Monday to Friday excluding
bank and public holidays in England.
1.2
Reference to any statute,
enactment, order, regulation or other similar instrument shall be construed as
references to the statute, enactment, order, regulation or instrument as
amended by any subsequent statute, enactment, order, regulation or instrument
or as contained in any subsequent re-enactment, modification or statutory
extension of any of the above.
1.3
Except where the context requires
otherwise the singular includes the plural and vice versa; a reference to one
gender includes all genders; words denoting persons include firms and
corporation and vice versa.
1.4
Headings are included in the
Contract for ease of reference only and shall not affect interpretation or
construction.
2
Access to the Online Service
2.1
Subject to payment of the Set Up
Fee and Monthly Fee by the Customer, Cogitar grants the Customer and the
Authorised Users a non-exclusive, non-transferable licence to use the Base
System and the Online Service for an initial period of one (1) month and
continuing thereafter until such time as the Contract is terminated in
accordance with clause 14. This licence to use the Base System and the Online
Service is granted on the terms set out in the Contract.
2.2
Cogitar warrants that:
(a)
it has the right to license the Base
System and the Online Service to the Customer; and
(b)
it will provide the Online Service
with reasonable skill and care.
2.3
In relation to the Online Service the
Customer may:
(a)
input and store Customer’s Data using
the Online Service;
(b)
use the Online Service to access
Customer Data for the purposes of providing a customer relationship management
tool for the Customer’s business.
2.4
Cogitar shall on receipt of the Set
Up Fee and first Monthly Fee from the Customer perform the Set Up Services.
2.5
Cogitar will provide Updates as and
when it sees fit and shall notify the Customer by email of the date on which
such Updates shall be available.
2.6
The Online Service is controlled
and operated by Cogitar from its offices in the UK. Cogitar have used its best
endeavours to ensure that the Online Service complies with UK laws.
2.7
If the Customer wants to increase
the number of Authorised Users it must notify Cogitar in writing. Cogitar will
inform the Customer in writing of the Monthly Fees that will apply if the
Customer purchases Additional Licences. The Customer must confirm to Cogitar
in writing that it wishes to purchase the Additional Licences and it agrees to
the increase in the Monthly Fees. The Additional Licences shall become
available from and the revised Monthly Fees will apply with effect from the
first Working Day of the next calendar month.
3
Fees
3.1
The Monthly Fee and the Set Up Fee
will be as set out on the Order Form and may be varied from time to time by
Cogitar giving notice in writing to the Customer. The first Monthly Fee and
the Set Up Fee are payable immediately on signature of the Contract and thereafter
the Monthly Fee is payable on the first Working Day of each calendar month until
such time as the Contract is terminated in accordance with clause 14.
3.2
The Monthly Fee is non refundable
and is payable monthly in advance. The Online Service shall not be made
available to the Customer until such time as the Monthly Fee and Set Up Fee
have been paid.
3.3
The Fees are subject to VAT.
4
Payment
4.1
Payment of the first Monthly Fee and
the Set Up Fee may be made by cheque or cash but thereafter Cogitar requires
that payment of the Monthly Fee shall be made by direct debit to the bank
account designated by Cogitar.
4.2
All invoices shall be paid within 7
days of the date of invoice. No payment shall be deemed to have been received
until Cogitar have received cleared funds. All payments shall be made in
pounds sterling.
4.3
The Customer shall make all
payments due under the Contract in full without any deduction whether by way of
set-off, counterclaim, discount, abatement or otherwise.
4.4
If the Customer fails to pay any
sum due under the Contract on the due date for payment then without prejudice
to any other right or remedy due to Cogitar, Cogitar shall be entitled to:-
(a)
charge interest on any overdue Fees
(after as well as before judgment) at the rate of 4% per annum above the base
rate of Barclays Bank plc for the time being in force calculated from the date
on which the outstanding sum fell due to the date upon which it is paid; and
(b)
suspend access to the Online
Service until such time as payment is made or if payment of the Fees is overdue
for over 28 days then Cogitar may terminate the Contract in accordance with
clause 14.1.
5
Customer Obligations and
Restrictions
5.1
The Customer undertakes that during
the term of the Contract it shall:-
(a)
comply with all reasonable requests
and instructions of Cogitar in relation to the Online Services;
(b)
ensure that all information
provided to Cogitar shall be complete and accurate;
(c)
provide Cogitar with such
reasonable assistance as Cogitar may request, including, but not limited to,
providing sample output and other diagnostic information;
(d)
be responsible for the operation of
its website and any failure of its website will be its responsibility and
Cogitar shall have no liability in relation thereto;
(e)
sign the standing order mandate provided
by Cogitar and return it to Cogitar on signature of the Contract;
(f)
only use the Online Service on a
computer system that is equal to or exceeds the Minimum Specification;
(g)
comply with all relevant
legislation;
(h)
take such steps as are permitted in
the Operating Rules to modify the Online Service for use in its own business;
(i)
appoint the Customer’s
Representative and notify Cogitar in writing of any change in the Customer’s
Representative; and
(j)
if selling goods or services online
comply with all relevant legislation and ensure that it has appropriate terms
and conditions when forming contracts online with its customers.
5.2
In relation to the Online Service
the Customer shall not and shall ensure that Authorised Users do not:
(a)
download and store electronically,
reproduce, transmit, display, copy, distribute or use the Software or the
Online Service except that downloading and storing the Customer Data is
permitted;
(b)
sub-license, rent, lease, transfer
or attempt to assign the rights in the Online Service or the Software to any
other person and any dealing in contravention of this clause 5.2 (b) shall be
ineffective;
(c)
use the Online Service or the
Software except as permitted by the Operating Rules and the Contract;
(d)
allow any person who is not an
Authorised User to use the Online Service or the Software;
(e)
input or upload any data or content
into the Online Service which is defamatory,
obscene, indecent, lewd, pornographic, violent,
abusive, insulting, threatening or harassing;
(f)
use over sized fonts,
JavaScript, tables, headings or other advanced HTML commands;
(g)
upload any files that
contain viruses, Trojan horses, worms, time bombs, corrupted files or any other
similar software or programs that may damage the operation of the Online
Service or another’s computer or property of another; or
(h)
input any third party
copyright material.
5.3
If Cogitar reasonably
consider that the Customer is using the Online Service in breach of sub-clauses
5.2 (e) to (h) Cogitar reserves the right to remove any infringing data file,
content or material from the Online Service and Cogitar shall have no liability
to the Customer for any error or inconsistency in the Customer’s Data or any
loss of data.
5.4
The Customer agrees to indemnify
and keep indemnified Cogitar, its officers, employees, contractors and agents
against any costs or expenses (including the cost of any settlement) arising
out of any claim, action, proceeding or demand that may be brought, made or
prosecuted against Cogitar by any person arising out of or as a consequence of
an unlawful or negligent act or omission of the Customer, its officers, employees
or agents in any way connected with the Contract whether arising from any
failure by the Customer to comply with the terms of the Contract or otherwise.
5.5
The indemnity extends to
and includes all costs, damages and expenses reasonably and properly incurred
by Cogitar in defending any such action, proceeding, claim or demands.
6
Access and Security
6.1
In order to access the Online Service
the Customer’s Representative will be issued by Cogitar with a unique password
and user ID and shall be permitted to create user ID and passwords for
Authorised Users. The Customer is responsible for the security and proper use of
such user ID and passwords (including changing passwords on a regular basis)
and must only issue user ID and passwords to Authorised Users. The Customer must
take and must ensure that Authorised Users take all necessary steps to ensure
that user IDs and passwords are kept confidential, secure, used properly and
not disclosed to unauthorised persons.
6.2
The Customer must immediately
inform Cogitar if there is any reason to believe that any user ID or password
has or is likely to become known to someone who is not an Authorised User or that
a user ID or password is being or is likely to be used in an unauthorised way.
6.3
Cogitar reserves the right to
suspend the Customer’s and/or any Authorised Users access to the Online Service
if at any time Cogitar considers that there has been, is or is likely to be a
breach of security or a breach of any of the Contract.
6.4
Cogitar reserves the right (at Cogitar’s
sole discretion) to require the Customer to change the Customer’s or any
Authorised User’s password. If the Customer fails to do so Cogitar shall be
entitled to suspend the Customer’s access to the Online Service.
6.5
The Online Service must not be used
fraudulently or in connection with a criminal offence or giving rise to any
civil liability.
7
Support
7.1
If Authorised Users have any
technical problems with the Online Service or require any technical support
then the Authorised Users must contact the Customer’s Representative who will
provide first line support and assistance. Cogitar will not respond to any
request for technical support made by any person other than the Customer’s
Representative.
7.2
During the term of the Contract,
Cogitar shall provide the Customer with the Support Service. The Support
Service shall be available during Normal Working Hours. The Customer’s
Representative shall attempt to resolve any request for technical support from
the Authorised Users and if he is unable to do so shall log a support request
via Cogitar’s Website.
7.3
The Customer’s Representative must
submit sufficient material and information to enable Cogitar’s support staff to
diagnose and if necessary duplicate the support request. Cogitar’s support
staff will contact the Customer’s Representative by email or telephone during
Normal Working Hours to request more information and to resolve the support
request.
7.4
Cogitar shall not be required to
provide the Support Service in respect of:
(a)
incorrect use of the Online Service
or the Software or use of the Online Service on a computer system that does not
accord to the Minimum Specification;
(b)
operator error (which shall be
considered to be any use of the Online Service or the Software that is not in
accordance with the Operating Rules); or
(c)
defects or errors caused by the use
of the Online Service with computer programs listed in the Operating Rules as
not compatible for use with the Online Service.
8
Availability of the Online Service
8.1
Cogitar will try to make the Online
Service available but cannot guarantee that the Online Service will operate
continuously and can accept no liability for its unavailability.
8.2
Occasionally Cogitar may:-
(a)
for operational reasons change the
technical specification of the Online Service; or
(b)
temporarily suspend the Online Service
for operational reasons such as repair or maintenance of the Online Service or
making Updates available but before doing so Cogitar will use its best
endeavours to give as much notice as is reasonably practicable by email to the
Customer and shall endeavour to ensure that such suspensions occur outside of
Normal Working Hours. Cogitar may also have to temporarily suspend the Online
Service in the case of emergency and in such circumstances Cogitar shall not be
required to give notice to the Customer. Cogitar will restore the Online Service
as soon as it reasonably can after temporary suspension.
9
Confidentiality
9.1
Cogitar and the Customer undertake
to each other to keep confidential all information (written or oral) concerning
the business and affairs of the other that it has obtained or received as a
result of the discussions leading up to or entering into, or obtains or
receives in performance of, the Contract.
9.2
The obligations of each of the
parties contained in this clause shall continue without any time limit but
shall cease to apply to any information coming into the public domain otherwise
than by breach by either party of its obligations contained in the Contract
provided always that nothing contained in this clause shall prevent any party
from disclosing any such information to the extent required to be disclosed by
law or pursuant to any enquiry or litigation by any governmental, official or
regulatory body.
9.3
The Customer agrees that Cogitar
may make announcements about the terms of the Contract and use the Customer’s
name in such announcements and that Cogitar can include the Customer as a
reference in discussions with prospective customers.
10
Intellectual Property Rights
10.1
All Intellectual Property Rights
and title to the Online Service (except to the extent incorporating any
Customer or third party owned item) shall remain with Cogitar and/or its
licensors and no interest or ownership in the Online Service, the Intellectual
Property Rights or otherwise is conveyed to the Customer under the Contract. No
right to modify, adapt, or translate the Online Service or create derivative
works from the Online Service is granted to the Customer. Nothing in the
Contract shall be construed to mean, by inference or otherwise, that the
Customer has any right to obtain source code for the Software.
10.2
Unless otherwise specified in the
Contract, the Online Service is provided and may be used solely by the Customer
as part of the Customer’s website and desktop architecture.
10.3
The Customer warrants and
represents that it shall maintain reasonable security measures (as may change
over time) covering, without limitation, confidentiality, authenticity and
integrity to ensure that the access to the Online Service is limited as set out
under the Contract.
11
Intellectual
property indemnification
11.1
Cogitar, at its own expense, shall
(i) defend, or at its option, settle any claim or suit brought against the
Customer by a third party on the basis of infringement of any Intellectual
Property Rights by the Online Service; and (ii) pay any final judgement entered
against the Customer on such issue or any settlement thereof, provided that:
(i) the Customer notifies Cogitar promptly of each such claim or suit; (ii)
Cogitar is given sole control of the defence and/or settlement; and the (iii) the
Customer fully co-operates and provides all reasonable assistance to Cogitar in
the defence or settlement.
11.2
If all or any part of the Online
Service becomes, or in the opinion of the Cogitar may become, the subject of a
claim or suit of infringement, Cogitar at its own expense and sole discretion
may:
(a)
procure for the Customer the right
to continue to use the Online Service or the affected part thereof; or
(b)
replace the Online Service or
affected part with other suitable non-infringing service(s); or
(c)
modify the Online Service or
affected part to make the same non-infringing.
11.3
Cogitar shall have no obligations
under this clause11 to the extent that a claim is based on:
(a)
the combination, operation or use
of the Online Service with other services or software not provided by Cogitar,
if such infringement would have been avoided in the absence of such
combination, operation or use; or
(b)
use of the Online Service in any
manner inconsistent with the Contract; or
(c)
the negligence or wilful misconduct
of the Customer.
11.4
The Customer shall indemnify and
hold Cogitar and its suppliers or agents harmless from and against any cost,
losses, liabilities and expenses, including reasonable legal costs arising from
any claim relating to or resulting directly or indirectly from (i) any claimed
infringement or violation by the Customer of any Intellectual Property Rights
with respect to the Customer’s use of the Online Service outside the scope of the
Contract; (ii) any access to or use of the Online Service by a third party.
12
Data and Data Protection
12.1
The Customer Data is owned by the
Customer and not owned by Cogitar. The Customer has sole responsibility for
the accuracy, quality, integrity, legality, reliability, appropriateness, and
intellectual property ownership or right to use of all Customer Data,
including, but not restricted to compliance with the Data Protection Act 1998.
12.2
Cogitar shall ensure that the
Customer Data is kept secure and confidential.
12.3
In the event the Contract is
terminated (other than by reason of the Customer’s breach) or expires, Cogitar
will make available to the Customer a file of the Customer Data in such format
as shall be reasonably determined by Cogitar within 60 days of termination.
12.4
In the event the Contract is
terminated due to the Customer’s breach, Cogitar will make available to the
Customer a file of the Customer Data in such format as shall be reasonably
determined by Cogitar within 60 days of termination subject to Cogitar
receiving:-
(a)
payment from the Customer of all
outstanding sums due under this or any other agreement between the parties; and
(b)
if requested by Cogitar, reasonable
compensation for the breach of contract suffered by Cogitar.
12.5
Each party undertakes to comply
with its obligations under the Data Protection Act 1998.
13
Limitation of liability
13.1
Except as expressly stated in the
Contract, all warranties and conditions, whether express or implied by statute,
common law or otherwise (including but not limited to satisfactory quality and
fitness for purpose), are hereby excluded to the fullest extent permitted by
law. No warranty is made regarding the results of usage of the Online Service
or that the functionality of the Online Service will meet the requirements of
the Customer or that the Online Service will operate uninterrupted or error
free. This clauseshall survive the termination of the Contract.
13.2
Cogitar shall not be liable to the
Customer for:
(a)
loss of profit;
(b)
loss of business; or
(c)
depletion of goodwill,
and/or similar losses; or
(d)
loss of anticipated savings; or
(e)
loss of goods; or
(f)
loss of contract; or
(g)
loss of use; or
in each case whether direct, indirect or consequential,
or any claims for consequential compensation whatsoever (howsoever caused)
which arise out of or in connection with the Contract.
13.3
In circumstances where the Customer
suffer loss or damage arising out of or in connection with its use or
performance of the Online Service, Cogitar accepts no liability for this loss
or damage (except where Cogitar has been negligent) whether due to inaccuracy,
error, omission or any other cause and whether on the part of Cogitar or its
employees, sub-contractors, agents or any other person or entity.
13.4
Cogitar’s maximum liability to the
Customer under the Contract or otherwise for any cause whatsoever (whether in
the form of the additional cost of remedial services or otherwise) will be for
direct costs and damages only and will be limited to a sum equivalent to the
Monthly Charge, plus damages limited to 50% of the same amount for any
additional costs directly, reasonably and necessarily incurred by the Customer
in obtaining alternative services.
13.5
The limit set out in clause 13.4
does not apply to any liability Cogitar may have for death or personal injury
resulting from its negligence or for fraudulent misrepresentation.
13.6
The Customer also understand that Cogitar
cannot and does not guarantee or warrant that the Software or the Customer’s Data
which is made available from the Online Service will be error free, free from
infection, viruses and/or other code that has contaminating or destructive
properties. The Customer is responsible for implementing sufficient procedures
and virus checks (including anti-virus and other security checks) to satisfy its
particular requirements for the accuracy of data input and output.
13.7
Cogitar considers that the
limitation of liability set out in clause 13.4 is appropriate taking into
account the level of the Monthly Charge.
(a)
If the Customer is unwilling to
accept the limitation of liability set out in clause 13.4 (“Cogitar’s
Liability”) then the Customer can at any time within 14 days after the date of the
Contract notify Cogitar in writing of its genuine pre-estimate of the maximum
loss or damage likely to accrue to the Customer from breach of contract by
Cogitar or from Cogitar’s negligence in connection with the Agreement.
(b)
Cogitar shall notify the Customer
in writing within 7 days of the receipt of such notice from the Customer and
shall use all reasonable endeavours to obtain a quotation for insurance against
the risk of such loss or damage as disclosed by the Customer in accordance with
clause 13.7(a). After Cogitar has obtained a quotation for such insurance,
Cogitar shall provide full details of such quotation to the Customer in
writing. The Customer shall within 14 days of the date of Cogitar’s notice:-
(i)
confirm to Cogitar that it wishes
Cogitar to obtain such additional insurance and that it will reimburse Cogitar
for the cost thereof; or
(ii)
inform Cogitar that it is willing
to proceed with the Agreement without any additional insurance and that it
accepts Cogitar’s Liability.
(c)
If the Customer confirms that it
wants Cogitar to obtain the additional insurance then the Customer shall pay the
cost of such insurance to Cogitar on demand against production of a receipt for
the insurance premium paid. On receipt of such payment, the parties agree on
the date of commencement of such insurance that Cogitar’s Liability shall be
replaced with the additional sum insured but only to the extent that the
proceeds (if any) of such insurance are available to satisfy such liabilities.
14 Termination
14.1 Cogitar may terminate the
Customer’s right to access the Online Service immediately on written notice to the
Customer:
(a)
if the Customer commits a material
breach of the Contract (including not paying the Monthly Fee on the due date),
which is capable of remedy, and the Customer fails to remedy the breach within
a reasonable time of a written notice to do so; or
(b)
if the Customer commits a material
breach of the Contract which cannot be remedied; or
(c)
if the Customer is repeatedly in
breach of the Contract; or
(d)
if the Customer is the subject of a
bankruptcy order, or becomes insolvent, or makes any arrangement or composition
with or assignment for the benefit of its creditors, or if the Customer goes
into voluntary (otherwise than for reconstruction or amalgamation) or
compulsory liquidation, or a receiver or administrator is appointed over its assets;
or
(e)
if Cogitar is unable to source
additional insurance cover if required by the Customer under clause 13.7 or the
Customer fails to pay the insurance premium as required under clause 13.7(c).
14.2
Either party may terminate the
Contract at any time by giving 28 days notice in writing to the other party.
14.3
On termination or expiry of the
Contract the Customer’s right to use the Online Service shall cease and the
Customer shall not be permitted to input the Customer’s Data from the date of
termination. However, Cogitar shall allow the Customer to view the Customer’s
Data for a period of 60 days after termination. The licence to use the Base
System and the Online Services granted in clause 3.1 shall terminate at the end
of such 60 days period.
14.4
Termination of the Contract shall
be without prejudice to the rights of the parties accrued before termination.
15
Excess Data Storage Fees
15.1
The Monthly Fee permits
the Customer to store up to 100MB of Customer Data.
15.2
If the amount of storage
space for Customer Data required by the Customer exceeds 100MB, the Customer
will be charged Excess Storage Fees. Cogitar will use reasonable efforts to
notify the Customer when the storage used by the Customer reaches approximately
90% of the maximum; however, any failure by Cogitar to provide the Customer
with such notification shall not affect the Customer’s responsibility for paying
Excess Storage Fees.
15.3
Cogitar reserves the
right to vary or modify its general practices and storage limits relating to
storage of Customer Data at any time and shall notify the Customer in writing
of any change to such practices and storage limits.
16
Application of Terms
16.1
By signing the Order Form the
Customer agrees to be bound by these terms and conditions. An order for the
Software placed by the Customer shall be deemed to be an offer by the Customer
made subject to these terms and conditions.
16.2
Subject to any variation under
clause 16.4 the Contract shall be on these terms and conditions to the
exclusion of all other terms and conditions (including any terms or conditions
which the Customer purports to apply under any purchase order, confirmation of
order, specification or other document).
16.3
No terms or conditions endorsed on,
delivered with or contained in the Customer’s purchase order, confirmation of
order, specification or other document shall form part of the Contract simply
as a result of such document being referred to in the Contract.
16.4
These conditions apply to all
contracts for the Software and no variation to these conditions and no
representations about the Software shall have effect unless expressly agreed in
writing and signed by a director of Cogitar.
16.5
No order placed by the Customer
shall be deemed to be accepted by Cogitar until Cogitar countersigns the Order
Form. Cogitar shall send a copy of the Order Form signed by the Customer and
Cogitar to the Customer.
16.6
Any Order Form issued by Cogitar is
given on the basis that no Contract shall come into existence until Cogitar has
signed the Order Form. Any Order Form issued by Cogitar is valid for a period
of 30 days only from its date, provided that Cogitar has not previously
withdrawn it.
16.7
The Customer warrants to Cogitar
that the person who signs the Order Form is authorised by the Customer to sign
contracts on behalf of the Customer.
17
General
17.1
Cogitar may, but the Customer may
not, assign any rights and/or transfer, sub-contract or delegate any
obligations under the Contract, and/or charge or deal in any other manner with the
Contract or any of its respective rights or obligations. Any purported
assignment, transfer, sub-contracting, delegation, charging or dealing in
contravention of this clause 17.1 shall be ineffective. The Contract is personal
to the Customer and is entered into by the Customer for its own benefit and not
for the benefit of any third party.
17.2
The Contract is the whole agreement
between the Customer and Cogitar. The Customer acknowledges that the Customer
has not entered into the Contract in reliance upon any statement, warranty or
representation made by Cogitar or any other person and the Customer irrevocably
and unconditionally waives any rights to claim damages and/or to rescind the
Contract by reason of any misrepresentation (other than a fraudulent
misrepresentation) that is not contained in the Contract.
17.3
If any provision or term of the
Contract shall become or be declared illegal, invalid or unenforceable for any
reason whatsoever, such term or provision shall be divisible from the other
terms of the Contract and shall be deemed to be deleted from it.
17.4
Except in respect of a payment
obligations, neither the Customer nor Cogitar will be held liable for any
failure to perform any obligation to the other due to causes beyond the
Customer’s or Cogitar’s respective reasonable control.
17.5
Failure or delay by either party in
enforcing an obligation or exercising a right under the Contract does not
constitute a waiver of that right or remedy.
The Contract does not confer any rights on any person
or party (other than Cogitar and/or the Customer) pursuant to the Contracts
(Rights of Third Parties) Act 1999.
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Communications
18.1
If the Customer wishes to contact
Cogitar with regard to the Contract its contact details are as follows:-
Cogitar
Software Limited
9 -13 Thorne Road, Doncaster, South Yorkshire, DN1 2HJ
Tel:
0845 680 1925
Email: ContractOrders@cogitar.net
18.2
All communications to Cogitar in
relation to the Contract must be in writing sent by post to the address set out
above or by e-mail to the address set out above. Cogitar will contact the
Customer at the address and email address set out on the Order Form unless the
Customer has notified Cogitar in writing of an alternative address or email
address.
18.3
All communications sent by post
will be deemed to be received 48 hours after posting and all communications
sent by e-mail will be deemed to be received at the time of transmission
providing that a telephone call is made warning the recipient that an e-mail
message has been sent to him and a hard copy of such notice is also sent by
first class recorded delivery post on the same day as that on which the e-mail
is sent.
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Proper law and jurisdiction
The Contract shall be governed by and construed in accordance with the
laws of England and Wales and each party hereby irrevocably submits to the
jurisdiction of the English Courts. The parties’ submission to this
jurisdiction does not limit Cogitar’s rights to commence any proceedings
arising out of the Contract in any other jurisdiction Cogitar may consider
appropriate.
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| Please read these terms and conditions carefully, they contain important information about your rights and obligations. |
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1. |
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Introduction |
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1.1 |
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Please read these terms and
conditions carefully before using the
http://www.cogitar.net |
http://www.cogitar.co.uk |
http://www.cogitarsoftware.com |
http://www.iDirres.com |
http://www.iDirres.net |
(“the Website”) operated by Cogitar Software Limited
. In these terms and conditions Cogitar Software Limited
is referred to as ‘Cogitar’, ‘We’ or ‘Us’.
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1.2 |
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In particular, We draw your attention to clause 8 (Liability).
By using or accessing the Website, you agree to be legally bound
by these terms and conditions of use as they apply to your use of
or access to the Website.
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1.3 |
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If you do not wish to be bound by these terms
and conditions then you may not use the Website.
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2. |
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Use of the Website |
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The Website is a place for you to find information about Us
and our capabilities and if you are a customer of Cogitar
to access information in a secure area.
The sole authorized use of the Website is to obtain
information about Us or for Our customers to access the
secure area to obtain information on projects which We
are working on for them. No other use of the website is permitted.
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3. |
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Copyright and Trade Marks |
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3.1 |
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The contents of the Website are protected by international copyright
laws and other intellectual property rights. The owner of these rights is Cogitar.
You may not modify, copy, reproduce, republish, upload, post,
transmit or distribute, by any means or in any manner, any
material or information on or downloaded from the Website including
but not limited to text, graphics, code and/or software without Our
prior written consent.
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3.2 |
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If in your opinion, any information on the Website infringes the intellectual
property rights of any third party then please contact
Us with full details of the matter at copyright@Cogitar.net.
We will investigate fully and delete from the Website any content
which We believe is or could reasonably be considered to be an infringement
of the third party’s intellectual property rights.
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3.3 |
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All trade marks, trade names, logos and trading styles on the Website
are owned by Cogitar.
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4. |
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Access to the Secure Area |
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4.1 |
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We will provide Our customers with a user name and password which
will allow them to access the secure area of the Website. The secure
area will contain:-
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Details of contact details and other relevant information
about the customer; and
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Information on the projects being undertaken by Us for the customer.
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4.2 |
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It is the customer’s responsibility to keep its user name and password(s)
secure and confidential and to make sure that they are used in
accordance with all relevant instructions issued by Us.
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4.3 |
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If We think there is likely to be a breach of security or misuse
of the secure area of the Website We may:
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change the Customer’s password and We will notify the
Customer that We have done this; and/or |
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suspend the Customer’s username and password access to the
secure area of the Website. |
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4.4 |
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If the Customer believes or suspects that its username or password
has become known by someone not authorised to use it, or is being
or is likely to be used in an unauthorised way, the Customer must
inform Us immediately.
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5. |
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Information you provide |
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You authorise Us to use, store or otherwise process any personal
information which relates to and identifies you, including
but not limited to your name and address in accordance with
the Privacy Policy.
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6. |
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Availability of the Website |
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We will try to make the Website available but cannot guarantee
that the Website will operate continuously or without interruptions
or be error free and can accept no liability for its unavailability.
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7. |
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Prohibited Actions |
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7.1 |
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You must not attempt to interfere with the proper working of the Website and,
in particular, you must not attempt to circumvent security,
tamper with, hack into, or otherwise disrupt any computer system,
server, website, router or any other internet connected device.
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7.2 |
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You must not direct unsolicited emails to or through the Website.
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7.3 |
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You must not link other websites with the Website without Our prior written consent.
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8. |
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Liability |
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8.1 |
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We exclude all express or implied terms, conditions, warranties,
representations or endorsements whatsoever with regard to the Website
or any information or service provided through the Website.
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8.2 |
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We will use Our reasonable endeavours to ensure that all materials
and information published on the Website are accurate, but please note
that all materials and information on the Website are provided on an
‘as is’ basis. WE SHALL HAVE NO LIABILITY FOR THE ACCURACY OR VALIDITY
OF SUCH INFORMATION.
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8.3 |
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Where We provide information or advice on technical issues this is provided
as a guide only and on an ‘as is’ basis. It is not to be used as a substitute
for the manual issued by the hardware or software provider.
We recommend that you seek specialized technical assistance if you have
any queries about the information or advice provided on the Website.
We will not respond to any queries arising from the information or advice
on the Website. WE SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE, COST OR
EXPENSE SUFFERED BY YOU HOWSOEVER ARISING.
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8.4 |
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You are responsible for ensuring that your computer system meets
all relevant technical specifications necessary to use the Website and
is compatible with the Website. You also understand that We cannot and do
not guarantee or warrant that the Website or any information which you may
download from it will be free from infection, viruses and/or other code
that has contaminating or destructive properties.
You are responsible for implementing sufficient procedures
and virus checks (including anti-virus and other security checks)
to satisfy your particular requirements for the accuracy of data
input and output.
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8.5 |
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SUBJECT TO THE PROVISIONS OF CLAUSES 8.1, 8.2, 8.3 AND 8.4 ABOVE WE HAVE NO
LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED BY USERS OF THE WEBSITE
UNLESS SUCH LOSS, DAMAGE, COST OR EXPENSE RESULTS FROM THE NEGLIGENCE OF US OR
OUR EMPLOYEES.
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8.6 |
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The limitations and exclusions in this clause do not affect your non-excludable
statutory rights and only apply to the extent permitted by applicable law.
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9. |
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General |
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9.1 |
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We may alter these terms and conditions from time to time and
post the new version on the Website, following which all use
of the Website will be governed by that version. You must
check the terms and conditions on the Website regularly.
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9.2 |
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We have used all reasonable endeavours to ensure that the Website complies with UK law.
However, We make no representations that the materials on the Website are
appropriate or available for use in locations outside the United Kingdom.
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9.3 |
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If any provision or term of these terms and conditions shall become or
be declared illegal, invalid or unenforceable for any reason whatsoever,
such term or provision shall be divisible from the other terms and conditions
and shall be deemed to be deleted from them.
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9.4 |
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These terms and conditions and your use of the Website are governed by
English law and you submit to the non-exclusive jurisdiction of the
English court.
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9.5 |
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These terms and conditions replace all other terms and conditions
previously applicable to the use of the Website.
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10. |
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Details of Cogitar Software Limited |
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Cogitar Software Limited:
Cogitar Software Limited Registered in England & Wales No: 04915506
VAT Registration Number: 827916007
Website: http://www.cogitar.net |
http://www.cogitar.co.uk |
http://www.cogitarsoftware.com |
http://www.iDirres.com |
http://www.iDirres.net |
Registered office:
9-13 Thorne Road
Doncaster
South Yorkshire
United Kingdom
DN1 2HJ
Telephone number:
+44 (0)845 680 1925
We may record calls for quality control and training purposes
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This website is operated by Cogitar Software Limited (“We” or “Us”).
We are committed to protecting your personal information and will keep the
information you provide us with safely and securely.
We are registered under the Data Protection Act 1998 with registration number
Z956987X and comply with that Act’s provisions
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Why we collect data: |
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We collect information about you for the following reasons:-
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to provide in the secure area of the Website information to
Our customers including contact details and other relevant information
about the customer; and |
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to provide you with the best possible service and to make your use
of the Website more rewarding and useful, We may monitor access
to the Website and user patterns. Please note that We do use
cookies but all cookies expire when you leave the website.
(A cookie is a small piece of information sent by a web server
to a web browser, which enables the server to collect information
from the browser).
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Disclosing Information: |
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We will not sell or share your personal information with third parties.
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Accuracy and Access to Data: |
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You have a right under the Data Protection Act 1998 to see the information that
We are holding on you at any time. We reserve the right to make a small charge
to cover Our administration costs for producing the information.
The information will be sent to you within the time scales set out in the
Data Protection Act 1998.
You can check that the information that We are holding on you
is accurate by emailing Us at dataofficer@Cogitar.net and
We will e-mail a copy of the information to you.
If the information that We have on you is not
correct then you can request Us to correct any inaccuracies.
We will take steps to validate the information that We hold
on you and where appropriate correct Our records.
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Telephone Calls: |
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We may record telephone calls with customers, potential customers or suppliers.
We reserve the right to retain the recordings of such telephone calls for such
period as We reasonably consider necessary for the purposes of the contract
that We have entered into or are negotiating with the customer or supplier.
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Changes to the Privacy Policy: |
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From time to time We may decide or be legally obliged to update this privacy policy.
We will post any changes on the Website. Except as required by law, any modifications
of this privacy policy will not affect Our treatment of data collected prior to
the effective date of the policy change.
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