THESE ARE THE TERMS ON WHICH SYNANTIX LIMITED LICENSES ITS SOFTWARE TO CUSTOMERS
The definitions in this clause apply in the Contract.
Annual Fees: the Annual Support and Maintenance Fees payable by the Customer to the Supplier under clause 6.
Business Day: a day other than a Saturday or Sunday when the main clearing banks in London are open for a full range of transactions.
Contract: the contract between the Supplier and the Customer which consists of the Order Form and these terms.
Customer: the person specified as the customer in the Order Form.
Fees: the Licence Fees and the Annual Fees.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or 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.
Licence Fees: the Licence Fees payable by the Customer to the Supplier under clause 6.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product. A New Version will be denoted by a New Version number, for example 5.n where the first digit is the Version number.
Order Form: the form that sets out the details of the Customer, the fees and the Software and which along with these Terms constitutes the contract between the Supplier and the Customer.
Software: the computer programs and the modules specified in the Order From and any Maintenance Release which is acquired by the Customer during the subsistence of the Contract.
Software License Key: A key that verifies and enables authorised access to the Software.
Supplier: Synantix Limited, registered in England with company no. 6258000 whose registered office is at Laurel Bank, Grove Road, Hindhead, Surrey GU26 6QP, UK.
2.1 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms.
2.2 Unless the context otherwise requires:
2.2.1 words in the singular shall include the plural and in the plural shall include the singular;
2.2.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
2.2.3 a reference to one gender shall include a reference to the other genders; and
2.2.4 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2.4 References to clauses are to the clauses of these terms.
3.1 The Supplier shall provide the Software License Key to the Customer within ten days of signature of the Contract and receipt by the Supplier of payment of the Fees.
4.1 In consideration of the Licence Fees paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence to use the Software on the terms and conditions set out in these terms.
4.2 The use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer's own data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any other person).
4.3 The Customer shall:
4.3.1 ensure that the number of persons using the Software does not exceed the number of users stated in the Order Form;
4.3.2 keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce that record to the Supplier on request from time to time;
4.3.3 notify the Supplier if and as soon as it becomes aware of any unauthorised use of the Software by any person.
4.4 The Customer may not use the Software other than as specified in clause 4.1 and clause 4.2 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
4.5 The Customer may make backup copies of the Software for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.
4.6 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
4.7 The Customer shall not sub-license, assign or novate the benefit or burden of the Contract in whole or in part nor deal in any other manner with any or all of its rights and obligations under the Contract, without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
4.8 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Contract, provided it gives written notice to the Customer.
4.9 The Customer shall permit the Supplier to inspect and have access to any premises (and to the servers and other computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with the Contract, for the purposes of ensuring that the Customer is complying with the terms of the Contract, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
5.1 The Customer shall pay to the Supplier the licence fee specified in the Order Form on signature of the Contract.
5.2 If the Customer has chosen to rent the Software and this is recorded in the Order Form, the licence fees shall be paid annually in advance as set out in the Order Form.
5.3 In addition to the licence fees, the Customer shall pay the Annual Fees as set out in the Order Form, those fees to be paid by the Customer each year no later than the anniversary of the licence commencement date stated in the Order Form.
5.4 All sums payable under the Contract are expressed exclusive of VAT for which the Customer shall be responsible.
5.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies the Contract or at law, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC's base rate from time to time, which shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and the Supplier may suspend the Customer’s use of the Software.
6.1 In consideration of the payment by the Customer of the Annual Fees the Supplier will provide the Customer with support in relation to the Software in the manner set out in the Supplier’s Customer Support guide which is available at www.idocuments.co.uk/supportguide .
6.2 The Annual Fees include the provision of Maintenance Releases but not the provision of New Versions for which the relevant New Version fees will be payable.
7.1 Where the Order Form indicates that the Supplier will provide services such as training or implementation services, the Supplier will provide those services with reasonable skill and care and in accordance with the specification of the services set out in the Order Form.
7.2 The Customer shall pay the fees that are stated in the Order Form for the provision of those services. The Customer will also pay for the Supplier’s travel, accommodation, subsistence and other reasonably incurred costs and expenses in relation to the provision of the Services.
7.3 The Customer may cancel Services that have been ordered but must reimburse the Supplier for any expenditure or cost incurred by the Supplier that is wasted as a result of such cancellation and if the Customer does not give the Supplier at least 5 days’ notice of such cancellation, the Customer shall be required to pay the fees for such Services.
8. SUPPLIER'S WARRANTIES
8.1 The Supplier warrants that the Software will conform in all material respects to the Specification.
8.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
8.4 All conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in clause 9.2:
9.1.1 the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether suffered directly or indirectly or immediate or consequential, and whether they arise in contract, tort (including negligence) or otherwise, which fall within any of the following categories:
220.127.116.11 special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
18.104.22.168 loss of profits;
22.214.171.124 loss of anticipated savings;
126.96.36.199 loss of business opportunity;
188.8.131.52 loss of goodwill;
184.108.40.206 loss or corruption of data;
9.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise in connection with the Contract shall in no circumstances exceed a sum equal to the Fees; and
9.1.3 the Customer agrees that, in entering into the Contract, it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Contract.
9.2 The exclusions in clause 8.4 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
9.2.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
9.2.2 fraud or fraudulent misrepresentation;
9.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.2.4 any other liability which may not be excluded by law.
9.3 The Supplier shall have no liability in respect of issues that arise as a result of the Customer failing to use the Software in accordance with the instructions and advice of the Supplier.
9.4 The Supplier has used its reasonable endeavours to make the Software operate in accordance with the Specification also on mobile devices but the Supplier gives no warranty that the Software will operate on every device even if that device is running a correct version of the operating system as per the Specification.
9.5 All dates supplied by the Supplier for the delivery of the Software or the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Contract.
10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of the Contract infringes the UK Intellectual Property Rights of a third party (Claim). For the avoidance of doubt, clause 10.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of the Contract, use of the Software in combination with any hardware or software not specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 10.2 are conditional on the Customer:
10.3.1 as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
10.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
10.3.3 giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
10.3.4 subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
10.4 If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
10.4.1 procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of the Contract;
10.4.2 modify the Software so that it ceases to be infringing;
10.4.3 replace the Software with non-infringing software; or
10.4.4 terminate the Contract immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof.
10.5 This clause 10 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.1.
11. DURATION AND TERMINATION
11.1 The licence granted by this Contract shall commence on the date stated in the Order Form and shall continue unless and until it is terminated in accordance with these terms.
11.2 Where the Customer has chosen to rent the Software and this is recorded in the Order Form, the rental term shall continue for an initial term of 36 months and then for successive renewal terms of 12 months each or such longer period as may be agreed, unless and until either party gives to the other not less than 90 days’ notice of termination expiring at and terminating the Contract with effect from the end of the initial term or the end of any renewal term.
11.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.3.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
11.3.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
11.3.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.3.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
11.3.5 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above in this clause 11.1;
11.3.6 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.4 The Supplier may terminate the Contract by notice if there is a change in the identity of the person(s) who have control of the Customer (control meaning the ownership of the majority of the shares or the right to exercise the majority of the voting rights or the ability to influence the decision making of the Customer), such notice to be served within the period of 90 days’ from the date when the Supplier is informed of the change of control.
11.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.6 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.7 On termination for any reason:
11.7.1 all rights granted to the Customer under this Contract shall cease;
11.7.2 the Customer shall cease all activities authorised by the Contract;
11.7.3 the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Contract; and
11.7.4 the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in these terms, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
14. ENTIRE AGREEMENT
14.1 This Contract and the documents referred to in it contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party acknowledges that, in entering into this Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Contract or not) (Representation) other than as expressly set out in this Contract.
14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of Contract.
14.4 Nothing in this clause shall limit or exclude any liability for fraud.
The Supplier may vary these terms from time to time by posting new terms on its website and notifying the Customer to that effect. The Customer shall have the right by serving one month’s notice at any time within the period of two months following receipt of that notification to terminate the Contract but if the Customer does not serve such notice the new terms shall be substituted for these terms at the end of that two month period.
16.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
16.2 If any provision or part-provision of the Contract is deemed deleted under clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. THIRD-PARTY RIGHTS
A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18. FORCE MAJEURE
Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing those obligations.
19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
19.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
19.1.2 sent by email to the email address stated in the Order Form or such other email address as may be notified to the other party for this purpose from time to time.
19.2 Any notice shall be deemed to have been received:
19.2.1 if delivered by hand, on signature of a delivery receipt [or at the time the notice is left at the proper address];
19.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the Business Day after posting.
19.2.3 if sent by email, on the next Business Day after transmission.
19.3 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.
20. GOVERNING LAW AND JURISDICTION
20.1 The Contract 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.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
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