TERMS OF SERVICE
1.1.1 Your use of ERL Consultancy’s products, software, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you under a separate written agreement) is subject to the terms of a legal agreement between you and ERL Consultancy. “ERL Consultancy” means ERL Consultancy of 16 Rozel Manor, 48 Western Road, Poole, England BH13 6EX (The Supplier)
1.2 Unless otherwise agreed in writing with ERL Consultancy your agreement with ERL Consultancy will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “General Terms”.
1.3 Your agreement with ERL Consultancy will also include the terms of any legal notices applicable to the Services, in addition to the General Terms. All of these are referred to below as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.
1.4 The General Terms, together with the Additional Terms, form a legally binding agreement between you and ERL Consultancy in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
1.5 If there is any contradiction between what the Additional Terms say and what the General Terms say, then the Additional Terms shall take precedence in relation to that Service.
2. APPLICATION OF CONDITIONS
2.1 These Terms shall prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by you, or implied by law, trade custom, practice or course of dealing.
2.2 Your purchase order, or your acceptance of a quotation for Services by the Supplier, constitutes an offer by you to purchase the Services. You accept the Terms by:
a. Clicking to accept or agree to the Terms on the Suppliers website; or
b. (if earlier) by the Supplier starting to provide the Services,
c. Writing by letter or Purchase Order to confirm acceptance of a quotation
2.3 When a contract for the supply and purchase of the Services on these Terms will be established. Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the your agreement with the Supplier.
Quotations are given by the Supplier on the basis that no contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
The Supplier shall provide the Services to you from the date of your acceptance in accordance with condition
4. SUPPLIER'S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services and to deliver to you all documents and products and materials developed by the Supplier in relation to the Services in any form, including on site services, computer programmes, data, presentations, reports, spreadsheets and specifications (the Deliverables)
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified by you, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Supplier will do its utmost to ensure that availability of the website will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, your access to the website may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services. The Supplier will attempt to limit the frequency and duration of any such suspension or restriction.
4.4 You acknowledge that the Supplier is constantly innovating in order to provide the best possible experience for its users and agrees that the form and nature of the Services which the Supplier provides may change from time to time without prior notice to you.
4.5 You acknowledge that the Supplier reserves the right to refuse access to the website, terminate accounts, remove or edit content, or cancel orders at the Supplier’s discretion.
5. CUSTOMER'S OBLIGATIONS
5.1 You will:
a) co-operate with the Supplier in all matters relating to the Services;
b) provide to the Supplier, in a timely manner, all documents, dummyinformation and materials provided by you relating to the Services including (without limitation), training material, computer programs, data, reports and specifications (In-put Material) and other information as the Supplier may require and ensure that it is accurate in all material respects;
c) NOT provide to the Supplier any factual information which is critical to you including (without limitation) privileged and confidential information (Live Information) and you will only provide the Supplier the In-put Material.
d) ensure that all your systems, equipment, cabling or facilities used directly or indirectly in the supply of the Services are good working order and suitable for the purposes for which it is used in relation to the Services and are capable of conforming with all applications without limitation.
e) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier's software and the use of In-put Material
f) not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by the Supplier.
g) not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
h) not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose unless you have been specifically permitted to do so by the Supplier.
i) be responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
j) be solely responsible to the Supplier for all activities that occur under your account and if you become aware of any unauthorised use of your password or of your account, you agree to notify the Supplier immediately.
k) ensure that all details you provide us with are correct and complete and inform us immediately of any changes to the information that you provided when registering
l) You must not use the website for any fraudulent purposes, or in connection with a criminal offence or other unlawful activity to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any "spam" or to cause annoyance, inconvenience or needless anxiety
5.2 If the Supplier's performance of its obligations is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
5.3 you shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the your fraud, negligence, failure to perform or delay in the performance of any of your obligations under the Terms.
5.4 You shall not, without the prior written consent of the Supplier, at any time from the date you accept the Terms to the expiry of 36 months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services
5.5 all information (such as the In-put Material, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated
5.6 you are solely responsible for (and the Supplier has no responsibility to you or to any third party for) any In-put Material or any Live Information that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which the Supplier may suffer) by doing so.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services by the Supplier, you shall pay the charges as set out in your Quotation from the Supplier’s website.
6.2 Your credit or debit card will be charged when you confirm the order on the Supplier’s website unless a credit account has been established and agreed by the Supplier
6.3 Time for payment shall be of the essence.
6.4 All sums payable to the Supplier under the Terms shall become due immediately on its termination, despite any other provision. This condition 6.4 is without prejudice to any right to claim for interest under the law, or any such right under the Terms.
6.5 The Supplier may, without prejudice to any other rights it may have, set off any liability of you to the Supplier against any liability of the Supplier to you.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Between you and the Supplier, all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world (Intellectual Property Rights) and all other rights in the Deliverables and the shall be owned by the Supplier. Subject to condition 8781892, the Supplier licenses all such rights to you free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable you to make reasonable use of the Deliverables and the Services.
7.2 You acknowledge that, where the Supplier does not own any existing Intellectual Property Rights, your use of rights in the Intellectual Property Rights are conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to you.
7.3 Unless you have agreed otherwise in writing with the Supplier, nothing in the Terms gives you a right to use any of the Supplier’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features
7.4 The Supplier gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive licence to use the Deliverables provided to you by the Supplier as part of the Services as provided to you by the Supplier. This licence is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by the Supplier, in the manner permitted by the Terms.
7.5 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Deliverables or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by the Supplier, in writing.
7.6 Unless the Supplier has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights to use the Deliverables, grant a security interest in or over your rights to use the Deliverables, or otherwise transfer any part of your rights to use the Deliverables.
7.7 You retain copyright and any other rights you already hold in the In-put-Materials which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give the Supplier a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any In-put materials which you submit, post or display on or through, the Services.
7.8 You confirm and warrant to the Suppliers that you have all the rights, power and authority necessary to grant the above licence.
8. CONFIDENTIALITY
8.1 You 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 you by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which you may obtain.
8.2 You may disclose such information:
a) to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the your obligations under the Terms; and
b) as may be required by law, court order or any governmental or regulatory authority
c) You shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
d) You shall not use any such information for any purpose other than to perform your obligations under the Terms.
9. LIMITATION OF LIABILITY
9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to you in respect of:
a) any breach of the General Terms and Additional Terms;
b) any use made by the you of the Services, the Deliverables or any part of them; and
c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Terms.
9.2 All warranties, conditions and other terms impliedby statute or common law are, to the fullest extent permitted by law, excluded from the Terms.
9.3 Nothing in these Terms limits or excludes the liability of the Supplier:
9.3.1 for death or personal injury resulting from negligence; or
9.3.2 for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by the Supplier;
9.4 Subject to condition 9.2 and condition 9.3
9.4.1 the Supplier shall not be liable for:
9.4.1.1 loss of profits; or
9.4.1.2 loss of business; or
9.4.1.3 depletion of goodwill and/or similar losses; or
9.4.1.4 loss of anticipated savings; or
9.4.1.5 loss of goods; or
9.4.1.6 loss of contract; or
9.4.1.7 loss of use; or
9.4.1.8 loss or corruption of data or information; or
9.4.1.9 any special, indirect, consequential or pure economic loss, costs
damages, charges or expenses
9.4.1.10 any loss, publication or exposure of Live Information.
9.4.2 the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Terms shall be limited to the price paid for the Services.
10. DATA PROTECTION
You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.
11. TERMINATION
11.1 Without prejudice to any other rights or remedies which the parties may have, the Supplier may terminate this agreement without liability to you immediately on giving notice to you if:
11.1.1. you fail to pay any amount due under the Terms on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
11.1.2 you commit a material breach of any of the Terms and (if such a breach is remediable) fail to remedy that breach within 30 days of that party being notified in writing of the breach; or
11.1.3 you repeatedly breach any of the Terms in such a manner as to justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Terms; or
11.1.4 you suspend, or threaten to suspend, payment of your debt(s) or you are unable to pay your debts as they fall due or you admit your inability to pay your debts or (being a company) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) you 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 has any partner to whom any of the foregoing apply; or
11.1.5 you commence negotiations with all or any class of your creditors with a view to rescheduling any of its debts, or make a proposal for or enter into any compromise or arrangement with your creditor 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; or
11.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with your winding up;
11.1.7 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; or
11.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
11.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
11.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
11.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
11.1.12 there is a change of control of the other party (as defined in [section 574 of the Capital Allowances Act 2001]).
11.2 On termination:
11.2.1 You will immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
11.2.2 You will, within a reasonable time, return all of the Supplier's Deliverables. If you fail to do so, then the Supplier may enter the your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping; and
11.2.3 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3 On termination, the following conditions shall survive and continue in full force and effect:
11.3.1 condition 7;
11.3.2 condition 8;
11.3. 2 condition 9;
11.3.4 condition 11; and
11.3.5 condition 20.
12. FORCE MAJEURE
12.1 The Supplier shall have no liability to you under the Terms if it is prevented from, or delayed in performing, its obligations or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13. VARIATION
13.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
14. WAIVER
14.1 A waiver of any right under the Terms is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Terms or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2 Unless specifically provided otherwise, rights arising under the Terms are cumulative and do not exclude rights provided by law.
15. SEVERANCE
15.1 If any provision of the Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Terms, and the validity and enforceability of the other provisions of the Terms shall not be affected.
15.2 If a provision of the Terms (or part of any provision) are found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16. ENTIRE AGREEMENT
16.1 The Terms constitute the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 You acknowledges that, by agreeing to the Terms, you have not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
17. ASSIGNMENT
17.1 you shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations.
17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights and may subcontract or delegate in any manner any or all of its obligations to any third party or agent.
17.3 Each party that has rights under the agreement is acting on its own behalf and not for the benefit of another person.
18. NO PARTNERSHIP OR AGENCY
18.1 Nothing is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties,nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19. RIGHTS OF THIRD PARTIES
19.1 A person who is not a party to the agreement shall not have any rights under or in connection with it.
20. GENERAL LAW AND JURISDICTION
20.1 The Terms, and any dispute or claim arising out of or in connection with it or its subject matter, 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 Terms or its subject matter.
20.3 Headings in these conditions shall not affect their interpretation.
20.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
20.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
20.6 A reference to writing or written includes faxes but not e-mail.
20.7 Any obligation in the Terms on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
20.8 References to conditions and schedules are to the conditions and schedules of the Terms
