1 Definitions and Interpretation
What specific terms in this Agreement mean:
"Agreement" means the agreement between us and you for the provision of The Service as a service, incorporating these terms and conditions and any amendments to the Agreement from time to time;
"Defects" means defects, errors or bugs having adverse effect on the appearance, operation or functionality of The Service;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet,[ hacker attacks, virus or other malicious software attacks or infections,] power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"The Service" means the software known as Simply Cashflow that is owned and operated by us and that will be made available to you as a service via the internet under the Agreement;
"Services" means all the services provided or to be provided by us to you under the Agreement;
"Subscription Fees" means the amounts payable by you to us under or in relation to the Agreement;
"Upgrades" means new versions of, and updates to, The Service, whether for the purpose of fixing an error, bug or other issue in The Service or enhancing the functionality of The Service;
"us" "we" "our" "ours" refers to Simply Cashflow Limited, trading as Simply Cashflow and including any of our employees, officers, subsidiaries, agents and affiliates, a company registered in Scotland with registered number SC421460 and having its registered office at Simply Cashflow Limited, 4 Lynedoch Place, Glasgow, G3 6AB, Scotland, UK;
"you" "your" means a sole trader, partnership or company which has a Simply Cashflow account;
"Your Data" relates to your all works, data and materials uploaded to, stored on, processed using or transmitted via The Service by or on behalf of you or by any person or application or automated system using your account and/or otherwise provided by you to us in connection with the Agreement;
The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
The advertising of The Service and the Services on our website constitutes an "invitation to treat" and your order for The Service and the Services constitutes a contractual offer. No contract will come into force between us and you unless and until we accept your order.
In order to enter into the Agreement, you must create an account on our website and log in. If you have signed up for a free trial, this will last for the agreed free trial period. When the free period comes to an end you will be required to set up a credit card payment instruction to permit continued use of The Service.
Before you have placed your order, you will have the opportunity of identifying whether any input errors have been made via your set up and edit functions. You may correct any input errors before placing your order.
3. The Service
Once you have signed up and we accept your request to use The Service, we will make available The Service to you by setting up an account and providing you with login details for that account.
Except to the extent mandated by applicable law or expressly permitted in the Agreement, you must not sub-license or allow any unauthorised person to access or use The Service, you must not frame or otherwise re-publish or re-distribute The Service and you must not alter or adapt or edit The Service save as expressly permitted by The Service.
For the avoidance of doubt, you have no right to access the object code or source code of The Service, either during or after your subscription period. All Intellectual Property Rights in The Service shall, as between the parties, be the exclusive property of ours.
You shall ensure that no unauthorised person or automated system (including without limitation scraping, data mining, data extraction, data harvesting, or programs such as QALoad, Winrunner, Rational Robot, Silk performer, Loadrunner and WebLOAD) will or could access The Service using your account. You must not use The Service in any way that causes, or may cause, damage to The Service or impairment of the availability or accessibility of The Service, or any of the areas of, or services on, The Service. You must not use The Service in any way that is unlawful, illegal, fraudulent or harmful.
You must not use The Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.
From time to time we may apply Upgrades to The Services.
5. Your Data
You grant to us a non-exclusive licence to store, copy and otherwise use your data for the purposes of operating The Service. All Intellectual Property Rights of your data will remain, as between the parties, the property of you. You warrant to us that your data, and their use by us in accordance with the terms of the Agreement, will not breach any laws, statutes, regulations or legally-binding codes, infringe any person's Intellectual Property Rights or other legal rights or give rise to any cause of action against the us or the you or any third party.
Where we suspect that there has been a breach by you we may suspend any or all of The Services and/or your access to The Service while we investigate the matter.
6. Trial period
The trial period will run as per detailed in our website. Only one free trial is permitted by you. If more than one account is opened you will be liable to pay your subscription fee for these additional accounts with no free trial available for them.
7. Subscription Fees
Payment for The Service is based on a monthly subscription as detailed in our website. Prices are quoted in UK Sterling and exclude VAT. For avoidance of doubt, all quoted prices will have VAT, at the prevailing rate, added to the overall cost. No VAT will be added to Non-UK based businesses. From to time to time, we may vary the Subscription Fees by giving you not less than 30 days written notice of the variation. Should you change the package, your new licence will take effect immediately with your existing licence remaining valid until the end of its licenced period.
Subscription Fees must be paid by credit card as per your set up instructions. If you do not pay any amount properly due to us under or in connection with the Agreement, we will suspend your access to The Service. If after 30 days you have not paid up all outstanding fees we may and have the right to delete, all data relating to you.
Invoices will be available, via your account, for paid subscription fees. A maximum of 12 monthly invoices will be made available.
You warrant and represent to us that you have the legal right and authority to enter into and perform your obligations under the Agreement.
We warrant and represent to you that we have the legal right and authority to enter into and perform our obligations under the Agreement and that The Service will perform substantially in accordance with its intended use.
You acknowledge and understand that the software is never wholly free from defects, errors and bugs, and we give no warranty or representation that The Service will be wholly free from such defects, errors and bugs, that we do not warrant or represent that The Service will be compatible with any application, program or software application, that we will not and do not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to The Service and we do not warrant or represent that The Service will not give rise to any civil or criminal legal liability on the part of you or any other person.
All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
You agree to hold harmless and will indemnify and will keep indemnified us against all liabilities, damages, losses, costs and expenses including legal expenses and amounts paid upon legal advice in settlement of any disputes suffered or incurred by us and arising as a result of any breach by you.
10. Limitations and exclusions of liability
Nothing in the Agreement will limit or exclude the liability of a party for death or personal injury resulting from negligence; limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; limit any liability of a party in any way that is not permitted under applicable law; or exclude any liability of a party that may not be excluded under applicable law.
We will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings, for any loss of business, contracts or commercial opportunities or for any loss of or damage to goodwill or reputation or in respect of any loss or corruption of any data, database or software or in respect of any special indirect or consequential loss or damage. This includes any losses or damages arising out of a Force Majeure Event.
Our liability in relation to any event or series of related events will not exceed the total amount paid by you under the Agreement during the month period immediately preceding the event or events giving rise to the claim.
11. Data Protection
You warrant that you have the legal right to disclose all Personal Data that it does in fact disclose to us under or in connection with the Agreement.
We warrant that we will act only on instructions from you in relation to the processing of any Personal Data performed by us on behalf of you and that we have in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by you on behalf of you.
We may terminate the Agreement immediately by giving written notice to you if you commit any material breach of any term of the Agreement if the breach is not remediable or if the breach was remediable, but you failed to remedy the breach within 30 days of receipt of a written notice requiring it to do so or for persistent breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach). If we stop or make a good faith decision to stop operating The Service generally, then we may terminate the Agreement by giving at least 30 days' written notice of termination to you.
We reserve the right to terminate the Agreement immediately, for any reason including but not limited to; if you become bankrupt, go into liquidation, become or are declared insolvent or cease to conduct all (or substantially all) of your business or you become unable or fail to pay your debts as they fall due.
You may terminate the Agreement by going to the Cancel Subscription in the Set-up/Licences Section. This will result in access suspension and the ultimate deletion of your data. It will also ensure that no further payments are taken from you. No refunds will be due to you. Any outstanding sums due from you will remain due and must be paid. No other method of account termination will be accepted.
Within 90 days of termination of the Agreement, we will irrevocably delete from The Service all Confidential Information relating to you. We may retain any document (including any electronic document) containing your Confidential Information after the termination of the Agreement if obliged to do so by any law, regulation or other rule enforceable against us or the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to us.
Any notice from you given under the Agreement, other than that of termination by you, must be in writing and must be delivered personally or sent by recorded signed-for post for the attention of the relevant person and to the relevant address as per the contact details in the website. A notice will be deemed delivered as of the date of signing of the return receipt or the first date of a refusal to sign.
14 Force Majeure Event
Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will notify the other and inform the other of the period for which it is estimated that such failure or delay will continue. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
We reserve the right to makes changes to the Agreement. Changes will be posted on our website and your continued use of The Service will be taken as your acceptance of any such changes. All and any changes can only be made with our consent.
You hereby agree that we may freely assign any or all of our contractual rights and/or obligations under the Agreement to any affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, you may not, without the prior written consent from us, assign, transfer, charge, license or otherwise dispose of any contractual rights or obligations under the Agreement.
The Agreement [and the acceptable use policy referred to in herein] constitute[s] the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede[s] all previous agreements, arrangements and understandings between the parties in respect of that subject matter you will not will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
The Agreement will be governed by and construed in accordance with the laws of Scotland and the courts of Scotland will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.