Terms and Conditions
This Agreement was entered into between:
Quality System Solutions (QSS), Company Number 2674775, having its head office at Unit 8, Lansdowne Court, Bumpers Way, Chippenham, Wiltshire, SN14 6RZ, United Kingdom ("QSS"),
AND
you as the representative of your Company ("the Customer").
1. AGREEMENT
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.
1.2 Clause, Schedule and Paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time.
1.7 Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
1.8 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement; references to Paragraphs are to Paragraphs of the relevant Schedule to this Agreement.
1.9 To the extent only of any conflict or inconsistency between the Clauses, the Schedules and any other documents expressly incorporated into this Agreement, the order of precedence will be as follows:
(a) the Clauses;
(b) the Schedules; and
(c) any other document expressly incorporated by reference in this Agreement.
2. AUTHORISATION
2.1 The Customer represents to QSS that it has the authority to enter into and bind the Customer to this Agreement.
2.2 The Customer represents and agrees that under no circumstances will a competitor to QSS be given access to the Service as defined in Clause 3.1.
3. SERVICE
3.1 QSS shall make available to the Customer the Service described on the terms and conditions set out in this Agreement. The "Service" means the provision of access to the CallPro CRM application and database system (the “System”) served by QSS servers (the “Servers”) and support thereof.
3.2 QSS may perform its obligations through its affiliates, agents or subcontractors (the "Third Party Providers"), provided that QSS shall not be relieved of its obligations under this Agreement by use of such Third Party Providers.
3.3 QSS shall use best endeavours to ensure the Servers are based in secure data centers.
3.4 The Customer will be provided with access to server networks based in the US, European Union or Australia, whichever is appropriate for their needs. Data for EU Customers will always be stored on Servers within the EU countries unless otherwise agreed.
3.5 QSS will use reasonable endeavours to make the Service available twenty-four (24) hours a day, seven (7) days a week (“Service Availability”). This is based on normal working operation and excludes pre-planned maintenance, emergency maintenance, networking issues or downtime resulting from DDoS and DoS attacks (i.e. issues resulting from an external party which are beyond QSS’s control that causes its Service Availability to be reduced). QSS will use reasonable efforts to ensure that emergency maintenance shall be undertaken as far as possible outside of UK business hours as specified in Clause 3.7.
3.6 QSS cannot and does not guarantee the privacy, security or integrity of any data inputted or of any other data transmitted by the Customer for the purposes of using the Service (the “Customer Data”), however, QSS agrees that:
(a) only essential personnel required to facilitate the Customer’s use of the Service will have access to any Customer Data or any other data; and
(b) all Customer Data will be at all times protected against fire, flood and natural disasters; and
(c) all QSS databases are backed up nightly; and
(d) all QSS servers are enabled for secure socket layer technology; and
(e) every QSS database for a Customer is kept securely and separately.
3.7 Support will be provided by email ticketing, and telephone Customer Success Support during UK business hours. UK business hours are 9am to 5pm Monday to Friday excluding public holidays. Time on telephone support is governed by a fair use policy (time in excess of four (4) hours per month may result in QSS recommending to the Customer that chargeable training sessions may be held and if not undertaken QSS reserves the right to increase the charges to cover the additional support requirement). QSS will use reasonable endeavours to respond to calls within four (4) hours. All onsite support will be charged at the prevailing QSS rate plus travel expenses.
3.8 QSS will provide support for the CallPro CRM application (the “Software”) and data in the CallPro CRM database; all hardware and other software are not covered.
3.9 QSS does not provide support for integrations between the Service and third party applications, unless otherwise expressly agreed between the parties in writing.
4. LICENCE
4.1 QSS operates on concurrent licences. The maximum number of users able to sign on to the Service at any one time will be limited to the number of licences that the Customer has subscribed to.
4.2 The licence is not a sale of the rights of ownership of the Software, in particular QSS retains title and full rights of ownership in the original or any copy of this Software.
4.3 The licence is not transferable except to companies wholly owned by the contracted Customer, or to the parent company of the contracted Customer.
4.4 QSS grants the Customer a licence for the number of users to access the Service concurrently as invoiced, on receipt of payment for the duration as stated on the invoice. QSS will grant such further licences as required to enable the users to continue to access the Service for any Renewal Term(s) as defined herein.
5. COPYRIGHT
The Customer agrees and acknowledges that QSS owns the intellectual property rights in the System. The following are absolutely prohibited without the express prior written consent of QSS:
(a) Unauthorised copying of the Software, or the written materials, including Software that has been modified, merged, or included with other Software.
(b) Except to the extent expressly permitted by law, reverse engineering, disassembling, decompiling, or making any attempt to recover the source code of any of the Software.
(c) Sub-licensing subject to Clause 4.3, renting, leasing or sale of any of the Software unless by written agreement with QSS.
6. FEES
6.1 The Customer undertakes, for the Initial Term and for any Renewal Term thereof, as the case may be, as these terms are defined herein, to pay all the fees and any other charges due plus applicable taxes (the “Fees”). QSS shall be entitled to increase the Fees under this Agreement at any time upon giving a minimum of fourteen (14) days prior notice of the increase to the Customer.
6.2 The Customer undertakes to pay all Fees at or by the time they are due. Any amount payable under this Agreement and unpaid on its due date shall be subject to a daily interest charge on such due amounts at an annual rate equal to two percent (2%) over the then current base lending rate of QSS's bankers in the UK from time to time, commencing on the due date and continuing until the said amount is paid in full. In addition, QSS may disable the Customer’s account and access to all or part of the Service and shall be under no obligation to provide any or all of the Service while the amount concerned remains unpaid.
6.3 The minimum billing period is one month.
6.4 Licence fees are due on or by the first day of the billing period.
6.5 The number of licences may be increased at any time at a rate commensurate with the time left in the current billing period.
6.6 The Customer may notify QSS of a reduction in the number of licences required at any time. This will take effect at the start of the next billing period.
6.7 Data storage: QSS operates a fair use policy and may charge for excessive data storage. The normal limit is 100MB per User Licence or 250MB, whichever is greater. QSS reserves the right to charge excess storage fees.
6.8 Refund policy: All transactions between QSS and the Customer are final. QSS does not issue refunds.
6.9 Billing errors: The Customer must notify QSS of any billing error in writing within sixty (60) days of the error date. QSS reserves the right to disregard errors notified after sixty (60) days.
6.10 Data retention: QSS will permanently delete all data thirty (30) days after the termination of the contract. Backups may be kept for a further thirty (30) days unless the Customer requests earlier deletion. QSS reserves the right to charge to restore data if the backup still exists.
6.11 In respect of payment by Direct Debit (i) invoices raised on or prior to the 20th of a month will be paid by the first working day of the following month, and (ii) invoices raised after the 20th of a month shall be paid by the first working day of the month after the following month.QSS reserves the right to amend the Fees for any Renewal Term by providing the Customer with at least fourteen (14) days prior written/email notice of the amendment before the end of the Initial Term or the end of any Renewal Term as applicable .
7. TERM
7.1 The initial term (the "Initial Term") of this Agreement shall expire a minimum of one (1) calendar month from the date the Service is put into production and the applicable fees commence, unless otherwise terminated as provided herein.
7.2 At the end of the Initial Term, this Agreement shall automatically renew and be binding for an additional one (1) calendar month term (each a "Renewal Term") unless the Agreement is terminated in accordance with Clause 15 hereof.
7.3 At the end of each Renewal Term, an additional Renewal Term will commence unless the Agreement is terminated in accordance with Clause 15 hereof.
8. CUSTOMER OBLIGATIONS
8.1 The Customer undertakes to keep passwords secure and access to the Service restricted to internal personnel and such external personnel as are considered responsible. No access shall be given to persons who shall use the designs and ways of working as information to be used in conjunction with a competitor or creation of a competitive system.
8.2 The Customer, its agents, employees or representatives shall not commit any act or cause or permit any act to be committed or provide any services which will conflict with, disrupt, or affect in any manner whatsoever QSS's provision of the Service stipulated herein. In the event of breach of this Clause 8, the Customer shall be liable for all additional costs, liabilities and expenses incurred by QSS in providing the Service.
8.3 The Customer agrees not to tamper with, alter or otherwise rearrange the Service nor shall it permit or assist others to abuse or fraudulently use the Service including but not limited to using the Service:
(a) in any manner which interferes unreasonably with the Service or QSS's network, or access thereto by other persons;
(b) for any purpose or in any manner directly or indirectly in violation of applicable laws or in violation of any third party rights; or
(c) in a manner to avoid the payment of Fees hereunder.
8.4 The Customer shall solely be responsible for use of the Service by any of its employees, officers, directors, agents as well as its end users and agrees to take all necessary measures to ensure that such persons use the Service in accordance with the terms and conditions of this Agreement.
8.5 The Customer shall be solely responsible for obtaining necessary licenses and/or authorisations for all software and equipment which are not provided by QSS. QSS shall not be responsible if any changes in the Service causes equipment or hardware not provided by QSS to become obsolete, require modification or attention, or otherwise affect performance of the same.
8.6 The Customer shall not, for commercial purposes, resell or remarket all or any portion of the Service provided under this Agreement.
8.7 QSS reserves the right to take any measures it deems necessary, acting reasonably, to ensure compliance with this Clause 8 and notably the right to immediately suspend the Service or any part thereof or terminate this Agreement provided however that whenever practicable QSS shall provide Customer with reasonable written notice of such proposed suspension or termination. In case of termination of this Agreement pursuant to this section, the Customer agrees and irrevocably undertakes to pay QSS the Termination Charges stipulated in Clause 15 hereof.
9. WARRANTY
9.1 QSS undertakes to provide the Service agreed upon in this Agreement in a timely and workmanlike manner.
9.2 The obligation upon QSS set out at Clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to QSS's instructions, or modification or alteration of the Service by any party other than QSS or its duly authorised contractors or agents. If the Service does not so conform with the obligation, QSS will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance within a reasonable time. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the obligation set out at Clause 9.1.
9.3 The Customer acknowledges and agrees that QSS offers no warranty that the Service will be uninterrupted or without defect, and acknowledges moreover that QSS offers no warranty in respect of the scope, availability, accuracy or any other aspect of any information, including notably and without limiting the scope of the foregoing, any data or file, regardless of the format or presentation, to which the Customer or its end users shall have access or shall have at their disposal arising from the use of the Service stipulated herein. QSS shall be permitted from time to time to interrupt the Service in order to provide maintenance to the Service as set out in Clause 3.5, provided however, that whenever practicable QSS shall notify the Customer of such Service interruption due to maintenance.
9.4 9.3 QSS warrants that it has obtained all necessary licences, as the case may be, for software used in the delivery of the Service. QSS warrants that title to all hardware used in the delivery of the Service has been obtained by QSS.
9.5 9.4 The warranties provided in this Agreement are in lieu of all other warranties and conditions. The Customer hereby disclaims all other warranties and conditions, express, implied or statutory, including any warranty of satisfactory quality, fitness of a particular purpose, or availability or reliability of the Service.
10. REMEDIES
10.1 Subject to Clauses 11.1, 11.2 and 11.3 and to the maximum extent permitted by law, QSS's total cumulative liability, if any, to the Customer or any third party for damages arising out of or in connection with this Agreement and the provision of the Service will under no circumstances exceed the total in aggregate of all Fees actually paid by the Customer during the six calendar month period preceding the time that the claim arose that gave rise to the damages.
10.2 The Customer's sole and exclusive remedies against QSS in respect of the Service and this Agreement shall be as stated herein.
11. EXCLUSION AND LIMITATION OF LIABILITY
11.1 Nothing in this Agreement excludes the liability of QSS:
(a) for death or personal injury caused by QSS’s negligence;
(b) for fraud or fraudulent misrepresentation;
(c) for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
11.2 Subject to Clause 11.1, QSS shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, wasted employee or contractor time or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement. The Customer agrees, acknowledges and confirms that the limitations of liability set out in this Clause are fair and reasonable in the commercial circumstances of this Agreement and that QSS would not have entered into this agreement but for the Customer's Agreement to limit QSS’s, its agents, suppliers and subcontractors liability in the manner, and to the extent, provided for herein.
11.3 QSS assumes no liability arising from:
(a) the use of the Service provided by QSS in conjunction with services, products or equipment not provided by QSS; and
(b) the failure by the Customer to perform its obligations under this Agreement.
11.4 11.3 Clauses 10 and 11 of this Agreement shall apply even in the event of a breach of condition, a breach of an essential or fundamental term, or a fundamental breach of this Agreement.
12. CONTENT
12.1 The Customer acknowledges that QSS neither owns nor controls the content, availability, accuracy or any other aspect of the information, data, files, images or content in any format or of any type (collectively referred to as the "Content") uploaded by the Customer or its end users through the Service.
12.2 QSS warrants that for any Content uploaded to CallPro CRM servers, QSS:
(a) will not use it for any of its own purposes except as in accordance with this Agreement;
(b) will not to pass such data to third parties;
(c) will return such data to the Customer when the Agreement terminates upon payment to QSS of QSS’s fee for doing so itself for such services.
12.3 QSS acknowledges that the Customers are able to export all their data at any time free of charge within their contract if it is paid up to date.
13. INDEMNITY
The Customer shall indemnify, hold harmless and take up the defence of QSS, its representatives and assignees against any liability in respect of any loss, liability or any damage of any nature whatsoever, and notably any disbursements, including reasonable counsel fees, arising from any and all claims by the Customer’s users in connection with the use of the Service (and related equipment and software) or transmission of the Content by the Customer or the Customer’s users or the Customer’s failure (unless such claims arise from QSS’s failure to comply with the provisions of this Agreement) to comply with its obligations under this Agreement. This indemnity shall survive termination of this Agreement.
14. DISPUTE RESOLUTION
In the event of any dispute, disagreement, claim or alleged breach of the provisions of this Agreement (each a "Dispute"), the Dispute shall be referred to the QSS Account Manager, as the case may be, and his or her counterpart at the Customer by service of a written notice (a “Referral Notice”) . If the Dispute is not resolved within fifteen (15) days of the date of service of the relevant Referral Notice, it shall then be submitted to the superior of the QSS Account Manager and to the Customer's counterpart. Should the Dispute not be resolved by QSS and the Customer within thirty (30) days of such escalation, either party may commence proceedings in accordance with Clause 18.5, or if both parties agree in writing to do so, the parties will attempt to settle the Dispute by mediation in accordance with the CEDR Model Mediation Procedure. Either party may withdraw from mediation at any time.
15. TERMINATION AND MIGRATION
15.1 QSS may cause this Agreement to be terminated at the end of the Initial Term or at the end of any Renewal Term by notifying the Customer in writing of such intention no later than fifteen (15) days prior to the end of the Initial Term or the Renewal Term, as the case may be.
15.2 The Customer may request the termination of a part or all of the Service at any time prior to the expiration of the Initial Term or any Renewal Term, by providing QSS with a prior written notice to this effect no later than fifteen (15) days prior to the anticipated termination date, provided the Customer pays QSS, as liquidating damages and not as a penalty, an amount corresponding to the total of the following:
(a) the current value of all the sums unpaid and owed due and to fall due under this Agreement, as recurring charges related to the terminated Service, until expiry of the current term, the whole calculated by discounting the said sums at the base rate of QSS's bankers in the UK at that time plus 2%; and
(b) all the reasonable expenses incurred or to be incurred by QSS in respect of its contractual obligations stipulated herein and performed by its Third Party Providers as defined in Clause 3.2; and
(c) all other amounts owed and unpaid under this Agreement;
and (a), (b) and (c) above shall be collectively referred to hereinafter as the "Termination Charges".
15.3 If the Customer migrates to a Comparable Service (as defined herein), the Termination Charges may be waived by QSS. A "Comparable Service" is one offered by QSS or one or more of its affiliates, having a duration at least as long as this Agreement, and to which the applicable monthly fees are no lower than those under this Agreement.
15.4 QSS may, in its absolute discretion, in addition to all other rights and remedies under this Agreement and in law, immediately terminate this Agreement or suspend delivery of any or all of the Service by notice to the Customer prior to the end of the term: for breach by the Customer of any term of this Agreement, including the failure by the Customer to make full payment of an invoice within thirty (30) days of the issue date of the invoice, provided that QSS provides the Customer with notice of the breach and provided that the breach is not remedied within fifteen (15) days after the delivery of such notice to the Customer.
15.5 Either party shall be entitled to terminate this Agreement immediately with notice in the event of the other party's insolvency, receivership or voluntary or involuntary bankruptcy or in the event that QSS ceases to offer the Service. In the event of default by the Customer, any and all payments required to be made to QSS, including but not limited to the Termination Charges, by the Customer shall be due and payable immediately. Termination of this Agreement shall not relieve the Customer from any liability, including amounts owing, accrued prior to the time that such termination becomes effective.
15.6 The minimum number of active paid up licences is one. Reducing the number of active paid up licences to zero will result in the immediate cancellation of the Agreement.
16. CONFIDENTIAL INFORMATION
16.1 "Confidential Information" means any data, documentation or other information of a proprietary nature, clearly identified as being confidential or proprietary, which is disclosed or made available to the other party in connection with the negotiation, preparation or performance of this Agreement and the design, installation, delivery or implementation of the Service, including without limitation, the network design specifications and drawings.
16.2 Each party agrees not to disclose the Confidential Information of the other party without the other party's written consent and agrees to take such care to protect the confidentiality of the Confidential Information as would be taken by a reasonable party to protect its own confidential information from disclosure. Furthermore, each party shall indemnify and save the other harmless from any losses or damages directly or indirectly caused by the disclosure of Confidential Information by the party or any of its agents, contractors, subcontractors, employees, successors or permitted assigns.
16.3 Both parties' rights and obligations under this Clause survive any expiration or termination of this Agreement by either party.
17. FORCE MAJEURE
Save for the obligation to pay the Recurring Charges and Termination Charges, if the performance of this Agreement is interfered with, in whole or in part, by circumstances beyond the reasonable control of either party including, without limitation: fire, explosion, power failure, acts of God, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, regulation, ordinance or requirement of any government or its representative or legal body having jurisdiction, or labour unrest such as strikes, slowdowns, picketing or boycotts, then the party affected shall be excused from such performance on a day by day basis to the extent that such party's obligations relate to the performance so interfered with; provided that the party so affected shall use commercially reasonable efforts to diligently remove such causes of non performance.
18. GENERAL PROVISIONS
18.1 Amendment: Except QSS shall be entitled to amend the terms of this Agreement at any time upon giving a minimum of fourteen (14) days’ prior notice to the Customer of such amendments. Subject thereto,as otherwise provided, neither party may amend this Agreement other than by an instrument in writing executed by the authorised representatives of both parties hereto.
18.2 Assignment: The Customer shall not, subject to Clause 4(c) herein, assign or transfer this Agreement, in whole or in part without QSS’s prior written consent, which consent shall not be unreasonably withheld. Except as set forth herein, any attempt by the Customer to assign or transfer this Agreement, in whole or in part, without the prior written consent stipulated herein, shall be null and void. QSS is authorised, without notice to the Customer or its authorisation, to assign to any QSS affiliate, the rights or obligations incumbent upon it under this Agreement or its interests therein. Where QSS assigns to its assignee its rights, titles and interests as set out herein above, the Customer agrees to pay the assignee all the Recurring Charges, Termination Charges and other charges so assigned and owing under this Agreement, unconditionally, without reduction or compensation whatsoever, regardless of any real or alleged cause of action that the Customer has or claims to have against QSS or any other third party. If the Agreement is assigned, the assignee will take on all the rights and obligations of the party which originally signed the Agreement. If necessary the parties shall enter into a deed of assignment or novation agreement with regards to any such assignment.
18.3 Entire Agreement: This Agreement constitutes the entire agreement between the Customer and QSS with respect to the subject matter, merging and superseding all prior agreements, understandings and representations on the subject matter whether written or oral. It is expressly agreed that if the Customer issues a purchase order or other document for the Service, such instrument will be deemed to be for the Customer's internal use only and any provisions contained therein shall not amend or be incorporated by reference in this Agreement or used in interpreting this Agreement.
18.4 Enurement: This Agreement shall be binding upon and enure to the benefit of QSS and the Customer and their respective successors and permitted assigns.
18.5 Governing Law and Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted according to the laws of England and Wales and, subject to Clause 14, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including non-contractual dispute or claims).
18.6 Non Waiver: No waiver of any term or provision or of any breach or default shall be valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any other terms or provision of any subsequent breach or default of the same or similar nature. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
18.7 Notice: The notices stipulated in this Agreement may be given in writing or transmitted (a) by hand or by certified or registered mail, to the addresses of the recipients set out hereinabove, (b) by facsimile, or (c) electronically. Notices sent by facsimile or electronically shall be deemed to have been received upon receipt by the recipient of a bona fide transmission confirmation.
18.8 Severability: The invalidity, illegality or unenforceability of any one or more provisions of this Agreement shall not affect or impair any other provisions of this Agreement.
18.9 Employment Solicitation: For the duration of this Agreement, and for a period of one (1) year following termination of this Agreement the Customer agrees not to solicit the employment of any employee of QSS.