Your subscription to our Solution is subject to these Terms and Conditions and our Privacy Policy (as updated by us from time to time) which form a legally binding contract between you and us (the “Agreement”). You should read this Agreement carefully in full before installing, accessing or using our Solution. You indicate that you agree to all the terms of this Agreement from the earliest date you tick a box or click on a button (or something similar) to signify your acceptance, or you install, access or use any of the Solution. If you don’t accept this Agreement, you should contact us immediately and not install, access or use the Solution in any way.
We may update this Agreement at any time. We will make reasonable efforts to communicate any changes to you via a notification in the Solution or by sending an email to your user address, but it is up to you to ensure that you regularly check, read, understand and agree to the most recent version of this Agreement as you will be deemed to accept all updates if you continue to access and use the Solution. If we make a change that’s materially detrimental to you, you may terminate this Agreement and we will reimburse any prepaid Subscription Fees from the date of termination for the remaining Initial Subscription Term, if any.
1.Definitions
In this Agreement, these words have the following meanings:
“Application License Terms” the specific terms governing the use of any App developed for Asset Controller;
“Authorised Users” – your employees, agents, contractors and advisers that are permitted to access the Solution and you assume responsibility for;
“Business Day” – any day which is not a Saturday, Sunday or Public Holiday in England;
“Confidential Information” – information that is proprietary or confidential and is either clearly labeled as such or identified as confidential information in clause 12 including without limitation Customer Data;
“Core Product” – the software package your subscription relates to as described in the Documentation including without limitation Asset Controller;
“Customer Data” – the data inputted by you (or for and on your behalf by your Authorised Users) into the Product;
“Data Protection Laws” – the UK Data Protection Act 1998 or the Irish Data Protection Acts 1998 and 2003 as applicable;
“Documentation” – the documentation and information made available to you by us which describe the Solution, Subscription Fees, payment and user instructions but excludes marketing literature;
“Effective Date” – the date we accept your order for the Solution;
“Initial Subscription Term” – 1 calendar month (or such other timeframe as we may agree in writing);
“Module” – optional packages (including Apps) that you may subscribe for and use alongside a Core Product subject to payment of an additional fee, or optional packages which may be made available to you to use alongside the Core Product, in either event in accordance with these terms;
“Monthly Subscription” – the subscription term shall commence with effect from the Effective Date and shall continue for that calendar month and shall automatically renew without notice for each successive calendar month thereafter, unless and until terminated in accordance with the terms and conditions of this Agreement;
“personal data” “data processor” “data controller” – have the meanings as set out in the Data Protection Laws;
“Privacy Policy” – our privacy policy;
“Product” – the Core Product including any Updates or Upgrades issued by us during the term of this Agreement and the Modules;
“Solution” – the provision by us to you of the Product and Support on a subscription basis as described in the Documentation;
“Subscription Fees” – the subscription fees payable by you to us at the agreed intervals for the Solution as set out in the Documentation;
“Support” – the level of product support package provided by us and selected by you, as described in the Documentation being “Online Support”;
“Third Party Software” –software which we do not own;
“User Parameters” – the restrictions on use of the Product as set out in clause 3;
“Updates” – a permanent fix to a known problem in the Product or due to a change to legislation released by us from time to time;
“Upgrades” – a major revision to the Product which adds new or different functions or capabilities released by us from time to time;
“Website” – www.assetcontroller.co.uk;
“us” “we” and “our” – PCP Software Solutions Limited; and
“you” and “your” – the customer who subscribes for the Solution.
1.2 A reference to a statute, statutory provision or subordinate legislation in this Agreement is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts. Words of a technical nature which are not defined in this Agreement shall be construed in accordance with the relevant general usage in the computer software industry in the United Kingdom.
2.The Product
2.1 As part of your subscription, we grant a non-exclusive licence to you to use the object code of the Product in accordance with this Agreement and the Documentation. To use the Product you must activate it by using an ‘licence key’. We will provide this to you following receipt of purchase and registration information from you. You must ensure that when the Product is in use, the machine on which it is installed or accessed via is connected to the internet.
2.2 You may subscribe to a Module at any time directly with us on a Monthly Subscription provided that you have an active subscription for the relevant Core Product. If you subscribe for a Module during a period in which you have already paid your Subscription Fees, your next invoice will include a retrospective pro-rated charge for such access to the Module. You can notify us in writing at any time that you wish to cancel your Module Monthly Subscription. Termination of a Module subscription will take effect no later than the end of the calendar month following the month in which you request the cancellation.
2.3 You must not:
2.3.1 change the Product, take it apart or permit others to do so without our permission;
2.3.2 copy any part of the Product or allow anyone else to, except for making one back-up copy of it (which we encourage you to do). We permit a back-up copy to be used on a computer if your original copy is no longer available. This clause does not limit, however, your ability to take multiple copies of your Customer Data (and again we encourage you to do this); or
2.3.3 use the Solution to help you develop your own software.
2.4 You agree to:
2.4.1 use the Product strictly in accordance with this Agreement; and
2.4.2 promptly install any Updates we may issue to you
2.5 If you use the Product outside of the UK you need to make sure you comply with any applicable legal and legislative requirements.
2.6 The Product includes a feature which you can enable to automatically check our Website for Updates and to apply them to the Product. Certain information excluding Customer Data will be collected and recorded by us from your system, such as what operating systems you utilise. This will be collected and used in accordance with the Privacy Policy.
2.7 You are not permitted to use the Product on a hosted environment or a third party’s hosted environment (meaning computers that your Authorised Users may access and use through the internet).
2.8 The Product may include technology that enables us to:
2.8.1 ensure that only Authorised Users with an activated licence can use the Product;
2.8.2 check specific information directly relevant to your use of the Product contained in your computer against our records to make sure the Product is being used in accordance with this Agreement and to troubleshoot any problems;
2.8.3 collect information about how you and your Authorised Users use the functions of the features of the Product;
2.8.4 gather statistical information about the operating system and environment on which the Product is installed;
By accepting this Agreement you are giving us your informed consent to use this information for our own business purposes, for the purpose detailed in clause 10 below and in accordance with our Privacy Policy.
3. User Parameters
3.1 The Product must only be used:
3.1.1 for your legitimate internal business purposes with your own information or the demonstration data supplied with the Product (unless we have granted you the additional rights at clause 4);
3.1.2 to process the data for the agreed number of employees as set out in the Documentation (by “employee” we mean a person you manage using the software whether or not currently employed by you);
3.1.3 for the number of Authorised Users (whether named or concurrent) as set out in the Documentation (you must not allow any other person or organisation to use the Product).
3.2 If you have bought a ‘single user’ licence, only one Authorised User can use the Product and you can only install the Product on one time.
3.3 If you have bought a ‘multi user’ licence (sometimes call a concurrent user licence in the Documentation) up to the number of Authorised Users identified in the Documentation can use the Product at any one
3.4 If we have told you that you can use the Product to provide Solution to others (who are not part of your business) you can do so for up to the number of users, employees and/or companies we have agreed as set out in the Documentation.
3.5 You can decrease the number of Authorised Users (minimum 2 user licences) we are able to access the Product, companies or employees you use the Product for, but we will not reduce the Subscription Fee until the later of: the end of the Initial Subscription Term Monthly Subscription customers, the end of the calendar month following the month in which you request and we agree to such a change.
4. The Support Services
4.1 As part of your subscription, we will provide the Support to you in accordance with this Agreement and the Documentation. Support will be accessible during the hours set out in the Documentation and may be given at our discretion by way of telephone, email, web chat, remote assistance and self-help online support or other method. Unless we agree otherwise, Support does not include support or other assistance for any hardware, third party software or other equipment used with your Product.
4.2 If we provide you with remote assistance, you agree to accept a software file onto your computer system(s) where necessary to allow us to provide that assistance and you understand that by doing so we will be temporarily able to access and control your computer. You will be able to see everything we can see and you will be able to monitor what we do. At any point whilst we are providing remote assistance you can ask us to stop the sessions and sever the link between our systems and yours.
4.3 We will do everything reasonably within our control to ensure that the sections of our Website accessible to you as part of the provision of Support are both free from viruses and available; however, we cannot guarantee either of these things. You should use your own virus-protection software. From time to time we may temporarily stop providing access to our Website for maintenance, repairs or other reasons but where possible we will try to make sure this happens outside of normal business hours. We cannot guarantee that our Website will be compatible with your browser or computer set up or that your access will not be interrupted as this may be beyond our control.
4.4 Support may include business information and business advice which is prepared and updated in line with relevant laws and best practice in England and Wales, Scotland and Northern Ireland (unless we advise you otherwise). It is only suitable for use in those countries. However, business information cannot take account of all circumstances, and so cannot provide specific advice (such as how a particular event will affect your legal position). We recommend that you get your own legal advice if you have any questions.
4.5 We also keep a record of all letters, emails, and email follow-ups to business advice we send to or receive from you, as well as all online activity, including web pages viewed and documents downloaded by you.
5.Third Party Providers
5.1 With the Solution you may receive Third Party Software. You cannot use the Third Party Software by itself; you can only use it in the course of using the Solution. If you do use Third Party Software, you agree to adhere to any licence agreement provided with that Third Party Software. If there is no licence agreement with that Third Party Software, this Agreement will apply to how you use the Third Party Software. You also agree to keep to any other conditions we impose on using the Third Party Software.
5.2 The owners of Third Party Software keep all relevant rights in their own software and in all copies of it. In particular, if the Solution comes with a Microsoft® product, to the extent permitted by law, Microsoft® does not make any promises to you in respect of its software and it will not be liable to you for any damages, whether direct, indirect, incidental or consequential as a result of the use or installation of its software; and your use of the Microsoft® product is subject to the Microsoft® software licence agreement that we (or your supplier) provided to you or which Microsoft® has generally made available to users of that Microsoft® product (which forms part of this Agreement).
5.3 You acknowledge that the Solution may enable or assist you to submit data to, access the website content of, correspond with, and purchase products and services from, third party interfaces and that you do so solely at your own risk. We make no representation or commitment and will have no liability or obligation whatsoever in relation to the submission of data, content or use of, or correspondence with, any such third-parties, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party interface is between you and the relevant third party, and not us. We recommend that you refer to the third party’s terms and conditions prior to using the relevant third-party website and services. We do not endorse or approve any third-party services, website or interface nor the content of any of the third-party website made available via the Solution.
6. Your Obligations
You agree to:
6.1 pay the Subscription Fee when due in accordance with clause 9;
6.2 provide us with:
6.2.1 all necessary co-operation in relation to this Agreement; and
6.2.2 all necessary access to such information as we may reasonably require in order to provide the Solution, including but not limited to Customer Data, security access information and configuration services;
6.3 comply with all applicable laws and regulations in respect of your activities under this Agreement;
6.4 carry out all your obligations under this Agreement in a timely and efficient manner. We will not be responsible for any delay in the provision of the Solution as a result of any third party act or omission;
6.5 ensure that the Authorised Users use the Solution in accordance with this Agreement and you will be responsible for any Authorised User’s breach of this Agreement;
6.6 notify us in writing of any defect or alleged defect in the Solution within five days of the date you become aware of it; and ensure that your network and systems comply with the systems requirements publicised by us from time to time.
7. Our Obligations and Guarantees
7.1 We warrant that for 30 days from you first accessing the Core Product, that it will perform as described in the Documentation provided that you use the Product in accordance with this Agreement and the Documentation. If you write to tell us within that time frame that the Product does not comply with this warranty and this affects how you can use the Solution (and our checks verify this) we will either provide a replacement Product to correct the problem or refund to you the total amount of Subscription Fees paid to us by you to date and this Agreement will terminate with immediate effect.
7.2 We agree that the Solution will be performed substantially in accordance with the Documentation and with reasonable care and skill.
7.3 We:
7.3.1 do not warrant that your use of the Solution will be uninterrupted or error-free, or that the Solution, Documentation and/or the information obtained by you through the Solution will meet your requirements or produce particular outcomes or results (irrespective of whether you informed us about how you intend to use the Solution at the point of purchase); and
7.3.2 are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledges that the Solution may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8. Charges and Payment
8.1 Where you subscribe directly with us for the Solution, you will on the Effective Date provide to us valid up-to- date and complete purchase order information, billing details and complete a continuous direct debit mandate authority. We will invoice you at the agreed intervals for the Subscription Fees and take this amount from your nominated bank account via direct debit on the dates agreed in the Documentation.
8.2 If we have not received payment of the applicable Subscription Fees 10 days after the date we agree your direct debit payment shall be taken, without prejudice to our other rights of remedies:
8.2.1 we may, without liability to you, disable your password, account and access to all or part of the Solution or disable certain functionality and we will be under no obligation to provide any or all of the Solution to you whilst the invoice(s) concerned remain unpaid; and
8.3 All amounts and fees stated or referred to in this Agreement are:
8.3.1 payable in pounds sterling if you subscribe to the Solution in the UK or Euros if you subscribe to the Solution in the Republic of Ireland;
8.3.2 subject to clause 14.4.2, non-cancellable and non-refundable;
8.3.3 exclusive of value added tax or any other applicable sales tax which will be added to our invoices at the appropriate rate.
8.4 We will be entitled to increase the Subscription Fees at any time upon prior written notice which will take effect at the end of the Initial Subscription Term for Fixed Term Subscription customers, or on your next payment date thereafter for Monthly Subscription customers.
8.5 For the purposes of clause 15.2.1, failure to pay the Subscription Fees when due constitutes a material breach of this Agreement.
9.Your Information. Customer and Personal Data
Information you provide to us (excluding Customer Data)
9.1 We will use any information you provide us under this Agreement (excluding Customer Data), or that we collect under this Agreement as described in our Privacy Policy and in particular to:
9.1.1 provide, manage and administer your use of the Software;
9.1.2 fulfil our contractual obligations under this Agreement;
9.1.3 (subject to clause 10.4) contact you to see if you would like to take part in our customer research;
9.1.4 (subject to clause 10.4) contact you about other products and services which we think you will be interested in;
9.1.5 deliver targeted advertising, marketing (including in-product messaging) or information to you which may be useful, based on your use of the Software or any other information we have about you (you may be able to configure these features to suit your preferences); and
9.1.6 otherwise in accordance with our Privacy Policy.
9.2 We will always try to speak to the relevant person in your organisation. We may contact you directly or use other organisations which we have hired to contact you for us.
9.3 We may disclose information to our contractors, and other organisations for example, we may disclose information to:
9.3.1 organisations which we use to help us send communications;
9.3.2 organisations we use to help us provide the Software or services (such as hosting providers, where relevant)
9.3.3 law enforcement agencies and fraud detection parties;
9.3.4 third parties (if any) used by us to perform our obligations to you under this agreement; and
9.3.5 any other person in order to meet any legal obligations on us, including statutory or regulatory reporting.
9.4 If you provide us with information which contains personal data we will process that data in accordance with the Data Protection Laws and you agree and authorise us to use it as described in clauses 10.1 and 10.2.
9.5 If at any time you do not want us to use your personal data in the manner described please email sales@assetcontroller.co.uk.
10. Customer Data
10.1 You own your Customer Data and you have sole responsibility for its legality, reliability, integrity, accuracy and quality of the Customer Data.
10.2 To the extent personal data is included in any Customer Data we will process that data on your behalf as a data processor. We will only process such personal data in accordance with your instructions (and you hereby instruct us to take such steps in the processing of personal data on your behalf as are necessary for the provision of the Software under this Agreement and the performance of our obligations under this Agreement).
10.3 We will use any Customer Data that you transfer to us pursuant to this Agreement to:
10.3.1 provide, manage and administer your use of the Software; and
10.3.2 fulfil our contractual obligations under this Agreement.
10.4 You warrant and represent that:
10.4.1 you will comply with the Data Protection Laws;
10.4.2 you are authorised pursuant to the Data Protection Laws to disclose any personal data which you disclose or otherwise provide to us regarding persons other than yourself;
10.4.3 you will where required under the Data Protection Laws obtain all necessary consents in order for
(i) you to disclose the personal data to us; (ii) us to process the personal data for the purposes of providing the Software; (iii) us to disclose the personal data to those parties set out in clause 10.11 below including where the recipients of the personal data are outside the European Economic Area (“EEA”).
10.5 We warrant and represent that during the term of this Agreement we will:
10.5.1 comply with the Data Protection Laws applicable to us whilst such personal data is in our possession;
10.5.2 (having regard to the state of technological development and the cost of implementing any measures), take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected; and
10.5.3 take reasonable steps to ensure the reliability of our employees who have access to any personal data.
10.6 You acknowledge and agree that for the purposes of providing the Software under this agreement personal data may be transferred outside the EEA.
10.7 We may, provide Customer Data that you transfer to us pursuant to this Agreement to:
10.7.1 subject to clause 9.2 our agents, service providers and other companies;
10.7.2 law enforcement agencies and fraud detection parties;
10.7.3 any other person in order to meet any legal obligations on us, including statutory or regulatory reporting; and
10.7.4 any other person who has a legal right to require disclosure of the information.
11. Proprietary Rights
11.1 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Solution and the Documentation. Except as expressly stated, this Agreement does not grant to you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Solution or the Documentation.
11.2 We confirm that we have all the rights in relation to the Solution and the Documentation that are necessary to grant you the rights under and in accordance with the terms of this Agreement.
12. Confidentiality
12.1 Both parties may have access to Confidential Information from the other in order to perform obligations under this Agreement. Confidential Information will not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in your or our lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
12.1.4 is independently developed by the receiving party, which can be shown by written evidence; or
12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 Both parties will hold the other’s Confidential Information in confidence and, unless required by law, will not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
12.3 Both parties will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 This clause 12 will survive termination of this Agreement, however arising.
13. Indemnity
13.1 You will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Solution, provided that:
13.1.1 we give you prompt notice of any such claim;
13.1.2 we provide reasonable co-operation to you in the defense and settlement of such claim, at your expense; and
13.1.3 you are given sole authority to defend or settle the claim.
13.2 We will defend you, your officers, directors and employees against any claim that the Solution infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and will indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
13.2.1 you give us prompt notice of any such claim;
13.2.2 you provide reasonable co-operation to us in the defense and settlement of such claim, at our expense; and
13.2.3 we are given sole authority to defend or settle the claim.
13.3 In the defense or settlement of any claim, we may procure the right for you to continue using the Solution, replace or modify the Solution so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on reasonable notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
13.4 In no event will we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
13.4.1 a modification of the Solution by anyone other than us; or
13.4.2 your use of the Solution in a manner contrary to the instructions given to you by us; or
13.4.3 your use of the Solution after notice of the alleged or actual infringement from us or any appropriate authority.
13.5 The foregoing states your sole and exclusive rights and remedies, and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. Limitation of Liability
14.1 This clause 14 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
14.1.1 arising under or in connection with this Agreement;
14.1.2 in respect of any use made by you of the Solution and Documentation or any part of them; and
14.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in this Agreement:
14.2.1 you assume sole responsibility for results obtained from the use of the Solution by you, and for conclusions drawn from such use; and
14.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
14.3 Nothing in this Agreement excludes our liability for:
14.3.1 death or personal injury caused by our negligence;
14.3.2 fraud or fraudulent misrepresentation; or
14.3.3 any other matter we cannot limit or exclude under applicable
14.4 Subject to clause 14.2 and clause 3:
14.4.1 we will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
14.4.1.1 any loss of profits, loss of business, lost working time depletion of goodwill, and/or similar losses or loss or corruption of data or information, or pure economic loss; or
14.4.1.2 any special, indirect, incidental or consequential loss, costs, damages, charges or expenses however arising under this Agreement including without limitation fines or penalties levied by any relevant authority or claims from third parties; and
14.4.2 our total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with this Agreement will be limited to the greater of:
14.4.2.1 the sum of the Subscription Fees paid to us by you, in the 12 months immediately preceding the date on which the incident giving rise to the claim took place; or
14.4.2.2 the sum of £150 (which represents the minimum value of a subscription available under this Agreement), in the event that no Subscription Fee has been paid to us by you in the 12 months immediately preceding the date on which the incident giving rise to the claim took place, the provisions of 14.4.2.2 shall apply.
14.5 You agree that the limitations set out in this clause 14 and restrictions in this Agreement are reasonable because they reflect the fact that:
14.5.1 we cannot control how and for what purpose you use our Solution;
14.5.2 we have not developed the Solution specifically for you; and
14.5.3 although we follow good industry practice, it is not economically possible for us to carry out all the tests necessary to make sure there are no problems in the Product or provision of Support; If you believe you could experience anything that we have told you we will not be responsible for we recommend you consider obtaining insurance cover.
15. Term and Termination
15.1 This Agreement will, unless otherwise terminated in accordance with this Agreement or as provided in this clause 15, commence on the Effective Date and continue until either:
15.1.1 we serve notice on you; or
15.1.2 you email at sales@assetcontroller.co.ukand instruct us that you wish to terminate this Agreement.
15.2 If you are a Monthly Subscription customer: this Agreement will then terminate at the end of the calendar month following the month in which our notice has been served/you have called us.
15.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement immediately without liability to the other if:
15.3.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
15.3.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
15.3.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
15.3.4 a receiver is appointed over any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
15.3.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
15.3.6 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of
16. Effect of Termination
16.1 If we elect to terminate this Agreement in accordance with clause 15.2 during the Initial Subscription Term, we will invoice you for the Subscription Fee payable for the remaining duration of the Initial Subscription Term (if any) which will be payable by you within 30 days.
16.2 On termination of this Agreement for any reason:
16.2.1 no refunds are due to you from us for prepaid Subscription Fees (if any);
16.2.2 all licences granted under this Agreement will immediately terminate and you will uninstall the Product and cease use of the Solution. If requested by us, you shall return all copies of the Product and certify in writing your compliance with this clause;
16.2.3 each party will return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
16.2.4 we may destroy or otherwise dispose of any Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to you of the then most recent back-up of your Customer Data (where applicable). We will use reasonable commercial endeavours to deliver the back-up to you within 30 days of receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You will pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
16.2.5 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
17. General Terms
17.1 Save as provided in clause 15.2.1, any notice required to be given under this Agreement will be sent by email to us at sales@assetcontroller.co.ukor to you at the email address you provide to us at the point of registration, or such other email address as either party provides during the term of this Agreement. Notices will be deemed to have been received on successful transmission of such emails.
17.2 We will not be liable to you for any failure to perform or for any delay in performance under this Agreement to the extent such non-performance or delay is caused by any circumstances beyond our reasonable control, provided that if any period of failure or delay continues for more than 60 days you will be entitled to terminate this Agreement by notice in writing to us. For the purpose of this Agreement you agree that a cyber-attack or breach of cyber security is beyond the reasonable control of PCP Software Solutions, subject to us being able to demonstrate that we acted in accordance with what would be reasonably considered to be best practice by a provider of an equivalent size and standing in taking steps to prevent such an attack or breach of security.
17.3 If a court or similar body decides that any wording in this Agreement cannot be enforced, that decision will not affect the rest of this Agreement, which will remain binding on both parties. However, if the wording that cannot be enforced could be enforced if part of it is deleted, we will both treat the relevant part of the wording as if it is deleted.
17.4 Any failure by us to enforce any of the terms of this Agreement will not be construed as a waiver of our rights and remedies which are cumulative and are not exclusive of any rights and remedies provided by law.
17.5 This Agreement and all up to date Documentation constitute the entire agreement between you and us relating to the Solution, and replaces all documents, information and other communications (whether spoken or written) between us on this subject. We both acknowledge and agree that in entering into this Agreement neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Nothing in this Agreement will operate to exclude or limit liability for fraud or fraudulent misrepresentation.
17.6 This Agreement is personal to you and may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by you without our prior written consent. We may transfer, assign, subcontract, license, charge or otherwise deal with or dispose of (whether in whole or in part) this Agreement at any time without your consent.
17.7 Nothing in this Agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17.8 A person who is not a party to this Agreement has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of it. This means that only us and you can enforce the rights set out in this Agreement.
17.9 If you subscribe to the Solution in the UK this Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and construed in accordance with the laws of England and we both agree that the courts of England will be the only courts that can decide on legal disputes or claims about this Agreement.