Terms and Conditions

General Terms and Conditions relating to
Agency Software Worldwide Ltd (ASW)
Software and Services

April 2018

1.  Terms Applicable 
   1. The Contract constitutes the full understanding of the parties and is a complete and exclusive statement of the terms of their agreement.
   2. The parties do not and shall not rely upon any prior statement, representation, understanding or agreement not expressly incorporated in the Contract and except as expressly provided, no warranty, condition, undertaking or term, express or implied, statutory or otherwise is accepted or made.
   3. Any standard conditions or written terms purporting to relate to the subject of the Contract, other than the constituent parts as defined in Clause 2.1 or of any variation pursuant to Clause 16 are superseded and shall be of no effect.
2.  Definitions
   1.  The “Contract” shall mean these General Terms & Conditions, any Specific Terms and Conditions, the Proposal, the trading terms from time to time published on www.paprika-software.com; and support, service level agreement or hosting terms & conditions from time to time in force.
   2. “ASW” shall mean Agency Software Worldwide Limited (Company Registration Number 01665695) of Latters House, High Street, Hadlow, Kent TN11 0EF
   3. The “Licensee” shall mean the other party to this Contract, including any subsidiary or associated companies as defined on S1159 Companies Act 2006.
   4. “related material” means such material relating to the System (other than program material) as is reasonably necessary for the operation and use of the application software, including operating manuals, input instructions etc.
   5. “technical material” means the program source code, the proprietary information, and other data necessary for changing and amending the operation or function of the System in machine readable format.
   6. “proprietary information” means all systems, related material, “know-how” and information which ASW may provide to the Licensee, its advisers, employees or agents.
   7. “Product Description” means ASW’s latest published product description relating to the System as at the date of the Proposal.
   8. The “Licence Period” is the duration of time during which the Licensee is permitted to use the licence(s) issued by ASW for use of the System.
   9. “the System” is an integrated job costing, client management and accounting software package with implementation, maintenance, training and support, as is more particularly described in the Proposal.
   10. “Data Protection Law” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018. Any terms or words defined in Data Protection Law and used in a provision of the Contract relating to personal data shall, for the purposes of that provision, have the meaning set out in Data Protection Law.
3.  Facilities
   1. The Licensee shall at all times and free of charge, provide ASW and its representatives with all facilities and assistance that they may reasonably require to enable remote access, (including logons/passwords) also including, but not limited to providing sample output and other diagnostic information.
   2. The Licensee shall comply with all reasonable instructions of ASW with regard to the use of the System.
   3. The Licensee shall provide ASW with at least 30 days notice of intention to change hardware, operating system or network configuration.
   4. ASW may sub-contract the performance of all or any of its obligations under the Contract. 
   5. If and to the extent that ASW acts as a processor of personal data on behalf of the Licensee, Appendix 1 shall apply. Any details of the processing to be carried out shall be set out in Specific Terms and Conditions, the Proposal or otherwise agreed in writing between the parties.
4. Use 
   1. The Licensee shall use the System and any material included in or copied from it, solely in connection with its usual business purposes, which shall in no circumstances include the sale, marketing or exploitation of the System.
   2. The Licensee shall be exclusively responsible for the operation of the System and all necessary supervision, management and control in its use.
   3. The Licensee shall not sell, lease, sub-license or otherwise dispose of the System, or any material included in or copied from it.
5. Alteration
   1. The Licensee may not alter any machine executable, binary or other part of the System except where provided for by the normal operation of the System or under the direct instruction of ASW.
   2. The Licensee shall bear all risk of loss or damage resulting from any alteration of the System, and shall indemnify ASW against any such loss or damage.
   3. ASW’s obligations to provide maintenance and support (if any) do not extend to the correction of any error or malfunction contained in or resulting from any alteration made by the Licensee.
6. Property and risk
   1. Property rights in the System and all copies thereof shall at all times remain with ASW and the Licensee shall hold the System and all copies thereof as bailee.
   2. The Licensee shall bear all risk of loss of or damage to the System from the time of delivery to the time of return, except where such loss or damage occurs due to the default of ASW.
7. Consideration
   1. The consideration specified under the Contract shall become due from the Licensee on the dates provided for therein.
   2. Any work additional to that which ASW is specifically obliged to carry out under the Contract and requested by the Licensee or caused by the Licensee’s delay in meeting or failure to meet any obligation under the Contract, shall be paid for by the Licensee at ASW’s standard commercial charges for the time being, within 30 days of presentation of invoice.
   3. The consideration specified is exclusive of VAT, which sum the Licensee shall add to each payment and remit to ASW at the rate in force on the date of invoice. 
   4. The credit limit on all invoices raised by ASW to the Licensee shall be no more than 30 days after the expiry of which time ASW shall be at liberty to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of Commercial Debt Regulations 2002.​​​​​​​
8. Licence Period
   1. The Licence Period shall continue indefinitely from the date of installation subject to Clause 8.2.
   2. The Licence Period shall determine immediately:
      1. upon ASW’s termination of the Contract under Clause 12, or
      2. upon the Licensee ceasing to use the System.
   3. In the event of termination, the Licensee will return all copies of the System or provide ASW with a certificate of destruction of all copies.
   4. In the event the Licensee reproduces, modifies the System, or includes it in any other software program, the Licensee agrees upon termination of this licence, either to remove the System or any portion thereof from the modified program and return it to ASW, or to provide ASW with a certificate of destruction thereof.​​​​​​​
9. Reproduction
   1. ​​​​​​​The Licensee may make reproductions of the System or any item included in it, provided that:
      1. the reproduction is in each case reasonably necessary for the purposes licensed under the Contract.
      2. each reproduction includes ASW’s then current trade secret and copyright notice.
      3. each reproduction must remain in the Licensee’s possession, except that an archival copy may be placed for safekeeping in the hands of a third party that otherwise has no right to use such copy.
   2. Upon the making of any reproduction, property rights in the medium or media used shall pass to ASW, for the duration of the reproduction.  
10. ​​​​​​​Confidential Undertaking
    1. ​​​​​​​The Licensee undertakes on its own behalf and on behalf of its advisers, employees and agents, that the proprietary information shall:
       1. at all times remain the property of ASW, and be treated as confidential except where that information may reasonably be regarded as publicly known, or where the Licensee had prior knowledge of the information.
       2. whether in storage or in use, be protected in a like manner to the Licensee’s own confidential information, and with all due care.
       3. not be disclosed to any of the Licensee’s advisers or agents or to any third party except where ASW has granted written consent and the disclosure is necessary for making reasonable use of the System.
       4. not be used otherwise than by the Licensee for the purposes for which the licensed use is granted.
       5. Insofar as it may be the subject of written mate­rial, graphical representation or other permanent record, not be reproduced except as provided under Clause 9.
    2. The Licensee shall observe all reasonable instructions given by ASW as to the use of trademarks, copyright or other proprietary rights in connection with the System.
    3. ASW shall not, except in the performance of its obligations under the Contract or at the Licensee’s request, use or reproduce or provide to any third party (not being an employee, subsidiary or associated company, agent or sub-contractor of ASW engaged in the performance of the Contract) any information belonging to or supplied by the Licensee, which is provided in confidence, or which by its nature ought to be regarded as confidential, except where that information may be reasonably considered to be publicly known or where ASW had prior knowledge of the information.​​​​​​​
11. Security
    1. ​​​​​​​The Licensee shall effect and maintain adequate security measures to safeguard the System from access or use by any unauthorized person.
    2. The Licensee may not assign, share, modify or transfer all or any of its rights or obligations under the Contract without ASW’s prior written consent, and any assignment or transfer made by the Licensee without such consent shall be void and of no effect.
    3. Except where specifically identified within this Contract, responsibility for the security of the Licensee’s systems and networks including the granting of passwords, access rights and firewall connections remains solely with the Licensee.  ASW will treat all access details, security codes and passwords provided as strictly confidential.
    4. Except where specifically identified within this Contract, all responsibility for production, maintenance and retrieval of appropriate back-up copies of database, application and System data remains solely with the Licensee.  In this context, “appropriate” shall mean a useable and reliable copy taken at least once per working day and retained according to instructions.
12. Default of Licensee
    1. ​​​​​​​If the Licensee fails to perform any obligation under, or commit any breach of the Contract (and shall fail to remedy the same within a reasonable time of being required to do so by ASW), or if any distress or execution shall be levied upon the Licensee’s property or assets, or if the Licensee shall make or offer to make any arrangement with creditors, or commit any act of bankruptcy or if any petition or receiving order in bankruptcy is made or presented against the Licensee or (where the Licensee is a limited Company) if any resolution or petition to wind up such company’s business (other than for the purposes of amalgamation or reconstruction) shall be passed or presented, or if a Receiver of such company’s undertaking property or assets or any part thereof shall be appointed, ASW shall have the right exercisable forthwith, to terminate the Contract without prejudice to any other rights or remedies which ASW may have.
    2. Further to Clause 7, if the Licensee shall fail to make punctual payment of any sum due under the Contract, ASW shall be entitled at its election to suspend performance of all or any of its obligations under the Contract pending payment of all sums due from the Licensee, or to terminate the Contract pursuant to Clause 12.1.
13. Defects and Liability
    1. ​​​​​​​ASW shall not be responsible for any delay, defect or failure in the System delivery or installation, which is caused by any factor outside ASW’s reasonable control.
    2. ASW shall have no liability for any losses or damages which may be suffered by the Licensee, whether they are suffered directly or indirectly or are immediate or consequential, which fall within the following categories:
       1. special damages even though ASW as aware of the circumstances in which special damages could arise;
       2. loss of profits; anticipated savings; business opportunity or goodwill; and
       3. loss of, or damage to data (except where the data is held as part of ASW’s hosting service).
    3. ASW’s total liability whether in contract, tort or otherwise shall in no circumstances exceed £500,000 for any claim resulting from one or more related incidents acts or omissions.
    4. ASW shall not be liable in damages or otherwise to the Licensee in respect of any warranty of the System, unless the Licensee shall have given written notice to ASW of any material error or malfunction, and ASW shall have failed to remedy such error or malfunction within a reasonable time.
    5. The express undertakings of ASW pursuant to the foregoing provisions, are agreed to be in lieu of and in substitution for and the Licensee hereby waives all and any claims in respect of any other conditions and warranties expressed or implied whether statutory or otherwise, and all other obligations and liabilities whatsoever of ASW, its agents and sub-contractors whether in contract or in tort or otherwise.
    6. ASW warrants that property rights in the System rest in ASW, and that ASW are entitled and empowered to enter into this Contract. ASW warrant that they have received no notice of any claim by any third party which may restrict or prevent the use of the System by the Licensee and ASW shall indemnify the Licensee against any cost or claim or expense which shall arise from a breach of this warranty, or any claim for breach of copyright, patent, trade mark or any other intellectual property right arising from the use of the System by the Licensee in accordance with the Contract.
    7. ASW does not warrant that all software errors can and will be corrected.  ASW shall use its reasonable endeavours to correct errors in the System (so long as the errors are reproducible by the Licensee) to provide a software update, and to correct data created or maintained by the System or to recommend action to circumvent such error.
14. Notices
    1. ​​​​​​​Any Notice required to be given under the Contract shall be given in writing and delivered personally, or sent by recorded delivery post to the Licensee’s registered and/or trading address.
    2. If a party to this Contract should change its registered and/or trading address, that party will within 14 days give notice to the other party of its new address.
15. Variation
    ​​​​​​​​​​​​​​The Contract may not be amended or varied except by agreement between authorised officers or representatives of each party, and made subsequent to the date of the Contract and expressed to be a variation of the Contract.
16. Waiver
    ​​​​​​​Failure by either party at any time to enforce any of the provi­sions of the Contract shall not constitute a waiver by such party of such provision nor in any way affect the validity of such provision or of the Contract.
17. Law
    ​​​​​​​The Contract shall be subject to and construed in accordance with the Law of England.

Data Processing Appendix

1. INTRODUCTION
   1. This Appendix shall be read in accordance with Data Protection Law. In the event that any term, condition or provision of the Contract is deemed invalid, unlawful, unenforceable or non-compliant with Data Protection Law to any extent, it shall be deemed modified to the minimum extent necessary to make it valid, legal, enforceable and compliant under Data Protection Law whilst maintaining the original intention of the Contract.
   2. This Appendix is intended to ensure that the Licensee’s appointment of ASW is compliant with Data Protection Law.
   3. The parties acknowledge their understanding that for the purposes of Data Protection Law, the Licensee is the data controller and ASW is the data processor in relation to any personal data processed on behalf of the Licensee in connection with the performance by ASW of its obligations under the Contract. Where, in respect of any personal data, the Licensee is a data processor on behalf of a third party, the Licensee warrants that the Licensee’s instructions and actions regarding such personal data (including the appointment of ASW as a data processor) have been authorised by such third party.
2. DATA PROTECTION OBLIGATIONS
   1. Both parties will comply with all applicable requirements of Data Protection Law. This Appendix is in addition to, and does not relieve, remove or replace, a party’s obligations under Data Protection Law.
   2. Without prejudice to the generality of clause 2.1 , the Licensee will ensure that it has all necessary consents and notices in place to enable lawful transfer of the personal data to ASW for the duration and purposes of the Contract.
   3. Without prejudice to the generality of clause 2.1 , ASW shall, where it acts as a data processor on behalf of the Licensee:
      1. process that personal data only on the written instructions of the Licensee (and the Licensee hereby instructs ASW to process that personal data as required to perform its obligations under the Contract) unless ASW is required by the laws of England and Wales or of any member of the European Union or by the laws of the European Union applicable to ASW to process personal data (“Applicable Laws”). Where ASW is relying on Applicable Laws as the basis for processing personal data, ASW shall notify the Licensee of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ASW from so notifying the Licensee;
      2. only appoint sub-processors as permitted under this Appendix;
      3. ensure that it has in place appropriate technical and organisational measures as required by Data Protection Law;
      4. ensure that all its personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
      5. not transfer any personal data outside of the Permitted Territory (being the European Union and the UK) unless it does so in accordance with Data Protection Law and the prior written authorisation of the Licensee has been obtained or such transfer is on the written instructions of the Licensee (and the Licensee hereby instructs and authorises ASW to transfer personal data outside the Permitted Territory where required for the provision of the Services, including but not limited to where personal data is accessed by or on behalf of the Licensee from outside the Permitted Territory, and where the Licensee has been notified that an authorised sub-processor is located or stores or accesses personal data outside the Permitted Territory);
      6. taking into account the nature of the processing, assist the Licensee, at the Licensee’s cost, in responding to any request from a data subject (insofar as this is possible) and in ensuring compliance with the Licensee’s obligations under Data Protection Law with respect to (taking into account the information available to ASW) security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      7. notify the Licensee without undue delay on becoming aware of a personal data breach, and (with regard to its obligations under clause 2.3.9) immediately inform the Licensee if (in ASW’s opinion) an instruction of the Licensee’s infringes Data Protection Law;
      8. at the written direction of the Licensee, delete or return personal data and copies thereof to the Licensee on termination of the Contract unless required by Applicable Law to store the personal data; and
      9. make available to the Licensee all information necessary to demonstrate its compliance with this Appendix and Data Protection Law (which shall remain ASW’s confidential information and which the Licensee shall not disclose or use other than to confirm ASW’s compliance with Data Protection Law) and allow for and contribute to audits by the Licensee or the Licensee's designated auditor at the Licensee’s expense, on reasonable written notice during business hours and subject to such reasonable measures as ASW (or any sub-processor) requires in relation to its security and confidentiality requirements and not causing disruption to its business activities.
   4. The Licensee specifically authorises the appointment of the following sub-processors (Balanced & Supported Ltd; Blueorg (London) Limited; Impact Financial Limited; SL Accounting Services Ltd.) or otherwise notified to the Licensee prior to the date of the Contract or any amendment to it and generally authorises ASW to appoint further or alternative sub-processors. Where ASW appoints or replaces a sub-processor it shall notify the Licensee. If the Licensee wishes to object to such changes, it must do so within 30 days of receiving such notice, by notifying ASW in writing accompanied by its reasons for such objection. Following any such objection, ASW may engage with the Licensee to provide alternatives or assurances in relation to such change. If the Licensee (acting reasonably in relation to its legal or regulatory compliance obligations) continues to object to such changes the Licensee may, within 30 days of receipt of the original notice, terminate on written notice without penalty the relevant services directly affected by that change. Where the Licensee does not provide written notice of such termination, or continues to use such services following the change, it shall be deemed to have accepted such change. ASW shall remain fully liable for all acts or omissions of any sub-processor engaged by it (and such engagements shall be on such sub-processors’ terms of business which incorporate data protection obligations which are the same or more onerous in their effect as those set out in this Appendix).
   5. The Licensee acknowledges that it has been provided with any security information, policies, evidence and guarantees it has requested and, having reviewed and considered them, considers the measures set out in them to be such that ASW meets the requirements of Data Protection Law in respect of its processing under the Contract.