Terms And Conditions

TERMS AND CONDITIONS

SOFTWARE LICENSE AND TERMS & CONDITIONS OF BUSINESS

DEFINITIONS AND INTERPRETATION

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

3. ABOUT THESE TERMS

3.1 These terms (Terms) are the legal agreement between You and Parago Software Limited (Parago) of 9 The Aquarium, King Street, Reading, Berkshire RG1 2AN and its wholly owned subsidiary Parago Software Inc 3355 Lenox Road Atlanta GA 30326 that govern the access and use of the Software licensed to You by Parago who is the owner and licensor of the Software.

3.2 These Terms apply to use of the Software and/or any of the Services, including any updates or supplements (unless they come with separate Terms which state they will apply).

3.3 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software meet your needs.

4. DURATION

4.1 These Terms and the license they grant will be deemed to be accepted by You and will be effective on the Acceptance Date (or if delivery of items of Software is undertaken in stages, from the date of first delivery) and will continue in force for the License Period.

4.2  60 days before the end of the License Period, Parago may issue You with a notice of renewal which You must sign and return in order to continue use of the Software and/or the Services.

5. LICENSE

5.1 Upon receipt of the Fee(s), and subject to and conditioned upon Your compliance with these Terms, Parago will grant to You a non-transferable, non-exclusive, limited license to access and use the Software in object code form in accordance with the Specification and these Terms, during the License Period, unless or until terminated in accordance with clause 9.6 below.

5.2 Use of the Software shall be restricted to the management of assets, facilities and contracts that You own or operate into by You, or in the case of a District Manager to collecting of and reporting on District User data.

5.3 You may not use the Software for any other purpose without the prior written consent of Parago, and You acknowledge that additional fees may be payable on any change of use approved by Parago.

6. YOUR OBLIGATIONS

6.1 Except as expressly set out in these Terms , You may not and may not permit any person to:

6.1.1 copy the Software;

6.1.2 merge, adapt, vary, modify, enhance, translate, make error corrections, or create derivative works based in whole or in part on the Software without the prior written consent of Parago, which it can withhold for any reason or condition upon payment of a fee, in its sole discretion;

6.1.3 disassemble, decompile, reverse-engineer, or otherwise attempt to create any machine or human readable version of the Software or attempt to do any such thing except as permitted by statute to achieve inter-operability of the Software with another permitted software program;

6.1.4 redistribute, sublicense, resell, or otherwise make the Software available to any person not authorized in the Specification to access or use the Software;

6.1.5 create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it; or

6.1.6 use the Software in any manner that may be unlawful, or that is likely to damage or overburden the Software, or that interferes with or impairs any other subscriber’s use or enjoyment of the Software.

6.2 You shall:

6.2.1 grant Parago such reasonable access as is required to provide the Services and/or undertake inspection of use of the Software by You.

6.2.2 accept all Maintenance Releases;

6.2.3 notify Parago as soon as You become aware of any unauthorized access to or use of the Software;

6.2.4 ensure that the number of Users does not exceed the number permitted in the Specification;

6.2.5 use commercially reasonable efforts to ensure that Your use of the Software does not introduce any virus, Trojan horse, worm, or other malware into the Software; and

6.2.6 secure and maintain all permissions, consents and/or data protection registrations necessary to comply with current law and keep and hold Parago harmless in relation to any claim of data processing or inappropriate use of the Software made against Parago.

7. MAINTENANCE AND SUPPORT

7.1 In consideration of payment of the Fee(s) Parago will provide You with:

7.1.1 Maintenance Releases and system updates to the Software;

7.1.2 telephone and email support, online refresher training, bandwidth and data hosting; and

7.1.3 the Services.

8. FEES

8.1 You shall pay Parago the Fees on or before the date or dates set out in the Specification.

8.2 If the Specification provides for payment of an “Annual Subscription” license, as set out in the Specification, then You shall pay Parago the Annual Support and Maintenance Fee yearly in advance on or before the yearly anniversary of the Acceptance date (“Due Date”) for the License Period.

8.3 If the Specification provides for payment of a “Site License” then You shall pay Parago the License Fee on or before the Due Date for the License Period.

8.4 All sums payable under this License are exclusive of any applicable sales or services taxes, or any similar charges (“Taxes”).  You shall be responsible for, and shall indemnify Parago against, any and all such Taxes.

8.5 If You fail to make any payment due to Parago under these Terms by the Due Date Parago reserves the right to:

8.5.1 close all access points to the Software; and/or

8.5.2 (without limiting Parago’s remedies under clause 9.6) charge You interest on the overdue amount at the rate of 4% per annum above Silicon Valley Bank base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 You acknowledge that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to Parago, and You shall have no rights in or to the Software other than the limited license to use it in accordance with these Terms.

9.2 Parago undertakes at its own expense to defend You or, at its option, settle any actual claim or action brought against You alleging that the possession or use of the Software (or any part thereof) in accordance with the Terms infringes the US Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against You as a result of or in connection with any such Claim; provided, however, that Parago will have no liability to You under this clause 9.2 for any Claim that arises out of: (a) any unauthorized use, reproduction, or distribution of the Software by You; (b) use of the Software in combination with any other software or equipment not supported by Parago if such Claim would have been avoided without such combination; or (c) any modification or alteration of the Software by anyone other than Parago or its agents without the written approval of Parago.  .

9.3 If any third party makes a Claim, Parago’s obligations under clause 8.2 are conditional on You:

9.3.1 as soon as reasonably practicable, giving written notice of the Claim to Parago, specifying the nature of the Claim in reasonable detail;

9.3.2 taking all reasonable steps to reduce or mitigate any losses incurred;

9.3.3 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Parago (which shall not be unreasonably withheld or delayed);

9.4 allowing Parago at its request and own expense to have the conduct of or settle all negotiations and litigation in relation to the Claim; and

9.5 at Parago’s request and own expense, give Parago all reasonable assistance in relation to the Claim.

9.6 Parago may at its sole option and expense:

9.6.1 procure for You the right to continue to use the Software (or any part thereof) in accordance with the Terms; or

9.6.2 modify the Software so that it ceases to be infringing;

9.6.3 replace the Software with non-infringing software; or

9.6.4 terminate this license immediately by notice in writing to You and refund any of the Fee(s) paid by You as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof.

9.7 This clause 9 constitutes your exclusive remedy and Parago’s only liability in respect of Claims.

10. LIMITS OF LIABILITY

10.1 You agree that Parago has no liability to You or to any third party for any losses or damages which may be suffered by You, either directly or indirectly, immediate or consequential, for any use of cloud storage from processing and/or backup; security breaches (however caused and whether or not from the cloud); special damage even if Parago was aware of the circumstances in which such special damage could arise; for loss or corruption of data; loss of anticipated savings; loss of profit; loss of business; loss of goodwill; business interruption; connectivity; storage and/or back-up issues.

10.2 Parago’s maximum liability under or in connection with these Terms whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the total amount of Fees paid by You to Parago during the License Period.

10.3 Nothing in these Terms shall limit or exclude liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law.

10.4 You agree that, in entering into this license, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this license or (if You did rely on any representations, whether written or oral, not expressly set out in this license) that You shall have no remedy in respect of such representations and (in either case) Parago shall have no liability in any circumstances otherwise than in accordance with these Term.

10.5 All references to Parago shall, for the purposes of this clause 10 and clause 12.8 only, be treated as including all employees, subcontractors and suppliers of Parago all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

10.6 All other conditions, warranties or other Terms which might have effect between the parties or be implied or incorporated into this license, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other Terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

11. TERMINATION

11.1 You may terminate this license on the Notice period set out in the Specification.

11.2 Without affecting any other right or remedy available to it, Parago may terminate the license and these Terms with immediate effect by giving written notice to You if You commit a material or persistent breach of any of these Terms, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.

11.3 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:

11.3.1 the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; and/or

11.3.2 the other party is unable to pay its debts as they fall due, or admits inability to pay its debts, or becomes insolvent, or becomes subject to any bankruptcy or insolvency proceeding, or if an order is made or a resolution passed for the winding-up or dissolution of the other, or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other, or the other party makes an assignment for benefit or its creditors, or any analogous event occurs in any applicable jurisdiction.

11.4 Termination or expiry of these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of agreement which existed at or before the date of termination or expiry.

11.5 On termination for any reason:

11.5.1 all rights granted to You under this license shall cease and Parago shall close all access points to the Software;

11.5.2 You shall cease all access or use of the Software; and

11.5.3 You shall immediately pay to Parago any sums due to Parago under this license.

11.6 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect notwithstanding termination.

12. DATA PROTECTION

12.1        Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

12.2        Without prejudice to the generality of clause 12.1, You will ensure that You have all necessary appropriate consents in place to enable lawful transfer of any personally identifiable information (“PII”) to Parago for the duration and purposes of this agreement.

12.3        Without prejudice to the generality of clause 12.1, Parago shall, in relation to any PII processed in connection with the performance by Parago of its obligations under this agreement:

12.3.1   process that PII only on the written instructions of You unless Parago is required by applicable law to process PII ;

12.3.2   implement appropriate technical and organizational measures to protect against unauthorized or unlawful processing of PII and against accidental loss or destruction of, or damage to, PII appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; and

12.3.3   ensure that all personnel who have access to and/or process PII are obliged to keep the PII confidential;

12.4        assist You, at your costs, in responding to any request from a person and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

12.5        notify You without undue delay on becoming aware of any unauthorized access to or use of PII;

12.6        at the written direction of You, delete or return PII and copies thereof to You on termination of the agreement unless required by Applicable Law to store the PII; and

12.7        maintain complete and accurate records and information to demonstrate its compliance with this clause 12.

12.8        You consent to Parago appointing a third-party processor of Personal Data where necessary under this agreement. Parago confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard Terms of business. As between You and the Parago, Parago shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.

12.9        Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar Terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

13. MISCELLANEOUS

13.1        Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

13.2        Parago may change these Terms at any time via notice to you directly or on our website https://www.paragosoftware.com/Terms-and-conditions/ . You will be deemed to have accepted the new Terms if you continue to use the Software after the change and the then current Terms will apply to your use of the Software.

13.3        No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4        You shall not sub-license, assign or novate the benefit or burden of this license in whole or in part or allow the Software to become the subject of any charge, lien or encumbrance, without the prior written consent of the Parago, such consent not to be unreasonably withheld or delayed.

13.5        Parago may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this license, provided it gives written notice to You.

13.6        This license contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

13.7        Each of the conditions of these Terms operates separately. If any court or competent authority decides that any of them are invalid, illegal or unenforceable, the remaining conditions will remain in full force and effect.

13.8        Nothing in these Terms shall confer, or is intended to confer, on any third party any benefit or the right to enforce any provision of these Terms.

13.9        Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13.10     Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms (other than the payment of any amounts due under these Terms) if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate these Terms by giving 14 days’ written notice to the affected party.

13.11     All notices must be in writing and are deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s address as is notified to the other party in writing. It is agreed that serving notice by email will be an effective method of providing notice under these Terms.

13.12     These Terms, their subject matter and formation, and their performance and breach are governed by the laws of the State of Delaware, without reference to its choice of law rules. Any and all disputes arising from or relating to these Terms shall be resolved exclusively by the state and federal courts sitting in Delaware, and the parties irrevocably submit to the exclusive jurisdiction of those courts