Terms And Conditions

SOFTWARE LICENCE AND TERMS & CONDITIONS OF BUSINESS

1. 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.

2. ABOUT THESE TERMS

2.1        These terms are the legal agreement between you (You) and Parago Software Limited (Parago) of Greyfriars Gate, 5-7 Greyfriars Road, Reading, RG1 1NU for operation of the Software developed and licensed to You by Parago who is the owner and licensor of the Software.

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

2.3        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.

3. DURATION

3.1        These terms and the license in them 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 Licence Period.

3.2        90 days before the end of the license period, Parago may issue you with a notice of renewal with your options. You must sign and return in order to continue use of the software and/or services with your chosen option. Failure to choose an alternative license option 60 days before the renewal date will result in your current license renewing automatically for 12 months.

4. LICENCE

4.1        Upon receipt of the Fee(s), Parago will grant to You a non-transferable, non-exclusive license to use the Software in accordance with the Specification, unless or until terminated in accordance with clause 9.6 below.

4.2        Use of the Software shall be restricted to the modules as detailed in the specification.

4.3        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.

5. YOUR OBLIGATIONS

5.1        Except as expressly set out in these Terms or as permitted by law, You may not:

5.1.1      copy the Software;

5.1.2      merge, adapt, vary, modify, translate or resell the Software without the prior written consent of Parago, which it can withhold for any reason;

5.1.3 disassemble, decompile, reverse-engineer, make error corrections or create derivative works based on the whole or part 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; or

5.1.4     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.

5.2            You shall:

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

5.2.2     accept all Maintenance Releases;

5.2.3     notify Parago as soon as You become aware of any unauthorised use of the Software;

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

5.2.5     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.

5.2.6        Restrict users to the modules licensed as per the specification.

6. MAINTENANCE AND SUPPORT

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

6.1.1     Maintenance Releases and system updates to the Software;

6.1.2      telephone and email support, online refresher training, Webinars, Toolbox Talks, Account Health Checks, Access to user videos, Live  chat, bandwidth and data hosting; and

6.1.3      the Services.

7. FEES

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

7.2      If the Specification provides for payment of an “Annual Subscription” licence, 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 Licence Period.

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

7.4      All sums payable under this Licence are exclusive of VAT or any relevant local sales taxes, for which You shall be responsible.

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

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

7.5.2  (without limiting Parago’s remedies under clause 9.6) charge  You interest on the overdue amount at the rate of 4% per annum above Lloyd’s 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 judgement. You shall pay the interest together with the overdue amount.

8. INTELLECTUAL PROPERTY RIGHTS

8.1   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 right to use  it in accordance with these Terms.

8.2   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 UK 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.

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

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

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

8.3.3     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);

8.3.4     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

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

8.3.6     Parago may at its sole option and expense:

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

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

8.3.6.3          replace the Software with non-infringing software; or

8.3.6.4 terminate this licence 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.

8.4        This clause 8 constitutes your exclusive remedy and Parago’s only liability in respect of Claims.

9. LIMITS OF LIABILITY

9.1        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.

9.2        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 Licence Period.

9.3        Nothing in these Terms shall limit or exclude liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 and any other liability that cannot be excluded or limited by English law.

9.4        You agree that, in entering into this licence, 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 licence or (if You did rely on any representations, whether written or oral, not expressly set out in this licence) 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.

9.5        All references to Parago shall, for the purposes of this clause 9 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.

9.6        All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence, 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.

10. TERMINATION

10.1      You may terminate this licence on the Notice period set out in the Specification.

10.2      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.

10.3      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:

10.3.1         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

10.3.2         the other party is unable to pay its debts as they fall due or admits inability to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction)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 enters into or proposes composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

10.4   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.

10.5   On termination for any reason:

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

10.5.2     You shall cease all activities authorised by this licence;  and

10.5.3      You shall immediately pay to Parago any sums due to Parago under this licence.

10.6      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.

11. DATA PROTECTION

11.1      Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

11.2      The parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and Parago is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

11.3      Without prejudice to the generality of clause 11.1, You will ensure that it has all necessary appropriate consents in place to enable lawful transfer of the Personal Data to Parago for the duration and purposes of this agreement.

11.4      Without prejudice to the generality of clause 11.1, Parago shall, in relation to any Personal Data processed in connection with the performance by Parago of its obligations under this agreement:

11.4.1 process that Personal Data only on the written instructions of You unless Parago is required by the laws of any member of the European Union or by the laws of the European Union application to Parago to process Personal Data (Applicable Laws). Where Parago is relying on the laws of a member of the European Union or European Union law as the basis for processing Personal Data, Parago shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Parago from so notifying You;

11.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data appropriate to the harm that might result from the unauthorised 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.;

11.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

11.4.4         not transfer any Personal Data outside of the European Economic Area unless the prior written consent from You has been obtained and the following conditions are fulfilled:

11.4.4.1 You or Parago has provided appropriate safeguards in relation to the transfer;

11.4.4.2 the data subject has enforceable rights and effective legal remedies;

11.4.4.3 Parago complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

11.4.4.4  Parago complies with reasonable instructions notified to it in advance by You with respect to the processing of the Personal Data.

11.4.5         assist You, at your costs, in responding to any request from a Data Subject 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;

11.4.6         notify You without undue delay on becoming aware of a Personal Data breach;

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

11.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11.

11.5            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.

11.6            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).

12. MISCELLANEOUS

12.1           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.

12.2           Parago may change these terms at any time via notice to you direct 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.

12.3           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.

12.4           You shall not sub-license, assign or novate the benefit or burden of this licence 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.

12.5           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 licence, provided it gives written notice to You.

12.6           This licence 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.

12.7           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.

12.8           A person who is not a party to these terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

12.9           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 authorise 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.

12.10         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 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.

12.11         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.

12.12         These terms, their subject matter and formation, are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

Issue Date: September 2020