Terms and Conditions
Broughton Software Limited (“Broughton Software”) is a software and software support service provider and grants licences of its Software (“the Software”) to both regulated and non-regulated laboratories across various industries. These terms and conditions apply to and govern the grant of user licences to the Licensee to use the Software together with the Services to be provided by Broughton Software to the Licensee.
In these Terms and Conditions, the following words and phrases shall have the meanings respectively set against them:
“Licensee” the person described as the Licensee in the Service Level Agreement
“Outage Event” any event which results in the loss of access to and the use of the Software by the Licensee for a continuous period in excess of four hours
“Planned Maintenance” any maintenance carried out by Broughton Software to the Software including any updates to or new releases of the Software in respect of which Broughton Software has given 24 hours prior notice to the Licensee
“Service Level Agreement” the written agreement entered into by Broughton Software and the Licensee
“Services” all services to be supplied by the Licensee as indicated in the Service Level Agreement
Grant of Licence
Broughton Software will, at the request of the Licensee, grant the specified number of user licences to use the Software. The Licensee may at any time by written notification to Broughton Software increase or decrease the number of user licences. It is agreed that these terms and conditions shall apply to all user licences at all times. It is agreed that each of the user licences granted to the Licensee is a non-exclusive and non-transferable licence to use the Software. The Licensee acknowledges that Broughton Software require access to the Licensee’s premises and its computers and equipment in order to install the Software and agrees to provide Broughton Software with reasonable and unimpeded access to the same. The Licensee acknowledges and agrees that this Licence will not confer on the Licensee any rights of ownership or other proprietary rights in relation to the Software and, further, that this Licence is personal to the Licensee and may not be assigned, sub contracted or in any other way transferred to any other party.
Services and Support
Broughton Software will use all reasonable endeavours to provide the Services promptly to the Licensee. Prompt support in relation to the Software and the Services will be provided by telephone and email by personnel at Broughton Software who will be available for routine requests from the Licensee for support in connection with the use of the Software between the hours of 9.00am to 5.00pm, Monday to Friday inclusive. Broughton Software is not obliged under this Licence to provide any non-routine support (of the type described in clauses 3.1 – 3.4 below) but acknowledges that, at the specific request of the Licensee, it may at its discretion agree to do so. If Broughton Software so agrees, the Licensee shall pay Broughton Software the charges for any such non-routine support at its prevailing standard rates or as may otherwise have been agreed in writing. Typical examples of non-routine support are:
3.1 Support in relation to any equipment, software, accessories, attachments, machines, systems or other devices which were not supplied by Broughton Software or which Broughton Software has not previously agreed in writing to provide.
3.2 Rectification and/or recovery of any lost or corrupted data arising or occurring for any reason other than by the sole and exclusive failure of the Software or the negligence of Broughton Software.
3.3 Support requested by the Licensee as a consequence (direct or indirect) of any changes, alterations, additions, modifications or variations to any of the Licensee’s equipment or computers or premises.
3.4 Support requested by the Licensee in connection with any faults or failures caused by the misuse of the Software or the negligence of the Licensee, its employees and representatives and the rectification of any consequent damage.
3.5 Support requested by the Licensee consequent upon any failure by the Licensee to accept or install or use any updates or new releases of the Software made available by Broughton Software.
All monies payable as specified in the Service Level Agreement or as subsequently varied by agreement between the parties shall be paid by direct debit or standing order to Broughton Software whose bank details are:
Bank: HSBC Bank PLC
Sort Code: 402312
Account Number: 52330504
VAT Number: 154 1065 39
Due dates for payment are thirty days from issue of invoice.
All sums payable to Broughton Software under this agreement shall be paid promptly by the Licensee in full and free from any claim or right of deduction, set off or counterclaim. In the event of any delay in payment of any sum after it has fallen due for payment then:
4.1 Broughton Software shall be entitled to charge, and the Licensee shall pay, interest on all outstanding sums at a rate of 5% over the then prevailing bank base rate and/or
4.2 Broughton Software shall be entitled, at its discretion, to suspend or terminate forthwith the Licensee’s use of the Software and, in addition, suspend or terminate the provision by Broughton Software of any and all Services and support under this agreement. In the event of any suspension or termination under this clause then Broughton Software shall have no liability whatsoever to the Licensee arising directly or indirectly from such suspension or termination. If, at the request of the Licensee, Broughton Software agrees to revoke the suspension or termination then the Licensee shall pay a reconnection charge.
Prices are subject to annual review. Broughton Software will use all reasonable endeavours to ensure prices do not increase greater than the standard annual rate of inflation.
Undertakings by the Licensee
The Licensee undertakes in favour of Broughton Software that it shall and shall also procure that its employees and representatives shall:
5.1 Comply strictly with the provisions of this agreement and these terms and conditions;
5.2 Not cause, directly or indirectly, any unauthorised use of or access to the Software by any third party;
5.3 Misuse or abuse the Software;
5.4 Respect the confidentiality of Broughton Software and all intellectual property rights that Broughton Software has in connection with the Software and/or any of the Services offered by Broughton Software in connection with the Software;
5.5 Strictly adhere to any guidelines or advice provided by Broughton Software in relation to the Software and/or the Services and, in particular, shall accept, install and use any updates and new releases of the Software.
6.1 Subject to clauses 6.2, 6.3 and 6.4, and save and except to the extent that by law it is not lawful to exclude such liability, Broughton Software will not be liable to the Licensee or to any person for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Licence or the supply and use of the Software or the Services, it being acknowledged and agreed that this restriction is reasonable given that the software is web based, the software is hosted by a third party managed data centre with whom all data is stored and Broughton Software has no control over the internet or access to and use of the internet by the Licensee. In particular but without prejudice to the generality of the foregoing, Broughton Software shall not be liable to the Licensee for any indirect or consequential loss or damage including, but not limited to, loss or damage to any computers, equipment or property (whether or not the same may be in Broughton Software’s care, custody or control), loss or corruption of any data or loss of any opportunity, profit, business, revenue, goodwill or anticipated savings.
6.2 In the event that any exclusion of liability contained herein shall be held to be invalid for any reason and Broughton Software becomes liable for any loss or damage, then such liability shall be capped and shall not exceed an amount equal to 50% of the total amount paid by the Licensee for the user licences in the month in which such loss or damage occurs.
6.3 Neither party excludes liability for death or personal injury to the extent that the same arises from the negligence of one of the parties, its employees, agents or authorised representatives.
Duration and Termination
7.1 This Agreement will commence on the date set out in the Service Level Agreement and will continue indefinitely until either party gives to the other written notice of termination in accordance with this clause.
7.2 Unless agreed otherwise as documented within the Service Level Agreement, each party has the right to terminate this agreement at any time by giving the other 6 months prior written notice to that effect. In such event, this agreement will terminate on the expiry of the said 6 months’ notice.
7.3 Either party may by notice in writing to the other terminate this Agreement forthwith if any of the following events will occur, namely:
7.3.1 If the other party is in breach of any term, condition or provision of this agreement and has failed to remedy such breach (if capable of remedy) within 14 days of having received notice from the first party specifying the nature of the breach;
7.3.2 If the other party shall present a petition or have a petition presented by a creditor for its winding up or bankruptcy, or convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation whether compulsory or voluntary (other than for the purposes of reconstruction or amalgamation), or shall call any meeting of its creditors or propose to enter any composition or arrangement with its creditors or shall have a receiver or administrator appointed over any or all of its undertaking or assets appointed or shall be unable to pay its debts or shall cease to carry on its business.
7.4. Without prejudice to the undertakings contained in clause 5 and the rights and remedies of either party which exist or have accrued up to the effective date of termination and which shall survive termination of this agreement, each party will be discharged from future performance of their respective obligations subsequent to termination of this agreement, whether pursuant to clause 7.2 or 7.3. and without prejudice to the generality of the foregoing Broughton Software shall be released from all its obligations to provide the Software and any Services to the Licensee.
8.1 The Licensee shall not assign or otherwise transfer all or any part of this agreement without the prior written consent of Broughton Software.
8.2 The Licensee hereby waives any right to use any and all existing or future claims that it may have against Broughton Software to deduct from, set off or counterclaim against any amounts due under this agreement to Broughton Software and agrees to pay all amounts due to Broughton Software hereunder in full.
8.3 Any failure or neglect by Broughton Software to enforce any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Broughton Software’s rights hereunder nor in any way affect the validity of the whole or any part of this agreement nor prejudice Broughton Software’s rights to take subsequent action.
8.4 Any notice required to be given under the terms of this agreement may be delivered by hand, posted or sent by email to the other party. Notices delivered by hand will be deemed received the first working day following such delivery or sending. Notices sent by post will be deemed received on the third working day following posting. Notices sent by email to the email address will be deemed to have been served 24 hours after being sent unless the email has been returned undelivered.
8.5 In the event that any of the terms, conditions or provisions of this agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, then such term, condition or provision shall to that extent be severed from the body of this agreement and the remainder thereof shall continue to be valid and enforceable to the fullest extent permitted by law.
8.6 Broughton Software shall be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of this agreement arising by reason of Force Majeure namely, circumstances beyond the control of Broughton Software which shall include (but shall not be limited to) loss of use of and access to the internet or slowness of the internet, acts of God, perils of the sea or air, fire,flood, drought, explosion, sabotage, accident, embargo, riot, strikes, work to rule, labour disputes and lockouts, civil commotion, including acts of local government and parliamentary authority.
8.7 The parties hereby agree that this Agreement shall be governed by and construed in accordance with the laws of England and Wales.