Terms and Conditions
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Ordering from Logic Software
Please read the terms and conditions (the ‘Terms’) of the Contract carefully. By submitting the Order Form for the use of the Services, the Customer agrees to be bound by the Terms set forth below. If the Customer does not wish to be bound by these Terms, the Customer may not use the Services. The Customer’s attention is specifically drawn to the provisions of clause 11.
1. Definitions
Confidential Information - any information of a confidential nature relating in any way to the suppliers, potential suppliers, customers and potential customers of Logic Software, the trade secrets, samples, manufacturing processes, product details, product applications and design techniques from time to time carried on by Logic Software, the details of any business, financial or other arrangements transacted by Logic Software, the details of any business plans of Logic Software and business secrets and other confidential information of Logic Software;
Contract - any contract between Logic Software and the Customer for the sale and purchase of the Service or Service(s), incorporating these Terms;
Control - the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise;
CMS - the content management system (CMS) known as Hoopla and any other CMS Software which Logic Software may wish to sell from time to time;
Customer - the party identified as the Customer in the Order;
End User - a client of the Customer and any subsidiary, parent company, or company under the same Control as the End User;
Logic Software - Logic Software Design Limited (company number 04367256) whose registered address is 8 Deryn Court, Wharfedale Road, Cardiff, CF23 7HB;
Order - the order form to which these Terms are attached and Order Form shall be interpreted likewise which together forms the Contract;
Parties - Logic Software and the Customer;
Proprietary Software - the proprietary software contained within the CMS and owned by Logic Software;
Service or Service(s) the goods or services described on the Order Form but not limited to, CMS;
Software - the Proprietary Software and the Third Party Software; and
Third Party Software - those computer programs used in the development and building of the CMS which are licensed to Logic Software.
1.1 In these Terms references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.2 In these Terms references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.3 In these Terms headings will not affect the construction of these Terms.
2. Application of terms
2.1 Subject to any variation under clause 2.3 the Contract will be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Terms apply to all Logic Software’s sales and any variation to these Terms and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a Director of Logic Software. Nothing in this clause will exclude or limit Logic Software’s liability for fraudulent misrepresentation.
2.4 Each order for Services by the Customer from Logic Software shall be deemed to be an offer by the Customer to purchase the Services subject to these terms and conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by Logic Software until a written acknowledgement of order is issued by Logic Software or (if earlier) Logic Software performs the Services to the Customer.
2.6 The Customer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until Logic Software despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that Logic Software has not previously withdrawn it.
3. Services
3.1 Subject to the Customer complying with these Terms, Logic Software agrees to provide to the Customer the Service(s) on these Terms. Logic Software shall use its reasonable endeavours to perform the Services in accordance with the parameters set out in the Order but time shall not be of the essence in the performance of the Service(s).
3.2 The Customer may request a change in the type of Service(s) provided and Logic Software shall not unreasonably refuse such request. In order to accept such a request Logic Software shall notify the impact of the change, if any, on the provision of the Service(s) (including as to fees and payment) and the Customer shall agree to such changes by amending and signing the Order.
3.3 The Customer agrees and acknowledges that it shall not, and procure that End Users shall not, permit multiple users to use an individual CMS. In the event that Logic Software becomes aware that an individual CMS is being accessed by more than one (1) End User it shall have the right, but not the obligation, to terminate the licence contained in clause 4.1 as a result of such termination without any refund of any fees paid by the Customer (namely the Fee. Maintenance Charge or any other fees paid by the Customer under the Contract) and Logic Software shall not be liable for any loss to the Customer or the End User.
3.4 The Customer acknowledges that whilst Logic Software will use its reasonable endeavours to match the Service to the specification requested by the Customer in the Order Form, it cannot guarantee that the Service will meet all the elements of such specification due to technical limitations of the Software which were not apparent at the development stage of the Service. Furthermore the Customer acknowledges that the performance of the Service will be dependant on numerous factors beyond the control of Logic Software and therefore the consistency of performance of the Service cannot be guaranteed.
4. CMS
4.1 In consideration for the payment of the Fee for each CMS ordered by the Customer the Customer will:
4.1.1 be granted a non-exclusive, non-transferable, worldwide, perpetual licence (excluding the right to sublicence) to use the Software under the Terms of the Contract, including the right to use any updates and upgrades of the Software which Logic Software may provide to the Customer; and
4.1.2 in addition to any charges applicable under clause 8, the Customer shall pay:
(a) a one-off service charge as set out in the Order Form (the ‘Fee’);
(b) a monthly maintenance charge as set out in the Order Form (the Maintenance Charge’); and
(c) the price quoted on the Order Form for any additional specifications required and ordered by the Customer.
4.2 The Customer shall have no right to access or use the source code of the CMS or Software. Except as is expressly permitted by the Contract, the Customer agrees that it shall not, and procure that End Users shall not, to the extent that such actions may be prohibited by law, attempt to reverse compile, decompile, merge, modify, translate, disassemble or reverse engineer the CMS or the Software, nor shall it amalgamate, amend, incorporate, modify, reproduce, translate or otherwise alter the same into or with any other software or use the same in conjunction with any other software.
4.3 Except in respect of the End Users, the Customer shall not attempt to make any part of the CMS or the Software or the documentation for it available, or otherwise allow access to the same, to any third party except as required by law.
4.4 In the event that Logic Software becomes aware that a Customer is using CMS or the Software in any manner contrary to this clause 4 the Customer shall indemnify Logic Software against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by Logic Software arising directly or indirectly out of the Customer’s or End User’s breach of this clause 4, or any breach of undertakings or obligations or any misrepresentation, negligence, fraud or wilful misconduct by it.
5. Customer Obligations
5.1 The Customer shall provide such co-operation and assistance to Logic Software, as Logic Software shall require when performing the Service(s). In particular, the Customer shall;
5.1.1 respond to Logic Software’s requests for information or other requirements in a timely fashion;
5.1.2 provide access to such facilities and competent personnel as Logic Software shall reasonably request and require in order to perform the Services;
5.1.3 procure that all End Users use the CMS and Software in accordance with these Terms;
5.1.4 ensure that all information provided to Logic Software to enable it to provide the Service is accurate in all material respects; and
5.1.5 not permit, and procure that each End User shall not permit, access to each CMS purchased to any party other than that End User for which the CMS was purchased in accordance with clause 3.3 of these Terms.
5.2 If the Customer fails in respect of any of its obligations under the Contract, Logic Software shall not be liable for any consequent failure on its part to perform the Service. In addition, Logic Software shall be entitled to charge the Customer on a time and materials basis for any action taken by Logic Software as a result of such failure, notwithstanding that it may not be able to perform the Service due to such failure.
5.3 The Customer acknowledges that Logic Software may monitor the use of the Service(s) to ensure that compliance with clause 3.3 is maintained at all times and reserves the right to terminate the provision of the Service(s) without refund if the Customer continues to breach the provisions of clause 3.3 after notice from Logic Software to the Customer that such a breach has occurred.
6. Return of Customer Materials
Any materials supplied by the Customer to Logic Software shall on expiry or earlier termination of the Services be returned to the Customer or destroyed at its option, together with any copies of such materials.
7. Personnel
7.1 Neither Party shall solicit or entice any of the other Party’s employees during the period in which the Services are provided or for 12 months thereafter.
7.2 Unless expressly agreed in writing by the Customer, Logic Software personnel shall not hold themselves out as agents of the Customer’s and shall not have any authority to create any obligations on behalf of Customer.
8. Fees and Payment
8.1 In consideration of Logic Software providing the Service(s) the Customer shall pay the Fee, Maintenance Charge and any other fees as set out on the Order Form. The Customer shall pay Logic Software’s invoices within 30 days of receipt of the invoice thereof. In addition to the Fee, Maintenance Charge and any other fees set out in the Order Form, Customer shall also pay Value Added Tax (where applicable) or other applicable sales tax where Logic Software has provided an appropriate invoice for the same.
8.2 Subject to the Customer’s prior written agreement, all reasonable out of pocket expenses incurred, except where otherwise provided in the Agreement, by Logic Software or its employees, agents or subcontractors in the provision of the Services (including but not limited to train, air fares, mileage, accommodation and subsistence) will be charged at cost to the Customer in addition to all other charges due under the Contract.
8.3 If payment due from the Customer or any part thereof is overdue then without prejudice to its other rights and remedies Logic Software may at its option: i) suspend the provision of the Service(s) until such payment is made, in which case the Service(s) provision shall be extended accordingly; or ii) treat such as a material breach and take steps to terminate the Contract in accordance with clause 11.
8.4 Time for payment shall be of the essence.
8.5 No payment shall be deemed to have been received until Logic Software has received cleared funds.
8.6 All payments payable to Logic Software under the Contract shall become due immediately upon termination of this Agreement despite any other provision.
8.7 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Logic Software to the Customer.
8.8 If the Customer fails to pay Logic Software any sum due pursuant to the Contract the Customer will be liable to pay interest to Logic Software on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of The Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. Logic Software reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 in addition to the aforementioned interest rates.
9. Warranty
9.1 Logic Software warrants that:
9.1.1 personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated will carry out the Service(s) with commercially reasonable skill and care;
9.1.2 it has full power and authority to enter into and perform the Service and it has all necessary licences, permission and authorisations to enable it to perform the Service;
9.1.3 any design, documentation, data, software or any other material or information furnished or used by it or in performance of the Services or the delivery of the data will as far as Logic Software is aware not infringe any intellectual property rights (‘IPR’) or moral rights or database right of any third party;
9.1.4 it shall carry and maintain comprehensive product liability, property damage and omissions and errors insurance covering its general business including the provision of the Services.
9.2 The Customers sole remedy for breach of the warranty set out above shall be that Logic Software re-perform the relevant part of the Service(s) without charge to the Customer and if in Logic Software’s reasonable opinion, it is unable to remedy such part of the Service(s) then Logic Software shall at it’s absolute discretion refund that portion of the fees that corresponds to the non-conforming the Service(s).
9.3 Logic Software does not warrant to the Customer that:
9.3.1 the Software will meet the specifications requested by the Customer and does not make any representation regarding the use or other operation of the Software or the result of such operation in terms of correctness, accuracy, reliability or otherwise; or
9.3.2 the use of the Software will be uninterrupted or error free.
9.4 No oral or written communication by Logic Software or on its behalf shall create a warranty or in any way increase the scope of the warranties provided under the Contract.
10. Alterations to the Service
10.1 In the event that the Customer requires an alteration to the specification of any of the Service, such changes shall be notified to Logic Software in writing who shall review the alteration request and notify the Customer whether it has the capability to implement the alterations to the Service as requested.
10.2 In the event that the requested alterations referred to in clause 10.1 can be implemented by Logic Software, Logic Software shall notify the Customer of the additional estimated costs and time scales required to implement the requested alterations.
10.3 For the purposes of clause 10.2 above, Logic Sofware may charge the Customer an additional fee on a time and materials basis or any other as may be agreed by the Parties.
10.4 The Customer agrees and acknowledges that Logic Software may be required to make alterations to the Service or terminate the provision of a CMS due to cost or technology issues. In the event that Logic Software is required to make such alterations then it shall give the Customer seven (7) days written notice that such alterations are required, including details of the alterations to be made. Logic Software shall use its reasonable endeavours to ensure that any alterations to the Service required shall not materially affect the functionality of the altered Service.
11. Limitation of liability
11.1 The following provisions set out the entire financial liability of Logic Software (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Terms; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Terms excludes or limits the liability of Logic Software for death or personal injury caused by Logic Software’s negligence or fraudulent misrepresenta¬tion.
11.4 Subject to conditions 11.2 and 11.3:
(a) Logic Software’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid to Logic Software by the Customer under the Contract; and
(b) Logic Software expressly excludes liability for consequential loss or damage and shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, loss of use, loss or corruption of data or information depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12. Duration and Termination
12.1 Subject to early termination in accordance with this clause, the Contract shall become effective on the date of submission of the Order Form and shall terminate on the completion of the provision of the Service(s).
12.2 Either party (the Initiating Party) may forthwith terminate the Contract at any time: i) on giving written notice to the other party if that other party commits any material breach of the Contract and, in the case of a breach that is capable of being remedied shall have failed, within thirty (30) days of such notice from the Initiating Party, to so remedy the breach to the reasonable satisfaction of the Initiating Party (such notice to contain a request to remedy the breach and to contain a warning of the Initiating Party's intention to terminate); or ii) if the other party shall have a receiver or administrative receiver appointed over it or any of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction (‘Insolvency Event’).
12.3 If Logic Software terminates the Contract pursuant to the above then the Customer shall pay Logic Software all of the outstanding charges due under the Contract for performance of the Service(s) through the date of such termination.
12.4 Notwithstanding any other provision of the Contract, either party may terminate the Contract upon 30 days written notice, and the Parties shall be liable for their respective obligations only up to and including the date of termination, other than in respect of the provisions contained in the clause entitled Confidentiality which will continue to apply notwithstanding termination.
12.5 On termination of the Contract as a result of the Customer suffering an Insolvency Event, the licence granted under clause 4.1.1 above shall terminate automatically.
13. Intellectual Property
13.1 Unless otherwise agreed in writing by Logic Software all IPR to include all patents, copyrights, design rights, trade marks, trade secrets, know-how, database rights, actual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world remain vested in Logic Software are not in any way conferred to the Customer.
13.2 Subject to clauses 4 and 13.1 Logic Software may agree to grant to the Customer a non-exclusive, worldwide, perpetual, irrevocable fully paid up royalty-free licence to use, adapt or modify Logic Software’s pre-existing IPR or any variation or combination of the above to enable the Customer to receive the full benefit of the Services PROVIDED THAT if Logic Software are willing to grant the same to the Customer this will be specifically agreed with the Customer as a term of the Contract.
13.3 The Customer shall, at the request and expense of Logic Software, take all such steps during the term of the Contract as Logic Software may reasonably requires to assist Logic Software in maintaining the IPR as valid and effective, or to take or defend any court or other dispute proceedings concerning intellectual property matters.
13.4 The Customer shall:
13.4.1 notify Logic Software of any actual, threatened or suspected infringement of any IPR of which the Customer becomes aware;
13.4.2 not independently defend or respond to such claim or threatened claim; and
13.4.3 co-operate fully with Logic Software in the defence of any claim of infringement, subject to payment by Logic Software of the Customers reasonable costs incurred in providing such co-operation.
13.5 The Proprietary Software and all IPR of whatever nature in such Proprietary Software, including any improvements made on it by either the Customer or the End User, shall remain the property of Logic Software. Logic Software reserves the right to grant licences to use such Proprietary Software to any other party or parties, provided that any such licences do not affect the provision of any part of the Service to the Customer pursuant to the Contract.
14. Data Protection
Both Parties understand that personal data (as defined in the Data Protection Act 1998 and as may be modified or amended in any re-enacted or consolidated form) (Act) may be included within information provided by one Party (Disclosing Party) to the other Party (Receiving Party) or acquired by the Receiving Party arising from the performance of the Contract and Receiving Party undertakes to comply with all relevant data protection legislation with respect to such personal data. For the avoidance of doubt “personal data” shall mean any information relating to an identified or identifiable natural person. Receiving Party shall indemnify Disclosing Party and keep Disclosing Party harmless from any cost, charge, damages, expense or loss arising from a breach of this clause by Receiving Party.
15. Confidentiality
15.1 Each Party agrees and undertakes to use the other party’s Confidential Information solely in the performance of its business obligations under the Contract, and to treat and safeguard such Confidential Information as private and confidential during the currency of the Contract and subsequent to its termination for whatever reason. The receiving party shall not disclose the disclosing party’s Confidential Information to any person other than to its directors, employees, temporary employees, contractors, agents, outsourcers, consultants, or advisers (Recipients) for the sole purpose of, and to the extent necessary to, enable the Recipients to perform, or to cause to be performed, or to enforce any of the receiving party’s rights and obligations under the Contract. The receiving party shall ensure that each Recipient is informed of the confidential nature of the Confidential Information and is subject to obligations of confidentiality sufficient to enable the receiving party to comply with its obligations under this clause.
15.2 If a party becomes compelled to disclose the other party’s Confidential Information to any governmental or regulatory authorities, or as required by law or court order, the party compelled to disclose shall inform the other party, in writing, of such fact or obligation as soon as reasonably possible after it becomes aware of it and, if possible, before any Confidential Information is disclosed. The party compelled to disclose shall ensure, insofar as it is able to procure the same, that any such disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation. Each party agrees to assist and co-operate in any appropriate action that the other party may decide to take. On the termination of the Contract, each party shall return to the other any Confidential Information within its possession or control as may belong to the other party, except that each party may retain but not utilise a copy of the Confidential Information solely for the purposes of record keeping and to ensure compliance with the obligations under this clause.
15.3 The provisions of this Confidentiality clause shall not apply to any information which: i) is or becomes public knowledge other than by breach of this clause; ii) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; iii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or iv) is independently developed without access to the Confidential Information.
15.4 The provisions numbered 15.1 to 15.1.3 (inclusive) will survive termination of the Contract and continue to bind the parties irrespective of such termination.
16. Third Party Rights
The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17. Notice
Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served 5 days following the date of posting. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of the Contract nor prejudice that party's rights to take subsequent action.
18. Law and Jurisdiction
The Parties hereby agree that the Contract concluded between them and constituted on these Terms shall be construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
19. Severability
In the event that any of the Terms, conditions or provisions contained in the Contract shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining Terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law. Neither party shall assign or otherwise transfer all or part of the Contract without the prior written consent of the other party.
20. Force Majeure
Neither party shall be under any liability to the other in respect of anything that may constitute a breach of the Contract arising by reason of force majeure, namely, circumstances beyond the control of such Party which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; materials or support; the impossibility of use of public or private telecommunications networks, web servers and any other technology used to deliver the Service; the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer) provided, however, that a party seeking excuse for delay of an obligation shall have timely notified the other party of the circumstances and shall have taken reasonable steps to attenuate the impact of such circumstances upon its obligations to the other party.
21. Assignment
The Contract is personal to the Parties and may not be assigned or sublicensed by either party, without the prior written consent of the other.
22. Invalidity
If any provision of the Contract is held by a court or other competent authority to be unlawful, void or unenforceable, it shall be deemed to be deleted from the Contract and shall be of no force and effect as if such provision had not originally been contained in the Contract.
23. Waiver
No delay or failure by either party to exercise any of its powers, rights or remedies under the Contract will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing.
24. Variation
No variation to the Contract shall be effective unless in writing signed by a director of each of the Parties.