TERMS AND CONDITIONS OF SERVICE
These terms and conditions of service ("Terms") are a legal agreement between you (("Customer" or "you") and Haulmont Technology Limited, a private limited company registered in England and Wales with company number 06657184 whose registered office is at 35-37 William Road, London, NW1 3ER ("Haulmont").
Haulmont agrees to provide Services to you on the basis of these Terms.IMPORTANT NOTICE TO ALL CUSTOMERS:
BY SUBSCRIBING FOR THE SERVICES VIA OUR SITE OR BY SUBMITTING AN ORDER FOR SERVICES TO US OTHERWISE HOWSOEVER, YOU AGREE TO THE TERMS AND CONDITIONS SET OUT IN THESE TERMS, WHICH WILL BIND YOU AND YOUR EMPLOYEES (IF ANY).
BY SUBSCRIBING FOR THE SERVICES VIA OUR SITE OR BY SUBMITTING AN ORDER FOR SERVICES TO US OTHERWISE HOWSOEVER, YOU ACKNOWLEDGE AND ACCEPT THAT THIS IS A BUSINESS-TO-BUSINESS AGREEMENT FOR THE SUPPLY OF SERVICES BY HAULMONT TO YOU (I.E. AN INDIVIDUAL ACTING IN THE COURSE OF HIS BUSINESS/TRADE/PROFESSION OR A CORPORATE ENTITY). YOU ACKNOWLEDGE THAT RECEIPT BY YOU OF THE SERVICES IS FOR BUSINESS/PROFESSIONAL PURPOSES AND THAT THIS IS NOT A BUSINESS-TO-CONSUMER AGREEMENT. YOU ACCEPT THAT YOU MAY NOT RECEIVE THE SERVICES FOR NON-BUSINESS/PROFESSIONAL (I.E. CONSUMER) PURPOSES.
IF YOU DO NOT AGREE TO THESE TERMS, HAULMONT WILL NOT PROVIDE THE SERVICES TO YOU, SO PLEASE DO NOT SUBSCRIBE FOR THE SERVICES VIA OUR SITE OR SUBMIT AN ORDER TO US.
AGREED TERMS:-1. Interpretation
1.1. The definitions and rules of interpretation in this clause apply in these Terms, including the Introduction.
every Monday to Friday, except 31st December, 1st and 2nd January, 1st and 9th May.
the hours of 6:00 to 16:00 GMT on Business Days.
has the meaning set out at clause 3.3.
the contract between Haulmont and the Customer for the supply of Services in accordance with the Order and these Terms.
means the computer software developed and owned by Haulmont or its licensors, the specification of which is available at the domain name address www.cuba-platform.com/documentation. The CUBA Platform is aimed at software developers and provides them with a number of tools and libraries (comprising pre-built functions, components and data structures in the form of pre-written source code), that speed up the creation and development of software. References to the CUBA Platform also include CUBA Studio and the additional paid-for components known as Premium and Add-ons.
any software, materials and/or documentation created by Haulmont (whether alone or jointly) in the course of providing the Services to the Customer, but excluding (for the avoidance of doubt) the CUBA Platform (and any modification thereto) and/or the Training (or any part thereof).
|Intellectual Property Rights||
all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in the confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
the Customer's order for Services (as per clause 3.1), which may be submitted via the Site or via email (to email@example.com).
any individuals chosen by the Customer to receive the Training.
means the professional services to be provided by Haulmont to the Customer, comprising consultancy services and training on the use of the CUBA Platform, development, troubleshooting, bug-fixing, and/or project management in respect of the CUBA Platform.
|Professional Services Fee||
the fees to be paid by the Customer for any Professional Services.
|Professional Services Hours||
the total number of hours for which Haulmont shall provide the benefit of the Professional Services to the Customer, as specified in the Order.
the Professional Services and/or Training as may be supplied by Haulmont to the Customer from time to time in accordance with the Contract.
the Professional Services Fee and the Training Fee.
the website available from time to time at the domain name address www.cuba-platform.com.
has the meaning given in clause 2.
means the standard online CUBA Platform training course, conducted by Haulmont employee(s), consisting of a series of live broadcast webinars, as further described on the Site at www.cuba-platform.com/training.
the dates and times (agreed between the parties in accordance with clause 4.2) on which the Training is to be supplied.
means the fee to be paid by the Customer to Haulmont in respect of any Training.
1.2. Clause headings shall not affect the interpretation of these Terms. References to clauses are to the clauses of these Terms.
1.3. Unless the context otherwise requires:
1.3.1. words in the singular shall include the plural and in the plural shall include the singular;
1.3.2. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.3.3. a reference to writing or written includes emails;
1.3.4. a reference to one gender shall include a reference to the other genders;
1.3.5. any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
1.3.6. 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.
Unless terminated in accordance with the other provisions of these Terms, the Contract shall continue in force from the Commencement Date until whichever is the earlier of (a) 12 months after the Commencement Date or (b) completion of the Services ("Term").3. Basis of contract
3.1. The Customer may submit an Order to Haulmont via the email firstname.lastname@example.org, or the contact form on the Site. Each Order must be submitted before making a payment and must specify (and as relevant to the Services being ordered):
3.1.1. the Services which the Customer would like to order (i.e. Training and/or Professional Services);
3.1.2. the number of Participants who will receive the Training;
3.1.3. the number of Professional Services Hours.
3.2. The Order shall only be deemed to be accepted by Haulmont when Haulmont issues a written acknowledgment of the Order to the Customer, which Haulmont may do, at its absolute discretion, by sending an email to the Customer to the email address specified in the Order ("Confirmation Email").
3.3. Provided Haulmont has received payment for the Order in accordance with clause 6, the Contract shall come into existence ("Commencement Date").
3.4. If Haulmont is unable or unwilling to supply the Customer with any Services included in an Order, Haulmont shall inform the Customer by email and the Order shall not be processed in respect of those Services. If the Customer has already paid for those Services, Haulmont shall refund the full amount for those Services as soon as reasonably practicable.
3.5. Any samples, drawings, descriptive matter or advertising issued by Haulmont, and any descriptions or illustrations contained in Haulmont's website, catalogues and/or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.6. All Contracts shall be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply or seeks to impose or incorporate orally, or under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing). Accordingly, no terms or conditions endorsed on, delivered with or contained in the Customer's Order, confirmation of order, specification or other document shall form any part of any Contract.
3.7. The Customer may not amend or cancel an Order at any time after Haulmont has received payment (i.e. in accordance with clause 6) for the Customer's Order.4. Training
4.1. Where the Order and subsequent Contract includes Training, this clause 4 shall apply.
4.2. Following the Commencement Date, Haulmont shall contact the Customer promptly to arrange the Training Schedule.
4.3. In consideration of the Training Fee, Haulmont grants to the Customer's Participants a non-exclusive, non-transferrable licence to access, view, receive and use the Training in accordance with the Training Schedule.
4.4. Once the Training Schedule has been agreed, Haulmont shall send to the Customer access information for the Training. The Customer shall (and shall procure that each Participant shall) keep such access information secret, secure and confidential. Haulmont reserves the right to disable the Customer's (or any of its Participants') access to the Training if, in Haulmont's reasonable opinion, the Customer (or any of its Participants) have failed to comply with this clause.
4.5. The Customer may not (and shall procure that its Participants do not):
4.5.1. rent, lease, create derivative works of, distribute, sell, sub-licence or transfer the Training (or any part thereof);
4.5.2. remove, amend or obscure any of proprietary or other notices of Haulmont included in or forming part of the Training.
4.6. The Customer is responsible for:
4.6.1. ensuring that each Participant has all necessary technical ability and knowledge to access and comprehend the Training;
4.6.2. arranging its Participants' access to the Training in accordance with the Training Schedule.
If the Training (or any part thereof) is cancelled by Haulmont, or if Participants cannot connect to the Training (or any part thereof) due to technical issues caused by Haulmont, the Customer's sole remedy is that Haulmont will re-schedule the Training/part-Training or make a full refund of the Training Fee, whichever option is chosen by the Customer. If a Participant misses the Training (or any part thereof) for any other reason, Haulmont is not responsible for re-scheduling the Training/part-Training and shall not be responsible for providing any refund or other remedy.5. Professional Services
5.1. Where the Order and subsequent Contract includes Professional Services, this clause 5 shall apply.
5.2. From time to time during the Term, the Customer may contact Haulmont (i.e. via email to email@example.com or the contact form on the Site) and submit a request for Professional Services. The Customer's request shall set out:
5.2.1. the nature of the Professional Services required;
5.2.2. the scope of the Professional Services that the Customer would like Haulmont to carry out.
5.3. Upon receipt of a request from the Customer for Professional Services in accordance with clause 5.2 the parties shall collaborate in agreeing a specification of the Professional Services to be carried out by Haulmont ("Specification"). If Haulmont:
5.3.1. lacks the skillset, knowledge or expertise to provide the Professional Services; or
5.3.2. is (within its reasonable opinion) unable to provide the Professional Services within the number of Professional Services Hours remaining on the Customer's account;
5.3.3. does not want to provide the Professional Services requested by the Customer,
Haulmont shall notify the Customer of the same and the Customer shall be entitled to receive a refund of the price paid for the balance of any unused Professional Service Hours remaining on its account.
5.4. Once the Specification is agreed, Haulmont shall endeavour to provide Professional Services:
5.4.1. during Business Hours, at the times requested by the Customer, or if none are requested then shall do so within a reasonable period of time; and
5.4.2. in accordance with the Specification agreed pursuant to clause 5.3.
5.5. Haulmont shall provide Professional Services for up to the total number of Professional Services Hours set out in the Order. Haulmont shall have no obligation to provide Professional Services to the Customer (or to respond to the Customer's requests for Professional Services) which exceed the total number of Professional Support Hours specified in the Order.
5.6. Professional Services will be provided remotely at all times, unless agreed otherwise (in writing) between Haulmont and the Customer.
5.7. All dates supplied by Haulmont for the provision of Professional Services shall be treated as approximate only. Haulmont shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
5.8. Nothing in this clause shall compel Haulmont to provide any Professional Services that:
5.8.1. are (or may be considered) unlawful, fraudulent of have any unlawful or fraudulent purpose or effect;
5.8.2. relate to any defamatory, obscene, offensive, discriminatory, hateful or inflammatory purpose or material;
5.8.3. are not technically possible or are outside Haulmont's control (for example, if the Professional Services relate to a 3rd party library in the CUBA Platform); or
5.8.4. infringe (or may infringe) the rights of any third party.
5.9. Haulmont will provide a monthly report to the Customer, setting out:
5.9.1. the Professional Services that have been provided to the Customer in the preceding month;
5.9.2. the number of Professional Services Hours used in carrying out those Professional Services; and
5.9.3. the number of remaining Professional Services Hours on the Customer's account.
6.1. The Service Fees shall be calculated in accordance with Haulmont's price list for Customers in force as at the date of the Customer's Order (which is available on the Site). All Service Fees are in US dollars and exclude value added tax chargeable for the time being ("VAT"). VAT shall be paid in addition to the Service Fees, where VAT is applicable.
6.2. Haulmont reserves the right to alter the Service Fees at any time, save that Haulmont shall not alter the Service Fees after submission of an Order by the Customer.
6.3. Unless otherwise agreed with Haulmont, the Customer may only pay the Service Fee using a debit card, credit card or bank transfer to the bank account nominated by Haulmont from time to time. All payments are subject to authorisation by the Customer's card issuer. Haulmont will not accept the Order (and a binding Contract shall not be formed) until Haulmont has received payment (in full and cleared funds) of the Service Fee and sent the Confirmation Email to the Customer.7. Intellectual Property Rights
7.1. All Intellectual Property Rights in the Deliverables, any Training Materials and the Software shall belong to Haulmont and the Customer shall have no rights in respect of any of the Deliverables or the Software except as expressly granted under these Terms.
7.2. Haulmont grants to the Customer a worldwide, irrevocable, non-exclusive license to use, duplicate, modify, distribute or sub-license the Deliverables.
7.3. Haulmont gives no warranty and makes no representation that the Deliverables (or the Customer's use of them) will not infringe the rights of others. To the fullest extent permitted by law, all implied warranties, representations, terms and/or conditions, whether statutory, regulatory, customary or otherwise are excluded and do not apply.8. Limits of liability
8.1. This clause 8 sets out the liability of each party to the other in respect of:
8.1.1. any breach of the Contract, howsoever arising;
8.1.2. any use made of the Services or the Deliverables (or any part of them);
8.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract; and
8.1.4. any other liability (including non-contractual) howsoever arising under any legal theory whatsoever, arising under or in connection with the Contract.
8.2 Nothing in these Terms shall exclude or limit either party's liability for:
8.2.1. death or personal injury resulting from negligence; or
8.2.2. fraud or fraudulent misrepresentation or willful default; or
8.2.3. for any other matter for which it would be unlawful for either party to exclude or limit or attempt to exclude or limit its liability.
8.3. Subject to clause 8.2, neither party shall under any circumstances whatsoever be liable to the other party, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, and/or otherwise howsoever arising under any legal theory whatsoever, for any of the following losses (in each case, whether direct or indirect):
8.3.1. loss of profit or revenue;
8.3.2. loss of or damage to reputation or depletion of goodwill;
8.3.3. loss of business;
8.3.4. loss of contracts or loss of business opportunity;
8.3.5. loss of anticipated saving;
8.3.6. any losses arising in connection with any third party contract or arrangement (e.g. payments (e.g. penalties) due to be paid/paid to any third party under any contract or arrangement);
8.3.7. wasted management and/or staff time and/or office time;
nor any special, indirect, or consequential loss, cost, damage, charge or expense suffered by the either party that arises under or in connection with the Contract.
8.4. Each party's total liability to the Customer, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise howsoever under any legal theory whatsoever arising out of or in connection with the Contract shall in all circumstances be limited in total to a sum equal to the total Service Fees paid by the Customer to Haulmont or $50000, whichever is greater.
8.5. All references to Haulmont in this clause 8 shall, for the purposes of this clause only, be treated as including all employees, officers, subcontractors and suppliers of Haulmont, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.9. Assignment and subcontracting
9.1. The Customer shall not, without the prior written consent of Haulmont, assign, transfer, charge, mortgage, subcontract, sub-licence, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
9.2. Haulmont may at any time, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.10. Termination
10.1. Without prejudice to any rights that have accrued under the Contract or any other rights or remedies which the parties may have, either party may at any time terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to do so;
10.1.2. the other party commits a irremediable material breach of any of the terms of the Contract, or a material breach which is remediable and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
10.1.3. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
10.2. On termination of the Contract for any reason:
10.2.1. if the Contract has been terminated by Haulmont, the Customer shall immediately pay to Haulmont all outstanding sums then due to be paid to Haulmont under the Contract;
10.2.2. if the Contract has been terminated by the Customer, Haulmont shall refund to the Customer (on a pro-rata basis) any Service Fees that the Customer has paid in respect of Services which have not been received;
10.2.3. the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
10.2.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect, including this clause 10.2.4 the following clauses: clause 1 (Definitions and interpretation); clause 6 (Payments and charges); clause 7.1 to 7.2 (Intellectual Property Rights); clause 8 (Limitation of Liability); and clauses 11 - 19 (Waiver - Governing Law and Jurisdiction).
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.12. Entire Agreement
12.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of the Contract.
12.2. Each party acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract.
12.3. Nothing in this clause shall limit or exclude any liability for fraud.13. Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).14. Severance
14.1. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.15. Third-party rights
Subject to clause 8.5, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.16. No partnership or agency
Nothing in the Contract 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party.17. Force majeure
17.1. A party, provided that it has complied with the provisions of sub-clause 17.2, shall not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract (and, subject to sub-clause 17.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control ("Force Majeure Event"), including but not limited to any of the following:
17.1.1. acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
17.1.2. war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
17.1.3. terrorist attack, civil war, civil commotion or riots;
17.1.4. nuclear, chemical or biological contamination or sonic boom;
17.1.5. fire, explosion or accidental damage;
17.1.6. adverse weather conditions;
17.1.7. collapse of building structures, failure of computers or vehicles;
17.1.8. any labour dispute, including but not limited to strikes, industrial action or lockouts;
17.1.9. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this sub-clause); and
17.1.10. interruption or failure of utility service, including but not limited to electric power, gas or water.
17.2. Any party that is subject to a Force Majeure Event shall not be in breach of the Contract provided that:
17.2.1. it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
17.2.2. it uses reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
17.3. If the Force Majeure Event prevails for a continuous period of more than 3 months, either party may terminate the Contract by giving 60 days written notice to all the other party. On the expiry of this notice period, the Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.18. Notices
18.1. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or special delivery or by commercial courier, to each party's address (i.e. to Haulmont at its registered address at the beginning of these Terms or to the Customer at the address set out in the Order) or such other address specified by the relevant party by notice in writing to each other party in accordance with this clause 18.
18.2. Any notice shall be deemed to have been duly received:
18.2.1. if delivered personally, when left at the address and for the contact referred to in this clause;
18.2.2. if sent by pre-paid first-class post or special delivery, at 9.00 am on the second Business Day after posting; or
18.2.3. if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
18.3. A notice required to be given under the Contract shall not be validly given if sent by e-mail or fax.
18.4. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.19. Governing law and jurisdiction
19.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
19.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).