Introduction and interpretation
These terms and conditions shall apply to all agreements entered into by ActivePoint Inc., ActivePoint Ltd and/or ActivePoint UK Limited for the supply of any products, services and supporting documentation.
1 ) Definitions
In this agreement, unless the context otherwise requires so, the following expressions have the following meanings:
"Customer" Means the company that is provided with the software/services
"Software" Converted PDF documents to a web enabled format and the software allowing them to be viewed on-line.
a) In an event of any conflict or inconsistency between any provision of the clauses and provision of any schedules or appendices to this agreement the clauses shall prevail.
2) Products and services provided
In consideration of payment of the page rate fee and upon the terms of this agreement ActivePoint Inc. hereby agrees to:
a) Grant a limited use license of the software that enables the web enabled documents to be viewed on-line.
b) Provide access to the proofing version of the customers bespoke software via a website link to allow the product to be proofed sufficiently before upload.
c) Any amendments that need to be made are chargeable at ActivePoint Inc.’s standard rates.
d) On confirmation by the customer that the product has been checked and is passed as correct, ActivePoint agrees to upload the software to an agreed live site.
3) Payment
a) Payments of all fees provided for under this agreement shall be made in full and free from any deductions, rights of set-off, counterclaims or liens.
b) Final payments are to be made by the customer and to arrive at the ActivePoint Inc. offices within 7 days from the date of uploading the software to a live site or the date of invoice.
c) If any sum payable under this agreement is not paid within 14 days of the date on which it is due, ActivePoint Inc. reserves the right (in addition to its other rights) to charge interest on a daily basis, before and after judgement, from the due date of payment until the actual date of payment at a rate of two percent over the then current LIBOR on the outstanding balance until payment is received in full by ActivePoint Inc. and to recover from the customer all costs and expenses incurred in the recovery of any overdue money from the customer. In addition, Activepoint will be under no obligation to supply the services while any invoice for any fees remains unpaid 14 days after the due date. All outstanding sums due to ActivePoint Inc. from the customer shall be paid by the customer before the services can recommence.
d) Unless specifically stated otherwise in this agreement, all fees are non-refundable.
e) Provided that no sums are payable to Activepoint from the customer under this agreement the customer may terminate this agreement at any time by giving ActivePoint Inc. 30 days written notice. If sums are payable, the contract may be terminated by agreement between parties provided all outstanding sums are paid in full.
4) Warranty
a) Subject to clause 4(b) ActivePoint Inc. warrants that on the date of upload and throughout the time that ActivePoint Inc. provides support services to the customer:
i) The product will provide functionality contained in the documentation in all material respects provided the product is used within an operating system, on equipment and in an environment approved by ActivePoint Inc.
ii) ActivePoint Inc. has taken reasonable precautions to ensure that the software does not contain any viruses and will run virus checks prior to uploading the software
iii) It will provide reasonable skill and care when providing any services to the customer.
iv) The above comprise the ‘Principal Warranty’
b) The customer acknowledges that the products are a bespoke program prepared to meet the customer’s individual requirements whether or not such requirements are set in any part of this agreement, and that it is the responsibility of the customer to ensure that the facilities and functions described in the documentation and described by ActivePoint Inc. in this agreement meet its requirements. ActivePoint Inc. shall not be liable for any failure of the product to provide any facility or function not specified in the documentation or by ActivePoint Inc. in the agreement. The customer also acknowledges that it is not possible to test the product in advance in every possible operating combination and environment or to produce the product error free.
c) If ActivePoint Inc. receives written notice of any breach of the principal warranty from the customer then ActivePoint Inc. shall at its own expense and within a reasonable time after receiving the notice remedy the defect in question provided that the alleged breach can be reproduced by Activepoint Inc. Activepoint Inc. shall always be afforded a reasonable opportunity and a reasonable period of time in which to correct any such breach. When notifying a defect the customer shall (so far as it is able) provide Activepoint Inc. with a documented example.
d) Notwithstanding anything else contained in this agreement, Activepoint Inc. will not be liable at any time for loss, damages, or costs arising out of misuse, abuse or mismanagement of the software. Activepoint Inc. shall have no liability under the principal warranty other than to remedy any breach in accordance with clause 4 (c) above and by the provision of materials and services within a reasonable time and without charge to the customer.
e) Except as expressly stated in this agreement ActivePoint Inc. gives no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, performance, satisfactory quality or fitness for purpose of the product and/or services and all such warranties, conditions, undertakings and terms are excluded to the fullest extent permitted by law.
f) We will not be liable to You in contract, tort or otherwise for any loss of profits, business, contracts, production, revenues, anticipated savings or for any increased costs or any indirect, special or consequential damages in connection with or arising out of this Agreement.
5) Proprietary rights
a) Activepoint Inc. shall own and shall retain title to all Intellectual Property Rights in the software and any other items supplied under or created by Activepoint Inc. as a result of this agreement and any copies thereof.
b) The customer shall notify ActivePoint Inc. promptly in writing if the customer becomes aware of any unauthorised use of any part of the software.
c) The customer will permit Activepoint Inc. access to check/update the software and its use at an agreed time that will not cause disruption to its use.
6) Intellectual property rights indemnity
a) In the event of any infringement of any third party’s Intellectual Property Rights, ActivePoint Inc. may at its own expense (i) modify or replace the software or any infringing part of it with a compatible, functionally equivalent and non-infringing software product or (ii) secure the right of the customer to continue using the software. Should options (i) or (ii) not be reasonably available within 90 days of the notification of the infringement to ActivePoint Inc. then this agreement may be terminated at the option of either party upon 30 days prior written notice. In these circumstances ActivePoint Inc. shall be liable only to reimburse to the customer all monies received in advance for associated services not at the time already supplied.
7) Confidentiality
a) Neither party shall use or disclose any confidential information of the other party including but not limited to any business information and employee personal data except as necessary for the performance of this agreement, or as required by law.
b) This clause shall not prevent the disclosure or use by either party of any information which is or becomes, through no fault of that party, public knowledge or to the extent permitted by law.
c) ActivePoint Inc. shall be entitled to announce the existence of this agreement subject to the consent of the customer and the customer’s approval of the terms of any announcements (neither of which may be unreasonably withheld or delayed), ActivePoint Inc. shall be entitled to disclose and/or publicise details of its arrangements with the customer.
8) Alterations
Subject always to clause 5, the customer may combine the use of the software, at its own expense and responsibility, with other programs to form a combined work. Where such other programs are the property of a third party the customer shall be responsible for obtaining all necessary consents to their use with the software.
9) Liability
a) You agree with Us that if you suffer any loss or damage as a result of Our breach of the terms of this Agreement, or as a result of Our negligence or breach of statutory duty, then Our aggregate liability in respect of all such losses or damage will be limited to the smallest of the following:
i) the actual amount of any loss or damage You suffer;
ii) the total of the monies paid to Us under this Agreement at the date of the loss but not greater than $5,000.
b) nothing in this clause 4 shall exclude Our liability for death or personal injury caused by negligence.
c) Subject to clause 9b and whether or not ActivePoint Inc. has been advised of the possibility of such loss or damage ActivePoint Inc. shall not be liable to the customer, whether such losses or damages arise due to negligence, breach of contract, misrepresentation (excluding fraudulent misrepresentation) or for any other reason, in respect of:
i) The following whether direct or indirect:
(1) loss of profits;
(2) loss of anticipated savings;
(3) loss of business; and/or
ii) any type of indirect loss or damage howsoever caused.
d) You agree and accept that the limitations on liability contained in this clause 9 are fair and reasonable.
e) If Activepoint Inc. is prevented or delayed from performing any of its obligations under this agreement by reason of any act, default or omission of the customer and/or its employees, agents or subcontractors, then:
f) The customer shall pay Activepoint Inc. at ActivePoint’s then standard rate of charges any additional costs, expenses, liabilities (whether under the terms of this agreement or otherwise) which ActivePoint Inc. has reasonably incurred or sustained as a result of such act or omission or default of the customer and or its employees, agents or subcontractors;
10) General
a) A delay or failure by either party to exercise any right shall not be treated as a waiver of any such right or any other rights. A consent by either party to a breach of any express or implied term of this agreement shall not constitute a consent to any subsequent breach.
b) This agreement supersedes all prior agreements between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made in writing signed by a duly authorised representative of each of the parties.
c) The customer hereby acknowledges that it has not been induced to enter into this agreement by any prior representations whether oral or in writing, except as specifically contained, or referred to, in this agreement and the customer hereby waives any claim for breach of any such representations (other than fraudulent misrepresentations) which are not so specifically mentioned.
d) The headings to the clauses of this agreement are for ease of reference only and shall not affect the interpretation or construction of this agreement.
e) This agreement may be executed in counterpart form and signatures evidenced by facsimile transmission shall be treated as original.
f) If any provision of this agreement is invalid or unenforceable at law, then such provision shall be severed and the remainder of this agreement shall continue in full force and effect.
g) This agreement and any matters relating to it shall be interpreted under the laws of New York and the parties agree to the exclusive jurisdiction of the New York – US courts