- Definitions and Interpretation
1.1 In this Agreement the following terms shall have the following meanings:
Agreement: the agreement relating to the use of the CHECKmate mobile application software which agreement shall comprise the Purchase Order and these terms and conditions of supply;
App: the CHECKmate mobile application software;
Appstore: the appstore provider or operator from whose site the App is downloaded;
Authorised Device: the handheld device associated, by AutoFlow, to the Client or an employee of the Client;
AutoFlow: AutoFlow Limited, a company incorporated in England (company number 4061932) having its registered office at Sirius House, Alderley Road, Chelford, Cheshire, SK11 9AP;
Client: the person or party detailed in the Purchase Order;
Initial Fee: the initial charges detailed in the Purchase Order, which shall for the avoidance of doubt include the licence fees for use of the App;
Installation: downloading the App to your device;
Installation Date: the date on which the Client is provided with a username to access the App on the Authorised Device;
Intellectual Property Rights: the copyright, design rights, database rights, patents, trade secrets and know-how (whether or not registered) and applications for any of them and any rights of any such nature anywhere in the world;
Minimum Term: (subject always to early termination under condition 14 below) which shall commence on the Installation Date for twelve (12) months;
Payment Terms: the schedule of payments for the Monthly Fee set out in the Purchase Order;
Monthly Fee: the monthly charges detailed in the Purchase Order;
Purchase Order: the quotation attached to these terms and conditions of supply;
Special Conditions: any special terms and conditions detailed on the Purchase Order, which shall also form part of this Agreement;
1.2 If there is any conflict, inconsistency or ambiguity when interpreting this Agreement, the following order of precedence shall always apply to its interpretation:
(a) firstly, the Purchase Order;
(b) secondly, these terms and conditions.
2.1 Whilst this Agreement shall have binding effect on the signature of the Purchase Order by the Client, the licence referred to in condition 3 shall commence on the payment of the Initial Fee and continue for the Minimum Term.
2.2 Subject always to condition 2.3, following expiry of the Minimum Term, this Agreement shall automatically renew for further subsequent terms equal of two (2) calendar months (“Subsequent Term”), unless the Client has given AutoFlow at least seven (7) days’ notice in writing of their intention to terminate this Agreement prior to the expiry of the Minimum Term or Subsequent Term;
2.3 As a consequence of the licence protection systems built into the App, the Client acknowledges that the App may automatically deactivate if this Agreement is terminated.
3.1 Subject to the terms of this Agreement AutoFlow hereby grants to the Client a single, non-exclusive transferable licence to use the App for its own internal business purposes.
3.2 The Client may access the App from the number of Authorised Devices as set out in the Purchase Order.
3.3 Except for the purposes of interoperability (as defined in Section 50B of the Copyright, Designs and Patents Act 1988) the Client shall not disassemble, decompile or reverse engineer the App.
3.4 The rights provided under this condition 3 are granted to the Client only, and shall not be considered granted to any associated, subsidiary or holding company of the Client.
- LICENCE RESTRICTIONS
4.1 Except as expressly set out in this Agreement or as permitted by any local law, you agree:
(a) not to copy the App except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App;
(c) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be
prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that the information obtained by you during such activities:
i. is used only for the purpose of achieving inter-operability of the App with another software program;
ii. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
iii. is not used to create any software that is substantially similar to the App;
(e) to keep all copies of the App secure and to maintain accurate and up-to date records of the number and locations of all copies of the App;
(f) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
(g) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (Technology),
- FEES AND PAYMENT
5.1 In consideration of AutoFlow entering into this Agreement the Client shall pay the Initial Fee and thereafter the Monthly Fee in accordance with the Payment Terms.
5.2 On AutoFlow receiving a signed Purchase Order, AutoFlow shall issue the Client an invoice detailing:
(a) the Initial Fee; and
(b) a payment schedule for payment of the Monthly Fee.
In order to activate the App the Client must pay the Initial Fee in accordance
with the invoice.
5.3 All Monthly Fees due to AutoFlow under this Agreement must be paid
by standing order to the bank details provided in the Invoice.
5.4 All sums due to AutoFlow under this Agreement are exclusive of VAT, all reasonable travelling, accommodation and subsistence expenses which will be re-charged to the Client.
5.5 Time for payment of any of the charges contemplated by the purchase order is of the essence.
5.6 AutoFlow shall be entitled to suspend its performance of this agreement, if any of the charges remain outstanding at any time.
5.7 AutoFlow shall be entitled (but not obliged) to charge the Client interest on any overdue amount, payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. AutoFlow reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.1 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
7.1 The Client acknowledges that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure the facilities and functions of the App meet your requirements.
7.2 The following provisions set out the entire financial liability of AutoFlow (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of the terms and conditions of this Agreement;
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
7.3 Nothing in this Agreement excludes or limits the liability of AutoFlow:
(a) for death or personal injury caused by AutoFlow’s negligence;
(b) for any matter which it would be illegal for AutoFlow to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
7.4 Subject to conditions 7.2, 7.3 and 7.4
(a) AutoFlow shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with this Agreement; and
(b) AutoFlow total liability to the Client in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed a sum of money which is equal to the aggregate of the paid in the twelve (12) month period preceding the date of any claim.
7.5 AutoFlow shall have no liability to the Client unless it has first been afforded a reasonable opportunity to remedy any issues first.
- INTELLECTUAL PROPERTY RIGHTS
8.1 The Intellectual Property Rights in the App are and shall remain the property of AutoFlow and the Client acknowledges that it shall gain no title right or interest in the App by virtue of this Agreement other than the non-exclusive licences granted to it by AutoFlow.
8.2 On termination of this Agreement for any reason all copies of the App shall be deleted immediately.
9.1 Without prejudice to any other rights AutoFlow may have under this Agreement, at any time during this Agreement, AutoFlow shall have the right to terminate this Agreement on written notice to the Client, with immediate effect, if the Client:
(a) breaches any of these terms and conditions and such breach is not capable of remedy;
(b) breaches any of these terms and conditions and if such breach is remediable, fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do;
(c) (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
(d) (being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors; or
(e) suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its trade or business.
9.2 Termination of this agreement (however occasioned) shall not affect any accrued rights or liabilities of either party.
- ASSIGNMENT AND SUBCONTRACTING
10.1 AutoFlow shall be entitled to sub-contract the performance of any of its obligations under this Agreement, and to assign all or any of its rights and obligations under this Agreement.
10.2 This Agreement and the rights granted to the Client under this Agreement are personal to the Client, who may not without the written consent of AutoFlow, assign, mortgage, charge or dispose of all or any of its rights and obligations under this Agreement, or sub-contract or otherwise delegate the performance of any of its obligations under this Agreement.
- UNFORSEEABLE DELAYS
11.1 AutoFlow shall not be liable to the Client for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control (force majeure) including, without limitation, any of the following: acts of God, governmental acts, war, fire, flood, explosion or civil commotion and industrial action.
12.1 Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided in this Agreement as a Notification) be in writing and delivered in person, sent by email or registered mail (properly posted and fully prepaid in an envelope properly addressed) to the respective addresses of the parties as set out in the Purchase Order. Any such notice shall be deemed to have been given on the day of delivery or if sent by facsimile on the day of despatch.
13.1 The Client agrees that it shall not for a period of twelve (12) months after expiry, non-renewal or termination of this agreement approach AutoFlow’s employee’s whether as agent or employer or otherwise nor through an agency or intermediary with any offers of employment, contract. The Client agrees that it will not, whether directly or indirectly, recruit or try to recruit or engage in paid work any person employed by AutoFlow as an employee or consultant or in some other capacity if that person was at any time during the last six (6) months of this agreement employed by AutoFlow whether engaged in the services under this agreement or otherwise. AutoFlow holds the Client responsible for any losses it incurs due to any breach of this condition by the Client.
13.2 AutoFlow reserves the right to publicise this Agreement and to list the Client as a client in its marketing materials and the Client grants to AutoFlow a right and licence to use its trade marks for this purpose. For the avoidance of doubt, AutoFlow must gain the Client’s approval before issuing press releases and general releases relating to this Agreement.
13.3 Any delay, forbearance or indulgence by either party in exercising any right, power or remedy under this Agreement shall not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.
13.4 If at any time any provision of this Agreement is or becomes invalid or illegal in any respect such provision shall be deemed to be severed from this Agreement.
13.5 This Agreement sets out the entire agreement and understanding between the parties in connection with is subject matter. In particular, but without limitation, the Client warrants and represents that in entering into this Agreement it has not relied upon any statement of fact or opinion made by AutoFlow, its officers, servants or agents which has not been included expressly in this Agreement. The Client irrevocably and unconditionally waives any right it may have:
(a) to rescind this Agreement by virtue of any misrepresentation;
(b) to claim damages for any misrepresentation whether or not contained in this Agreement;
(c) to claim damages for breach of any warranty not contained in this Agreement
save in each case where such misrepresentation or warranty was made fraudulently.
13.6 This Agreement may not be amended, modified, varied or supplemented except in writing signed by or on behalf of AutoFlow and the Client.
13.7 This Agreement shall be construed in accordance with English law. The parties hereby submit to the exclusive jurisdiction of the English Courts.
STANDARD TERMS AND CONDITIONS OF USE OF CHECKmate MOBILE APPLICATION (version 07/16)