Terms and Conditions
These are the terms and conditions of CMSoftware in relation to the database systems they supply. These terms shall be deemed accepted by our customers upon their placing an order with us:
1: Definitions
1.1
"Agreement" means these Terms and Conditions together with the terms of any applicable developmental changes and additional features produced;
1.2
"Customer" means the organisation or person who purchases the database system or additional services from CMSoftware;
1.3
"Specification" means the confirmation of the database version required, choice of additional features, costing, and any additional bespoke features required; supplied to the Customer describing the services to be provided by CMSoftware in an e-mail or invoice;
1.4
"Additional Services" means any additional services, or features, requested by the Customer to be provided by CMSoftware;
1.5
"Change Request" means a documented request for a change to the database system, specific feature or a new request for a bespoke feature made by the Customer or by CMSoftware;
1.6
"Confidential Information" shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, and any other commercially sensitive information of either party regardless of its nature;
1.7
"Mis-use" means use of the Software in a way for which it was not intended to be used, or changes made to the design aspect of the database, which impacts on the functionality of the database;
1.8
"Price" means the fixed aggregate price for the supply of the database
1.9
"Software" means the database system and the coding of the software, being developed or customised by CMSoftware for the Customer, including any enhancements and modifications made;
1.10
"Standard Working Hours" means the hours of 9.00am to 5.30pm UK time Monday through to Friday excluding UK Bank Holidays.
1.11
"System" means collectively the Database Software and supporting documents;
2:General
2.1
These Terms and Conditions shall apply to all contracts for the supply of services by CMSoftware to the Customer.
2.2
Before the commencement of the services, CMSoftware shall submit to the Customer confirmation of purchase in the form of an e-mail or invoice, which shall specify the services to be performed and the fees payable. The Customer shall notify CMSoftware immediately if the Customer does not agree with the contents of the proposal for the database build to commence.
3: The Project
3.1
CMSoftware shall provide the Customer with the database and other features, as detailed in the specification, in accordance with the terms and conditions of this Agreement.
3.2
CMSoftware shall provide to the Customer the database, when requested by the Customer, subject to full payment having been received by CMSoftware.
3.3
Unless explicitly itemised in the Specification CMSoftware, shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training.
3.4
For the avoidance of doubt, CMSoftware shall not be responsible under any circumstances for backup and archiving of the Software or of any data used by the Software on computer equipment belonging to the Customer or the Customer’s appointed computer hosting supplier.
3.5
Whilst CMSoftware shall make every effort to supply the Software or services within the time required, any delivery quoted is an estimate only, so that time will not be of the essence, provided CMSoftware takes all reasonable steps to deliver the Software or Services at the time stated, but CMSoftware shall be under no liability whatsoever for failure to do so.
4: The Customer's Obligations
The Customer shall:
4.1
It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties, however well developed and supported, and acceptance of the database system, and payment for such, under this Agreement, shall not be unreasonably withheld due to minor faults in the Software. CMSoftware will work to correct any faults that occur in a timely manner.
4.2
The Customer may not redistribute, sell, decompile, reverse engineer, or disassemble the software. The software, including any modified or customized versions, cannot be resold, redistributed, or offered as a service to others outside of the person or company who purchased the Software. Additional copies are available at a discounted price for those who run multiple settings.
4.3
Should the Customer experience a problem with any purchased software, CMSoftware. offers support services to assist with any technical issues. The Customer acknowledges that there are no refunds on any software that has been installed, downloaded, or emailed to you.
4.4
CMSoftware reserves the right to suspend or cancel any unfulfilled contract where payment for any previous purchases of the software, services or additional features remain outstanding, after due date of payment or where in the reasonable opinion of CMSoftware the Customer is unlikely to be able to or willing to pay their debts as they fall due.
5: Change Control
5.1
Where a change to the Price is required, if your database requires modification or additional features added, the rates used as the basis for the additional cost shall be explained before any work is due to commence. The parties shall then decide whether or not to implement the change.
5.2
If CMSoftware in its sole discretion deems that more than one working hour is required to investigate and estimate a change to the system, initiated by the Customer, then CMSoftware reserves the right to produce a quotation for the investigation work for the Customer’s approval before commencing investigation work.
5.3.1
The Customer shall be entitled from time to request updates to the Software, whereby the features are outdated when revisions are made to legislation and guidelines that the Software was designed in accordance with.
5.3.2
When the new features and upgrades offer more functionality, CMSoftware is within their rights to request additional payment. The price of this will be agreed prior to the Customer having the upgrade applied to their Software.
5.3.3
CMSoftware shall not be obliged to provide Updates whereby the Customer has outstanding payments from previous work done.
5.3.4
If the version of the Software that the Customer is using, is very old, it is at the discretion of CMSoftware to apply additional charges to bring the Customers Software up to date with the current version.
5.3.5
In these instances, it is the responsibility of the Customer to ensure that the data and information is backed up prior to any work commencing.
6: Acceptance Tests
6.1
CMSoftware works through the system with test data, to ensure it has full functionality. The Customer shall accept the Software immediately after the Software has passed the Tests without delay.
6.2
It shall be the responsibility of the Customer to create suitable tests that accurately reflect the Specification and to provide suitable data for the tests. If during this time they come across errors or aspects that do not meet the specification, then the Customer is to contact CMSoftware with further details of the data or outcome that they want to produce.
7: Support
7.1.1
CMSoftware shall provide the Customer with reasonable help and support assistance regarding the installation and use of the Software, and the identification and diagnosis of faults. CMSoftware shall attempt to resolve any support questions posed by the Customer.
7.1.2
CMSoftware will work to correct any critical errors or assistance to overcome specific software problems. CMSoftware may, in its sole discretion, correct errors by providing an upgrade or by requesting to have the system returned in order to repair the software.
7.2
The Customer shall supply in writing to CMSoftware a detailed description of any fault requiring support and the circumstances in which it arose, and shall submit sufficient material and information as requested by CMSoftware including screenshots to enable CMSoftware’s support staff to duplicate the problem and shall allow CMSoftware sufficient access to the Customer’s systems to enable diagnosis of the fault.
7.3
Where possible, CMSoftware’s response to a fault report shall include an estimate of how long a problem may take to resolve. CMSoftware shall keep the Customer informed of the progress of problem resolution.
7.4
All support shall be provided by electronic or other communication methods. CMSoftware shall not provide on-site support under this Agreement.
7.5
CMSoftware shall be under no obligation to provide support in respect of:
7.5.1
Problems resulting from any modifications or customisation of the Software not authorised in writing by CMSoftware. For the avoidance of doubt, modifications to the software shall include but not be limited to changes to the logical or physical database of the software, changes to the configuration, and hand-modified changes to the data within the database;
7.5.2
Any software other than the CMSoftware database;
7.5.3
Incorrect or unauthorised use of the Software or Misuse of the Software or operator error;
7.5.4
Any fault in the Specified Equipment or any other computer or network hardware;
7.5.5
Any programs or software used in conjunction with the Software which have not been supplied by CMSoftware;
7.5.6
Use of the Software with computer hardware, operating systems or other supporting software other than the Specified Equipment; and
7.5.8
The Customer’s failure to install, and use, any new updated versions of the Software
7.6
Any time spent by CMSoftware investigating any fault pursuant to the circumstances described in clause 7.5 shall be chargeable at CMSoftware’s current rates. CMSoftware shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.
7.7
CMSoftware reserves the right to discontinue the Support and Maintenance for any prior version of the Software if a superseding version has been available to the Customer.
7.8
CMSoftware shall not be obliged to make modifications or provide Support in relation to the Customer's computer hardware, operating system software, third party software or any data feeds or external data.
7.9
CMSoftware reserves the right to refuse, suspend or terminate the provision of technical support at its own discretion.
7.10: The Customer shall:
7.10.1
Operate the Software, maintain data and the database in accordance with all instructions issued by CMSoftware;
7.10.2
Permit CMSoftware to update the current version of the Software from time to time when upgrades or fixes occur. In these instances the Customer must make every attempt to safeguard their data and other files when upgrading, or when installing an update. CMSoftware does not assume responsibility for loss of data or any other losses that result from installation, upgrading, or updating of the software.
7.10.3
Provide notice of intention to change aspects of the system or features. If any of these changes have a major effect on the Software then CMSoftware reserves the right to increase its charges.
7.11
Software purchased from CMSoftware may include limited free support (technical support, re-downloads, and free updates may be limited to 10 days from date of original qualifying purchase). Unless stated otherwise, the free support is only available through our website/email/social media. If you require more advanced technical support or require telephone assistance, additional consulting services or a support plan may be required. We reserve the right to change our support policy at any time. To contact CMSoftware for assistance, email us at ddsys@hotmail.co.uk.
8: Warranties and Refunds
8.1
CMSoftware warrants that the Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;
8.2
CMSoftware shall not be liable under clause 8.1if a failure to meet the warranties set out in it is caused by:
-Computer equipment or computer software, other than the Software delivered by CMSoftware; or
-Modifications or customisation made by or on behalf of the Customer to the Software, without the authorisation of CMSoftware; or
-Misuse use of the Software;
8.3 Restrictions to rights. You may not copy, distribute, extract components or make derivative works of the Software. When using the Software You are required to comply with the following restrictions:
(a) You may make one copy of the Software on a permanent storage medium as an archival back-up copy, provided your archival back-up copy is not installed or used on any computer. Any other copies that you make of the Software shall constitute breach of this Agreement.
(b) You may not use, modify, translate or reproduce the Software or transfer rights to use the Software or copies of the Software in any manner other than as provided for in this Agreement.
(c) You may not sell, sub-license, lease or rent or borrow the Software or use the Software for the provision of commercial services.
(d) You may not reverse engineer, reverse compile or disassemble the Software or otherwise attempt to discover the source code of the Software, except to the extent that this restriction is expressly prohibited by law.
(e) You agree that you will only use the Software in a manner that complies with all applicable laws in the jurisdiction in which you use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
8.4
There is no warranty by CMSoftware or by any other party that the functions contained in the software will meet your requirements or that the operation of the software will be uninterrupted or error-free. The Customer will assume all responsibility and risk for the selection of the software to achieve your intended results and for the installation, use and results obtained from it.
8.6
CMSoftware do not offer refunds on any purchase of a database system or additional and bespoke features. As the Software is a customised and bespoke system the Customer does not have any rights under the 7 day cooling off period, and cannot request a refund for full or part payment of the Software within 7 days of purchasing or receiving the database. CMSoftware offers a demo version of the Software as well as detailed video tutorials and many user guides in PDF format. CMSoftware recommend that the Customer take full advantage of this prior to making a purchase of the system to ensure the Software will meet your needs and expectations.
9: Limitation of liability.
9.1
To the maximum extent permitted by applicable law, in no event shall the provider, its employees or licensors be liable for any lost profits, revenue, sales, data or costs of services, property damage, interruption of business, loss of business information or for any special, direct, indirect, incidental, economic, cover, special or consequential damages, however caused and whether arising under contract, negligence or other theory of liability, arising out of the use of or inability to use the software, even if the provider or its licensors or affiliates are advised of the possibility of such damages.
10: Licence and Ownership
10.1
Except where otherwise agreed and on payment in full of the Price, CMSoftware assigns to the Customer ownership of the Software, and all of the information the Customer then stores on it.
11: Terms of Payment
11.1
CMSoftware will send an invoice when the Software is ready for the Customer. On payment of the invoice, in full, the database will then be sent to the Customer.
12: Confidentiality
12.1
Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its Customers, suppliers or customers, nor permit its use or disclosure.
12.2
The provisions of clause 12.1 shall not apply where Confidential Information is divulged to:
either party's own employees and then only to those employees who need to know the same; either party's auditors, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
12.3
Both parties undertake to ensure that persons and bodies referred to in clause 12.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
12.4
Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
12.5
Nothing in this clause 12 shall prevent CMSoftware from exploiting any inventions or software that it develops during the term of this Agreement.
13: Data Protection
13.1
The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
13.2
It is the sole responsibility of the Customer to ensure that the Software is not used in any way that infringes data protection legislation at the time being. For the avoidance of doubt, CMSoftware accepts no responsibility whatsoever for any such infringement or alleged infringement.
14: Interpretation
14.1
In this Agreement unless the context otherwise requires:
Words importing any gender include every gender;
Words importing the singular number include the plural number and vice versa;
Words importing persons include firms, companies and corporations and vice versa;
References to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
Reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
The headings to the clauses, schedules and paragraphs of this Agreement shall not affect the interpretation;
Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
Any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
Any party who agrees to do something shall be deemed to fulfil that obligation if that party procures that it is done.
14.2
In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement shall take precedence.
15: Entire Agreement
This Agreement supersedes all prior agreements, arrangements, representations, discussions, undertakings, communications or advertising relating to the Software and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
16: Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17: Language
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
18: Dispute Resolution
18.1
For the purpose of this clause 18, a dispute shall be deemed to have arisen when one Party serves on the other a notice in writing (not including e-mail) stating the nature of the dispute.
18.2
Any dispute which may arise between the parties concerning this Agreement shall be determined as follows.
18.3
Within seven days the representatives of the Parties shall meet to attempt to settle the dispute by mutual agreement.
18.4
If the representatives fail to reach a mutual agreement a director or partner of each of the Parties shall meet within the following seven days to attempt to settle the dispute by mutual agreement.`
18.5
In any other case if the dispute remains unresolved the dispute shall be determined by the High Court of Justice in England and the Parties submit to the exclusive jurisdiction of that Court for such purposes.
1: Definitions
1.1
"Agreement" means these Terms and Conditions together with the terms of any applicable developmental changes and additional features produced;
1.2
"Customer" means the organisation or person who purchases the database system or additional services from CMSoftware;
1.3
"Specification" means the confirmation of the database version required, choice of additional features, costing, and any additional bespoke features required; supplied to the Customer describing the services to be provided by CMSoftware in an e-mail or invoice;
1.4
"Additional Services" means any additional services, or features, requested by the Customer to be provided by CMSoftware;
1.5
"Change Request" means a documented request for a change to the database system, specific feature or a new request for a bespoke feature made by the Customer or by CMSoftware;
1.6
"Confidential Information" shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, and any other commercially sensitive information of either party regardless of its nature;
1.7
"Mis-use" means use of the Software in a way for which it was not intended to be used, or changes made to the design aspect of the database, which impacts on the functionality of the database;
1.8
"Price" means the fixed aggregate price for the supply of the database
1.9
"Software" means the database system and the coding of the software, being developed or customised by CMSoftware for the Customer, including any enhancements and modifications made;
1.10
"Standard Working Hours" means the hours of 9.00am to 5.30pm UK time Monday through to Friday excluding UK Bank Holidays.
1.11
"System" means collectively the Database Software and supporting documents;
2:General
2.1
These Terms and Conditions shall apply to all contracts for the supply of services by CMSoftware to the Customer.
2.2
Before the commencement of the services, CMSoftware shall submit to the Customer confirmation of purchase in the form of an e-mail or invoice, which shall specify the services to be performed and the fees payable. The Customer shall notify CMSoftware immediately if the Customer does not agree with the contents of the proposal for the database build to commence.
3: The Project
3.1
CMSoftware shall provide the Customer with the database and other features, as detailed in the specification, in accordance with the terms and conditions of this Agreement.
3.2
CMSoftware shall provide to the Customer the database, when requested by the Customer, subject to full payment having been received by CMSoftware.
3.3
Unless explicitly itemised in the Specification CMSoftware, shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training.
3.4
For the avoidance of doubt, CMSoftware shall not be responsible under any circumstances for backup and archiving of the Software or of any data used by the Software on computer equipment belonging to the Customer or the Customer’s appointed computer hosting supplier.
3.5
Whilst CMSoftware shall make every effort to supply the Software or services within the time required, any delivery quoted is an estimate only, so that time will not be of the essence, provided CMSoftware takes all reasonable steps to deliver the Software or Services at the time stated, but CMSoftware shall be under no liability whatsoever for failure to do so.
4: The Customer's Obligations
The Customer shall:
4.1
It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties, however well developed and supported, and acceptance of the database system, and payment for such, under this Agreement, shall not be unreasonably withheld due to minor faults in the Software. CMSoftware will work to correct any faults that occur in a timely manner.
4.2
The Customer may not redistribute, sell, decompile, reverse engineer, or disassemble the software. The software, including any modified or customized versions, cannot be resold, redistributed, or offered as a service to others outside of the person or company who purchased the Software. Additional copies are available at a discounted price for those who run multiple settings.
4.3
Should the Customer experience a problem with any purchased software, CMSoftware. offers support services to assist with any technical issues. The Customer acknowledges that there are no refunds on any software that has been installed, downloaded, or emailed to you.
4.4
CMSoftware reserves the right to suspend or cancel any unfulfilled contract where payment for any previous purchases of the software, services or additional features remain outstanding, after due date of payment or where in the reasonable opinion of CMSoftware the Customer is unlikely to be able to or willing to pay their debts as they fall due.
5: Change Control
5.1
Where a change to the Price is required, if your database requires modification or additional features added, the rates used as the basis for the additional cost shall be explained before any work is due to commence. The parties shall then decide whether or not to implement the change.
5.2
If CMSoftware in its sole discretion deems that more than one working hour is required to investigate and estimate a change to the system, initiated by the Customer, then CMSoftware reserves the right to produce a quotation for the investigation work for the Customer’s approval before commencing investigation work.
5.3.1
The Customer shall be entitled from time to request updates to the Software, whereby the features are outdated when revisions are made to legislation and guidelines that the Software was designed in accordance with.
5.3.2
When the new features and upgrades offer more functionality, CMSoftware is within their rights to request additional payment. The price of this will be agreed prior to the Customer having the upgrade applied to their Software.
5.3.3
CMSoftware shall not be obliged to provide Updates whereby the Customer has outstanding payments from previous work done.
5.3.4
If the version of the Software that the Customer is using, is very old, it is at the discretion of CMSoftware to apply additional charges to bring the Customers Software up to date with the current version.
5.3.5
In these instances, it is the responsibility of the Customer to ensure that the data and information is backed up prior to any work commencing.
6: Acceptance Tests
6.1
CMSoftware works through the system with test data, to ensure it has full functionality. The Customer shall accept the Software immediately after the Software has passed the Tests without delay.
6.2
It shall be the responsibility of the Customer to create suitable tests that accurately reflect the Specification and to provide suitable data for the tests. If during this time they come across errors or aspects that do not meet the specification, then the Customer is to contact CMSoftware with further details of the data or outcome that they want to produce.
7: Support
7.1.1
CMSoftware shall provide the Customer with reasonable help and support assistance regarding the installation and use of the Software, and the identification and diagnosis of faults. CMSoftware shall attempt to resolve any support questions posed by the Customer.
7.1.2
CMSoftware will work to correct any critical errors or assistance to overcome specific software problems. CMSoftware may, in its sole discretion, correct errors by providing an upgrade or by requesting to have the system returned in order to repair the software.
7.2
The Customer shall supply in writing to CMSoftware a detailed description of any fault requiring support and the circumstances in which it arose, and shall submit sufficient material and information as requested by CMSoftware including screenshots to enable CMSoftware’s support staff to duplicate the problem and shall allow CMSoftware sufficient access to the Customer’s systems to enable diagnosis of the fault.
7.3
Where possible, CMSoftware’s response to a fault report shall include an estimate of how long a problem may take to resolve. CMSoftware shall keep the Customer informed of the progress of problem resolution.
7.4
All support shall be provided by electronic or other communication methods. CMSoftware shall not provide on-site support under this Agreement.
7.5
CMSoftware shall be under no obligation to provide support in respect of:
7.5.1
Problems resulting from any modifications or customisation of the Software not authorised in writing by CMSoftware. For the avoidance of doubt, modifications to the software shall include but not be limited to changes to the logical or physical database of the software, changes to the configuration, and hand-modified changes to the data within the database;
7.5.2
Any software other than the CMSoftware database;
7.5.3
Incorrect or unauthorised use of the Software or Misuse of the Software or operator error;
7.5.4
Any fault in the Specified Equipment or any other computer or network hardware;
7.5.5
Any programs or software used in conjunction with the Software which have not been supplied by CMSoftware;
7.5.6
Use of the Software with computer hardware, operating systems or other supporting software other than the Specified Equipment; and
7.5.8
The Customer’s failure to install, and use, any new updated versions of the Software
7.6
Any time spent by CMSoftware investigating any fault pursuant to the circumstances described in clause 7.5 shall be chargeable at CMSoftware’s current rates. CMSoftware shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.
7.7
CMSoftware reserves the right to discontinue the Support and Maintenance for any prior version of the Software if a superseding version has been available to the Customer.
7.8
CMSoftware shall not be obliged to make modifications or provide Support in relation to the Customer's computer hardware, operating system software, third party software or any data feeds or external data.
7.9
CMSoftware reserves the right to refuse, suspend or terminate the provision of technical support at its own discretion.
7.10: The Customer shall:
7.10.1
Operate the Software, maintain data and the database in accordance with all instructions issued by CMSoftware;
7.10.2
Permit CMSoftware to update the current version of the Software from time to time when upgrades or fixes occur. In these instances the Customer must make every attempt to safeguard their data and other files when upgrading, or when installing an update. CMSoftware does not assume responsibility for loss of data or any other losses that result from installation, upgrading, or updating of the software.
7.10.3
Provide notice of intention to change aspects of the system or features. If any of these changes have a major effect on the Software then CMSoftware reserves the right to increase its charges.
7.11
Software purchased from CMSoftware may include limited free support (technical support, re-downloads, and free updates may be limited to 10 days from date of original qualifying purchase). Unless stated otherwise, the free support is only available through our website/email/social media. If you require more advanced technical support or require telephone assistance, additional consulting services or a support plan may be required. We reserve the right to change our support policy at any time. To contact CMSoftware for assistance, email us at ddsys@hotmail.co.uk.
8: Warranties and Refunds
8.1
CMSoftware warrants that the Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;
8.2
CMSoftware shall not be liable under clause 8.1if a failure to meet the warranties set out in it is caused by:
-Computer equipment or computer software, other than the Software delivered by CMSoftware; or
-Modifications or customisation made by or on behalf of the Customer to the Software, without the authorisation of CMSoftware; or
-Misuse use of the Software;
8.3 Restrictions to rights. You may not copy, distribute, extract components or make derivative works of the Software. When using the Software You are required to comply with the following restrictions:
(a) You may make one copy of the Software on a permanent storage medium as an archival back-up copy, provided your archival back-up copy is not installed or used on any computer. Any other copies that you make of the Software shall constitute breach of this Agreement.
(b) You may not use, modify, translate or reproduce the Software or transfer rights to use the Software or copies of the Software in any manner other than as provided for in this Agreement.
(c) You may not sell, sub-license, lease or rent or borrow the Software or use the Software for the provision of commercial services.
(d) You may not reverse engineer, reverse compile or disassemble the Software or otherwise attempt to discover the source code of the Software, except to the extent that this restriction is expressly prohibited by law.
(e) You agree that you will only use the Software in a manner that complies with all applicable laws in the jurisdiction in which you use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
8.4
There is no warranty by CMSoftware or by any other party that the functions contained in the software will meet your requirements or that the operation of the software will be uninterrupted or error-free. The Customer will assume all responsibility and risk for the selection of the software to achieve your intended results and for the installation, use and results obtained from it.
8.6
CMSoftware do not offer refunds on any purchase of a database system or additional and bespoke features. As the Software is a customised and bespoke system the Customer does not have any rights under the 7 day cooling off period, and cannot request a refund for full or part payment of the Software within 7 days of purchasing or receiving the database. CMSoftware offers a demo version of the Software as well as detailed video tutorials and many user guides in PDF format. CMSoftware recommend that the Customer take full advantage of this prior to making a purchase of the system to ensure the Software will meet your needs and expectations.
9: Limitation of liability.
9.1
To the maximum extent permitted by applicable law, in no event shall the provider, its employees or licensors be liable for any lost profits, revenue, sales, data or costs of services, property damage, interruption of business, loss of business information or for any special, direct, indirect, incidental, economic, cover, special or consequential damages, however caused and whether arising under contract, negligence or other theory of liability, arising out of the use of or inability to use the software, even if the provider or its licensors or affiliates are advised of the possibility of such damages.
10: Licence and Ownership
10.1
Except where otherwise agreed and on payment in full of the Price, CMSoftware assigns to the Customer ownership of the Software, and all of the information the Customer then stores on it.
11: Terms of Payment
11.1
CMSoftware will send an invoice when the Software is ready for the Customer. On payment of the invoice, in full, the database will then be sent to the Customer.
12: Confidentiality
12.1
Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its Customers, suppliers or customers, nor permit its use or disclosure.
12.2
The provisions of clause 12.1 shall not apply where Confidential Information is divulged to:
either party's own employees and then only to those employees who need to know the same; either party's auditors, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
12.3
Both parties undertake to ensure that persons and bodies referred to in clause 12.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
12.4
Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
12.5
Nothing in this clause 12 shall prevent CMSoftware from exploiting any inventions or software that it develops during the term of this Agreement.
13: Data Protection
13.1
The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
13.2
It is the sole responsibility of the Customer to ensure that the Software is not used in any way that infringes data protection legislation at the time being. For the avoidance of doubt, CMSoftware accepts no responsibility whatsoever for any such infringement or alleged infringement.
14: Interpretation
14.1
In this Agreement unless the context otherwise requires:
Words importing any gender include every gender;
Words importing the singular number include the plural number and vice versa;
Words importing persons include firms, companies and corporations and vice versa;
References to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
Reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
The headings to the clauses, schedules and paragraphs of this Agreement shall not affect the interpretation;
Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
Any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
Any party who agrees to do something shall be deemed to fulfil that obligation if that party procures that it is done.
14.2
In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement shall take precedence.
15: Entire Agreement
This Agreement supersedes all prior agreements, arrangements, representations, discussions, undertakings, communications or advertising relating to the Software and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
16: Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17: Language
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
18: Dispute Resolution
18.1
For the purpose of this clause 18, a dispute shall be deemed to have arisen when one Party serves on the other a notice in writing (not including e-mail) stating the nature of the dispute.
18.2
Any dispute which may arise between the parties concerning this Agreement shall be determined as follows.
18.3
Within seven days the representatives of the Parties shall meet to attempt to settle the dispute by mutual agreement.
18.4
If the representatives fail to reach a mutual agreement a director or partner of each of the Parties shall meet within the following seven days to attempt to settle the dispute by mutual agreement.`
18.5
In any other case if the dispute remains unresolved the dispute shall be determined by the High Court of Justice in England and the Parties submit to the exclusive jurisdiction of that Court for such purposes.
