Terms & Conditions
1. Applicability and Definitions
The following terms and conditions together with any additional specific terms and conditions shall, unless agreed in writing by a director of Eclipse Software Limited (“ESL”), apply to and govern all orders for the supply of products and services or the licensing of software by ESL. In these terms the definitions below have the following meanings:
1.1 “Agreement” means the Order Form, the Agreement made subject to these Conditions.Â
1.2 “Chargeable Day” means one person working on a calendar day for up to seven and a half hours (7.5 hours)Â
1.3 “Conditions” means these terms and conditionsÂ
1.4 “ESL” means Eclipse Software Ltd, 10th Floor, 111 Piccadilly, Ducie Street, Manchester, England. M1 2HY.Â
1.5 The “Company’s Network” means the network owned and operated by the Company for the purpose of connecting the Customer to the internet by means of fixed or dial-up connections.Â
1.6 “Customer” means any person or organisation with whom the Company enters into an Agreement in accordance with these terms and conditions.Â
1.7 “Internet” means the global data network comprising interconnected networks to which the Company is connected and provides access to its CustomersÂ
1.8 “Internet Protocol Address” means such sequence of alpha numeric or numeric only characters as are used from time to time by the Customer to identify himself and or is computer or computers to other users to which the Company is from time to time connecting or otherwise forwarding data to and from the CustomerÂ
1.9 “Order Form” means the Company’s standard Order Form relating to the Services for the Customer.Â
1.10 “Products” refers to ESL and third party products and services available for sale or software licensed to the Customer by ESL.Â
1.11 “Services” means any of the services described in the current ESL literature together with such Value Added Services to be provided by ESL to the Customer and confirmed in writing prior to the purchase of the Service.Â
1.12 “Service Commencement Date” means the date identified as the delivery date on the Company invoice to the Customer.Â
1.13 “Specification” means a detailed written specification of the Services to be provided to the Customer under the Agreement.Â
1.20 “Value Added Service” means the provision of a service other than Services, which are agreed in writing between the Customer and the Company.
2. Orders and Quotations
2.1 All orders are subject to acceptance by ESL of a confirmed purchase order. ESL reserves the right to refuse to accept orders.
2.2 Any quotation made by ESL is subject to ESL obtaining satisfactory credit and payment references in respect of the Customer. A quotation shall unless otherwise stated therein remain open for 30 days only, after which time it shall lapse and cease to be binding on ESL. Every quotation is subject to:
2.2.1 revision by ESL for errors and omissions;
2.2.2 increase in price in accordance with condition 2.3 below and;
2.2.3 the provision of products of a similar equivalent nature as may be agreed with the Customer.
2.3 Prices are based on current costs and charges for the products at the date of quotation or at such earlier date as may be specified by ESL. Prices may be increased by ESL to take into account any change in such costs or charges for the products. Confirmed purchase orders shall be invoiced at the price in effect at the time of ESL’s acceptance of the order. Unless otherwise agreed prices exclude delivery charges, any taxes, Value Added Tax, duty or levy.
2.4 ESL reserves the right to take a deposit from the Customer upon acceptance of order, the details of which shall be set out in the quotation.
3. Delivery and Acceptance
3.1 Any delivery date given by ESL for delivery is given as an estimate only and ESL shall in no event be liable for delays in delivery. Time for delivery shall not be the essence of any order between ESL and the Customer. ESL will use all reasonable endeavours to meet the estimated delivery date.
3.2 ESL shall, in the absence of agreement to the contrary, be entitled to use any methods or means of delivery it may select and may dispatch the products in such quantities or partial or complete shipments as it may think fit. No claim in respect of any loss or damage to products in transit will be accepted by ESL.
3.3 ESL will not accept any responsibility whatsoever in respect of installation work or damages resulting there from which is carried out otherwise than under the direct supervision of ESL or its authorised agent.
3.4 Any equipment owned by the Customer and made available for use by ESL or its authorised agent to facilitate the installation of the products shall be made available free of charge. In particular, the Customer shall be entirely responsible for ensuring that it has the minimum hardware specifications required for the products as notified by ESL.
3.5 ESL may charge the Customer on a time and materials basis, for any additional installation work arising from either the Customer’s failure to comply with its obligation under these terms and conditions or any change in the Customer’s requirements.
3.6. Where the ESL is requested to install the software, acceptance of the Software will take place upon the date of successful completion of the tests to verify the Software correctly processes test data and achieves the expected results in accordance with test criteria as prepared by the ESL. On successful completion of the tests the installation test report will be duly signed by the Customer to confirm acceptance.
3.7 Where the ESL has not been requested to install the software, acceptance of the Software will be deemed to take place on delivery of the Software and the Documentation to the Location.
3.8. If the Customer uses the Software before acceptance under this clause, except for testing purposes, the Software will be deemed to have been accepted on the date of first use.
3.9. The Customer will not be entitled to raise any objection to the acceptance of the Software by reason only of it failing correctly to process data or to perform functions not contemplated by the Documentation or specification
4. Services
4.1 ESL and the Customer shall produce and agree the Specification of Services
4.2 ESL and the Customer each agree to dedicate the necessary resources and use all reasonable commercial efforts to meet their respective deadlines set forth in the Specification. Any delay or adjustment in the Specification caused by the Customer’s delay shall be the responsibility of the Customer and the Customer will pay ESL for all costs incurred for wasted time, or for rescheduling of booked resources at ESL’s standard daily rates plus expenses
4.3 Performance Dates. The number of Chargeable Days estimated to be required to complete the Services as detailed in the Order Form shall be reviewed following: finalisation of the Specification and is based upon the following assumptions
4.31 The scope of the tasks performed by ESL will not exceed those stated in the Specification
4.32 The Customer will perform and complete its assigned tasks required by the Specification in a timely manner.
4.33 The Customer will not suspend or delay the project in any manner
4.34 Services are performed during normal working hours, i,e Monday to Friday 9.00 am to 5.30 pm except as otherwise agreed between the parties.
4.35 The Specification cannot be amended once it has been agreed
4.4 Change Control.
4.4.1 ESL may at any time in writing recommend and the Customer may in writing request changes to any of the assumptions set out in clause 4.3, to any part of the Specification or other provisions of this Agreement
4.4.2 ESL will notify the Customer in writing within 5 working days of receipt of this written request for changes hereafter known as “change request” or the making of the change recommendation of the time needed to investigate the implications for the Agreement, of implementing the proposed change, together with the costs, if any, to be charged by ESL to the Customer for undertaking such an investigation
4.4.3 Following the investigation (if any) ESL will give a written response (hereafter known as “Change Response”) showing the effect of the proposed change including: (a) A revised estimate of the number of Chargeable Days estimated to complete the Services (b) A revised project timeline (c) Any additional expenses that will be incurred (d) Any effect on other contractual matters should the proposed change be implemented ESL shall use all reasonable endeavours to ensure that the Change Response is given within 10 working days (or such longer period as may be agreed) of receipt by ESL of a written instruction to investigation the implications of the proposed change.
4.4.4 Should the Customer wish to proceed with the proposed change, it will instruct ESL in writing of its wish as soon as reasonably practicable after receipt of the Change Response, but not later than 10 working days of receipt of the Change Response (or for a longer period as may be agreed). Those parts of the Agreement affected by the change will then be deemed as modified in accordance with the Change Response
4.4.5 Until any change is formally agreed between ESL and the Customer, each party shall continue to perform its obligations under the Agreement as if the change had not been proposed, unless otherwise agreed by ESL and Customer in writing.
4.5 Key Personnel/Subcontractors. All Personnel and Subcontractors provided by ESL to perform Services pursuant to the Agreement, shall have the appropriate technical and application skills to enable them to adequately perform their duties. All Services shall be performed in a competent and work-like manner. ESL will use all reasonable efforts to assure continuity in staffing of its Key Personnel.
5. Fees and Payment
5.1 All amounts owing by the Customer to ESL shall unless otherwise requested by ESL be paid within 7 days of the earlier of the date of ESL’s relevant invoice or other claim for payment. In the event of the Customer failing to make full payment within such period, ESL shall, without prejudice to any other right or remedy available to it, be entitled to suspend or cancel further deliveries to the Customer, to suspend performance of any other service, suspend or cancel any existing licence agreement, to suspend or cancel any order then subsisting between ESL and the Customer and to withdraw any discounts or free product offers associated with the order and alter the invoice amount accordingly to the full price as though the discount had not been offered.
5.2 ESL shall be entitled to charge interest on any invoiced amount which is not paid by the Customer on the due date for payment at the rate of 8% in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.3 Products shall remain the property of ESL until the Customer has paid all amounts owed by the Customer to ESL. In the event of non-payment by the Customer, ESL may at any time after payment has become due, enter the Customer’s premises and take possession of the products. This right shall continue until payment in full has been received by ESL.
5.4 In the event that the Customer is paying in a currency other than UK Sterling, ESL reserves the right to charge a £50 administration fee to cover any currency fluctuations or bank charges.
5.5 The Customer will notify ESL in writing within 5 working days of receipt of an invoice if the Customer believes that invoice to be incorrect for any reason and the reasons for withholding payment, failing which the Customer will raise no objections to any such invoice and will make full payment in accordance with it.
5.6 Charges for Support and Hosting Services, as detailed in the Order Form, shall be paid by the Customer to ESL in advance annually unless otherwise agreed in writing between ESL & Customer on the Order Form.
5.7 ESL reserves the right to vary all charges to the Customer with one month’s notice. Any variation shall take effect on the contract renewal date or the anniversary of the contract commencement date.
5.8 For Customers of hosting services itemised detail of excess usage of bandwidth and any other relevant charges may be made available to the Customer if ordered in advance and ESL reserves the right to make and additional charge for these details
5.9 All charges and tariffs are quoted exclusive of Value Added Tax
6. Cancellation
The Customer shall have 7 days in which to cancel any order from the date of ESL’s returned signed order or other claim for payment. In the event of any cancellation by the Customer of all or any order after the 7 day period has expired but before delivery, the Customer shall, if so required by ESL, pay to ESL a cancellation charge equal to 50% of the order value and/or ESL shall have the right to forfeit any deposit taken by the Customer.
7. Software Licence
7.1 A licence is granted only at the time of acceptance of an order for a licence or an order for products which includes a licence. A licence grants the right only to use the version of the software current at the time of the grant. If the Customer wishes to use a new version of the software it must order the appropriate new version licence which is valid only if the Customer has the appropriate initial licence for the software. No licence is granted by the delivery of the software. The licence is granted on the provision that a support contract is maintained by the Customer for the duration of use. The software contains proprietary technology of ESL and/or third parties. No ownership in or title to software is transferred to the Customer. Software is protected by copyright laws and international treaties and except as permitted under a licence, the Customer shall not use, copy or modify the software in any way.
7.2 The Customer may use the software to the use rights and limitations of the type of licence granted. Use rights and limitation are confined to one or several users. The Customer’s right to use the software is a personal, non-exclusive right only to execute and load, copy or transmit to the extent necessary for such execution. ESL does not warrant any software documentation or third party products. The Customer may copy the software necessary for permitted use and make back-up or archival copies of software and use software on a back-up processor or server to which the applicable licence is designated. Any full or partial copy of the software and any accompanying documentation must include all copyright and other proprietary notices which appear on or are in the software.
7.3 Purchase of new and additional licences or Eclipse Software Services requires the Customer to accept the Terms and Conditions current at the time of purchase and receipt of an ESL Signed Order. These Terms are applicable to all licences active at the time of order and replace any previous versions of Terms agreed to by the Customer.
8. Usage of Hosted Services
8.1 Customers using Website Hosting or Eclipse Cloud Application Hosting Services hereby agree to
8.1.1 accept and abide by the Eclipse Software Acceptable Usage Policy as published on the Eclipse Software Website
8.1.2 Refrain from transferring any illegal material to or from other users of the Service and the other privately owned and operated services to which ESL may provide access
8.1.3 Refrain from sending menacing, offensive, abusive or annoying messages whilst using the service via ESL or any other internet service provider
8.1.4 not divulge their password to any third party, and use all reasonable endeavours to keep the same confidential and inaccessible to third parties.
8.1.5 Keep ESL informed of any change to the Customer’s address and other such information as may affect the payment of charges due
8.1.6 Immediately cease to use any Internet Protocol Addresses allocated by ESL upon termination of the Agreement. Customers must also acknowledge that ESL may re-allocate the Internet Protocol Address to a third party upon termination of the Agreement
8.1.7 Refrain from announcing by any means any and all Internet addresses allocated to or by the Customer as part of an autonomous system. Customers hosting with ESL who submit their site to autonomous systems agree to pay or be responsible for any direct costs that are incurred by ESL as a result
8.1.8 Refrain from using or permitting the usage of the Service in an unlawful manner or in contradiction of regulations governing the internet.
9. Export
The products including software may be subject to Government export control regulations. If the Customer stipulates that the products are to be exported, ESL will comply with those export control regulations whenever it exports or exports controlled products or technical data obtained from a supplier or any product produced directly from the controlled technical data.
10. Intellectual Property and Software Restrictions
10.1 Activation keys may be installed and enabled for use in only one licensed control utility at any one time for standard licensing or one Terminal Services user profile. The Customer may not modify or make inoperable activation keys or licensed control utilities.
10.2 The Customer may not disclose or make available software to any other party or permit others to use it except for the Customers employees and agents who may use it on the Customer’s behalf within the limits of the applicable licence and who have agreed to such terms. The Customer may not transfer, license, sub-license or assign a licence to another party except with ESL’s prior written consent.
10.3 Except to the extent that ESL cannot prohibit such acts by law, the Customer may not reverse compile, reverse assemble or otherwise reverse engineer the software. The software may not be copied for the purpose of error correction. Unless otherwise specified, the Customer may print electronic software documentation accompanying software as reasonably necessary to exercise the right to use the software.
10.4 The Customer will maintain adequate records uniquely identifying the software, its use and corresponding licence(s) and will make available such records to ESL or the third party developer or owner of the software, promptly on request. The Customer will permit ESL to have access to their systems and will permit ESL to use software tools on such systems.
10.5 The Customer agrees that the copyright owner of any third party software has the right to enforce any licence terms (or terms of the third party) directly as agent of ESL against the Customer. The software is supplied subject to any third party software licence terms and conditions. A copy of the requisite software licence will be available on request from ESL. Where licence terms are packaged with software media or associated hardware, the enduser or the Customer will be licensed to use such software whether provided by ESL or by a third party under the packaged licence terms often referred to as a “shrink-wrapped licence”
10.6 Software, all related documentation and updates thereto, specially developed for the Customer and provided to the Customer will remain the property of the developer. ESL grants to the Customer a non-exclusive, non-transferable, royalty free right to use the software or related documentation solely for the designated number of users. The right to use is effective from the date of acceptance of the software and shall remain in force (unless terminated in accordance with this condition) until the Customer discontinues its use. Where any software designed specifically for the Customer’s use consists of or includes part(s) of any ESL or third party software products, then a supply and use of such parts will be governed by this condition. All copies or part copies of software or related documentation must contain the proper inclusions of the software owner’s copyright notice and any other supplier notices on the same.
10.7 ESL may terminate any licence granted hereunder if the Customer breaches its obligations under these terms and conditions or fails to pay any sums to ESL when due. Upon termination of the licence, the Customer will destroy all copies of the software.
11. Support
11.1 Each copy of the Licensed Software shall be supported at all times by a Support Agreement. Each Support Agreement shall be renewable annually by payment of the relevant Support Charge referred to in Clause 11.8 below.
11.2 Subject to the receipt of the relevant Support Charges ESL will provide and the Customer will accept the Support Service for each copy of the licensed Software held by the Customer during the Support Period.
11.3 ESL’s obligation to provide the Support Service is dependent on the continued existence of the Licence to use the Software, and if the Licence is terminated for any reason ESL’s obligation to provide the Support Service will cease automatically on the occurrence of such event.
11.4 Any corrected or modified versions of the Software or Documentation or new Releases of the Software supplied to the Customer pursuant to the Support Service will be deemed to form part of the Licensed Materials and to be subject to this Agreement.
11.5 The Support Commencement Date’ is the date of acceptance of installation of the software.
11.6 The Support Charge is payable annually or by monthly installments in advance dependent on agreement, within 7 days of the date of the invoice.
11.7 Support charged on a monthly basis is for a minimum term of 12 months and will be deemed payable in full if the payment terms are breached.
11.8 The Support Charge is as per that detailed in the pricing schedule in operation at the time of the renewal of the contract. The Support Charge purchases a number of supported licences deemed as ‘Active Licences’. Unsupported licenses will remain ‘on-hold’ until activated by the commencement of a support contract for that licence. Support Charges for additional or newly activated licenses will incur expense in line with the pricing schedule in operation at the time of addition and will be invoiced accordingly.
11.9 Helpdesk Support is for Silver and Gold level users only and is provided to nominated users who co-ordinate problem reporting for non-nominated users on a reasonable use basis. Bronze level users may pay on a per incident basis if necessary and will be charged at it the standard charges at the time.
11.10 The Support Services will comprise ESL’s reasonable efforts to correct any errors in the Software notified to it by the Customer which prevent the Software functioning in accordance with the user guide included in the Documentation. ESL cannot guarantee that corrections will be provided within any specific timescales.
11.11 Support Services shall comprise the following:
11.11.1 Operating a telephone Helpdesk during the normal working hours of ESL’s support office in the UK. The Customer shall be provided with details of the support office for the notification of any problems arising from the software and supplying corrections for any errors made know to ESL. If required by ESL, Customer shall supply written notification and appropriate examples of any errors found.
11.11.2 Providing assistance on a reasonable effort basis in the event of difficulty to the extent of mail, telephone or modem contact only ESL reserves the right to attend the Customer’s site but such is entirely at ESL’s discretion.
11.11.3 The Silver and Gold Level Support Service includes telephone advice on day to day enquiries in respect of understanding and operating the Software to the extent that these are not covered in the Documentation. Support will only be given in this way where it can be provided by means of a telephone call of reasonable duration. ESL will be entitled to charge separately for repeat queries if deemed excessive.
11.11.4 Assisting the Customer to install suitable remote access tools, so that ESL will utilise this facility to gain dial-in access to the Customer’s systems to collect error logs, run diagnostic tools, configure systems, and transfer code as appropriate.
11.11.5 ESL may at its absolute discretion supply new releases of the Software incorporating modifications and extensions as far as they are necessary or include corrections to errors in the Software made known to ESL. The Customer shall where directed by ESL be responsible for the installation of the said correction or update Software. ESL shall not be responsible for supporting the Customer where the Customer has not installed the Software in accordance with the instruction given.
11.11.6 ESL will notify the Customer of any new updates or fixes of the software as and when generally available with the exception of third party products incorporated into the new Release (for which ESL will be entitled to charge separately) any new updates of fixes will be supplied free of charge save for the costs of delivery and/or installation at ESL’s then prevailing standard charge.
11.12 No Support Service of any description will be provided in respect of any error or problem:
11.12.1 resulting from any modifications to the Software by any person other than ESL;
11.12.2 resulting from incorrect use of the Software or operator error;
11.12.3 in or attributable to the Equipment or other equipment and programs used in conjunction with the Software or to any other reason external to the Software;
11.12.4 in any previous Release of the Software being operated by the Customer for longer than six months following the offer of the latest Release.
11.13 To the extent that ESL provides the Support Service or any other service when it is not obliged to do so by this Agreement, it may charge for all costs and expenses incurred in so doing at its then standard charges prevailing for the time being in force.
12. Warranty
12.1 In these terms and conditions “data conversion” means the conversion of computer data into machine readable format that is compatible with ESL’s proprietary software. All activities in connection with data conversion programmes provided by ESL shall be undertaken at ESL’s premises or at such other premises that ESL may designate.
12.2 The Customer shall provide ESL with all information required by ESL to enable ESL to satisfactorily carry out the development of data conversion programmes.
12.3 The Customer shall provide ESL with a copy of the data to be converted in a format and on a media specified by ESL. ESL shall also convert the copy of the data and provide the results to the Customer for approval before conversion of the master data.
12.4 Upon approval by the Customer of the results of the conversion of the copy of the data the risk in the conversion of the master shall pass to the Customer. Any loss of data arising out of such conversion shall not be the responsibility of ESL.
12.5 Charges for producing the data conversion programmes shall be stated on the ESL Order Form. ESL will make additional charges for any additional costs and time incurred by ESL collecting a copy of the data and monitoring the conversion of the master data.
12.6 Back-up of data shall at all times remain the responsibility of the Customer and the Customer should retain copies of all original data.
13. Data Conversion
13.1 ESL gives no warranty in relation to the Eclipse Software but ESL shall guarantee for a 30 day period following installation any bespoke products or services provided through web integration.
13.2 Save as expressly provided elsewhere in these terms and conditions, ESL warrants that the products will be free from defects in materials and workmanship. ESL warrants that software provided by ESL (third party software being excluded) designated as warranted in any quotation will substantially perform to the applicable software descriptions for the warranty period specified in the quotation. All software not expressly designated as warranted is provided “as is”. That is to say without warranty or conditions (whether express or implied) as to correspondence to description, fitness for purpose or quality. The warranty will commence upon delivery or upon completion of installation, if performed by ESL. No warranty claim by the Customer will be accepted by ESL unless the same is made within the warranty period contained in the quotation to which the claim relates. The time within which any claim must be made is hereinafter called “the warranty period”.
13.3 If within the warranty period the Customer discovers a defect in the products the Customer’s exclusive remedy under the ESL warranty is to ship the products back to ESL where ESL will at its option either repair or replace the same. This remedy is available only if ESL receives the returned products on or before the tenth day after the expiration of the warranty period as specified in ESL’s quotation and the Customer notifies ESL of the defect before returning the product and within the warranty period. The Customer must prepay all transportation, packing and transit insurance costs of sending the products to ESL. ESL will refund these costs to the Customer.
13.4 The above warranties do not apply to external causes including service or modifications not performed by ESL or operation outside the environmental parameters specified for the product. ESL does not warrant that the operation of any software will be specified for the product. ESL does not warrant that the operation of any software will be uninterrupted, bug, virus or error free.
14. Indemnity and Limitation of Liability
14.1 ESL will indemnify the Customer where liability is proven for personal injury or death caused by defects in any of its products or by the negligence of ESL employees in connection with the performance of their duties hereunder.
14.2 ESL will indemnify the Customer for direct damage to tangible property caused by defects in any of the ESL supplied products or by the negligence of ESL employees in connection with the performance of their duties. ESL’s total liability under these terms and conditions of business shall be limited to £250,000 (two hundred & fifty thousand pounds sterling) for any one event or series of connected events. ESL’s maximum liability to the Customer for any cause whatsoever will be for direct damage only and will be limited to the purchase price paid to ESL for the product or the annual charge for the service which is the subject of the Customer’s claim.
14.3 Save in respect of claims for death or personal injury arising from ESL’s negligence, in no event will ESL be liable for any damages resulting from loss of data or for loss of profits or for loss of anticipated savings or for any incidental or consequential damages whatsoever.
14.4 The limitations will apply regardless of the form of action whether under statute, in contract or tort including negligence or any other form of action. For the purpose of this condition ESL includes its employees, sub-contractors and suppliers.
14.5 ESL is not responsible for delay or failure to deliver due to causes beyond its reasonable control, including but not limited to fire, flood, Act of God or insolvency of sub-contractors or suppliers or inability to obtain products, licences or services from third party suppliers.
14.6 Neither party will be liable for any delay in performing or failure to perform its obligations (other than a payment obligation) under this agreement due to any cause outside its reasonable control. Such delay or failure will not constitute a breach of these terms and conditions and the time for the performance of the affected obligation will be extended by such period as is reasonable.
15. Suspension of ServiceÂ
15.1 Any Hosting Services provided or access to Eclipse active licences may be suspended during peak times by ESL 7 days after a notification of suspension has been issued and without prejudice to the Company’s rights of termination under clause 16 in the event of:
15.1.1 failure by the Customer to make any payment to be made to ESL on it’s due date for payment
15.1.2 the Customer doing or allowing anything to be done which jeopardises the Services of any network to which it is connected
15.1.3 the Customer exceeding its credit limit without prior approval of ESL or if the Customer is otherwise in breach of these Conditions.
15.2 No such suspension shall affect the liability of the Customer to pay charges and other amounts to the Company. During suspension ESL reserves the right to refuse to release any data held or the Customer’s Internet Protocol Address as issued by ESL.
16. Term and Termination
16.1 Hosting, Rental and Support contracts shall remain in force for a minimum period of 12 months from acceptance of Customer’s application being the date on which ESL’s Order Form was signed by the Customer unless otherwise agreed with the company and stated on ESL’s Order Form signed by the Customer.
16.2 Unless terminated by the Customer as per 16.3.1 or a new replacement order signed, Hosting, Rental or Support contracts shall automatically renew on the contract renewal date or the anniversary of the contract commencement date.
16.3 Termination can be effected as follows:
16.3.1 by the Customer: The Customer may terminate the Agreement by giving 3 months’ written notice, which may expire at any time after 12 months from the date of commencement of service or on any anniversary date of the initial date of commencement based on the most recent ESL Order Form for the service signed by the Customer. Email notification will not be accepted as notice of termination of Agreement. Payment for services made annually and in advance will not be refunded in the event of Termination by the Customer.
16.3.2 by ESL: If the Customer fails duly to pay any amounts to ESL or to fulfill any of its obligations to ESL or if any distress or execution shall be invited upon the Customer’s property or assets, or the Customer shall make any arrangement or composition with its creditors or commit any act of bankruptcy, or if any petition or order in bankruptcy shall be presented or made against the Customer or if the Customer being a limited company any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be made or presented or if a receiver shall be appointed to any undertaking, property or assets or any part thereof, or if at any time it shall come to the notice of ESL that the Customer is, or is likely to be, unable to meet its obligations in full as they fall due, ESL shall have the right forthwith to terminate any order entered into by the Customer. Upon written notice of such termination being posted by ESL to the Customer’s last known address, this shall be deemed to have been terminated in consequence of a breach of contract by the Customer and without prejudice to any claim, right or remedy which may be available to ESL in law or under the provisions hereof.
16.4 ESL reserves the right to invalidate any Licence Keys, Customer’s Username or Internet Protocol Address issued to the Customer following termination of the Agreement and to re-allocate to another customer
16.5 Domain name hosting and transfer request for domain name server records must be in writing with the authorised signature of the domain name owner. There is no charge for the transfer, but a small charge may be made for administration. Domain name transfers will not be made until all outstanding amounts have been paid by the Customer, until this time domain names remain the property of ESL
16.6 Termination of the Agreement shall not affect any pre-existing liability of the Customer or affect any right of ESL to recover damages or pursue any other remedy in respect of any breach of the Agreement by the Customer
16.7 On termination of the Agreement the right to the use of the Internet Protocol Address allocated by ESL shall revert to ESL under the European Internet Registry Reseaux IP Europeans (“RIPE”) terms or agreement except where specific agreement has been reached in writing between the RIPE and the Customer for the transfer of the Internet Protocol Address and the fee or other payment required by ESL in connection with such transfer has been paid for by the Customer
16.8 In the event of termination of the Agreement by ESL due to breach of these Conditions by the Customer, ESL shall be entitled to the balance of all payments which would but for such termination have accrued up to the earliest date on which the agreement could have been terminated by the Customer in accordance with the Conditions and original signed order value.
17. Release of Information
The Company shall not be required to release any data, username, domain name, or Internet Protocol Address and may refuse to do so until the Agreement has been lawfully brought to an end and all sums due have been received by ESL, and the Customer has complied with all its obligations. Domain names remain the property of ESL until all sums due have been received.
18. Non-Solicitation
During the period that the Customer is subject to these terms and conditions and within twelve months thereafter the Customer will not employ nor otherwise retain the services of any of ESL’s staff servants or agents or make any offer so to do without the prior written consent of ESL. If any such personnel is employed by or his or her services are used otherwise than in accordance with these terms and conditions by the Customer or any subsidiary or associated company of the Customer, the Customer shall forthwith pay compensation as a lump sum to ESL a sum equivalent to the initial gross annual salary or fees of the relevant individual.
19. Confidentiality
19.1 The Customer acknowledges that the Licensed Materials contain confidential information of ESL and/or the third parties. The Customer undertakes to treat as confidential and keep secret all information contained in or otherwise received from ESL in connection with the Licensed Materials (collectively referred to as ‘the Confidential Information’) and shall not use the same for purposes other than in relation to use of the Software in accordance with the Licence.
19.2. The Customer shall not without ESL’s prior written consent communicate or disclose any part of the Confidential Information to any person except:
19.2.1. only to those employees, agents and sub-contractors on a need to know basis who are directly involved in the use of the Software;
19.2 2. the Customer’s auditors, professional advisers and any other persons or bodies having a legal right or duty to have access to or knowledge of the Confidential Information in connection with the business of the Customer.
19.3 The Customer undertakes to ensure, prior to disclosure of any Confidential Information, that all persons and bodies mentioned in Clause 19.2 are aware that the Confidential Information is confidential and that they owe a duty of confidence to ESL. The Customer will indemnify ESL against any loss or damage which ESL sustains or incurs as a result of the Customer failing to comply with such undertaking.
19.4 Any ideas and principles determined during the course of observing, studying or testing the functions of the Software constitute Confidential Information subject to this Clause 19.
19.5. The provisions of Clause 19 will not apply to any Confidential Information which:
19.5.1. is or becomes public knowledge other than as a result of the Customer’s conduct; or
19.5.2. is independently developed without access to or use of the Licensed Materials.Â
19.6 Clause 19 will continue in force notwithstanding the termination of this Agreement for any reason.
20. General
20.1 These terms and conditions are personal to the Customer and the Customer may not assign or otherwise transfer its rights or obligations under these terms and conditions without the prior written consent of ESL.
20.2 All notices which are required to be given under this Agreement will be in writing and will be sent to the address as the recipient may designate by notice given in accordance with this Clause. Any such notice may be delivered personally by first class pre-paid letter or facsimile transmission and will be deemed to have been received:
20.2.1 by hand delivery — at the time of delivery;
20.2.2 by first class post — 48 hours after the date of mailing;
20.2.3 by facsimile — immediately on transmission provided a confirmatory copy is sent by first class, pre-paid, post or by hand, by the end of the next business day
20.3 If any part of this agreement is found by a court of competent jurisdiction or any other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
20.4 No delay or failure by either party to exercise any of its powers or rights or remedies under this Agreement will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be affective must be in writing. The remedies provided in this agreement are cumulative and not exclusive of any remedies provided by law.
20.5 These terms and conditions are the complete and exclusive statement of the agreement between the parties relating to the subject matter of the agreement and supersedes all previous communications, representations and arrangements, written or oral. The Customer acknowledges that no reliance is placed on any representation made but not embodied in these terms and conditions.
20.6 Except as otherwise permitted by these terms and conditions, no change to their terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
20.7 These terms and conditions shall be governed by and construed in accordance with the laws of England and each party agrees to submit to the exclusive jurisdiction of the courts of England.
20.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions and no rights or benefits expressly or impliedly conferred by it shall be enforceable under that Act against the parties to them by any other person.