Positive Purchasing Ltd – Standard Software Licence Terms For Competency Assessment System
TERMS AND CONDITIONS
VERSION 9 - MARCH 2018
This document defines the standard terms and conditions (the “Terms”) for use of the online Competency Assessment System (“Assessment System”) provided by Positive Purchasing Ltd (hereafter referred to as “We”, “Us” or “Our”) of Units 1&2 Mills Bakery, Royal William Yard, Plymouth PL1 3GE, a company registered in England and Wales with the number 4756692. These Terms shall apply and take precedence for the user of the Assessment System by any Licensee unless We specifically agree alternative terms in writing in which case the alternative terms shall take precedence.
Except where We agree otherwise in writing, these Terms consist of the provision set forth in this document together with the general terms set forth in any proposal document we have provided specifically relating to the use of the Assessment System or, where there is no such proposal document, the Positive Purchasing Standard Terms and Conditions as current at the date which the Licensee engages the Licensee, which are available upon request and constitute the entire agreement between the Licensor and Licensee with respect to the subject matter hereof and supersede any and all prior statements or agreements, both written or oral, related thereto.
In this licence agreement:
“Additional User Fee” means the one-off fee for each Permitted User in excess of one, as notified to the Licensee prior to the Licensee’s acceptance of this licence, or such rate as is at the date of any increase in the number of Permitted Users usually charged by the Licensor to its customers for the Software;
“System Access Fee” means fee payable the for each Permitted User to access the Assessment System for the purposes of taking a single assessment within any 12 month period as notified to the Licensee prior to the Licensee’s acceptance of this licence, subject to revision from time to time as set out in this licence;
“Concurrent Use” means simultaneous use of the Software by more than one Permitted User of the Licensee whether or not through installation on multiple devices, on a file server or otherwise;
“Equipment” means the Licensee’s personal computer and associated interface and display devices, any local data storage drive or a remote or cloud based data storage drive accessible and managed only by or for the Licensee on which the Software is to operate locally, which the Licensee must ensure is in accordance with any minimum specification issued by the Licensor from time to time;
“Licensee” means the person firm company or other organisation accepting this licence;
“Permitted Users” means the number of permitted concurrent individual users from the Permitted Users group agreed by the Licensor for which the Licensee may use the Software and which, in default of contrary agreement, is one individual of the Licensee;
“Software” means the Licensor ‘Assessment System’ software product and any documents and materials comprised in it or supplied to the Licensee separately in support of use of the Assessment System in the form and version supplied by the Licensor to the Licensee, as amended or upgraded from time to time as provided for under this licence;
“Use” means to access the Software through an online service hosted by or on behalf of the Licensor and (where the Software specifically permits or requires this) to load any of the Software into the temporary memory (RAM) of the Equipment for the processing of the instructions or statements contained in the Software on the Equipment and to view, access and download (where this option is expressly provided for in the Software) video and audio content, information or documents, and for utilisation of such Software and its instructional and/or operational manuals, content, information and documents by the Permitted Users for the Licensee’s internal business purposes only (which for the avoidance of doubt shall not include any sale or other distribution to any division, subsidiary or other group company of the Licensee outside of the Permitted Users group or any other third party). Unless otherwise expressly provided in this licence or by the written agreement of the Licensor, the right to ‘Use’ the Software does NOT include the right to:
(a) store any part of the Software or the materials comprised within it on any server, cloud based drive, or other medium or storage system accessible by multiple users;
(b) to copy any of it or them other than into the temporary memory (RAM) of the users device in the normal course of the operation of the Software and except for downloadable content clearly identified as such (which may for example include assessment reports or instruction and guidance documents);
(c) to allow any person who is not a member of the Permitted Users group to view access download or otherwise use any of the materials comprised within the Software; or
(d) modify any of them except where and to the extent that the materials constitute a template or other materials requiring data entry or as set out in the Permitted modification rights for Permitted Users at the beginning of this licence.
BY USING THE SOFTWARE, THE LICENSEE ACKNOWLEDGES THAT IT HAS READ UNDERSTOOD AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENCE INCLUDING THE LIMITATIONS OF LIABILITY SET OUT IN IT. THE LICENSEE ALSO AGREES THAT THIS LICENCE IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES IN RELATION TO THE LICENSEE’S USE OF THE SOFTWARE AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SAME.
The Licensor (which reference includes its successors and assigns) hereby grants to the Licensee a non-exclusive, non-transferable licence to Use the Software on the Equipment only for the maximum number of and identified individual Permitted Users from the Permitted Users group upon the terms and subject to the conditions contained in this licence.
Where there are multiple Permitted Users or a Permitted Users group comprising more than one individual, their identities must be identified to the Licensor so that they may be issued their own unique login and security access information before making use of the Software. Login and security details may not be shared with or transferred to any other person.
The Licensee must ensure that it has all necessary consents or an appropriate lawful basis:
(a) for the transfer of any personal data (whether of its permitted Users or other persons accessing or using the Software) for the purpose set out above or where any such data may be inputted into the Software and therefore transferred to PP’s computer systems and PP’s hosting and backup services; and
(b) to enable Positive Purchasing Limited to contact the Licensee’s Permitted Users for verifying their user and login details and for other security purposes related to the Licensee’s licence to use the Software.
In the event that a particular Permitted User ceases to have the Licensee’s permission to Use the Software (for example if the Permitted User ceases to be an employee or worker of the Licensee or a member of the Permitted Users group) the Licensee must notify the Licensor immediately. Any substitution of a new Permitted User to replace a Permitted User who has ceased to be an employee or worker of the Licensee shall be at the sole discretion of the Licensor. No person other than a Permitted User identified to the Licensor is permitted to use the Software or any of the materials comprised within it. Any unauthorised Use of the Software by or permitted by the Licensee is deemed to be a material breach for the purposes of this Licence.
Due to the administrative costs and time involved in setting up a new Permitted User account, no refund of any of the System Access Fee or Additional User Fee will be made by the Licensor in the event that the Licensee wishes to reduce the number of Permitted Users.
Where the Licensee wishes, after the commencement of the licence of the Software, to increase the number of Permitted Users, it will be required to pay the then applicable Additional User Fee for each additional user that it wishes to be permitted to use the Software.
Downloadable content clearly identified as such (which may include assessment reports, guidelines and instruction documents) comprised in the Software may be downloaded, saved on the Equipment only, and hard-copied by the Permitted User in the course of the Permitted User’s employment or engagement with the Licensee and solely for the internal business purposes of the Licensee.
It is the intention that the materials comprised in the Software are to be available for the information and benefit of the Permitted User to assist that individual in the carrying out of his or her duties, and not for distribution as templates or guides to other employees workers or agents of the Licensee outside of the Permitted Users group. Completed materials derived form the use of the Software may be circulated within the Licensee only for internal purposes in accordance with the evident purpose of such materials.
In exercising this right the Permitted User may not alter the pre-populated content of the Licensor or remove or obscure any copyright notices or trade marks of the Licensor.
If the Licensee requires more than one individual to work on or otherwise utilise any of the materials comprised within the Software, the Licensee will need to acquire a licence for more than one Permitted User or a Permitted Users group.
Where the Software is issued by the Licensor in any media for installation or back-up purposes, only one copy may be installed at any time on any equipment of the Licensee.
Unless otherwise confirmed by the Licensor to the Licensee in writing or expressly set out in this licence, Concurrent Use of the Software is not permitted by this licence.
Unless otherwise confirmed by the Licensor to the Licensee in writing or expressly set out in this licence, and unless earlier terminated as provided in this licence, the licence will continue for an initial period of one year from the date of payment of the first System Access Fee or (if earlier) the date of first Use of the Software by the Licensee and will, subject to payment of the System Access Fees, continue thereafter from year to year unless so terminated.
This Licence is subject to the payment of the following fees:
(a) the System Access Fee – paid prior to the use of the Assessment System; and
(b) the Additional User Fees for each Permitted User in excess of one or for a Permitted Users group – in advance within 7 days of the request for an additional user or group being accepted by the Licensor and in any event prior to such Permitted User or Permitted Users group being permitted to Use the Software.
Failure to pay all System Access Fees and all Additional User Fees in full within 7 days of their due dates will result in the Licensee not being licensed to Use the Software and is deemed a material breach for the purposes of this licence.
The System Access Fee may be subject to annual review by the Licensor upon not less than thirty (30) days prior written (which may be by email) notice to the Licensee before the commencement of the next year of the term of the licence. Such reviewed System Access Fee will take effect on the commencement of the next year of the term of the licence unless the Licensee has notified the Licensor in writing (which may be by email) prior to such commencement date that it wishes to terminate this Licence.
Without prejudice to any cancellation or refund/termination rights to which a consumer may be entitled under the Consumer Rights Act 2016 in the United Kingdom and other applicable mandatory legislation in other parts of the world, termination of this licence part-way through any year of the term of this licence will not entitle the Licensee to any refund of the System Access Fee paid for that year.
All charges referred to in this licence are exclusive of and net of any taxes, duties or such other additional sums including (without prejudice to the generality of this provision) value added tax, excise tax, import or other duties, travel costs and in some cases travel time in support of assessment interviews where applicable and whether levied in respect of this Licence, the Software, its use or otherwise and the Licensee will be liable to pay all such sums.
DISABLING OF THE SOFTWARE
The Licensor reserves the right to operate a system whereby ‘unlock codes’ may be required by licensees for their Software to continue to function or disabling codes may be sent to licensees’ equipment to prevent the unauthorised use of the Software. Such systems are intended only as a means of preventing software piracy and other unauthorised use of the Software and the Licensee hereby consents to the use of such systems on its Equipment for this purpose.
TRAINING, SUPPORT, AND SOFTWARE ENHANCEMENT
Provision of training in the use of the Software is not included under the terms of this licence but is available from the Licensor for a separate charge at the Licensor’s then applicable hourly or daily rate. Fees for training will be payable in full in advance together with any VAT chargeable by the Licensor in respect of this.
Limited telephone and/or email support during the Licensor’s normal operating hours and the provision of such updates as are generally made available to the Licensor’s licensees of the Software are supplied free as part of the System Access Fee. The Licensor reserves the right to refuse support at its discretion.
The scope of the support service that the Licensor currently provides comprises a telephone and email first level technical support and fault reporting service during the hours of 9am to 5pm London time Monday to Friday excluding bank holidays and public holidays in England and does not include any form of hardware support, customisation, data entry, user data correction, programming or other development of the Software.
Telephone enquiries should be made to +44 (0) 3300 940000 or such other number as may be notified to the Licensee by the Licensor for this purpose.
The scope of support services available to the Licensee may, at the Licensor’s discretion, be varied or increased in the future and additional support and services offered either as part of the System Access Fee or for additional charges.
The Licensee undertakes to (and to ensure that each of its Permitted Users do):
(a) not translate, adapt, vary, modify, disassemble, decompile or reverse engineer or make back-up copies of the Software or any part of it without the Licensor’s prior written consent or as permitted by applicable mandatory national laws or the express provisions of this licence; specifications required to achieve interoperability of the Software with another software program are available from the Licensor on request;
(b) not assign, transfer, sell, lease, rent, charge or otherwise deal in their rights under this licence or use the Software on behalf of any third party;
(c) not provide any specification or functionality details to, or make the Software or any part of it available for examination or study by, any third party; or
(d) not remove or alter any copyright or trade mark or other proprietary notice on any part of the Software or other materials of the Licensor made available under or in connection with this licence.
(e) ensure that its Permitted Users who will use the Software are notified of this licence and the terms hereof prior to such Permitted User using the same and that no other person shall be entitled to do so;
(f) within 7 days after the date of termination expiry or other discontinuance of this licence for whatever reason, destroy the Software and all updates, upgrades or copies, in whole and in part, in any form (including partial copies or modifications of the Software) in the possession or under the control of the Licensee with the exception of assessment reports previously provided which may be retained by the Licensee for reference purposes only.
In so far as the Software includes any functionality for the uploading of data or sharing of data with other licensees, the Licensee will not place or permit to be placed on any data or material that does or may:
(a) infringe any proprietary right, such as copyright, trademark, patent, trade secret, confidentiality or contractual obligation of any third party;
(b) constitute a breach of any legal or regulatory provision;
(c) be defamatory or injurious to any person or entity;
(d) cause harm to persons or property or otherwise harass any person;
(e) violate any person’s right to privacy;
(f) impersonate other users or public figures;
(g) contain any discriminatory (including in relation to sex, race, age, religion, or sexual orientation), pornographic, obscene, profane, offensive, or intimidating materials or be liable to incite hatred or discriminatory activities;
(h) suggest or encourage any illegal activity; or
(i) comprise or include any advertising or marketing activity (whether private or commercial).
So far as any of the acts mentioned above are permitted by any applicable mandatory national law, the Licensee may only any do such act to the extent and for the specific limited purpose stated in such applicable law.
The Licensee also agrees that before submitting any data for uploading or sharing, it will ensure that:
(a) the material is scanned with an up to date virus detection program; and
(b) it has an appropriate licence and permission to provide that data and for the Licensor to publish it through the Software platform without accountability or liability to any third party.
The Licensor reserves the right to remove from the Service any materials provided by or uploaded by the Licensee without prior notice if the Owner reasonably considers that the inclusion of such material does or may breach any of the terms and conditions stated in this Agreement or if the Owner reasonably considers its removal appropriate for any other reason.
Any breach of the provisions of this section is deemed a material breach for the purposes of this licence.
The following warranties are given in addition to, and without prejudice to, any express or implied warranties for consumers under the Consumer Rights Act 2016 in the United Kingdom and other applicable mandatory legislation in other parts of the world.
The Licensor warrants that the Software will, in proper and lawful use by the Licensee, perform substantially in accordance with the functionality set out in the user guide for it supplied by the Licensor to the Licensee.
The Licensee acknowledges that software in general, including the Software, is not error-free and agrees that the existence of such errors will not constitute a breach of this Licence.
In the event that the Licensee discovers a material error which substantially affects the Licensee’s use of the Software and notifies the Licensor of the error within 90 days from the date of first Use of the Software (the “warranty period”) the Licensor will at its sole option either refund the System Access Fee (whereupon this licence will terminate) or within a reasonable period correct by patch or new release (at its option) that part of the Software which does not comply PROVIDED THAT such error has not been caused by any modification, variation or addition to the Software not performed or authorised by the Licensor nor by any corruption or incompatibility caused by any hardware or Software not provided or approved by the Licensor for the Use of the Software.
The refund of fees or correction of such error as provided above by the Licensor will satisfy and discharge the Licensor of all liability in respect of or arising as a result of such error.
EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENCE, ALL PRODUCTS AND SERVICES ARE FURNISHED BY THE LICENSOR AND ACCEPTED BY THE LICENSEE “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES PROVIDED HEREUNDER WILL MEET THE LICENSEE’S PARTICULAR REQUIREMENTS
THE INTERNET IS NOT 100% SECURE OR RELIABLE AND ACCESS TO THE SOFTWARE AND TRANSMISSION OF DATA TO AND FROM THE SOFTWARE WILL INVOLVE TRANSMISSION THROUGH ONE OR MORE INTER-CONNECTIVITY SERVICE PROVIDERS. ACCORDINGLY POSTIVE PURCHASING LIMITED DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
AVAILABILITY OR FUNCTIONALITY OF THE SOFTWARE MAY ALSO BE INTERRUPTED OR LIMITED, WITHOUT LIABILITY OF THE LICENSOR, FOR THE PURPOSES OF PLANNED MAINTENANCE AS NOTIFIED IN ADVANCE TO THE LICENSEE (WHICH MAY BE VIA THE HOSTING SITE FOR THE SOFTWARE OR BY EMAIL) AND NON-PLANNED EMERGENCY MAINTENANCE.
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF OR AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE INFOR¬MATION, INFRINGEMENT, ACCURACY, COMPATIBILITY, INTEGRATION, TITLE, SUITABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY THE LICENSOR. THIS IS WITHOUT PREJUDICE TO ANY EXPRESS OR IMPLIED WARRANTIES FOR CONSUMERS UNDER THE CONSUMER RIGHTS ACT 2016 IN THE UNITED KINGDOM AND OTHER APPLICABLE MANDATORY LEGISLATION IN OTHER PARTS OF THE WORLD.
EXCEPT AS EXPRESSLY PRO¬VIDED IN THIS LICENCE, THE ENTIRE RISK AS TO THE QUALITY AND PERFORM¬ANCE OF THE PRODUCTS AND SERVICES PROVIDED AND THE ACCURACY OR QUALITY OF THE INFORMATION TRANSMITTED OR RECEIVED VIA THE SOFTWARE AND THE SOFTWARE PLATFORM IS WITH THE LICENSEE.
LIMITATION OF LIABILITY
The Licensor does not exclude liability for death or personal injury to the extent that the same arises as a result of the negligence of the Licensor, its employees, agents or authorized representatives and nothing in the following provisions is to be deemed to have that effect.
The Licensee acknowledges that the Software is designed to perform certain data recording and display functions based on data entered into it by the user and that all forecasts and other results generated by the Software are statistical and formulaic, based on user criteria and data, and are not intended to be relied upon as providing any form of prediction warranty or other assurance as to the matters to which they relate.
The Licensee accepts that the Licensor will have no liability to the Licensee or any other person for any loss or damage whatsoever or howsoever caused arising directly or indirectly from or in connection with the Licensee’s or its Permitted User’s or any other person’s reliance on the Software in determining any aspect of its or their business except to the extent that such liability may not be lawfully excluded under applicable laws.
The Licensor accepts no liability to the Licensee or any Permitted User or any other person for any loss or damage arising from or in connection with any inaccurate incomplete or erroneous data entry or other mis-use of the Software, any fault or problem with any third party inter-connectivity provider not within the control of the Licensor, or any hardware or software fault or incompatibility of the Licensee’s IT systems.
Without prejudice to the generality of the above exclusions and limitations, the Licensor expressly excludes liability for indirect, special, incidental or consequential loss or damage (including loss of goodwill, loss of opportunity, loss of anticipated savings or profits, and management and administration time) which may arise in respect of the Software or its use or any other services provided by the Licensor under or in connection with this licence.
In the event that any exclusion or limitation of liability contained in this licence is held to be invalid for any reason and the Licensor becomes liable for loss or damage that may lawfully be limited, such liability will be limited to the amount of the System Access Fee paid by the Licensee for the year (or years) to which the claim relates together with any Additional User Fees paid by the Licensee during that period.
The Licensee acknowledges that if it requires a greater degree of protection it has the opportunity before entering into this licence to request and negotiate with the Licensor alternative provisions and/or require suitable insurance protection, though for which the Licensor may revise the amount of the System Access Fee and Additional User Fees to cover its additional costs (including insurance premiums) and risks.
The Licensee acknowledges that the Licensor has set its prices and entered into this licence in reliance upon the Warranty Disclaimers and Limitation of Liability set out above in this licence, and that the same form an essential basis of the bargain between the parties. The parties agree that the Limitation of Liability specified in this licence will survive and apply even if the Warranty Disclaimers or any other limitation of remedies is found to have failed any of its essential purpose.
COPYRIGHT, PATENTS, TRADE MARKS AND OTHER INTELLECTUAL PROPERTY RIGHTS
The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used or in connection with the Software including all documentation and manuals relating thereto are and remain the sole property of the Licensor or its licensors.
All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee hereby agrees that it will use the same solely in accordance with the provisions of this Licence and that it will not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without the Licensor’s prior written consent.
Subject only to the specific limited provisions set out in this Licence, the Licensee further agrees that it will not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor will the Licensee sell, lease, licence, sub-licence or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.
The foregoing provisions will not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.
We will comply with all applicable requirements of current data protection legislation including the Data Protection Act 1998 and the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) in force from time to time and any applicable national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any replacement legislation in the UK to the Data Protection Act 1998 and the GDPR.
At all times the Licensee’s information will be treated in accordance with Our Privacy Notice, which is incorporated by reference into these Terms and Conditions and can be viewed at: positivepurchasing.com/privacynotice
We may also hold and process non-sensitive data relating to the Licensee’s staff and other delegates so far as is necessary for legal, personnel, administrative and management purposes in connection with Our provision of the services and administration of Our business. The Licensee must ensure that they have the necessary authority to provide this consent.
In this section Force Majeure means any circumstances beyond the reasonable control of a party (including, without limitation, any strike, lock-out or other form of industrial action).
If either party is affected by Force Majeure it will forthwith notify the other party of the nature and extent thereof. Neither party will be deemed to be in breach of this licence, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party in writing and the time for performance of that obligation will be extended accordingly.
In addition to any other provisions for termination as provided in this licence, the Licensor may by notice in writing to the Licensee terminate this Licence if the Licensee is in breach of any term, condition or provision of this Licence or applicable law and the breach is a material breach or one that cannot be remedied or the Licensee fails to remedy the breach (if capable of remedy) within 30 days of having received written notice from the Licensor specifying the breach.
The licensee may terminate this licence at any time without cause on notice in writing (which may be by email) to the Licensor. Without prejudice to any cancellation or refund/termination rights to which a consumer may be entitled under the Consumer Rights Act 2016 in the United Kingdom and other applicable mandatory legislation in other parts of the world, no refund of any fees payable under this licence will be payable upon such termination.
Termination, howsoever or whenever occasioned will be subject to any rights and remedies the Licensor may have under this Licence or under the applicable law.
The Licensee will not assign or otherwise transfer all or any part of the Software or this Licence without the prior written consent of the Licensor which consent will not be unreasonably withheld in the case of the transfer of the whole or a substantial part of the Licensee’s business.
Failure or neglect by either party to enforce at any time any of the provisions hereof will not be construed nor will be deemed to be a waiver of that party’s rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice that party’s rights to take subsequent action.
In the event that any of these terms and conditions or provisions will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
LAW AND JURISDICTION
The parties hereby agree that the Licence concluded between them and constituted on these terms and conditions will be construed in accordance with English law and the parties agree to subscribe to the exclusive jurisdiction of the English court.
The Software is protected by copyright and international treaties. Unauthorised reproduction of Software, wholly or partially, may result in civil and criminal penalties.
© 2011-2018 The Software is the copyright of Positive Purchasing Limited (registered in England and Wales, Company number 04756992. ALL RIGHTS ARE RESERVED.