TriggerPoint Software Ltd – Terms & Conditions
1. General terms
1. We are TriggerPoint Software Limited. Our company number is 9600750 and our registered address is 7 Bridle Close, Kingston upon Thames KT1 2JW (“TriggerPoint Software Ltd“, “we“, “us“).
2. These terms and conditions (the “General Terms“) apply to you (the “Customer“, “you” and “yours”) when you use the online TriggerPoint Software Ltd services (whether on a trial period or monthly paid subscription) (the “Services“) on our website www.triggerpoint-software.co.uk (the “Site“).
1. In the General Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
2. All references to Clauses are, unless otherwise expressly stated, references to the Clauses of these General Terms.
3. The headings in the General Terms are inserted for convenience only and shall be ignored in construing the General Terms.
4. References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time.
1. The General Terms take effect from the date you begin using the Services and subject to Clause 7 (Termination) shall continue in effect for the duration of your use of the Services.
2. Services are provided based on a 1 month initial trial period, during which the Customer may cancel at any time and after which the Services will continue on a rolling basis until cancelled by either party. After the 1 month trial period has elapsed 3 months notice is required in order to cancel the services.
The Customer shall:
1. comply with any and all instructions provided to the Customer by TriggerPoint Software Ltd relating to the Service;
3. not use the Services for any immoral or illegal purpose or in any way that would bring TriggerPoint Software Ltd into disrepute;
4. procure that its officers and employees co-operate with TriggerPoint Software Ltd, its agents and sub-contractors in carrying out the Services.
5. Pricing and payment
1. For the purposes of these General Terms references to “Fees” shall mean the fee as posted on our Site from time to time and applicable in respect of your subscription to TriggerPoint Software Ltd’s Services.
2. In consideration of the supply of the Service, the Customer agrees to pay TriggerPoint Software Ltd the Fee in accordance with the payment terms advertised on the Site at the relevant time. Unless otherwise expressly stated, all prices are exclusive of value added tax.
3. TriggerPoint Software Ltd shall send an electronic receipted invoice to the Customer upon receipt by TriggerPoint Software Ltd of the relevant payment.
4. Without prejudice to any other right or remedy it may have, TriggerPoint Software Ltd reserves the right to set off any amount owing to it at any time from the Customer against any amount payable by TriggerPoint Software Ltd to the Customer under or in connection with the General Terms.
5. If the Customer fails to pay any amount payable by it under the General Terms then TriggerPoint Software Ltd reserves the right to restrict access the Services until payment is made.
6. No refund of any Fees shall be given under any circumstances.
6. Intellectual property rights
1. For the purposes of these General Terms references to the “Intellectual Property Rights” shall mean all patents, rights to inventions, copyright and related rights, trade marks and trade names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including without limitation know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
2. The Customer acknowledges and agrees that all Intellectual Property Rights existing or arising in any materials, know-how, specifications, inventions, processes, software, data or information supplied by TriggerPoint Software Ltd under or in connection with the General Terms shall at all times belong to and remain vested in TriggerPoint Software Ltd or its licensors and, save as expressly provided hereunder, no proprietary rights or any other rights whatsoever are assigned, granted or shall otherwise pass to the Customer.
3. TriggerPoint Software Ltd shall indemnify the Customer against any claim (including, without limitation, any losses and liabilities arising out of such claim but excluding any indirect, special or consequential loss or loss of profits, revenue or goodwill) that the Customer’s use of the Service in accordance with the General Terms infringes the Intellectual Property Rights of any third party, provided the Customer:
- promptly notifies TriggerPoint Software Ltd in writing of any such claim and not making any admissions of liability or settling any such claim without TriggerPoint Software Ltd’s prior written consent;
- allows TriggerPoint Software Ltd (at TriggerPoint Software Ltd’s request and expense) to solely conduct all negotiations and litigation resulting from any such claim; and
- at the request and expense of TriggerPoint Software Ltd, gives all reasonable assistance with such negotiations or litigation.
4. Clause 6.3 sets out TriggerPoint Software Ltd’s entire liability to the Customer in respect of the infringement of the Intellectual Property Rights of any third party.
5. If any claim is made against TriggerPoint Software Ltd or the Customer alleging that the Customer’s use of the Service infringes the Intellectual Property Rights of a third party and the Customer’s use of the Services is not in accordance with the General Terms, TriggerPoint Software Ltd shall not be responsible and shall be entitled:
- to require the Customer to cease using the Service until otherwise notified by TriggerPoint Software Ltd in writing, and
- to require the Customer to indemnify TriggerPoint Software Ltd against any direct or consequential claim which may be brought against TriggerPoint Software Ltd by a third party under
6. The Customer undertakes to notify TriggerPoint Software Ltd promptly of any infringement of the Intellectual Property Rights referred to in Clause 6.5 of which the Customer is or becomes aware and to render to TriggerPoint Software Ltd and/or TriggerPoint Software Ltd’s relevant licensors all reasonable assistance in relation to any action, suit or proceeding taken by TriggerPoint Software Ltd and/or its relevant licensors in respect of such infringement.
1. The Customer shall be deemed to have terminated the General Terms if:
- The Customer cancels their subscription to the Service or fails to pay TriggerPoint Software Ltd for a subsequent renewal.
- TriggerPoint Software Ltd may terminate the General Terms at any time by giving the Customer not less than one (1) month’s prior notice by email.
- Without prejudice to its other rights and remedies, either party may, by written notice to the other, terminate the General Terms with immediate effect if the other party:
- Subject to Clause 7.4, commits a material breach of the General Terms and shall, in the case of any remediable breach, fail to remedy the same within 14 business days of receipt of a written notice from the non-breaching party requiring such remedy; and/or
- is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) or otherwise becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other party (other than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the other party’s assets or the other party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction or if it ceases to trade or threatens to cease to trade.
4. For the avoidance of doubt, failure by the Customer to pay any Fees due to TriggerPoint Software Ltd in full in cleared funds by the due date shall constitute a material breach of the General Terms. Failure by the Customer to pay the Fees to TriggerPoint Software Ltd in cleared funds by the due date on more than two occasions shall entitle TriggerPoint Software Ltd to terminate the General Terms forthwith on giving written notice to the Customer.
8. Consequences of termination
1. Upon termination of the General Terms, TriggerPoint Software Ltd shall cease to make the Service available to the Customer.
2. Upon termination of the General Terms for any reason, the Customer shall promptly return (or at TriggerPoint Software Ltd’s request destroy) all copies in any form (including in any human or machine readable form) of any materials relating to the Services which have been provided to the Customer by TriggerPoint Software Ltd as part of the Services and which are in the possession, custody or control of the Customer or its officers, employees or agents.
1. TriggerPoint Software Ltd warrants that it has all requisite power and authority to execute, deliver and perform its obligations under the General Terms.
2. The Customer warrants that
- it shall comply with all applicable laws and regulations relating to the Service and with all applicable rules, regulations and guidelines (whether or not having the force of law) of any regulatory organisations or bodies of which it is a member or by which it is bound; and
- it has all requisite power and authority to execute, deliver and perform its obligations under the General Terms.
3. TriggerPoint Software Ltd does not warrant that the Service will meet the Customer’s requirements nor that the Services provided through the Site will be error-free or uninterrupted.
4. The Services are provided on an “as is” basis. Save as expressly set out in the General Terms, all conditions, representations, warranties, undertakings or terms whether express or implied, statutory or otherwise, including in particular any implied warranty of satisfactory quality or fitness for any particular purpose or use are excluded from the General Terms to the fullest extent permitted by law.
5. The Customer confirms that neither TriggerPoint Software Ltd nor any of its representatives has made any claims or representations of guaranteed or anticipated profits that may result from the use of the Service and TriggerPoint Software Ltd expressly disclaims liability for any profit projections which may have been provided to the Customer.
10. Liability and indemnity
1. Save in respect of liability for death or personal injury arising as a result of TriggerPoint Software Ltd’s negligence, the total aggregate of TriggerPoint Software Ltd’s liability howsoever arising under or in connection with the Services, whether in respect of a single occurrence or a series of occurrences, shall not exceed in any year the sum of the Fees paid by the Customer from the 12 month period preceding the date when the claim arose.
2. Subject to Clause 10.1, TriggerPoint Software Ltd shall not be liable to the Customer for any loss of profits or goodwill or any other type of special, indirect or consequential loss or revenue of any nature whatsoever (including loss or damages suffered as a result of an action brought by a third party) whether arising from negligence, breach of contract or otherwise, even if such loss was reasonably foreseeable or TriggerPoint Software Ltd had been advised of the possibility of the Customer incurring the same, and such liability is hereby excluded to the fullest extent permitted by law.
3. The Customer hereby undertakes and agrees to indemnify TriggerPoint Software Ltd and keep it fully indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by TriggerPoint Software Ltd arising out of or in connection with (i) any claims, proceedings, demands or actions by third parties arising out of or in connection with TriggerPoint Software Ltd’s supply of and/or the Customer’s use of the Service (including without limitation claims under the Data Protection Act 1998) and/or any breach of the Customer’s undertakings or obligations set out in the General Terms, and/or (ii) any breach by the Customer of its obligations under the General Terms, and/or (iii) the Customer’s negligence or wilful misconduct.
4. The Customer agrees that all the limitations and exclusions of liability in favour of TriggerPoint Software Ltd in the General Terms are reasonable in the circumstances under which the Service is to be performed.
1. The parties recognise that under these General Terms they may receive each other’s trade secrets and/or confidential or proprietary information of the other party. All information belonging to or relating to a party including without limitation information concerning business plans, customers, supplies, services, intellectual property and/or financial results received by the other party as a result of entering into or performing the General Terms which is designated as confidential by the disclosing party or is otherwise clearly confidential in nature constitutes “confidential information”.
2. Each party agrees not to use confidential information for any purpose other than the purpose for which it is supplied under the General Terms and agrees not to divulge confidential information received from the other party to any of its employees who do not need to know it, and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party except to its professional advisers or as may be required by law or any legal or regulatory authority.
3. Each party will use a reasonable degree of care which in any event will not be less than the same degree of care which the receiving party uses to protect its own confidential information to keep and ensure its employees and agents keep any and all such information confidential. This obligation will survive the termination of the General Terms, in respect of a particular item of confidential information, until such earlier time as that item of confidential reaches the public domain other than through the receiving party’s own default.
12. Data protection
13. Force Majeure
1. Neither party will be liable to the other for any delay or non-performance of the other party’s obligations under this Agreement arising from any cause or causes beyond its reasonable control.
1. The Customer shall not, without the prior written consent of TriggerPoint Software Ltd, sub-licence, assign or otherwise transfer or dispose of all or any part of the Customer’s rights or obligations under the General Terms.
2. TriggerPoint Software Ltd shall be entitled to delegate or sub-contract the performance of all or any part of its obligations under or in connection with the General Terms to any third parties as is necessary to provide the Services.
1. All Clauses intended by their nature to survive termination (including but not limited to Clause 8) shall survive the termination of the General Terms.
1. If any provision of these General Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force.
17. Entire Agreement
2. Each of the parties acknowledges and agrees that in entering into these General Terms and the documents referred to in them, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to these General Terms or not) other than as expressly set out in this these General Terms.
18. Further Assurance
1. Each party will, at the request of the other party and at its own cost, do (or procure others to do) everything necessary to give the other party the full benefit of these General Terms.
19. Benefit of Agreement
1. No person who is not a party to these General Terms is intended to receive a benefit under, or be entitled to enforce, this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
20. Waiver and Remedies
1. No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
1. All notices shall be made in writing and sent by prepaid first class post, by facsimile, e-mail or delivered by hand to, in the case of TriggerPoint Software Ltd, the address set out at the beginning of the General Terms and, in the case of the Customer, to the address notified to TriggerPoint Software Ltd by the Customer (or to such other address as each party may from time to time notify in writing to the other party).
2. Any notice served by facsimile or e-mail shall be deemed served at the time of transmission provided the sender can show satisfactory transmission and posts a hard copy of the notice within 24 hours of service provided that if any such notice would otherwise be deemed to be served outside working hours, such notice shall be deemed to be served at the start of working hours on the next business day. Any notice served by post shall be deemed served two business days after the date of posting and any notice delivered by hand, upon delivery.
22. Changes to the General Terms
1. TriggerPoint Software Ltd may change these General Terms from time to time at its absolute discretion without prior notice to the Customer. The Customer agrees that such changes will be binding on it. Any changes will be posted on TriggerPoint Software Ltd’s Site and will amend and form part of these General Terms. The Customer is responsible for reviewing the TriggerPoint Software Ltd Site on a regular basis to obtain timely notice of any such changes. The General Terms and any new agreement entered into after such changes have been posted will include those changes.
23. No partnership or Agency
1. Nothing in these General Terms will be construed as constituting or evidencing any partnership, contract of employment or joint venture of any kind between either of the parties or as authorising either party to act as agent for the other. Neither party will have authority to make representations for, act in the name or on behalf of or otherwise to bind the other party in any way.
24. Applicable law
1. The General Terms shall be governed by and construed in accordance with English law and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.