Provision of the
SimpleKPI application residing at
www.simplekpi.co.uk (“the Siteâ€) that contains the following
elements:
• Tracking, Reporting, monitoring and workflow of KPI's
and sales information
License Grant & Restrictions
Iceberg Software Ltd hereby grants the Client a non-exclusive,
non-transferable right to use the Service solely for the
Client’s own internal business purposes, subject to these Terms
and Conditions and the agreement of which they form part
(together referred to as “the Agreementâ€).
All rights not expressly granted to the Client are reserved by
Iceberg Software and its licensors. Iceberg Software Ltd
reserves the right to grant licenses to use the Service and the
Site to any other party or parties provided any such licenses
shall not affect the provision of the Service to the Client.
The Client shall not (i) license, sublicense, sell, resell,
transfer, assign, distribute or otherwise commercially exploit
or make available to any third party the Service or the content
of the Site (the “Contentâ€) in any way; (ii) modify or make
derivative works based upon the Service or the Content; (iii)
create Internet "links" to the Service or "frame" or "mirror"
any Content on any other server or wireless or Internet-based
device; or (iv) reverse engineer or access the Site, the Service
or the Content in order to (a) build a competitive product or
service, (b) build a product using similar ideas, features,
functions or graphics of the Service, or (c) copy any ideas,
features, functions or graphics of the Service. The Client shall
not amalgamate, amend or incorporate the Service or the Content
(or any software therein) into or with any other software
without the consent of Iceberg Software Ltd.
User licenses cannot be shared or used by more than one
individual User but may be reassigned from time to time to new
Users who are replacing former Users who have terminated
employment or otherwise changed job status or function and no
longer use the Service.
Payment of Fees
Invoices will be issued quarterly in advance or as otherwise
mutually agreed.
Additional users may be added at any time by the Client and the
Client will be charged from the date of addition at the monthly
licence fee in effect at that time. The charge for additional
users will be shown separately on the invoice or invoiced
separately as mutually agreed.
The Client shall pay all fees or charges to Iceberg Software
Ltd’s nominated bank account by direct debit or standing order
or bank transfer within the period of 30 days of issue of the
relevant invoice or, if shorter, within the period prior to the
commencement of the next term during which the Service is to be
provided.
Iceberg Software Ltd reserves the right to modify its fees and
charges and to introduce new charges upon at least 30 days prior
notice to the Client.
Fees for other services will be charged on an as-quoted basis.
Iceberg Software Ltd's fees and charges are exclusive of VAT or
other applicable sales taxes. Any such taxes shall be paid by
the Client at the rate and in the manner prescribed by law.
Non-Payment and Suspension
In addition to any other rights granted to Iceberg Software Ltd
herein, Iceberg Software Ltd reserves the right to suspend or
terminate this Agreement and the Client’s access to the Service
if the Client fails to make any payment due to Iceberg Software
Ltd on or before the due date or is in material breach of the
Agreement.
Interest at the rate of 1.5% per month (or the maximum permitted
by law, whichever is less) will be charged by Iceberg Software
Ltd on any outstanding balance plus all expenses of collection.
The Client will continue to be charged for User licenses during
any period of suspension.
Iceberg Software Ltd reserves the right to impose a reconnection
fee in the event the Client is suspended and thereafter request
access to the Service.
Renewal and Termination
The Agreement commences on the Effective Date. Upon the
expiration of the Initial Term, the Agreement will automatically
renew for successive renewal terms equal in duration to the
Initial Term. Subject to the terms of the paragraph below,
either party may terminate the Agreement effective only upon the
expiration of the then current license term, by notifying the
other party in writing at least three (3) months prior to the
date of the invoice for the following term.
The renewal monthly charge will be equal to the then-current
number of users times the license fee in effect at the time of
renewal.
Renewal invoices shall be produced and sent to the Client thirty
days prior to the commencement date for the relevant term.
In the event this Agreement is terminated (other than by reason
of the Client’s breach), Iceberg Software Ltd will make
available to the Client a file of the Client Data within 30 days
of termination if the Client so requests at the time of
termination.
Iceberg Software Ltd may at its option terminate the Agreement
on giving notice to the Client in the event that the Client
commits a material breach of the Agreement (including, for the
avoidance of doubt, the non-payment of any sums due to Iceberg
Software Ltd in terms of the Agreement) or if the Client is
insolvent and unable to pay the Client’s debts as they fall due
or cease to trade. If Iceberg Software Ltd terminates the
Agreement in terms of this paragraph it will be under no
obligation to repay to the Client any advance payments which the
Client has made.
Account Information and Data
Iceberg Software Ltd does not own any of the Client Data. The
Client, not Iceberg Software Ltd, shall have sole responsibility
for the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or right to
use of all Client Data, and Iceberg Software Ltd shall not be
responsible or liable for the deletion, correction, destruction,
damage, loss or failure to store any Client Data.
In the event this Agreement is terminated (other than by reason
of the Client’s breach), Iceberg Software Ltd will make
available to the Client a file of the Client Data within 30 days
of termination if the Client so requests at the time of
termination.
Intellectual Property Ownership
Iceberg Software Ltd alone (and its licensors, where applicable)
shall own all right, title and interest, including all related
intellectual property rights, in and to the Simple KPI
technology, the Site, the Content and the Service and any
suggestions, ideas, enhancement requests, feedback,
recommendations or other information provided by the Client or
any other party relating to the Service.
This Agreement is not a sale and does not convey to the Client
any rights of ownership in or related to the Site, the Content,
the Service, the Simple KPI Technology or the intellectual
property rights owned by Iceberg Software Ltd.
The Simple KPI name and the Simple KPI logo, are trademarks of
Iceberg Software Ltd and no right or license is granted to use
them.
Third Party Interactions
The Site may contain links to other independent third-party Web
sites ("Linked Sites"). These Linked Sites are provided solely
as a convenience to our visitors. Such Linked Sites are not
under Iceberg Software Ltd's control, and Iceberg Software Ltd
is not responsible for and does not endorse the content of such
Linked Sites, including any information or materials contained
on such Linked Sites. The Client will need to make the Client’s
own independent judgment regarding the Client’s interaction with
these Linked Sites.
Representations & Warranties
Each party represents and warrants that it has the legal power
and authority to enter into this Agreement. Iceberg Software Ltd
will provide the Service in a manner consistent with general
industry standards reasonably applicable to the provision
thereof.
The Site, the Service and the Content are provided to the Client
on an “as-is†basis.
The Client represents and warrants that the Client has not
falsely identified itself nor provided any false information to
gain access to the Service and that the Client’s billing
information is correct. This Agreement sets out the full extent
of Iceberg Software Ltd’s obligations and liabilities in respect
of the provision of the Service. All other conditions,
warranties and representations concerning the provision of the
Service which might otherwise be implied in this Agreement are
expressly excluded.
The Client agrees to indemnify and hold Iceberg Software Ltd,
its officers, directors, shareholders, predecessors, successors
in interest, employees, agents, subsidiaries and affiliates,
harmless from any demands, loss, liability, claims or expenses
(including legal fees and expenses), made against Iceberg
Software Ltd by any third party due to or arising out of or in
connection with the Client’s use of the Site or the Client’s
Data.
Limitation of Liability
Except where prohibited by law, in no event will Iceberg
Software Ltd be liable to the Client for any indirect,
consequential, exemplary, incidental or punitive damages,
including lost profits or other forms of economic loss, even if
Iceberg Software Ltd has been advised of the possibility of such
damages.
If, notwithstanding the other provisions of the Agreement,
Iceberg Software Ltd is found to be liable to the Client for any
damage or loss which arises out of or is in any way connected
with the Client’s use of the Site or any Content, Iceberg
Software Ltd's liability shall in no event exceed the total of
any subscription or similar fees with respect to any service or
feature of or on the Site paid by the Client on or before the
due date in the three months prior to the date of the initial
claim made against Iceberg Software Ltd.
Internet Delays
The Service may be subject to limitations beyond the control of
Iceberg Software Ltd. Iceberg Software Ltd is not responsible
for any such limitations.
Modification to Terms
Iceberg Software Ltd reserves the right to modify these Terms
and Conditions or its policies relating to the Service at any
time, effective 30 days after notification to the Client.
Continued use of the Service after any such notification shall
constitute the Client’s consent to such changes.
Assignation
This Agreement may not be assigned by the Client without the
prior written approval of Iceberg Software Ltd but may be
assigned without the Client’s consent by Iceberg Software Ltd to
(i) a member of the same group of companies as Iceberg Software
Ltd, (ii) an acquirer of the assets of Iceberg Software Ltd, or
(iii) a successor to Iceberg Software Ltd by merger.
Governing Law
The Client agree that all matters relating to the Client’s
access to or use of the Site and/or arising from the Agreement,
including all disputes, will be governed by the laws of Scotland
and the Client agree to prorogate jurisdiction in all matters
arising from the Agreement or the Client’s use of the Site to
the Scottish courts.
Miscellaneous
If any provision of the Agreement is found to be invalid,
unenforceable or illegal, the other provisions shall remain in
force. If any such provision would be valid, enforceable or
legal if some part of it were deleted, the provision shall apply
with whatever modification is necessary to give effect to the
commercial intention of the parties.
Failure by Iceberg Software Ltd to enforce or exercise any of
its rights shall not affect Iceberg Software Ltd’s rights or be
deemed to be a waiver or forfeiture of such rights.
Iceberg Software Ltd actively and aggressively enforces its
intellectual property rights to the fullest extent of the law.
Iceberg Software Ltd works closely with the Business Software
Alliance (BSA) and the Software Information Industry Association
(SIIA) to combat software piracy worldwide.
Confidentiality
The Client will use the Site to store confidential data
and information ("Data"). Iceberg Software Ltd will not view,
share, distribute, print, or reference any such Data except as
required by law or for specific technical support purposes.
Any information the Client provides will be treated in
accordance with the Data Protection Act 1998, the Privacy and
Electronic Communications (EC Directive) Regulations 2003 and
any implementing and/or amending legislation that may be adopted
from time to time.
Information stored on the Site is used solely to provide the
Service to the Client. Iceberg Software Ltd will at no time use
this information for marketing or promotional purposes. Unless
Iceberg Software Ltd is required to do so by law, email
addresses and any Client Data will at no time be distributed or
shared with third parties.
The Client accepts that it is responsible for maintaining the
confidentiality and security of their user registration, account
ID and password.