SOFTWARE TERMS AND CONDITIONS OF USE
These are the terms and conditions of use upon which you are permitted to use our Software.
1.1 The definitions and rules of interpretation in this clause apply in these terms.
|“Business Day”||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|“Contract”||the Contract for the provisions of Services by MakesConSense to the Client, incorporating these terms and the accepted Order.|
|“Client”||the person or entity that uses the Software.|
|“Client Data”||the data inputted and documents uploaded by the Client, the Users, or MakesConSense on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.|
|“Confidential Information”||information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.|
|“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures”||as defined in the Data Protection Legislation.|
|“Data Protection Legislation”||all applicable data protection and privacy legislation in force from time to time in the UK including for the time being the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, as amended.|
|“Documentation”||the document made available to the Client by MakesConSense online via the Website or such other web address notified by MakesConSense to the Client from time to time which sets out a description of the Services and the user instructions for the Services.|
|“Effective Date”||the date upon which MakesConSense issues its Order Confirmation.|
|“Initial Subscription Term”||the period of one year from the Effective Date.|
|“MakesConSense”||MakesConSense Limited (CRN: 12291808) whose registered office is at Hammond & Co, 36 Chesterfield Road, Market Street, Chesterfield, Derbyshire, England, S43 3UT.|
|“Mandatory Policies”||MakesConSense’s business policies, as notified to the Client or displayed on the Website from time to time, including MakesConSense’s Website Terms and Conditions (as updated from time to time).|
|“Order”||the Client’s order for the Services submitted via the Website.|
|“Order Confirmation”||MakesConSense’s acceptance of the Client’s Order, communicated by email or via the Website.|
|“Renewal Period”||the period described in clause 14.1.|
|“Services”||the subscription services provided by MakesConSense to the Client under the Contract via the Website (including access to the Documentation), as more particularly described in the Documentation.|
|“Software”||the online software applications provided by MakesConSense as part of the Services, used for storing and managing customer consent forms, consultation forms and associated documents.|
|“Subscription Fees”||the subscription fees payable by the Client to MakesConSense for access to the Software, as set out in the Order Confirmation (calculated in accordance with Schedule 1).|
|“Subscription Term”||has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).|
|“User Subscriptions”||the user subscriptions granted to the Client pursuant to clause 9.1 which entitle Users to access and use the Services in accordance with these terms.|
|“Users”||means (as applicable) the client and/or any employees of the Client who are authorised by MakesConSense to use the Services.|
|“Virus”||any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.|
|“Vulnerability”||a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.|
|“Website”||MakesConSense’s website at www.makesconsense.com, or such other web address notified to the Client from time to time.|
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.
1.5 A reference to a statute or statutory provision is a reference to it as updated or amended from time to time.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision.
1.7 A reference to writing or written includes e-mail but not faxes.
2. ORDERS AND User subscriptions
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these terms. The Order shall only be deemed to be accepted when MakesConSense issues its Order Confirmation.
2.2 Subject to the Client’s payment of the Subscriptions Fees, the restrictions set out in this clause 2 and the other terms and conditions set out herein, MakesConSense hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the Services during the Subscription Term solely for the Client’s internal business operations.
2.3 In relation to the Users, the Client undertakes that:
2.3.1 each User shall keep a secure password for his use of the Services and that each User shall keep his password confidential;
2.3.2 it shall permit MakesConSense or MakesConSense’s designated auditor to audit the Client’s use of the Services including in order to establish the name and password of each User and the compliance of the Client Data with these terms.
2.4 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity;
2.4.3 depicts sexually explicit images;
2.4.4 promotes unlawful violence;
2.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.4.6 is otherwise illegal or causes damage or injury to any person or property;
and MakesConSense reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to and to remove any material that breaches the provisions of this clause.
2.5 The Client shall not:
2.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these terms:
220.127.116.11 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
18.104.22.168 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.5.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.5.3 use the Services and/or Documentation to provide services to third parties (save as strictly in accordance with the Documentation and MakesConSense’s intended use of the Software); or
2.5.4 subject to clause 16.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Users, or
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
2.5.6 introduce or permit the introduction of, any Virus or Vulnerability into MakesConSense’s network and information systems.
2.6 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify MakesConSense.
3. CHANGES TO THE SUBSCRIPTION PACKAGE
3.1 Subject to clause 3.2 and clause 3.3, the Client may, from time to time during any Subscription Term, upgrade the subscription package that it has purchase in accordance with the packages set out in Schedule 1 and MakesConSense shall grant access to the Services and the Documentation to such additional Users in accordance with these terms.
3.2 If the Client wishes to upgrade the subscription package, the Client shall notify MakesConSense in writing. MakesConSense shall evaluate such request for additional User Subscriptions and respond to the Client with approval or rejection of the request.
3.3 If MakesConSense approves the Client’s request to upgrade the subscription package, the Client shall pay to MakesConSense the relevant fees for such upgraded package.
4.1 MakesConSense shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to these terms.
4.2 MakesConSense shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance to be carried out as notified to the Client; and
4.2.2 unscheduled maintenance provided that MakesConSense shall use reasonable endeavours to give the Client notice in advance.
5. Client data
5.1 The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
5.2 In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against MakesConSense shall be for MakesConSense to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by MakesConSense. MakesConSense shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by MakesConSense to perform services related to Client Data maintenance and back-up for which it shall remain liable under clause 5.8).
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.4 The parties acknowledge that:
5.4.1 if MakesConSense processes any personal data on the Client’s behalf when performing its obligations under these terms, the Client is the controller and MakesConSense is the processor for the purposes of the Data Protection Legislation;
5.4.2 Schedule 2 sets out the scope, nature and purpose of processing by MakesConSense, the duration of the processing and the types of personal data and categories of data subject; and
5.4.3 the personal data may be transferred or stored outside the EEA or the country where the Client and the Users are located in order to carry out the Services and MakesConSense’s other obligations under these terms.
5.5 Without prejudice to the generality of clause 5.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to MakesConSense in connection with the Contract so that MakesConSense may lawfully use, process and transfer the personal data in accordance with the Contract on the Client’s behalf.
5.6 Without prejudice to the generality of clause 5.3, MakesConSense shall, in relation to any personal data processed in connection with the performance by MakesConSense of its obligations under these terms:
5.6.1 process that personal data only on the documented written instructions of the Client or in accordance with these terms unless MakesConSense is required by the laws of any member of the European Union or by the laws of the European Union applicable to MakesConSense and/or domestic UK Law to process personal data (Applicable Laws);
5.6.2 not transfer any personal data outside of the European Economic Area unless done so in accordance with the Data Protection Legislation:
5.6.3 provide reasonable assistance to the Client, at the Client’s cost, in responding to any request from a data subject and in connection with its compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.6.4 notify the Client without undue delay on becoming aware of a personal data breach;
5.6.5 at the written direction and cost of the Client, delete or return personal data and copies thereof to the Client on termination of the Subscription Term unless required by Applicable Laws to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use);
5.6.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and without prejudice to clauses 5.3 and 5.5 promptly inform the Client if, in the opinion of MakesConSense, an instruction infringes the Data Protection Legislation; and
5.6.7 permit the Client to audit such data held by MakesConSense upon reasonable notice at reasonable business hours subject to the terms of the agreement between MakesConSense and its hosting provider.
5.7 Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
5.8 The Client consents to MakesConSense appointing cloud web hosting service providers as third-party processors of personal data under the Contract. MakesConSense confirms that it has entered or (as the case may be) will enter into with the third-party processor a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 5.
5.9 MakesConSense may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
6. Third party providers
7. MakesConSense obligations
7.1 MakesConSense undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to MakesConSense’s instructions, or modification or alteration of the Services by any party other than MakesConSense or MakesConSense’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, MakesConSense will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3.1 does not warrant that:
22.214.171.124 the Client’s use of the Services will be uninterrupted or error-free; or
126.96.36.199 that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; or
188.8.131.52 the Software or the Services will be free from Vulnerabilities;
7.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and any hosting facility, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Contract shall not prevent MakesConSense from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
8. Client’s obligations
8.1 The Client shall:
8.1.1 provide MakesConSense with:
184.108.40.206 all necessary co-operation in relation to the Contract; and
220.127.116.11 all necessary access to such information as may be required by MakesConSense;
in order to provide the Services, including but not limited to Client Data, security access information and configuration services;
8.1.2 without affecting its other obligations under these terms, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.3 carry out all other Client responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, MakesConSense may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Users use the Services and the Documentation in accordance with these terms and shall be responsible for any User’s breach of these terms;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for MakesConSense to perform its obligations under the Contract, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by MakesConSense from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in these terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to MakesConSense’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
9. Charges and payment
9.1 The Client shall pay the Subscription Fees to MakesConSense for the User Subscriptions in accordance with this clause 9 and Schedule 1.
9.2 The Client shall when submitting its Order on the Effective Date provide to MakesConSense valid, up-to-date and complete credit card and direct debit and/or standing order details, acceptable to MakesConSense and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
9.2.1 its credit card or direct debit details to MakesConSense, the Client hereby authorises MakesConSense to bill such credit card or bank account:
18.104.22.168 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
22.214.171.124 subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
9.3 If MakesConSense has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of MakesConSense:
9.3.1 MakesConSense may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and MakesConSense shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of MakesConSense’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in the Contract:
9.4.1 shall be payable in pounds sterling;
9.4.2 are non-cancellable and non-refundable and in the event of the early cancellation of the Contract by the Client MakesConSense shall not be obliged to refund any advance payments made;
9.4.3 are exclusive of value added tax, which shall if applicable be added to MakesConSense’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Client exceeds the amount of disk storage space specified in the Documentation, MakesConSense shall charge the Client, and the Client shall pay, MakesConSense’s then current excess data storage fees.
9.6 MakesConSense shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 60 days’ prior notice to the Client and Schedule 1 shall be deemed to have been amended accordingly.
10. Proprietary rights
10.1 The Client acknowledges and agrees that MakesConSense and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these terms do not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 MakesConSense confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms.
11. Confidentiality AND COMPLIANCE WITH POLICIES
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Client acknowledges that details of the Services constitute MakesConSense’s Confidential Information.
11.6 MakesConSense acknowledges that the Client Data is the Confidential Information of the Client.
11.7 The above provisions of this clause 11 shall survive termination of the Contract, however arising.
11.8 In performing its obligations under the Contract the Client shall comply with the Mandatory Policies.
12.1 The Client shall defend, indemnify and hold harmless MakesConSense against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation.
13. Limitation of liability
13.1 Except as expressly and specifically provided in these terms:
13.1.1 the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. MakesConSense shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MakesConSense by the Client in connection with the Services, or any actions taken by MakesConSense at the Client’s direction;
13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
13.1.3 the Services and the Documentation are provided to the Client on an “as is” basis.
13.2 Nothing in these terms excludes the liability of MakesConSense:
13.2.1 for death or personal injury caused by MakesConSense’s negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 MakesConSense shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
126.96.36.199 any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; or
188.8.131.52 any loss suffered by the Client which arises as a direct or indirect result of (a) the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by MakesConSense; or (b) any modification of the Services or Documentation by anyone other than MakesConSense; and
13.3.2 MakesConSense’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
13.4 The Client acknowledges that the Services are intended for business use and that it shall use the Services accordingly and not as a consumer.
14. Term and termination
14.1 The Contract shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
14.1.1 either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
14.1.2 otherwise terminated in accordance with these terms;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Notwithstanding clause 14.1 or clause 14.3 MakesConSense may terminate the Contract for convenience upon not less than 30 days’ notice in writing to the Client.
14.3 Without affecting any other right or remedy available to it, MakesConSense may terminate the Contract with immediate effect by giving written notice to the Client if:
14.3.1 the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
14.3.2 the Client commits a breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
14.3.3 the Client repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
14.3.4 the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
14.3.5 the Client takes any step or action (or any other party takes such step or action in relation to the Client) in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having an administrator or receiver appointed over any of its assets (where applicable, being a company or limited liability partnership);
14.3.6 a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Client’s assets;
14.3.7 the Client (being an individual) is the subject of a bankruptcy petition, application or order;
14.3.8 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3.4 to clause 14.3.6 (inclusive); or
14.3.9 the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.4 Without limiting or affecting any other right or remedy available to it, in the event that the Client becomes subject to any of the events listed in clause 14.3 (Client Default), MakesConSense shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations.
14.5 On termination of the Contract for any reason:
14.5.1 all licences granted under the Contract shall immediately terminate and the Client shall immediately cease all use of the Services and/or the Documentation;
14.5.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.5.3 MakesConSense may destroy or otherwise dispose of any of the Client Data in its possession in accordance with clause 5.6.5, unless MakesConSense receives, no later than five days after the effective date of the termination of the Contract, a written request for the delivery to the Client of the then most recent back-up of the Client Data. MakesConSense shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by MakesConSense in returning or disposing of Client Data; and
14.5.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
MakesConSense shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of MakesConSense or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
16.1 If there is an inconsistency between any of the provisions in the main body of these terms and the Schedules, the provisions in the main body of these terms shall prevail.
16.2 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
16.5 If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms.
16.6 If any provision or part-provision of these terms is deemed deleted under clause 16.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.7 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into these terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
16.8 The Client shall not, without the prior written consent of MakesConSense, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. MakesConSense may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.9 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.10 These terms do not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.11 Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s main primary email address. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email, shall be deemed to have been received on receipt of a delivery receipt email from the correct address, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a Business Day.
16.12 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.13 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
The Subscription Fees payable by the Client will be displayed in the Order Confirmation and are calculated as follows:
- An initial set-up fee of £30 is payable at the time of placing the Order.
- The monthly or annual Subscription Fees shall be calculated as follows:
|Package 1 (Bronze) £25.00 per month||Package 2 (Silver) £30.00 per month||Package 3 (Gold) £35.00 per month|
|Annual upfront cost £250 saving £50 (=£4.80 p/w)||Annual upfront cost £300 saving £60 (=£5.77 p/w)||Annual upfront cost £340 saving £80 (=£6.54 p/w)|
|Includes access to any 1 form||Includes access to any 2 forms||Includes access to any unlimited forms|
Any other applicable fees, including support fees and / or excess storage fees, shall be as set out in the Order Confirmation.
Processing, Personal Data and Data Subjects
- Processing by MakesConSense
MakesConSense has developed certain software products and has agreed to provide certain Services by way of such software products on the terms set out in this Agreement.
In the course of providing those services to the Client, MakesConSense may process personal data on behalf of the Client in connection with the performance of its obligations under this Agreement.
- Nature and purpose of processing:
Any personal data processed by MakesConSense on behalf of the Client shall be processed by MakesConSense only as is necessary in connection with the performance of MakesConSense’s obligations under this Agreement (Permitted Purpose).
- Duration of the processing:
For the duration of this Agreement and any related agreement between the parties covering the provision of the Services to the Client, or such shorter period where the processing is no longer authorised or no longer necessary for the Permitted Purpose or for compliance with Applicable Laws.
- Types of personal data
The personal data concerns the following categories of data:
- Date user registered
- Email address
- IP address
- Postal address
- Telephone number
- Date of Birth
- Medical information submitted using each consent form
- Categories of data subject
- Users of the Services
- customers of the Client.