Software Terms & Conditions
TERMS AND CONDITIONS FOR THE SUPPLY OF SOFTWARE
The Customer’s attention is particularly drawn to the provisions of clause 12.
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services or the Licensed Program.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential including information labelled as such.
Customer: the person or firm who purchases Services from Prestwood.
Customer Data: the data inputted by the Customer and Authorised Users on the Customer’s behalf for the purpose of using the Services and Licensed Program or facilitating the Customer’s use of the Services and Licensed Program.
Effective Date: the on which these Terms and Conditions are accepted by the Customer.
Initial Subscription Term: a period of nine months from the Effective Date.
Licensed Program: means the downloadable software application provided by Prestwood and as updated from time to time.
Normal Business Hours: 9.00 am to 1.00 pm and 2.00 pm to 5.00 pm local UK time, each day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Prestwood: Prestwood Software Limited, incorporated and registered in England and Wales with company number 01846852 whose registered office is at Beauchamp House, Prestwood, Stourbridge, West Midlands, DY7 5AF
Services: the subscription services provided by Prestwood to the Customer under these terms and conditions via https://prestwoodsoftware.com, www.truthsoftware.co.uk, www.prestwood-group.co.uk or any other website notified to the Customer by Prestwood from time to time.
Software: the online software applications and/or Licensed Program provided by Prestwood as part of the Services.
Subscription Fees: the subscription fees agreed between Prestwood and the Customer from time to time payable by the Customer to Prestwood for the User Subscriptions by direct debit.
Subscription Term: has the meaning given in clause 13.1.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services or the Licensed Program in accordance with these terms and conditions.
Virus: any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program 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.
1.2 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of acceptance of these terms and conditions.
1.3 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of acceptance of these terms and conditions under that statute or statutory provision.
2. User Subscriptions and Licence
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions, Prestwood hereby grants to the Customer a non-exclusive, non-transferable:
2.1.1 right to permit the Authorised Users to use the Services during the Subscription Term; and/or
2.1.2 a licence to use the Licensed Program.
2.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for his use of the Services or the Licensed Program, that such password shall be changed from time to time and that each Authorised User shall keep his password confidential.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Prestwood reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under these terms and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services and/or Licensed Program in order to build a product or service which competes with the Services and/or Licensed Program; or
2.4.3 subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Licensed Program available to any third party except the Authorised Users, or
2.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Licensed Program, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or Licensed Program and, in the event of any such unauthorised access or use, promptly notify Prestwood.
3.1 Prestwood shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance provided that Prestwood has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
3.2 Prestwood will, as part of the Services and at no additional cost to the Customer, provide the Customer with Prestwood’s standard customer support services during Normal Business Hours.
4. Customer Data and Data Protection
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 Prestwood shall implement the following back-up procedure:
|Period and type of back-up||Back-up retained for|
|Daily Incremental||1 month|
|Weekly Full||1 year|
|Monthly Full||5 years|
|Annual Full||7 years|
Prestwood reserves the right to alter its back-up procedure from time to time to time.
In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Prestwood to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data at the Customer’s cost. Prestwood shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Prestwood to perform services related to Customer Data maintenance and back-up).
4.4 If Prestwood processes any personal data on the Customer’s behalf when performing its obligations under these terms and conditions, the parties record their intention that the Customer shall be the data controller and Prestwood shall be a data processor and in any such case:
4.4.1 Prestwood acknowledges and agrees that the personal data may not be transferred or stored outside the European Economic Area or the country where the Customer and the Authorised Users are located in order to carry out the Services and Prestwood’s other obligations under these terms and conditions without the Customer’s prior consent;
4.4.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Prestwood so that Prestwood may lawfully use, process and transfer the personal data in accordance with these terms and conditions on the Customer’s behalf;
4.4.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
4.4.4 Prestwood shall process the personal data only in accordance with these terms and conditions and any lawful instructions reasonably given by the Customer from time to time; and
4.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.5 The Customer acknowledges that Prestwood is reliant on the Customer for direction as to when and to what extent Prestwood is entitled to access and process Customer Data in order to carry out the Customer’s instructions or fulfil Prestwood’s obligations. Consequently Prestwood will not be liable for any claim brought by a data subject arising from any action or omission by Prestwood to the extent that such action or omission resulted directly from the Customer’s instructions or Prestwood’s obligations pursuant to these terms and conditions.
4.6 Prestwood will notify the Customer, within a reasonable period of time, of any known or suspected breach which in Prestwood’s opinion may impact upon the Customer Data.
4.7 Prestwood will notify the Customer of any change to the Services prior to its implementation if, in the sole opinion of Prestwood, such change is likely to materially affect the integrity and security of the Customer Data.
4.8 Prestwood will notify the Customer within a reasonable period of becoming aware that any employee may require or has had access to the Customer Data.
5. Third Party Providers
6. Prestwood’s Obligations
6.1 Prestwood undertakes that:
6.1.1 the Services will be performed with reasonable skill and care; and
6.1.2 it has tested the Licensed Program for viruses using commercially available virus-checking software consistent with current industry practice.
6.2 The undertakings at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or Licensed Program contrary to Prestwood’s instructions, or modification or alteration of the Services or Licensed Program by any party other than Prestwood or Prestwood’s duly authorised contractors or agents. If the Services or Licensed Program do not conform with the foregoing undertaking, Prestwood will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the contract.
6.4.1 does not warrant that the Customer’s use of the Services or Licensed Program will be uninterrupted or error-free; or that the Services or Licensed Program and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
6.4.2 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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.5 Prestwood will undertake penetration testing from time to time on the Software and will inform the Customer of compliance with such testing.
7. Customer’s Obligations
The Customer shall:
7.1.1 provide Prestwood with:
(a) all necessary co-operation in relation to these terms and conditions; and
(b) all necessary access to such information as may be required by Prestwood;
in order to provide the Services and/or the Licensed Program, including but not limited to Customer Data, security access information and configuration services;
7.1.2 comply with all applicable laws and regulations with respect to its activities under these terms and conditions;
7.1.3 carry out all other Customer responsibilities set out in these terms and conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Prestwood may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.1.4 ensure that the Authorised Users use the Services and/or the Licensed Program in accordance with these terms and conditions and shall be responsible for any Authorised User’s breach of these terms and conditions;
7.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Prestwood, its contractors and agents to perform their obligations under these terms and conditions, including without limitation the Services;
7.1.6 ensure that its network and systems comply with any relevant specifications provided by Prestwood from time to time; and
7.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Prestwood’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. Charges and Payment
8.1 Commencing on the Effective Date and on the first day of each calendar month thereafter the Company shall pay to Prestwood by direct debit the Subscription Fee plus VAT per Authorised User.
8.2 If Prestwood has not received payment within one calendar month after the due date, and without prejudice to any other rights and remedies of Prestwood:
8.2.1 Prestwood may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services or Licensed Program and Prestwood shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.2.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in these terms and conditions:
8.3.1 are, subject to clause 12.5.2, non-cancellable and non-refundable;
8.3.2 are exclusive of value added tax, which shall be added to Prestwood’s invoice(s) at the appropriate rate.
8.4 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified, Prestwood shall charge the Customer, and the Customer shall pay, Prestwood’s then current excess data storage fees. Prestwood’s excess data storage fees current as at the Effective Date are £0.60 per Gigabyte per month.
8.5 Prestwood shall be entitled to increase the Subscription Fees and/or the excess storage fees payable pursuant to clause 8.4 on 1 November in each year upon giving no less than 90 days’ prior notice to the Customer and these terms and conditions shall be deemed to have been amended accordingly.
9. Proprietary Rights
9.1 The Customer acknowledges and agrees that Prestwood and/or its licensors own all intellectual property rights in the Services and the Licensed Program. Except as expressly stated herein, these terms and conditions do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Licensed Program.
9.2 Prestwood confirms that it has all the rights in relation to the Services and the Licensed Program that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms and conditions.
10.1 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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 these terms and conditions.
10.2 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.3 Prestwood acknowledges that the Customer Data is the Confidential Information of the Customer.
10.4 This clause 10 shall survive termination of these terms and conditions, however arising.
11.1 The Customer shall defend, indemnify and hold Prestwood harmless 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 Customer’s use of the Services and/or Licensed Program, provided that:
11.1.1 the Customer is given prompt notice of any such claim;
11.1.2 Prestwood provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
11.1.3 the Customer is given sole authority to defend or settle the claim.
11.2 Prestwood shall defend the Customer, its officers, directors and employees against any claim that any part of the Services, Software and/or Licensed Program developed by Prestwood infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
11.2.1 Prestwood is given prompt notice of any such claim;
11.2.2 the Customer provides reasonable co-operation to Prestwood in the defence and settlement of such claim, at Prestwood’s expense; and
11.2.3 Prestwood is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Prestwood may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall Prestwood, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.4.1 a modification of the Services or Software by anyone other than Prestwood; or
11.4.2 the Customer’s use of the Services or Software in a manner contrary to the instructions given to the Customer by Prestwood; or
11.4.3 the Customer’s use of the Services or Software after notice of the alleged or actual infringement from Prestwood or any appropriate authority; or
11.4.4 any part of the Services or Software not developed by Prestwood.
11.5 The foregoing and clause 12.5.2 state the Customer’s sole and exclusive rights and remedies, and Prestwood’s (including Prestwood’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of Prestwood (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
12.1.1 arising under or in connection with the supply of Services and/or Licensed Program pursuant to these terms and conditions;
12.1.2 in respect of any use made by the Customer of the Services and Software or any part of them; and
12.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
12.2 The Customer agrees and acknowledges that:
12.2.1 the Software has not been developed to meet its individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Software meet its requirements;
12.2.2 the Software is not intended as and should not be relied upon as a source of taxation, legal or other regulatory advice;
12.2.3 the Software may not be free of bugs or errors and the Customer agrees that the existence of any minor errors shall not constitute a breach of these terms and conditions;
12.2.4 any support or interactive assistance provided within the Software or other documentation generated by the Software, is provided for guidance only and Prestwood shall have no liability for the accuracy or completeness of such data, the Customer’s interpretation thereof or advice given based upon the use of the Software; and
12.2.5 Prestwood makes no warranty or representation as to taxation, legislative or other regulatory compliance or interpretation or the taxation implications of any proposed course of action in the UK or any other jurisdiction and the Customer should seek its own specialist advice in such regard.
12.3 Except as expressly and specifically provided in these terms and conditions:
12.3.1 the Customer assumes sole responsibility for results obtained from the use of the Services, Software and/or the Licensed Program by the Customer, and for conclusions drawn from such use. Prestwood shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Prestwood by the Customer in connection with the Services and the Licensed Program or any actions taken by Prestwood at the Customer’s direction;
12.3.2 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 these terms and conditions; and
12.3.3 the Services, Software and the Licensed Program are provided to the Customer on an “as is” basis.
12.4 Nothing in these terms and conditions excludes the liability of Prestwood:
12.4.1 for death or personal injury caused by Prestwood’s negligence; or
12.4.2 for fraud or fraudulent misrepresentation.
12.5 Subject to clause 12.3 and clause 12.4:
12.5.1 Prestwood shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(a) loss of profits; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) professional, indirect or consequential loss, costs, damages, charges or expenses,
however arising under these terms and conditions; and
12.5.2 Prestwood’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms and conditions shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13. Term and Termination
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and thereafter unless:
13.1.1 either party gives to the other party at least three months’ notice of termination in writing after the end of the Initial Subscription Term in which case this agreement shall terminate upon expiry of such notice; or
13.1.2 otherwise terminated in accordance with the provisions of these terms and conditions.
13.2 Without affecting any other right or remedy available to it, Prestwood may terminate this agreement with immediate effect by giving written notice to the Customer if:
13.2.1 the Customer fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
13.2.2 the Customer commits a material breach of any other of the terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
13.2.3 the Customer repeatedly breaches any terms and conditions 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 these terms and conditions;
13.2.4 the Customer, in Prestwood’s [reasonable] opinion does or allows to be done any act or thing which may jeopardise Prestwood’s proprietary rights in the Software and the Documents;
13.2.5 the Customer makes or allows to be made, any copy of the Software without Prestwood’s prior written consent; or
13.2.6 there is a change of control of the Customer.
13.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
13.3.1 the other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.3.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.3.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.3.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
13.3.5 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
13.3.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.3.7 a creditor or encumbrancer of the other party 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 other party’s assets and such attachment or process is not discharged within 14 days;
13.3.8 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 13.3.1 to clause 13.3.7 (inclusive); or
13.3.9 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
13.4 On termination of this agreement for any reason:
13.4.1 all licences granted under these terms and conditions shall immediately terminate;
13.4.2 each party shall return and make no further use of any equipment, property, Software, Licensed Program and other items (and all copies of them) belonging to the other party;
13.4.3 Prestwood may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with accepted industry good practice unless Prestwood receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data in XML format, Prestwood shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer 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 Customer shall pay all reasonable expenses incurred by Prestwood in returning or disposing of Customer Data. Once Prestwood has delivered such back-up the Customer Data shall be destroyed or otherwise disposed of; and Prestwood shall confirm the deletion of such Customer Data. and
13.4.4 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.
14. Force Majeure
Prestwood shall have no liability to the Customer under these terms and conditions if it is prevented from or delayed in performing its obligations under these terms and conditions, 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 Prestwood 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 Prestwood or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions 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.
16.1 If any provision (or part of a provision) of these terms and conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal 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.
17. Entire Agreement
17.1 These terms and conditions, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of these terms and conditions, other than as expressly set out in these terms and conditions.
18.1 The Customer shall not, without the prior written consent of Prestwood, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.
18.2 Prestwood 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 these terms and conditions. Prestwood agrees to notify the Customer within a reasonable time of any changes to the parties who store, process or maintain Customer Data.
19.1 Any notice required to be given under these terms and conditions shall be in writing (including e-mail) 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 these terms and conditions, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in these terms and conditions.
19.2 For Prestwood, the address for service of a written notice is Prestwood Software Limited, 5 Darwin House, The Innovation Centre, Pensnett Estate, Kingswinford, West Midlands, DY6 7YB. The fax number for correspondence is 01384 400426. The contact and support telephone number is 01384 273736.
19.3 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
20. Arbitration and Mediation
20.1 Any dispute or difference arising out of or in connection with this contract shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators.
20.2 Should the mediation fail, in whole or in part, either party may, upon giving written notice, and within twenty eight days thereof, apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a single arbitrator, for final resolution. The arbitrator shall have no connection with the mediator or the mediation proceedings, unless both parties have consented in writing. The arbitration shall be governed by both the Arbitration Act 1996 and the Controlled Cost Rules of the Chartered Institute of Arbitrators (2000 Edition), or any amendments thereof, which Rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be England and Wales.
21. Governing Law
The terms and conditions and any dispute or claim arising out of or in connection with them 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.
Subject to the provisions of clause 20, 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 and conditions or its subject matter or formation (including non-contractual disputes or claims).