Terms & Conditions
1. Definitions and Interpretations
- 1.1 In these Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means collectively, the personal information, payment information and credentials used by the Company and/or any User to access SOLAR.
means the sum of money payable by the Customer to the Company on the Commencement Date and on each anniversary thereafter to keep SOLAR active and to enable it to access SOLAR and to receive the Support Services, as notified by the Company to the Customer.
means a day (other than a Saturday, Sunday or public holiday) when banks in London are generally open for business.
has the meaning given to it in clause 2.2.
Commercially Reasonable Efforts
means the same degree of priority and diligence with which the Company meets the support needs of its other similar customers.
means Leafhopper Enterprise Support Limited (company no. 05490621) whose registered office is at 2 Woodhouse Farm Close, Friday Bridge, Wisbech, England, PE14 0HE.
these terms and conditions, as amended from time to time by the Company.
means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored as part of SOLAR.
means the contract between the Company and the Customer for the provision of a licence to use SOLAR and the supply of the Services in accordance with these Conditions and the Order.
means the person who purchases a licence to use SOLAR and receive Services from the Company under the Contract.
means any of the following causes:
- A. any improper use, misuse or unauthorised alteration of SOLAR by the Customer or any User;
- B. any use of SOLAR by the Customer or any User in a manner inconsistent with its intended purpose, technical documentation, specification and/or operations manual;
- C. where applicable, the use by the Customer or any User of any hardware or software not approved by the Company in the Order for use by the Customer in connection with SOLAR;
- D. the use of a non-current version or release of SOLAR; or
- E. any system/data issues with respect to SOLAR that were caused by the Customer or any User.
means any failure of SOLAR to operate in all material respects in accordance with the technical documentation, specification and/or operations manual, including any failure or error referred to in the Service Level Table.
Help Desk Support
means any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to SOLAR.
Intellectual Property Rights
means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, 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.
means the release of software by the Company that corrects faults, adds functionality or otherwise amends or upgrades SOLAR, but which does not constitute a new version of SOLAR.
has the meaning set out in the Service Level Table.
means the Customer’s order to purchase a licence to use SOLAR and receive Services under the Contract.
means any services that are reasonably determined by the Company to be out-of-scope, including:
- A. any services provided by the Company in connection with any apparent problem regarding SOLAR reasonably determined by the Company not to have been caused by a Fault, but rather by a Customer Cause or a cause outside the Company’s control (including any investigational work resulting in such a determination);
- B. any bespoke changes to SOLAR as requested by the Customer;
- C. any service provided outside of the Support Hours or at the Customer’s premises regardless of whether the apparent problem regarding SOLAR is (or is not) caused by a Fault;
- D. any service provided in response to a Support Request for immediate or urgent assistance regardless of whether the apparent problem regarding SOLAR is (or is not) caused by a Fault; or
- E. any other service which the Company notifies the Customer to be out-of-scope.
means collectively, the online facilities, tools, services or information that the Company makes available through SOLAR, and any other services in respect of SOLAR provided by the Company under these Conditions.
means the service level responses and response times referred to in the Service Level Table which may be amended by the Company from time to time.
Service Level Table
means the table set out in clause 8.1.
means ‘special on-line academic records’ which is a web-based application for schools to record and report pupil performance.
means either of the following outcomes:
- A. correction of a Fault; or
- B. a workaround in relation to a Fault that is reasonably acceptable to the Customer.
means 8.30am to 4.30pm Monday to Friday excluding Bank Holidays.
means the period of 12 months from the Commencement Date, which will be automatically extended on each anniversary of the Commencement Date for a further 12-month period upon receipt of cleared payment of the Annual Fee in respect of that period.
means a request made by the Customer in accordance with these Conditions for support in relation to SOLAR, which may include the correction of a Fault.
means the support services provided by the Company under the Contract relating to SOLAR which shall include Held Desk Support, but excluding any Out-of-scope Services.
User / Users
means the Customer’s employees, agents or sub-contractors authorised to access SOLAR in accordance with these Conditions.
means an error in, or failure of SOLAR that disables major functions of SOLAR from being performed.
means the website on which these Conditions appear www.solarforschools.org.uk and any sub-domains of that website.
- 1.2 Unless the context otherwise requires, each reference in these Conditions to:
- A. “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means;
- B. a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision;
- C. a clause or paragraph is a reference to a clause or paragraph of these Conditions;
- D. the headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions;
- E. words imparting the singular number shall include the plural and vice versa;
- F. any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
- G. references to any gender shall include the other gender; and
- H. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. Basis of Contract
- 2.1 2.1 The Order constitutes an offer by the Customer to purchase a licence to use SOLAR and to receive Services from the Company in accordance with these Conditions.
- 2.2 The Order shall only be deemed to be accepted when the Company receives a completed order form from the Customer at which point and on which date the Contract shall come into existence (Commencement Date).
- 2.3 The Contract shall comprise the Order and these Conditions, and constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurance, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Customer acknowledges that it has not relied on, and shall have no remedies in respect of any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
- 2.4 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
- 2.5 These Conditions apply to the Contract to the exclusion of any other terms or conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 2.6 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Provision of Services
- 3.1 The Company shall use its reasonable endeavours to provide SOLAR on an error-free basis and without interruption but it does not provide any warranty or guarantee that the use of SOLAR shall be error-free or without interruption and reserves the right to alter or suspend the provision of SOLAR without prior notice to the Customer.
- 3.2 The Customer acknowledges that SOLAR may change in form or nature at any time.
- 3.3 The Company shall have the right, exercisable at its sole discretion, to terminate the provision of SOLAR without prior notice to the Customer.
- 3.4 Notwithstanding the Company’s right to perform any of the actions detailed in this clause 3 without prior notice, the Company shall use its reasonable endeavours to provide such notice whenever possible.
4. Access to Services
- 4.1 The Customer represents and warrants that it has the authority to enter into the Contract, to use SOLAR and to perform any and all acts as may be necessary under these Conditions.
- 4.2 If the Customer has reason to believe that any Account details have been obtained by another person without consent, the Customer shall contact the Company immediately to suspend the Account and cancel any unauthorised orders or payments that may be pending. The Customer acknowledges that orders or payments can only be cancelled up until the point at which SOLAR is used for the first time through the Account. In the event that unauthorised use is made prior to the Customer notifying the Company of the unauthorised nature of the order or payment, the Company will suspend access to SOLAR and will withdraw any scheduled payments pending investigation. Following investigation, the Company shall determine whether or not to cancel access to SOLAR and make a full or partial refund of the payment to the Customer.
5. Use of SOLAR
- 5.1 In consideration of the Annual Fee paid by the Customer to the Company, the Company grants to the Customer a non-exclusive, non-transferable licence for a term of 12 months to use SOLAR. This licence shall be automatically extended on each anniversary of the Commencement Date for a further 12-month period upon receipt of cleared payment of the Annual Fee in respect of that period.
- 5.2 For the purposes of clause 5.1, the use of SOLAR shall be restricted for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall include allowing the use of SOLAR by, or for the benefit of, any person who is an employee of the Customer). Users are permitted to use SOLAR only in accordance with:
- A. the express consent of the Customer;
- B. these Conditions; and
- C. any relevant law, regulation or other applicable instrument in their particular jurisdiction.
- 5.3 The Customer may not, and shall procure that no User shall, use SOLAR other than as specified in clause 5.1 and clause 5.2 without the prior written consent of the Company, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Company and / or the Customer’s and Users’ rights to use SOLAR may be suspended or revoked at the Company’s discretion.
- 5.4 Except as expressly stated in this clause 5, the Customer and Users have no right (and shall not permit any third party) to adapt, copy, duplicate, trade, resell, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to SOLAR in whole or in part except to the extent that any reduction of SOLAR to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of SOLAR with the operation of other software or systems used by the Customer, unless the Company is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Company to carry out such action or to provide such information before undertaking any such reduction.
- 5.5 The Customer shall not:
- A. sub-licence, assign, transfer or novate the benefit or burden of the Contract in whole or in part to any person;
- B. allow SOLAR to become the subject of any charge, lien or encumbrance;
- C. allow Users to engage in any conduct that may disrupt the provision of SOLAR by the Company; or
- D. deal in any other manner with any or all of its rights and obligations under the Contract, without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.
- 5.6 The Company may at any time sub-licence, assign, transfer, novate, charge or deal in any other manner with any or all of its rights and/or obligations under the Contract, provided it gives written notice to the Customer.
- 5.7 The Customer may not use any information provided by the Company or obtained by the Customer during any such reduction permitted under clause 5.4 to create any software which is substantially similar to that of SOLAR nor use such information in any manner which would be restricted by any copyright subsisting in it.
- 5.8 The Customer shall:
- A. keep a complete and accurate record of the Customer’s copying and disclosure of SOLAR and the Users, and produce such record to the Company on request from time to time;
- B. notify the Company as soon as it becomes aware of any unauthorised use of SOLAR by any person;
- C. pay, for broadening the scope of the licences granted under these Conditions to cover the unauthorised use, an amount equal to the fees which the Company would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced;
- D. co-operate with the Company in all matters relating to the Services;
- E. obtain and maintain all necessary licenses, permissions and consents which may be required for the Services to be provided; and
- F. remain primarily liable for the acts and omissions of each User.
- 5.9 The Customer shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of the Customer’s or any User’s breach of these Conditions or any third-party’s terms and conditions.
- 5.10 The Customer shall permit the Company to inspect and have access to any premises (and to the computer equipment located there) at or on which SOLAR is being kept or used, and have access to any records kept in connection with these Conditions, for the purposes of ensuring that the Customer is complying with the terms of the Contract, provided that the Company provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
- 5.11 The Company will provide the Customer with all Maintenance Releases generally made available to its other similar customers. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
- 5.12 If the Company’s performance of any obligation under the Contract is prevented or delayed by an act or omission by the Customer or any User, or failure by the Customer or any User to perform any relevant obligation (Customer Default):
- a. without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations;
- b. the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.12; and
- c. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
6. Support Services
- 6.1 During the Support Period and in consideration of the Annual Fee paid by the Customer to the Company, the Company shall perform the Support Services during the Support Hours in accordance with the Service Levels.
- 6.2 As part of the Support Services, the Company shall:
- A. provide Help Desk Support by means of telephone by dialling 0800 019 0661 or by e-mailing email@example.com;
- B. use Commercially Reasonable Efforts to correct all Faults notified under clause 7; and
- C. provide technical support for SOLAR in accordance with the Service Levels.
- 6.3 The Company may reasonably determine that any services are Out-of-scope Services. If the Company makes any such determination, it shall promptly notify the Customer of that determination.
- 6.4 The Customer acknowledges that:
- A. the Company is not obliged to provide Out-of-scope Services;
- B. in relation to the correction of Faults, the Support Services comprise correction of the Faults to the extent that such Faults result in SOLAR not conforming with the SOLAR specification but not to the extent that any Fault arises, directly or indirectly, due to any Customer Cause;
- C. in order to assist the Company in providing error correction Support Services, the Customer shall provide if possible a detailed description of the Fault; and
- D. the Company will investigate the Fault and endeavour to correct it.
- 6.5 The Company shall use Commercially Reasonable Efforts to respond to and resolve Support Requests as soon as possible (having regard to the nature and effect of the Support Request) or to circumvent it by way of a workaround, patch or fix but it cannot and does not guarantee that all Support Requests can be completed within the response times detailed in the Service Level Table.
- 6.6 The Company shall not in any circumstances be liable to the Customer:
- A. for failure to provide the Support Services in accordance with the Service Level Table; or
- B. for a failure or delay in providing Support Services caused by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees.
- 6.7 During the Support Period and in consideration of the amounts payable by the Customer under clause 9.4, the Company may, at its discretion, provide Out-of-scope Services in accordance with such service level responses and response times as the Company is reasonably able to provide.
7. Submitting Support Requests and Access
- 7.1 The Customer may request Support Services or any Out-of-scope Services by way of a Support Request.
- 7.2 Each Support Request shall include the Customer’s name, the name of the individual making the request, contact details, a description of the issue and the start time of the incident.
- 7.3 The Customer shall provide the Company with:
- A prompt notice of any Faults; and
- B such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to the Company in writing) remote access to SOLAR, as are reasonably necessary to assist the Company to reproduce operating conditions similar to those present when the Customer detected the relevant Fault and to respond to the relevant Support Request.
- 7.4 Unless otherwise agreed by the Company, all Support Services and Out-of-scope Services shall be provided from the Company’s offices.
- 7.5 The Customer acknowledges that, to properly assess and resolve Support Requests, it may be necessary to permit the Company direct access at the Customer’s premises to SOLAR and the Customer’s files, equipment and personnel.
- 7.6 The Customer shall provide such access promptly, provided that the Company complies with all the Customer’s security requirements and other policies and procedures relating to contractors entering and working on the Customer’s premises notified to the Company in writing reasonably in advance.
8. Service Levels
- 8.1 The Company shall:
- A. prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported; and
- B. respond to all Support Requests for Support Services in accordance with the responses and response times specified in the table set out below:
|Severity level of Support Request||Definition||Service Level response during Support Hours||Service Level response outside of Support Hours|
An isolated or minor issue with SOLAR that:a) does not significantly affect functionality;b) may disable only certain non-essential functions; orc) does not materially impact the Customer’s business performance.
|Level 1 response:
Acknowledgment of receipt of a Support Request within one Business Day of it being reported to the Company.Level 2 response:
The Company shall allocate an Urgent or Normal priority to the Support Request. If the Company allocates an Urgent priority to the Support Request, it will be dealt with as an Out-of-scope Service.The Company will respond within 72 hours (excluding weekends and public holidays) of the request being made to the Company.
|Level 1 response:
Acknowledgment of receipt of a Support Request within 3 Business Days of it being reported to the Company (excluding weekends and public holidays).Level 2 response:
The Company shall allocate an Urgent or Normal priority to the Support Request during Support Hours on the next Business Day.
If the Company allocates an Urgent priority to the Support Request, it will be dealt with as an Out-of-scope Service.
The Company will respond to the Support Request within 72 hours (excluding weekends and public holidays) of the request being made to the Company providing such request is given during Support Hours on a Business Day. If not, the Company will respond within 72 hours (excluding weekends and public holidays) commencing at 8.30am on the next Business Day.
- 8.2 The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times referred to in the Service Level Table above.
- 8.3 The Company shall give the Customer regular updates on the nature and status of its efforts to comply with any Support Request.
- 8.4 If a Solution or satisfactory outcome is not provided within the relevant Service Level response time, the Customer may escalate the Support Request to the parties’ respective project managers.
- 8.5 The Service Levels will not apply to the provision of any Out-of-scope Services.
9. Fees and Payment
- 9.1 The Customer shall pay to the Company the Annual Fee when returning a completed order form to the Company and annually thereafter on each anniversary of the Commencement Date until such time as the Contract is terminated.
- 9.2 The Company reserves the right to increase the Annual Fee on an annual basis.
- 9.3 The provision of Support Services on a remote, off-site basis (such as over the telephone or by e-mail) within the Support Period shall be included in the Annual Fee.
- 9.4 The provision of any Out-of-scope Services is not included in the Annual Fee and shall be charged for at the applicable time and materials rates set out in the Company’s quotation or in the absence of such, at the Company’s standard daily fee rate, in addition to the Annual Fee.
- 9.5 If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then, without limiting the Company’s remedies under clause 16:
- A. the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and/or
- B. the Company reserves the right to suspend the Services and/or the Support Services until payment has been made in full.
- 9.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding as required by law).
- 9.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable, at the same time as payment is due for the supply of the Services.
10. Intellectual Property
- 10.1 The Customer acknowledges that all Intellectual Property Rights in SOLAR and any Maintenance Releases, or updates belong to the Company. The Customer shall have no rights in or to SOLAR other than the right to use it in accordance with these Conditions.
- 10.2 If any third party makes a claim, or notifies an intention to make a claim against the Customer in connection with its use of SOLAR (“Claim”), the Customer shall:
- A. as soon as reasonably practicable, give written notice of the Claim to the Company, specifying the nature of the Claim in reasonable detail;
- B. not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Company;
- C. give the Company and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Company and its professional advisers to examine them and to take copies (at the Company’s expense) for the purpose of assessing the Claim; and
- D. subject to the Company providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take action as the Company may reasonably request to avoid, dispute, compromise or defend the Claim.
- 10.3 If any Claim is made, or in the Company’s reasonable opinion is likely to be made, against the Customer, the Company may at its sole option and expense:
- A. procure for the Customer the right to continue to use SOLAR (or any part thereof) in accordance with the terms of these Conditions;
- B. modify SOLAR so that it ceases to be infringing;
- C. replace SOLAR with non-infringing SOLAR; or
- D. terminate the Contract immediately by notice in writing to the Customer and refund any of the Annual Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of SOLAR to the date of termination) on return of SOLAR and all copies thereof.
- 10.4 Subject to the exceptions in clause 11 of these Conditions, all Content included on SOLAR, unless submitted or created by Users, including text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software, is the property of the Company, its affiliates or other relevant third parties. By accepting these Conditions, the Customer acknowledges that such material is protected by applicable United Kingdom and international intellectual property and other laws.
11. User Content and Intellectual Property
- 11.1 The licence to use SOLAR pursuant to these Conditions, is conditional upon the following:
- A. the Customer and Users must not submit information or data that is unlawful or otherwise objectionable. This includes information or data that is abusive, threatening, harassing, defamatory or fraudulent;
- B. the Customer and Users must not submit information or data that is intended to promote or incite violence;
- C. the Customer and Users must not submit information or data that may contain viruses or any other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
- D. the Customer and Users must not post links to other websites containing any of the above types of Content;
- E. the Customer and Users must not engage in any form of commercial advertising;
- F. the Customer and Users must not impersonate other people, particularly employees and representatives of the Company or our affiliates; and
- G. the Customer and Users must not use SOLAR for unauthorised mass-communication such as “spam” or “junk mail”.
- 11.2 The Company has the right, but not the obligation to pre or post-screen information or data submitted or created by the Customer or Users and may flag or filter any information or data that it deems appropriate.
- 11.3 If any Content is found to be in breach of these Conditions, the Company reserves the right to remove it without notice and may, at its sole discretion, terminate the Customer’s or the responsible User’s access to SOLAR.
- 11.4 The Customer acknowledges that Users may be exposed to information or data that they may find offensive. If the Customer or a User believes that such information or data is in violation of these Conditions, it should be reported to the Company.
- 11.5 The Customer is solely responsible for any and all information or data that Users submit or create. The Company does not endorse, support, represent or otherwise guarantee the accuracy or reliability of such information or data.
- 11.6 Users use SOLAR at their own risk.
- 11.7 By submitting or creating information or data, the Customer warrants and represents that it or the Users are the author of such information or data and / or that they have acquired all of the appropriate rights and / or permissions to use the information or data in this fashion. The Company accepts no responsibility or liability for any infringement of third party rights by such information or data.
- 11.8 Where the Customer requests the Company to develop a new feature, report etc., and where the Customer pays for this enhancement, the Company will own the Intellectual Property Rights for this enhancement and reserves the right to make such enhancement available to all users of SOLAR.
12. Links to SOLAR
If the Customer wishes to place a link to SOLAR on another website, it may do so only to the Company’s home page in the absence of any prior permission to do otherwise. Deep linking (i.e. links to specific pages within the Website) requires the express permission of the Company.
The use of SOLAR is also governed by:
- b. the Data Processing Agreement between the Company and the Customer,
copies of each of which are hereby incorporated into these Conditions by this reference and accepted by the Customer. These can be found at www.leafhopper.co.uk.
14. Disclaimer of Warranties
- 14.1 SOLAR is provided “as is” and on an “as available” basis. The Company gives no warranty that SOLAR will be free of defects and / or faults or that it will be available without interruption.
- 14.2 No part of SOLAR is intended to constitute advice and the Content of SOLAR should not be relied upon when making any decisions or taking any action of any kind.
- 14.3 The Customer accepts responsibility for the selection of SOLAR to achieve its intended results and acknowledges that SOLAR has not been developed to meet the individual requirements of the Customer.
- 14.4 Whilst every effort has been made to ensure that all descriptions of Services available from the Company correspond to the actual services available, the Company is not responsible for any variations from these descriptions.
- 14.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including any and all implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
- 14.6 The Company accepts no liability for any disruption or non-availability of the Website or SOLAR resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and censorship.
15. Limitation of Liability
- 15.1 Except as expressly stated in clause 15.2:
- A. the Company shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
- i. special damage even if the Company was aware of the circumstances in which such special damage could arise;
- ii. loss of profits;
- iii. loss of sales or business;
- iv. loss of agreements or contracts;
- v. loss of anticipated savings;
- vi. loss of use;
- vii. loss of business opportunity;
- viii. loss of or damage to goodwill;
- ix. indirect or consequential loss of any nature; and
- x. loss or corruption of software, data or information;
- B. the total liability of the Company, whether in contract, tort (including negligence) or otherwise and whether in connection with the Contract or any collateral contract, shall in no circumstances exceed a sum equal to the Annual Fee applicable at the time the loss or damage was suffered; and
- C. the Customer agrees that, in entering into the Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Contract or (if it did rely on any representations, whether written or oral, not expressly set out in the Contract) that it shall have no remedy in respect of such representations and (in either case) the Company shall have no liability in any circumstances otherwise than in accordance with the express terms of the Contract.
- 15.2 The exclusions and limitations in clause 15.1 shall apply to the fullest extent permissible at law, but the Company does not exclude liability for:
- A. death or personal injury caused by the negligence of the Company, its officers, employees, contractors or agents;
- B. fraud or fraudulent misrepresentation;
- C. breach of the obligations implied by section 2 of the Supply of Goods and Services Act 1982; or
- D. any other liability which may not be excluded by law.
- 15.3 The Customer and Users should be aware that they use SOLAR and all relevant Content at their own risk.
- 15.4 This clause 15 shall survive termination of the Contract.
16. Term and Termination
- 16.1 The term of the Contract shall commence on the Commencement Date and shall continue until terminated either by the Customer or by the Company in accordance with this clause 16.
- 16.2 The Customer may terminate the Contract at any time by notifying the Company in writing that it wishes to terminate the Contract. The Customer will not be entitled to a refund of any amounts that it has paid under the Contract if it terminates the Contract.
- 16.3 Without affecting any other right or remedy available to it, the Company shall be entitled immediately to terminate the Contract, each User’s Account, the Customer’s Account and any User’s or the Customer’s access to SOLAR at any time for any of the following reasons, by notifying the Customer in writing:
- A. the Customer 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;
- B. the Customer or any User has committed a material breach of these Conditions, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the Customer fails to remedy the breach within 7 days after a written notice to do so;
- C. the Customer has indicated, expressly or impliedly, that they do not intend to or are unable to comply with these Conditions;
- D. the Company is required to do so by law;
- E. it has become, in the opinion of the Company, its affiliates or advisers, no longer commercially viable to continue providing SOLAR;
- F. the Company’s shareholders no longer wish to continue providing SOLAR (whether through the Company or otherwise) for any reason; or
- G. the Company is no longer providing SOLAR in the Customer’s country of residence.
- 16.4 If the Company terminates the Contract or the Customer’s or any User’s Account and access to SOLAR for any reason, the Customer will not be entitled to any refund of any amounts that the Customer has paid under the Contract.
- 16.5 If the Company terminates the Contract or the Customer’s or any User’s Account and access to SOLAR for any reason, the Customer and Users will cease to have access to SOLAR from the date of termination.
- 16.6 If the Customer terminates the Contract, they will continue to have access to SOLAR for the remainder of the period for which they have paid the Annual Fee, termination becoming effective at the end of that time.
- 16.7 Upon termination of the Contract, the Customer shall cease to be bound by all obligations set out in these Conditions with the exception of those expressly stated to survive the termination of the Contract.
Except as expressly provided in these Conditions, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Third Party Rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
20. Force Majeure
Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
21. No Waiver
In the event that either the Customer or the Company fails to exercise any right or remedy contained in these Conditions, this shall not be construed as a waiver of that right or remedy.
In the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these Conditions and shall not affect the validity and enforceability of the remaining Conditions. This term shall apply only within jurisdictions where a particular term is illegal. If any provision or part-provision of these Conditions is deleted under this clause 22 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.
23. Confidential Information
- 23.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 23.2.
- 23.2 Each party may disclose the other party’s confidential information:
- a. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 23; and
- b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- 23.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- 23.4 These obligations of confidentiality shall survive for the term of the Contract and for two (2) years after its termination.
All notices / communications shall be sent to the Company either by post to the Company’s registered office at 2 Woodhouse Farm Close, Friday Bridge, Wisbech, England, PE14 0HE or by email to firstname.lastname@example.org and to the Customer, by post to the address detailed in the Order. Such notice will be deemed received on receipt of the written communication (it is recommended that recorded delivery be used), the day of sending if the email is received in full on a Business Day and on the next Business Day if the email is sent on a weekend or public holiday.
25. Law and Jurisdiction
- 25.1 These Conditions, the Contract and all other aspects of the relationship between the Company, the Customer and Users and shall be governed by and construed in accordance with the laws of England and Wales.
- 25.2 Any dispute between the Company and the Customer and/or any User relating to these Conditions, the Contract or any other aspect of the relationship shall fall within the exclusive jurisdiction of the courts of England and Wales, to which the Company, the Customer and each User irrevocably submits.