1
|
The Service
|
1.1
|
Registering with the Service gives you the ability, subject to the terms and
conditions of this Agreement, using a computer (of appropriate specification),
to access Pen2PC on an "always-on" basis at the level selected during your
registration for the Service or during any subsequent upgrade to the Service
that you may choose and is available from DDL.
|
1.2
|
The Service will be provided or procured by DDL in accordance with the
provisions of this Agreement.
|
1.3
|
If you use the Service for business purposes you agree that you do so without
any conditions, guarantees, warranties, whether express or implied including
but not limited to any warranties or conditions as to satisfactory quality or
fitness for a particular purpose, which are expressly excluded to the maximum
extent permitted by law. You will not hold DDL responsible for any loss of
profit, business, opportunity, goodwill, reputation, revenue or savings you
expect to make, wasted expenditure or data being lost or corrupted. Nor will
you hold DDL liable for damages which may or may not have been foreseeable at
the time you entered the contract.
|
1.4
|
In the event that you change your Digital Pen, and you wish to continue to
receive the Service, we shall lock your old Digital Pen from the service and
activate your new Digital Pen for the service.
|
1.5
|
In the event that you lose your Digital Pen, email DDL immediately at
support@pen2pc.co.uk and your Digital Pen will be locked to prevent
unauthorised use.
|
1.6
|
You may at any time during the term of your Agreement Re-grade your Pen2PC
Service. DDL reserves the right to make a Charge (as set out in our Price List)
for the revised Service.
|
2
|
Personal information
|
2.1
|
The Registration Details that you provide shall be true, accurate and
complete. You agree to inform DDL of any changes to your Registration Details
immediately by email addressed to admin@pen2pc.co.uk.
If you are not the same person as the person who pays the Charges, then you
warrant that you have informed and have obtained from the charges payer the
necessary consents and permissions for registering or changing account payment
details and to allow DDL to process such details.
|
2.2
|
DDL will respect your personal information and undertakes to comply with all
applicable UK Data Protection legislation. By signing up for the Services you
consent to our using and/or disclosing your personal data as follows:
|
2.2.1
|
processing your application or changes to your registration details, which may
involve credit checking by a credit reference agency who may record that a
credit check has been made;
|
2.2.2
|
disclosing certain personal details including account details to a bank,
credit card operator or other payment processor for the purposes of setting up
a continuous payment authority;
|
2.2.3
|
providing registration details to any technology partner where legitimately
required to administer the agreement or implement the functionality;
|
2.2.4
|
providing or arranging for third parties to provide any part of the Services
including but not limited to customer care facilities and billing, which may
involve disclosing information about you to third parties solely for this
purpose;
|
2.2.5
|
providing you with active communications about our Services, special
announcements including but not limited to instructions, information, changes
to the products, services and prices, organisational and administrative
changes; and Service newsletters that shall include but not be limited to
Member benefits (which are unconditional rewards rewarding Members for their
time with us), competitions and any other relevant information relating to the
provision of our Services; and
|
2.2.6
|
providing personal data to Authorised Representatives of Pen2PC with whom DDL
have a commercial relationship for the purpose of accounting and auditing.
|
2.3
|
Use of your Registration Details will be in accordance with our Privacy
Policy. If applicable, our use will however be subject to any preferences you
set on the registration form in which you have provided Registration Details.
|
2.4
|
Other than as required by law, or as permitted under this Agreement, DDL shall
not disclose your Registration Details to any third party without your
permission.
|
3
|
DDL’s obligations
|
3.1
|
In consideration of the Charges, DDL shall provide the Service in accordance
with the terms and conditions of this Agreement. You acknowledge that DDL’s
provision of the Service and its ability to provide the Service is dependent
upon services provided by third parties including Sysnet and Anoto and its
ability to provide certain parts of the Service to DDL. You acknowledge that
there may be technical limitations that inhibit the activation or provision of
the Service. DDL agrees to notify Sysnet and/or Anoto of any issues concerning
the Service that you bring to DDL's attention, but we cannot guarantee
rectification of these issues by Sysnet, Anoto or any other third party.
|
3.2
|
You may order such quantities of Digital Pens and Digital Paper for use with
the Pen2PC application as you may specify, subject always to our written
acceptance of your order and in accordance with the prices for such items as
set out in the Price List. Our acceptance of your order shall form part of this
Agreement and the exclusion of warranties in Clause 1.3 shall apply in relation
to the Digital Pens and the Digital Paper. Risk in these items shall pass to
you upon delivery and title shall pass when we have received payment for the
items in full.
|
3.3
|
You acknowledge that DDL cannot warrant that the Service will be interruption
free or that the transmission of information through the Service will be
secure. The Service may be suspended for operational reasons (such as
maintenance or Service upgrades) or because of an emergency. Before suspending
or interrupting the Service (as aforesaid) DDL shall use reasonable endeavors
to give you as much notice as possible.
|
3.4
|
You acknowledge that it is technically impracticable to provide the Service
free from errors and/or faults and DDL does not undertake to do so. DDL shall
provide a Helpdesk Facility to enable faults to be reported and resolved but
does not warrant that all faults will be corrected.
|
3.5
|
Except as may be expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statute, common law or otherwise are
hereby excluded to the fullest extent permitted by law.
|
3.6
|
You acknowledge that due to contention on both the Sysnet and Anoto network and that of your chosen Internet service provider and telecommunications provider (where applicable), the speed of the Service may be reduced or may not be available at times.
|
3.7
|
All Pen2PC training and, except for fault troubleshooting capable of being delivered through the Helpdesk Facility, first line support shall be the responsibility of DDL’s relevant Authorised Representatives from which you obtained the service.
|
4
|
Your obligations
|
4.1
|
You agree that you will be responsible for any Equipment that may be provided
to you for the purpose of receiving the Service and that you will be
responsible for all charges necessary to access and use the Service and that
you will use any Equipment connected or used with the Service in accordance
with any instructions, safety and security procedures applicable to it. It is
your sole responsibility to ensure compliance with any relevant regulation of
your telecommunication service provider.
|
4.2
|
DDL shall incur no liability for any claim that your warranty has been
invalidated (if applicable) as a result of work carried out by you, DDL or its
service providers (including Sysnet or Anoto) in order to make your Equipment
operate with the Service.
|
4.3
|
You will be allocated both a username and a password in order to access the
Service and you will be responsible for keeping your password confidential and
agree to take all necessary steps to ensure that it is kept secure and is not
disclosed to any unauthorised person. You will inform us upon becoming aware of
any suspected or actual unauthorised use of the Service and will take all steps
necessary (or requested by us) to prevent such use.
|
4.4
|
The service and the Digital Pen are intended for standard commercial use and
are not intended to be used in hazardous or life-threatening environments or
for potentially life-endangering applications, including but not limited to
usages involving safety-critical systems in the nuclear industry or control of
aircraft in the air. You undertake not to use the Service for the foregoing and
agree to indemnify and hold DDL harmless from and against all liabilities and
costs arising out of such use for any of these purposes.
|
5
|
Use of the Service
|
5.1
|
You shall not use the Service:
(a) in a way that does not comply with the terms of any legislation or any
licence applicable to you or that is in any way unlawful or fraudulent or has
any unlawful or fraudulent purpose or effect;
(b) without prejudice to the generality of (a) above, in connection with the
carrying out of a fraud or criminal offence against DDL and/or its service
providers (including Sysnet and Anoto), or any telecommunications operator, or
Internet service provider;
(c) to send, knowingly receive, upload, download, use or re-use any material
which is abusive, indecent, defamatory, obscene or menacing, or in breach of
any copyright, trade marks, confidence, privacy or any other rights;
(d) to store more than 150MB in file size per Member on your Pen2PC account,
unless the Service is hosted by you, or additional Charges are paid by you to
DDL (as set out in our Price List);
|
5.2
|
DDL shall have the right to enforce such provisions set out in Clause 5.1
above by suspending or terminating the provision of the Service to you if DDL
knows you are in breach of such obligations.
|
5.3
|
You will indemnify DDL and/or its service providers against any claims or
legal proceedings that are brought or threatened against DDL and/or its service
providers by a third party:
(a) because the Service is used in breach of Clause 5.1 (a) to (c) inclusive;
or
(b) in circumstances where you are in breach of Clause 5.2.
|
5.4
|
You will notify DDL of any such claims or proceedings referred to in Clause
5.3 and keep DDL informed as to the progress of such claims and proceedings.
|
5.5
|
DDL may use within our systems virus screening technology which may result in
the deletion or alteration of files and or attachments, both inbound and
outbound, although we do not warrant that such technology will be effective
against all virus attacks.
|
6
|
Intellectual property rights
|
6.1
|
You will agree to enter into any agreement reasonably required by the owner of
the copyright in any software made available to you for the purpose of
accessing the Service.
|
6.2
|
You acknowledge and agree that all intellectual property rights in the Service
are vested and shall remain vested in DDL and its service providers (including
Sysnet and Anoto) as appropriate.
|
6.3
|
Our intellectual property rights (as well as those of our service providers
which are granted to DDL under licence) subsist in the Pen2PC application and
is proprietary to DDL or our service providers. You may not copy, reproduce or
otherwise utilise it (except for the purposes of this Agreement) without our
express permission nor are you permitted to sublicense it to any third party.
|
7
|
Intellectual property rights indemnities
|
7.1
|
DDL will indemnify you against all claims and proceedings arising from the
infringement of any intellectual property rights by reason of DDL’s provision
of the Service to you. As a condition of this indemnity you must:
(a) notify DDL promptly in writing of any allegation of infringement;
(b) make no admission relating to the infringement;
(c) allow DDL or its service providers (including Sysnet and Anoto) to conduct
all negotiations and proceedings and give all their assistance in doing so (DDL
will pay your reasonable expenses for such assistance); and
(d) allow DDL or its service providers (including Sysnet and Anoto) to modify
the Service, or any item provided as part of the Service, so as to avoid the
infringement provided that the modification does not materially affect the
performance of the Service.
|
7.2
|
The indemnity in Clause 7.1 does not apply to infringements caused by the use
of the Service in conjunction with other software not supplied by DDL or its
service providers (including Sysnet and Anoto), or to infringements caused by
designs or specifications made by you, or on your behalf. You will indemnify
DDL and its service providers against all claims, proceedings and expenses
arising from such infringements or alleged infringements.
|
8
|
Charges
|
8.1
|
The Charges shall apply from the Start Date. You shall pay the Charges in
accordance with the payment terms set out by DDL.
|
8.2
|
VAT (Value Added Tax) will be charged except where it has been demonstrated to
our satisfaction that VAT is not chargeable.
|
8.3
|
In the event that the Charges are not paid to DDL as they fall due, DDL
reserve the right to suspend and/or terminate the Service and take such
necessary action to recover sums due to DDL plus any cost of collecting such
sums and, if applicable, all the Charges up to and including the date of expiry
of the Current Month.
|
8.4
|
In the event that DDL suspends the Service to you pursuant to any breach by
you of our payment terms or in accordance with any pertinent clauses pursuant
to this Agreement, you will be required to pay the Charges for the period that
the Service is suspended including but not limited to any arrears of the
Charges.
|
8.5
|
DDL reserves the right to vary the Charges at any time on giving you notice in
writing. In the event that the Charges are increased you will receive 30 days'
notice. In the event that the Charges are decreased, you will be given notice
within 7 days of the decrease.
|
9
|
Limitation of liability
|
9.1
|
DDL accepts unlimited liability for death or personal injury resulting from
its negligence.
|
9.2
|
Neither party shall be liable to the other, either in contract, tort
(including negligence) or otherwise for direct or indirect loss of profits,
business or anticipated savings, nor for any indirect or consequential loss or
damage or for any destruction of or impairment of access to any data arising in
relation to this Agreement including, without limitation, DDL’s ability to
provide the Service.
|
9.3
|
The liability of DDL in contract, tort (including negligence) or otherwise in
relation to this Agreement is limited to £500,000 for any one event or series
of connected events in the year (commencing from the Start Date or any
anniversary of the Start Date) in which the liability first arose.
|
9.4
|
Each provision of this Agreement excluding or limiting liability operates
separately. If any part is held by a court to be unreasonable or inapplicable
the other parts shall continue to apply.
|
10
|
Term and termination
|
10.1
|
This Agreement may be terminated at anytime prior to the Start Date.
|
10.2
|
After the Start Date this Agreement may be terminated in accordance with the
terms set out in this Agreement:
|
10.2.1
|
by either of us on 1 month’s notice.
|
10.2.2
|
by you giving 7 days' notice if we inform you of a material change to the
Service or we give notice of an amendment to this Agreement pursuant to Clause
12 where such changes are to your detriment;
If you give notice of termination of this Agreement, or we terminate pursuant
to Clause 5.1, and the Service is available for you to use, you must pay all
outstanding Charges including those payable during the Current Month.
|
10.3
|
Either party may terminate this Agreement immediately, on notice if the other:
(a) commits a material breach of this Agreement, which is capable of remedy,
and fails to remedy the breach within 30 days of a written notice to do so; or
(b) commits a material breach of this Agreement which cannot be remedied; or
(c) is the subject of a bankruptcy order, or becomes insolvent, or makes any
arrangement or composition with or assignment for the benefit of their
creditors, or goes into voluntary (otherwise than for reconstruction or
amalgamation), or compulsory liquidation or a receiver or administrator is
appointed over their assets.
|
10.4
|
DDL shall be entitled to terminate this Agreement forthwith in the event that:
(a) the contract between DDL and Sysnet enabling DDL to provide the Service is
terminated;
(b) the service provided to DDL by Sysnet is not of the quality deemed by DDL
to be appropriate to provide the Services.
|
10.5
|
If any of the events detailed in Clause 10.3 occur as a result of your
default, DDL may suspend the Service without prejudice to its right to
terminate this Agreement. Where the Service is suspended under this Clause 10.5
you must pay all the Charges due in respect of the Service until this Agreement
is terminated and all Charges to the end of the Current Month.
|
10.6
|
In the event that DDL agrees to you terminating this Agreement before the
expiry of the Current Month, you must pay all the Charges due up to and
including the date of expiry of the Current Month.
|
10.7
|
Termination in accordance with this Clause 10 shall not prejudice or affect
any right of action or remedy which shall have accrued or shall thereafter
accrue to either party and all provisions which are expressed to survive this
Agreement or impliedly do so shall remain in full force and effect.
|
11
|
Force majeure
|
11.1
|
If either party is unable to perform any obligation under this Agreement
because of a matter beyond that party's reasonable control such as lightning,
flood, exceptionally severe weather, fire, explosion, war, civil disorder,
industrial disputes (whether or not involving that party's employees), or acts
of local or central Government or other competent authorities or events beyond
the reasonable control of that party's suppliers, the party will have no
liability to the other for that failure to perform.
|
11.2
|
If any of the events detailed in Clause 11.1 continue for more than one month
either party may serve notice on the other terminating this Agreement.
|
12
|
Variation
|
12.1
|
DDL reserves the right to vary the terms of this Agreement or the nature of
the Service (where the technical specification of the Service is varied) at any
time and DDL will inform you of any such changes through email, newsletter or
such other medium, as DDL considers appropriate.
|
13
|
Miscellaneous
|
13.1
|
The Agreement shall be governed by and construed in accordance with English
Law and the parties hereby agree to submit to the exclusive jurisdiction of the
High Court of England in respect of any dispute or matter arising out of or in
connection with the Agreement.
|
13.2
|
This Agreement constitutes the entire agreement between the parties and
supersedes all representations, communications and prior agreements (oral or
written). This Clause shall not apply to any statement, representation, or
warranty made fraudulently, or to any provision of this Agreement that was
induced by fraud for which the remedies available shall be all those available
under the law.
|
13.3
|
Any notice or other communication to be given under the Agreement must be in
writing to the other party and may be delivered or sent by email, pre-paid
first class letter post or fax transmission at the party to be served last
known address. Any notice or document shall be deemed served if delivered, at
the time of delivery; emailed, at the time of delivery to your email server;
posted, 48 hours after posting; and if sent by facsimile transmission, at the
time of transmission.
This Agreement shall not be assigned, sub-contracted, novated, sub-licensed or
otherwise disposed of by you. DDL reserves the right to assign, sub-contract or
otherwise transfer its obligations to provide the Service and/or supply the
Equipment to any third party.
|
13.4
|
The illegality, invalidity or unenforceability of any provision this Agreement
shall not affect the continuation in force of the remainder of this Agreement.
|
13.5
|
A person who is not party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms.
This clause does not affect any right or remedy of any person that exists or is
available or otherwise than pursuant to that Act.
|
|
|
These pages were revised February 2005 and are subject to copyright
© Data Driven Logistics Ltd. Version 3.0
|