CLIENT ACCESS PORTAL TERMS AND CONDITIONS
Your attention is particularly drawn to the provisions of clause 8.
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Agreed Volume of Data: the agreed amount of server storage space in Gb (gigabytes) reserved on the Portal for the Client and as set out in the Fee Proposal.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 6.
Client: the person, company or firm who purchases Services from Plowman Craven.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.
Contract: the contract between Plowman Craven and the Client for the supply of Services in accordance with these Conditions.
Client Materials: the content including, but not limited to, documents, drawings, models, pointclouds, plans, designs and any other item provided to Plowman Craven by the Client from time to time for storage, hosting and access via the Portal and, where relevant, shall include content saved by the Client within the Upload Area.
Data: the Client Materials and Plowman Craven Materials.
Fee Proposal: the description or specification of the Services and quote(s) provided in writing by Plowman Craven to the Client.
Force Majeure Event: has the meaning given in clause 11.1.
Initial Term: 6 calendar months from the Effective Date.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
IP Address: the internet protocol address allocated to the Portal.
Order: the Client's order for Services as set out in the Client's purchase order form, the Client's written acceptance of the Fee Proposal, or overleaf, as the case may be.
Period of Inactivity: ninety (90) days without recorded access to the Portal by the Client.
Plowman Craven: Plowman Craven Limited registered in England and Wales with company number 06429056 whose registered office is located at 141 Lower Luton Road, Harpenden, Hertfordshire, AL5 5EQ.
Plowman Craven Materials: the content produced by Plowman Craven for the Client under separate instructions from the Client stored, hosted and accessible via the Portal.
Portal: the Plowman Craven Client Access Portal which is an electronic system used to access the Data via the internet using the IP Address.
Services: the creation and hosting of the Portal and the provision of access to the Data stored within the Portal and related services as detailed within the Fee Proposal and to be provided pursuant to these Conditions.
Upload Area: a designated area within the Portal to allow the Client and its authorised Users to upload and save content in accordance with clause 3.7.
User: a visitor to the Portal who is not employed by and/or instructed by Plowman Craven.
1.2 Clause headings do not affect the interpretation of these Conditions.
1.3 References to clauses are (unless otherwise provided) references to the clauses of these Conditions.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
1.7 References to content include any kind of text, information, image, or audio or video material.
1.8 Reference to a User “authorised” by the Client shall mean any user who accesses the Portal using any username and/or password provided by Plowman Craven to the Client in accordance with these Conditions.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Plowman Craven issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Plowman Craven which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Plowman Craven, and any descriptions or illustrations contained in Plowman Craven'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 that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any Fee Proposal or other quotation given by Plowman Craven shall not constitute an offer, and is only valid for a period of 3 calendar months from its date of issue.
3.1 Plowman Craven shall provide the Services in accordance with these Conditions.
3.2 Due to the nature of the internet the Client confirms and accepts that notwithstanding any other provision of these Conditions, no representation, or warranty is made by Plowman Craven:
(a) in relation to the Services;
(b) in relation to the performance of the Portal or that the Portal, any server through which the Services are offered and/or any associated site or equipment will be uninterrupted or error free;
(c) in relation to the security of the Portal or any Data stored within the Portal;
(d) that defects in the Services and/or the Portal will be corrected; or
(e) that the Portal or the server through which the Services are offered or any connected system is free of viruses or other harmful components.
3.3 Plowman Craven reserves the right to monitor the usage of the Portal by the Client and Users as it sees fit but is under no obligation to do so.
3.4 Plowman Craven shall use reasonable endeavours to inform the Client of any necessary software and/or hardware in order to access, view or download any Data that is stored within the Portal.
3.5 Where ever reasonably possible Plowman Craven shall inform the Client with reasonable notice of any planned maintenance work which may result in any downtime in the Portal or temporary loss of the Services.
3.6 Plowman Craven shall use reasonable endeavours to provide the Services during the hours of 9am to 5pm during Business Days.
3.7 Where requested by the Client and subject to any associated fees as set out in the Fee Proposal, or as otherwise agreed between Plowman Craven and the Client, Plowman Craven may create a designated upload area within the Portal whereby the Client and its Authorised Users shall be able to upload and save content (Upload Area). The Client acknowledges and agrees that Plowman Craven shall have no liability whatsoever in relation to the Client Materials within the Upload Area and shall not be obliged to monitor its use. Plowman Craven shall not refer to or use any Client Materials saved within the Upload Area in the provision of any services (whether under these conditions or in relation to any other services supplied by Plowman Craven to the Client) unless otherwise previously agreed between the parties. Where relevant and at all times subject to this clause references to the Portal within these Conditions shall include reference to the Upload Area.
4. CLIENT RESPONSIBILITIES
4.1 The Client shall:
(a) be responsible for the accuracy and completeness of the Client Materials;
(b) be responsible for any variations made to the Plowman Craven Materials where such a variation is not made by Plowman Craven;
(c) be responsible for the security, allocation and management of any username and/or passwords provided by Plowman Craven to the Client in order to allow the Client or any User authorised by the Client to access the Portal;
(d) use its best endeavours to ensure that only Users authorised by the Client access the Portal; and
(e) be responsible for making all arrangements necessary for the Client and/or any authorised User to have access to the Portal including (but not limited to) ensuring that it and any authorised User has the necessary software and/or hardware in order to access, view or download any Data that is stored within the Portal.
4.2 The Client agrees to hold harmless and indemnify Plowman Craven against any and all claims, actions, proceedings, costs, expenses (including all legal and other professional fees), fines, interest and any other amounts incurred by Plowman Craven arising from or relating to the Client’s failure to comply with any obligation under these Conditions.
5. PORTAL CONTENT
5.1 The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations, licences (including Ordnance Survey licences) or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
5.2 Plowman Craven shall save the Client Materials provided from time to time by the Client within the Portal provided that it is not Inappropriate Content.
5.3 Plowman Craven shall include only the Data on the Portal. The Client acknowledges that Plowman Craven has no control over any content placed on the Portal or any variation made to any Data in the Portal by the Client and/or the Users and shall not be required to monitor the content of the Portal. Plowman Craven reserves the right to remove content from the Portal where it reasonably suspects such content is Inappropriate Content. Plowman Craven shall notify the Client if it becomes aware of any allegation that content on the Portal may be Inappropriate Content.
5.4 The Client shall indemnify Plowman Craven against all damages, losses and expenses arising as a result of any action or claim:
(a) that the Client Materials or any other material posted to, or linked to, the Portal constitutes Inappropriate Content; and
(b) any variation to the Client Materials, held within the Upload Area, by the Client and/or any User authorised by the Client.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be the price(s) set out within the Fee Proposal next to the relevant Service which is selected and requested by the Client within the Order and all Charges are exclusive of VAT.
6.2 Plowman Craven shall issue a monthly VAT invoice in advance in respect of the Charges, and the Client shall pay to Plowman Craven the Charges set out in such invoice within 15 days of receipt of it.
6.3 Plowman Craven reserves the right to charge additional fees in accordance with the Fee Proposal when the size of the Data stored within the Portal exceeds the Agreed Volume of Data, on providing at least 5 Business Days prior written notice.
6.4 In the event that the Client wishes to alter the scope or performance of the Services (Change), the parties shall discuss, in good faith, the impact of the Change, any alteration to the Charges as a result of the proposed Change and the agreed timetable for the implementation of the Change. Where the parties are able to agree the Change a written notice detailing the agreed terms in relation to the Change shall be signed by both parties. In the event that the parties are unable to agree to the terms of the proposed Change the Services shall continue unaffected in accordance with these Conditions.
6.5 The Charges are liable to change at any time. Plowman Craven will provide the Client at least 20 days prior notice before the price for the Services increase under this clause 6.5. Plowman Craven shall not enforce this clause 6.5 during the Initial Term. If the Client does not serve notice in accordance with clause 10.2 the Client shall be deemed to accept the increase in the charges.
7. DISASTER RECOVERY
7.1 The Client shall be responsible for ensuring that it has maintained appropriate and up-to-date backups of the Client Materials at all times.
7.2 Notwithstanding clause 7.1, Plowman Craven shall, or shall also procure that, the Data is backed up and saved at least once every Business Day.
7.3 In the event of any loss or damage to the Portal and/or the Portal servers, Plowman Craven will use reasonable endeavours to restore the Portal via a different server with the Data saved during the latest backup in accordance with clause 7.2. Time shall not be of the essence in relation to this clause 7.3 and the reinstatement of the Portal.
8. LIMITATION OF REMEDIES AND LIABILITY
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall operate to exclude or limit either party's liability for:
(a) death or personal injury caused by its negligence; or
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
8.2 Plowman Craven shall not be liable to the Client for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
8.3 Plowman Craven shall not be liable to the Client or any third party in respect of any claims whatsoever and howsoever arising:
(a) in relation to the Client Material;
(b) from any download of Data from the Portal;
(c) due to any loss, destruction, variation and/or disclosure made by the Client and/or any authorised User relating to any Data stored within the Portal;
(d) due to the use of any Plowman Craven Material for purposes which it was not originally intended for;
(e) in relation to any downtime of the Portal;
(f) from any upload of Data by the Client or any authorised User;
(g) in relation to any costs incurred by the Client or any authorised User in obtaining the necessary software and/or hardware in order to access, view or
download any Data that is stored within the Portal; or
(h) from any unauthorised access to the Portal. Due to the nature of the internet the Client understands and accepts that no guarantee or representation is given that the Services will be free from hackers or unauthorised Users.
8.4 All implied terms are, to the greatest extent permissible by law, excluded from the Contract.
8.5 Subject to clauses 8.1 to 8.4 (inclusive), Plowman Craven’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these Conditions or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the Charges for that calendar year.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Client retains all Intellectual Property Rights in the Client Materials, and grants Plowman Craven a worldwide non-exclusive royalty free licence to such Intellectual Property Rights to the extent required to perform its obligations pursuant to these Conditions.
9.2 All Intellectual Property Rights in any works arising in connection with the performance of the Services by Plowman Craven and in the IP Address (Works) shall be and remain the property of Plowman Craven, and Plowman Craven hereby grants to the Client a non-exclusive licence to such Intellectual Property Rights for the purposes of accessing the Portal.
9.3 The IP Address is allocated to the Client as part of the Services and is not purchased or portable or transferrable by the Client in any manner whatsoever.
9.4 The Client shall indemnify Plowman Craven against all damages, losses and expenses arising as a result of any action or claim that the Client Materials infringe any Intellectual Property Rights of a third party.
10. TERM AND TERMINATION
10.1 The Contract shall commence on the Commencement Date and the Contract shall (subject to earlier termination pursuant to this clause 10) continue for at least the initial Term and thereafter on a rolling basis subject to clause 10.2.
10.2 Either party shall be entitled to terminate the Contract on thirty (30) days’ prior written notice such notice not to expire before the end of the Initial Term.
10.3 Plowman Craven may terminate the Contract immediately at any time by written notice to the Client if:
(a) there is a Period of Inactivity;
(b) the Client commits any material breach of its obligations under these Conditions which (if remediable) is not remedied within 10 days after the service of written notice specifying the breach and requiring it to be remedied; or
(c) that Client:
(i) ceases to trade (either in whole, or as to any part or division involved in the performance of these Conditions); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to the Client; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of the Client, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of the Clients’ creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to the Client being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
10.4 On termination of the Contract, howsoever occurring, all licences granted by Plowman Craven under these Conditions shall terminate immediately and the Client shall cease to have access to the Portal and/or use the IP Address. The Client acknowledges and confirms that it shall not be entitled to transfer the hosting services under the Contract to a new provider.
10.5 On expiry or termination of the Contract Plowman Craven shall provide to the Client an electronic copy of the Plowman Craven Materials created for and paid for by the Client (in cleared funds) and stored on the Portal. Plowman Craven shall not be obliged to provide any other copies of any other Data that may be stored within
10.6 On expiry or termination of the Contract, all provisions of these Conditions shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
11. FORCE MAJEURE
11.1 The definition in this clause applies in these Conditions.
Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these Conditions shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
12.1 A notice given under these Conditions shall be:
(a) delivered personally; or
(b) sent by fax or e-mail; or
(c) sent by pre-paid first-class post, recorded delivery or registered post; or
(d) (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.
12.2 A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery; or
(b) in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or
(c) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
(d) in the case of registered airmail, five days from the date of posting; or
(e) if deemed receipt under the previous paragraphs of this clause 12.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.
Neither party may assign or transfer any of its rights or obligations under these Conditions, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
14. ENTIRE AGREEMENT
14.1 The Contract (which incorporates these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.2 Except as set out in this clause 14, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it upon which it relied in entering into these Conditions (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of these Conditions. Nothing in these Conditions shall exclude or limit either party's liability for any Misrepresentation made knowing that it was untrue. Each party's liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party's ability to perform its obligations under these Conditions, shall be subject to the limit set out in clause 8.5.
15. THIRD PARTY RIGHTS
These Conditions are made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
16. VARIATION AND WAIVER
16.1 A variation of these Conditions shall be in writing and signed by or on behalf of both parties to these Conditions.
16.2 A waiver of any right under these Conditions is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
16.3 Unless specifically provided otherwise, rights arising under these Conditions are cumulative and do not exclude rights provided by law.
17.1 If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 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.
18. GOVERNING LAW AND JURISDICTION
These Conditions and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and the parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions.