Milk Licence Terms & Conditions

The following Terms and Conditions apply to the Services (defined below) delivered by HDC (MSP) Limited (Company Number: 9940016) of Rutherford House, Warrington Road, Warrington, WA3 6ZH (“We” “Us” “Our”) to:

(“You” “Your” “School”) By accepting these terms You agree to the following:

HOW THE AGREEMENT IS FORMED AND TERM

1.1             The Agreement shall begin when You (or your authorised representative) sign and date these Terms and Conditions or upon the commencement of the Services.

1.2             The Agreement shall commence as set out in clause 1.1 and shall continue for a period of 12/24/36 months.

2                WHAT IS BEING SUPPLIED

2.1             We are to supply, install, monitor and use the platform known as Zinet Connect (“Platform”) to enable us to import information from Your management information system to deliver and allow You to use the website/mobile application known as ‘Milk Student Planner System’ (“Services”).

2.2             We shall not provide maintenance of the Services to You under this Agreement. If you require maintenance, We will agree the provision of maintenance with You separately.

3                DELIVERY

3.1             The Services shall be performed remotely or at such other place as is agreed by Us in writing prior to the performance of the Services.

3.2             You shall supply Us in good time with any instructions or other information required to enable Us to perform the Services.

4                   CO-OPERATION AND USE OF THE SERVICES

4.1                You shall liaise and co-operate with any person made known to You by Us, who may at any time have an interest in the Services or any part of them. You also agree to provide such persons with all information in connection with the Services as We may require.

4.2                If You become aware of any matter arising out of the performance or delivery of the Services which affects the interests of any such persons You shall further notify Us.

4.3                You agree to use the Services for lawful purposes only, and agree not to use the Services:

4.3.1         In any way that breaches any applicable local, national or international law or regulation;

4.3.2         In any way that infringes our or other users of the Site’s copyright or other Intellectual Property Rights (defined below).

4.3.3         To undermine the Services we may provide;

4.3.4         To reverse engineer, decompile, dissemble, decipher or otherwise attempt to derive the source code for any underlying code used in the provision of the Services; and

4.3.5         Not to reproduce, duplicate, copy, sub-licence, broadcast, distribute, sell, rebrand, modify, create derivative works or re-sell any part of the Services or any contents or information provided through the Services in contravention of the provisions of these Terms and Conditions.

5                   PRICE

5.1                The price of the Services shall be £2,100/£3,600/£4,500 (“Fee”). The Fee shall be exclusive of value added tax (“VAT”) (or other local sales tax equivalent) but inclusive of all other charges and other taxes (if any).

5.2                VAT shall be payable by You in addition to the Fee and subject to receipt of a valid VAT invoice.

6                   PAYMENT

6.1                We shall invoice You for the Fee in instalments, the first invoice on Your acceptance of this Agreement, the second invoice on the first anniversary of Your acceptance of this Agreement and the third invoice on the second anniversary of Your acceptance of this Agreement. You shall pay the sum due under any invoice within 7 days after receipt of a valid (“Due Date”).

6.2                We reserve the right to set off any amount owing at any time from You to Us against any amount payable by Us to You under the Agreement.

6.3                For all late payments we shall charge you interest on the outstanding sum at 4% above the base rate of the Bank of England (per annum).

7                   CONFIDENTIALITY

7.1                All information of a confidential nature whether disclosed by Us, You or any third party at the School (“Confidential Information“) shall be treated as confidential to the party disclosing the Confidential Information.

7.2                Neither party shall use or disclose any Confidential Information of the other party without the agreement in writing of the other party unless:

7.2.1         required to disclose such information by law;

7.2.2         or where such Confidential Information could bring into question the professionalism of an employee of the School.

8                   INTELLECTUAL PROPERTY

8.1       Intellectual property rights means all patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world (“Intellectual Property Rights”).

8.2       You acknowledge that we are the owner or licensee of all Intellectual Property Rights used in connection with the Services.

8.3       Nothing in these Terms and Conditions assigns, licences or otherwise transfers any Intellectual Property Rights owned or licenced by Us to You, save as necessary for the You to receive the Services.

8.4       You assign to Us by way of present and future assignment, all Intellectual Property Rights developed under or arising from the Agreement and you shall ensure that such assignment includes all Intellectual Property Rights in relation to the Agreement owned by Your employees, consultants, contractors and sub-contractors.

8.5       Where required You shall grant Us a non-exclusive perpetual, worldwide licence to use Your Intellectual Property Rights solely to such extent as is necessary to enable Us to provide Services in relation to the Agreement.

9          TERMINATION AND SUSPENSION

9.1       We reserve the right to suspend the provision of the Services in the event that:

9.1.1          We are required to do so by law;

9.1.2          You have committed a breach of this Agreement;

9.1.3          You have failed to make payment of a sum due on the due date for payment in accordance with this Agreement;

9.1.4         upon giving You reasonable notice, We need to undertake maintenance to the Services.

9.2       This Agreement shall terminate automatically upon the expiration of 36 months from the commencement of this Agreement.

9.3       We can terminate the Agreement by giving You 30 days notice in writing.

9.4       You shall be able to terminate the Agreement, at any point within the first 30 days of this Agreement, by giving Us notice in writing. Where You terminate this Agreement in the first 30 days in accordance with this clause 9.4 we shall refund to You any sums You may already have paid to Us under this Agreement less a £250.00 set up cost already incurred by Us in the provision of the Services. Where You have terminated this Agreement in the first 30 days in accordance with this clause 9.4 and You have not yet paid any sums due under this Agreement We shall invoice You for the £250.00 set up fee and this shall be payable upon receipt.

9.5       We shall have the right to terminate the Agreement immediately in the event that we no longer have access to the Platform or the Services.

9.6       Either party shall have the right at any time by giving notice in writing to the other to terminate the Agreement immediately:

9.6.1         If the other party commits a material breach of any of the terms of the Agreement;

9.6.2         If 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; or

9.6.3         if 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; or

9.6.4         if a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the other party; or

9.6.5         any event occurs, or proceeding is taken, with respect to the other if any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.6.2 to clause 9.6.5 (inclusive); or

9.6.6         the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of their business; or

9.6.7         there is a change of Control of the other party.

9.7       Where the Agreement is terminated, all rights, duties and the Terms and Conditions that expressly or impliedly have effect after termination will continue to be enforceable despite termination.

10              CONSEQUENCES OF TERMINATION

10.1           Upon termination of this Agreement you agree to:

10.1.1       Immediately cease use of the Services;

10.1.2       Pay all outstanding sums owed to Us; and

10.1.3       Where we request, to delete all software (including but not limited to set up and installation files) from Your Services, Devices and Computers.

10.2           We will take steps to ensure that all Your use of the Services is terminated.

11              Our liability to You

11.1           Nothing in these Terms and Conditions shall limit or exclude our liability for anything which cannot be excluded by law (including but not limited to death or personal injury caused by our negligence or fraud or fraudulent misrepresentation).

11.2           Except as expressly and specifically provided in this Agreement:

11.2.1        You assume sole responsibility for results obtained from Your use of the Services, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Services;

11.2.2        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 this Agreement; and

11.2.3       the Services are provided to You on an ‘as is’ basis.

11.3           We shall under no circumstances be liable for any loss You suffer, where you have modified or varied the Services being provided to You.

11.4           We shall under no circumstances whatsoever be liable to you whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or indirect or consequential loss arising under or in connection with the Agreement.

11.5           Our total liability to you in respect of all other losses arising under or in connection with the Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the lesser of £100,000 or the payment you have made for the Services in the last 12 months.

11.6           We are unable to make any representations, warranties or guarantees, whether express or implied, that the content on the Services provided through, derived from or reliant upon another source or created or updated by third parties is accurate, complete or up-to-date.

11.7           We cannot guarantee that the Services will not be uninterrupted or delayed, and cannot be held liable for any loss you suffer as a result of interruptions or delays.

11.8           We cannot guarantee that the Services will produce your desired result or be what you expected and we cannot be held liable for this.

11.9           Whilst we will use our reasonable endeavours to ensure that all necessary steps are taken to safeguard the data You provide in accordance with the Services, You are responsible for the back up of all data you own, and we cannot be held responsible for the loss or corruption of your data through the Services.

11.10         We will exercise reasonable care to ensure that the Services are free of any viruses, errors and bugs and will indemnify you for any loss suffered as a result of our failure to exercise such reasonable care. In the event that we have exercised such reasonable care but you experience viruses, errors or bugs we will not be responsible or liable for any loss suffered and this will not constitute a breach of this Licence.

12                 EVENTS OUTSIDE OUR CONTROL

12.1           We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms and Conditions that is caused by an Event Outside our Control.

12.2           An Event Outside our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war whether declared or not or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks (“Event Outside our Control”).

12.3           If an Event Outside our Control takes place that affects the performance of our obligations under these Terms:

12.3.1       We will contact you as soon as reasonably possible to notify you; and

12.3.2       Our obligations under these Terms and Conditions will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside our Control. Where the Event Outside our Control affects our performance of Services to you, we will restart the Services as soon as reasonably possible after the Event Outside our Control is over.

12.4           Either party may cancel the Services if an Event Outside our Control takes place and continues for longer than 14 days in accordance with each party’s termination rights in clause 9.

13              NON SOLICITATION

13.1           The parties agree that neither of them will either on their own account or in association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of 12 months from, the end of the term of this Agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, employee or contractor of the other party who has worked on providing the Services provided under this Agreement at any time during the term of this Agreement.

14              GENERAL TERMS

14.1           Data Protection – Each party will comply with the Data Protection Act 1998 and You shall indemnify Us against any costs, loss, damages, fines or expenses (including legal expenses) suffered or incurred by Us arising from Your failure to comply with this clause 14.1

14.2           Entire Agreement – The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings.

14.3           Variation – No variation of this Agreement shall be effective unless it is in writing and signed by all parties.

14.4           Waiver – Failure to exercise, or any delay in exercising, any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

14.5           Assignment – You shall not assign or subcontract the Agreement or any part of it without Our prior written consent. In the event that any unauthorised sub-contractor or services are assigned to any unauthorised third parties We shall no liability and You shall indemnify Us for any loss we suffer. We may transfer Our rights and obligations under this Agreement, or any part of it to any other party.

14.6           Severance – If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

14.7           Notices – Any notice or other communication required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication at its address as set out next to the Parties names or as otherwise specified by the relevant party by notice in writing to each other party.

14.8           No partnership – Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

14.9           Third parties –This Agreement is made for the benefit of the parties to it and their successors and permitted assignees and is not intended to benefit, or be enforceable by, anyone else. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

14.10         Governing Law – This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation including non-contractual disputes or claims shall be governed by and construed in accordance with the law of England and Wales.

14.11         Jurisdiction – The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation including non-contractual disputes or claims.