Terms and Conditions

 

1. Interpretation

1.1 Definitions:

Business Day: means a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Company: means Positively Legal Limited, registered in Scotland with company number SC220790 with registered office at 24 Harling Drive, Troon, Ayrshire, UK, KA10 6NF.
Conditions: means the terms and conditions set out in this document as amended from time to time in accordance with clause 10.4.
Contract: means the contract between the Company and the Customer formed in accordance with clause 2.2 or clause 2.3.
Customer: means the organisation who licenses the Toolkit from the Company as set out in the Order or otherwise in writing.
Effective Date: means the date on which the Contract is formed in accordance with clause 2.2 or clause 2.3.
Fee: means the fee paid by the Customer for the Toolkit based on the pricing schedule provided by the Company at the time the Order is placed.
Intellectual Property Rights: means patents, rights to inventions, rights in software including copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
Order: means the Customer's order for the Toolkit, as set out in the checkout page of the Company's website at https://better-at-business.com/.
Toolkit: means the toolkit set out in the Order or as otherwise agreed by the parties in writing from time to time.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order shall be deemed to be accepted by the Company on the date when the Fee has been paid in accordance with clause 8.2, at which point the Contract shall come into existence (and this shall be the Effective Date of the Contract for the purpose of this clause 2.2).
2.3 Where a Customer orders the Toolkit offline, by opening the zip file containing the Toolkit the Customer will be deemed to have accepted these Conditions, at which point the Contract shall come into existence (and the date of such acceptance shall be the Effective Date for the purpose of this clause 2.3).

3. Licence

3.1 The Company grants to the Customer a non-exclusive licence to use the Toolkit for the term of the Contract for the Customer's internal business purposes only.
3.2 This licence is not sub-licensable or transferable unless with the prior written consent of the Licensor.
3.3 The Company shall provide the Toolkit by email to the Customer immediately or, failing which no later than three Business Days, following payment of the Fee in accordance with clause 8.2.
3.4 Where the Customer has ordered the Toolkit offline in accordance with clause 2.3, the Company shall provide the Toolkit by email to the Customer no later than five Business Days following such offline order.

 

4. Licensee Obligations

4.1 Where the Customer is provided a password to access the Toolkit, it must keep such password confidential except it may provide the password to those employees who are authorised to access the Toolkit. Any unauthorised access to the Toolkit must be reported to the Company by the Customer as soon as possible.
4.2 The Customer shall not be entitled to distribute the Toolkit or any part thereof outside of its organisation without the prior written consent of the Company. Any breach of this clause 4.2 shall be considered a material breach of these Conditions.

5. Intellectual Property Rights

5.1 Excluding any rights in any content provided by the Customer through use of the Toolkit, all Intellectual Property Rights in the Toolkit and any Company trademarks used by the Customer will remain owned by the Company. Nothing in these Conditions is intended to create any rights of ownership in favour of the Customer in relation to such Intellectual Property Rights.
5.2 The Customer shall promptly inform the Company of any suspected unauthorised use of any of the Toolkit or Intellectual Property Rights therein of which it becomes aware, and shall provide the Company with such documents, information and reasonable assistance as it can in relation to any such use.

6. Warranty

6.1 The Company warrants to the Customer that, as at the Effective Date, the use of the Toolkit as licensed under these Conditions shall not infringe the Intellectual Property Rights of any third party.
6.2 Notwithstanding clause 6.1 above, the Company shall not be liable for any third party claim where such a claim is a result of any content provided by the Customer or by a third party instructed by the Customer.

7. Liability

7.1 To the fullest extent permitted by law, neither party shall be liable to the other party under this Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
7.2 The Toolkit is licensed by the Company "as is" and use of the Toolkit by the Customer does not guarantee any particular outcome or result.
7.3 Nothing in these Conditions shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence or for fraud.
7.4 Except insofar as the Company’s liability may not be excluded and/or limited by law and without prejudice to any other limitation of liability in this Contract, the Company’s entire liability for any and all claims arising from this Contract and/or the Customer's use of the Toolkit shall be limited to 100% of all sums paid to the Company by the Customer, which the parties acknowledge is reasonable in all the circumstances.

8. Price and payment

8.1 The pricing schedule provided to the Customer by the Company at the time the Order is placed sets out the Fee due to the Company with respect to the grant of rights at clause 3.1. The Customer warrants that it has selected the appropriate Fee in respect to its total headcount.
8.2 The Fee shall be paid to the Company when the Customer places the Order. The Fee may be paid by the Customer using credit card or by bank transfer (in the case of bank transfer, payment is due upon receipt of invoice).
8.3 Where the Customer has underpaid any amount due to the Company under the Contract in relation to the Fee, such additional sum owed to the Company shall become immediately due as at the Effective Date. The Company may charge an additional administration fee where this clause 8.3 is applicable.
8.4 If the Company becomes aware that within the Customer's organisation more than one Toolkit has been purchased, the Company shall only retain the Fee for one purchase of the Toolkit and shall refund to the Customer all other amounts paid by the Customer.
8.5 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under clause 9 (Term and Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.5 will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.6 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 of tax as required by law).

9. Term and Termination

9.1 The Contract shall come into force on the Effective Date and continue unless terminated in accordance with this clause 9.
9.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; or
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
9.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company's outstanding fees and interest.
9.5 On expiry or termination of the Contract for any reason:
(a) all rights and licences granted pursuant to these Conditions shall cease; and
(b) the Customer shall cease all use of the Toolkit and shall return the Toolkit to the Company.
9.6 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. General

10.1 Assignation and other dealings. Either party may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

 

10.2 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, or Customers of the other party, except as permitted by clause 10.2(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

 

10.3 Entire agreement.
(a) This Contract 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.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

10.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

10.5 No Partnership or agency. Nothing in this Contract 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.

 

10.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 10.7 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.

10.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

10.9 Third party rights. Unless it expressly states otherwise, the Contract does not create any rights to any third party or third parties (whether under the Contract (Third Party Rights) (Scotland) Act 2017 or otherwise) to enforce or otherwise invoke any provisions of this Contract.

 

10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.

 

10.11 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.