1.1 IN these Conditions: "the Company" means Pad Group Software Limited or any Associated Company, "the Contract" means the Contract between the Company and the Customer for the sale or supply of Advertising "the Customer" means the person firm or company with whom the Contract is made by the Company, "the Advert" means any Advert supplied by the Customer
1.2 THESE Conditions apply to all Contracts of the Company to sell or supply advertising and shall prevail over any terms put forward by the Customer unless the Company expressly agrees to them in writing. No conduct by the Company shall be deemed to constitute acceptance of any terms put forward by the Customer and no concession made or latitude allowed by the Company to the Customer shall affect the strict rights of the Company under the Contract.
1.3 THESE Conditions may only be varied with the express written agreement of the Company.
THE Company shall have the right at any time to revise prices to take into account increases in costs including (without limitation) costs of agreed changes in any taxes, duties, levies or exchange rates or costs arising as a result of site conditions, delays, interruptions, lack of information and any other factor beyond the Company's control.
3.1 NO order shall be accepted by the Company unless first confirmed by the Customer in writing, by facsimile, or electronically.
3.2 ALL times or dates given for delivery of the Advertisement are given in good faith and shall not be of the essence of any Contract.
4.1 THE Customer shall inspect the Advert as soon after notification as is reasonably practicable and in any event within 4 days after insertion.
4.2 THE Customer will notify the Company in writing of any deficiency, within 5 days of insertion. If the Customer fails to comply with this clause the Company shall not be liable to the Customer in respect of any shortage, discrepancy, or in respect of any consequential losses or expenses arising there from.
4.3 THE Customer hereby agrees that the retention of the Advert without written complaint to the Company within 5 days of delivery constitutes for all purposes an intimation by the Customer that the Advert has been unconditionally accepted, and that given the nature of the Advert supplied by the Company, 5 days constitutes a reasonable period within which the Advert should be rejected.
5.1 IF credit terms have been agreed in writing by the Company, payment shall be made in full without any deduction or set-off within thirty days of the date of the invoice unless otherwise agreed in writing by the Company.
5.2 IF credit terms have not been agreed by the Company then payment shall be made in full without any deduction or set-off at the time of placing the order for the Advert.
5.3 IF the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Customer is a limited company) if any resolution or petition to wind up such company shall be passed or presented or if an administrator over the whole or any part of such company's undertaking property or assets shall be appointed then if delivery of the Advert has been effected the invoice shall immediately become due and payable by the Customer; if delivery has not been so effected then the Company may at its option cancel the contract or cancel or suspend insertion.
5.4 NOTWITHSTANDING any of the terms and conditions hereof the time of payment shall be of the essence of the Contract.
5.5 INTEREST shall be payable on overdue accounts at the rate of two per cent per month or part thereof on the amount for the time being outstanding from the due date of payment thereof until receipt by the Company whether before or after judgment.
5.6 IF any cheque presented in payment of an invoice by the Customer shall be returned unpaid by the Customer's bank or if any agreed standing order or direct debit arrangement shall fail to operate then the Customer shall in addition to all other sums payable under the Contract pay to the Company the sum of £20 for each such event or such greater sum as shall represent the cost incurred by the Company by reason of such dishonour or failure as aforesaid.
6.1. If payment has become due or the provisions of Clause 6.3 shall apply the Company shall be entitled to remove the Advert from the website
6.2 Each of the foregoing sub-clauses of this clause constitutes an entirely independent provision and shall be interpreted separately from the remainder.
7.1 ALL drawings specification and technical documents issued by the Company at any time in relation to the Contract are issued solely for the Customer's use in connection with the Advert and shall not be copied or reproduced or communicated to any third party without the Company's express written agreement.
7.2 THE Company reserves the right to alter or depart from any specification or design of any Advert sold provided that such alteration or departure shall not to a material extent adversely affect the performance of the Advert or the quality of the workmanship or the materials sold.
7.3 UNLESS otherwise expressly agreed in writing any performance figures, quoted or referred to in any specification or other document are estimates only based on assumed conditions in a well managed office with experienced adequate and efficient operatives and appropriate services and proper use of satisfactory material.
8.1 THE Company will make good by repair or exchange (at its option) such of the Advert or part thereof which is shown to its reasonable satisfaction to have proved defective in materials or workmanship during the Warranty Period on the following terms:
8.1.1 any defect in or failure of the Advert must be notified to the Company in writing as soon as practicable and in any event no later than five days after discovery.
8.2 SUBJECT to the foregoing all conditions, terms, and representations, expressly implied by statute common law or usage in relation to the Advert are hereby excluded and the Company shall be under no liability to the Customer for any loss, damage direct or indirect, resulting from faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Company, its employees or agents.
8.3 IN no event shall the Company be under any liability whatsoever and howsoever arising for any loss of use or loss of profits, interruption of business or any other indirect special consequential loss of any type arising or alleged to have arisen out of any negligent act or default of the Company in respect of the Company’s obligations under such Contract.
8.4 IF the Customer deals as a consumer as defined in S. 12 of the Unfair Contract Terms Act 1977 the above provisions shall not apply and the Customers statutory rights under the Sale of Goods Act will be unaffected.
8.5 THE Company does not exclude liability for death or personal injury to the extent that it is caused by the negligence of the Company its employees or agents nor for breach of any of the undertakings as to title implied into the Contract by S. 1 2 of the Sale of Goods Act 1979
THE Company shall incur no liability to the Customer for misrepresentations by virtue of any statement made by or on behalf of the Company prior to the Contract whether orally or in any letter document or sales literature and the Customer shall not be entitled to rescind the Contract on the grounds of any such misrepresentation.
THE Company shall not be liable for any delay or failure in performance of its obligations under the Contract which is due to or results from any circumstances beyond its reasonable control including but not limited to delays or defaults of suppliers or the defaults of any subcontractor, war, strike, lock-out, trade dispute, flood, accident to plant or machinery, shortage of materials and labour. In any such event the Company shall be entitled to delay or cancel insertion of the Advert.
NO Contract or order may be cancelled without the Company's written consent. In the event that cancellation is agreed for whatever reason the Customer shall indemnify the Company against all costs, claims, loss and expense occasioned thereby including any consequential loss and loss of profits.
12.1 IF at any time one or more of the above Conditions becomes in whole or in part void, invalid or unenforceable then the remainder of these Conditions shall nevertheless remain valid and enforceable.
12.2 THE construction, performance and validity of the Contract and of these Conditions shall in all respects be governed by the laws of England.
12.3 ASSOCIATED company shall mean Pad Group Software Limited or any Subsidiary thereof and 'subsidiary' having the meaning as defined by section 736 of the Companies Act 1985.
The following terms of this End User Licence Agreement (‘Agreement’) govern Customer’s access and use of the Software.
Conditioned upon compliance with the terms and conditions of this Agreement, Pad Group Software Limited and any of its subsidiaries ("HallPad"), grants to Customer a nonexclusive and non-transferable licence to use, for Customer’s internal business purposes, the Software and the Documentation for which Customer has paid the required licence fees. ‘Documentation’ means written or electronic information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Pad Group Software Limited with the Software in any manner (including on CD-Rom or on-line).
Customer’s licence to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware chassis or agreed hardware installation as set forth in the applicable Purchase Order or on other hardware, which has been accepted by Pad Group Software Limited, and for which the Customer has paid to Pad Group Software Limited the required licence fee. Unless otherwise expressly provided in the Documentation, Customer shall use the Software solely as embedded in, for execution on, or (where the applicable documentation permits installation on non-Pad Group Software Limited Advert) for communication with Pad Group Software Limited Advert owned or leased by the Customer and used for the Customer’s internal business purposes.
This is a licence, not a transfer of title, to the Software and Documentation, and Pad Group Software Limited retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Pad Group Software Limited, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programmes and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right, and Customer specifically agrees not to:
Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by law, and at Customer’s written request, Pad Group Software Limited shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created programme, on payment of Pad Group Software Limited’s applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Pad Group Software Limited makes such information available.
For purposes of this Agreement, ‘Software’ shall include (and the terms and conditions of this Agreement shall apply to) any computer programmes, as provided to Customer by Pad Group Software Limited or an authorised Pad Group Software Limited reseller, and any upgrades, updates, bug fixes or modified versions thereto (collectively, ‘Upgrades’) or backup copies of the Software licensed or provided to Customer by Pad Group Software Limited or an authorised Pad Group Software Limited reseller. Notwithstanding any other provision of this Agreement:
Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorised in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Pad Group Software Limited.
This Agreement and the licence granted herein shall remain effective until terminated. Customer may terminate this Agreement and the licence at any time by destroying all copies of Software and any Documentation. Customer’s rights under this Agreement will terminate immediately without notice from Pad Group Software Limited if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the section titled ‘General Terms Applicable to the Limited Warranty Statement and End User Licence’ shall survive termination of this Agreement.
Regardless whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will Pad Group Software Limited or its suppliers be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or the inability to use software or otherwise and even if Pad Group Software Limited or its suppliers or licensors have been advised of the possibility of such damages. In no event shall Pad Group Software Limited ’s or its suppliers’ or licensors’ liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim or if the Software is part of another Product, the price paid for such other Product. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by Pad Group Software Limited. Customer acknowledges and agrees that Pad Group Software Limited has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
The conditions of the granting a Licence under this agreement are covered by the laws of the United Kingdom and in particular by the Copyright, Designs and Patent Act 1988 and Schedule 5 paragraph 1 of the (United Kingdom) Value Added Tax Act, Pad Group Software Limited being a company established, registered and trading from the United Kingdom. The place of supply of the sale of such licences, and the place of their sale, is as defined by the latter act. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the licence of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.
Subject to the limitations and conditions set forth herein, Pad Group Software Limited warrants that commencing from the date of this Agreement and continuing for the Licence Period that the Software substantially conforms to the Documentation. Except for the foregoing, the Software is provided ‘as is’. This limited warranty extends only to the Customer who is the original licensee. Customer’s sole and exclusive remedy and the entire liability of Pad Group Software Limited and its suppliers and licensors under this limited warranty will be (i) replacement of defective media and/or (ii) at Pad Group Software Limited ’s option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Pad Group Software Limited or the party supplying the Software to Customer, if different than Pad Group Software Limited , within the Licence Period. Pad Group Software Limited or the party supplying the Software to Customer may, at its option, require return of the Software as a condition to the remedy. In no event does Pad Group Software Limited warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Pad Group Software Limited does not warrant that the Software or any Advert, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
This warranty does not apply if the Software, Product or any other Advert upon which the Software is authorised to be used (a) has been altered, except by Pad Group Software Limited or its authorised representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Pad Group Software Limited , (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes for which Pad Group Software Limited does not charge a purchase price or licence fee.
Except as specified in this warranty, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by Pad Group Software Limited , its suppliers and licensors. To the extent and implied warranty cannot be excluded, such warranty is limited in duration to the express warranty period. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.