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CRM Phocas end user license agreement
This current consolidated Phocas End User License Agreement was published on 4 December 2023.
In the Agreement:
Acceptable Use Policy means Phocas’ policy on acceptable use of the Subscribed Services (as Updated from time to time), which as at Order Acceptance is the latest version available at https://www.phocassoftware.com/terms/acceptable-use-policy;
Affiliate means an entity that controls, is controlled by, or is under common control with a party. For this definition, ‘control’ means direct or indirect ownership of more than 50% of the voting interests of the subject entity;
Applicable Jurisdiction has the meaning given in clause 31.2;
Applications means the software or applications used by or on behalf of Phocas to provide the Subscribed Services;
Authorised Users means, in respect of the relevant Subscribed Service, the individual users issued with their own unique authentication credentials and authorised by the Customer to use that Subscribed Service in accordance with the terms of the Agreement;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in the Applicable Jurisdiction;
Confidential Information means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;
Content means information obtained by Phocas from its content licensors or publicly available sources and provided to the Customer pursuant to an Order Form;
Custom Configuration means any Customer-specific configuration of the Subscribed Services carried out by the Customer or by Phocas on the Customer’s behalf, including any means of processing, calculation or display of Customer Data, and any integration of the Subscribed Services with any other software, service or application;
Customer has the meaning given in the relevant Order Form;
Customer Data means all data (in any form) that is provided to Phocas or uploaded or hosted on any part of any Subscribed Service by the Customer or by any Authorised User, and the resulting Customer-unique output that is returned by the Subscribed Services to Customer;
Customer System means all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their direct or indirect sub-contractors, or any Authorised User in connection with the provision or receipt of any of the Services or that the Services otherwise, link, interoperate or interface with or utilise (in each case whether directly or indirectly);
Data Protection Addendum means the addendum identifying certain respective rights and obligations of the parties’ in respect of personal data and privacy under the Agreement (as Updated from time to time), which as at Order Acceptance is the latest version available at https://www.phocassoftware.com/terms/data-protection-addendum
Documentation means the description of and instructions and training material for the relevant Subscribed Service (as Updated from time to time), which as at Order Acceptance is the latest version available at http://help.phocassoftware.com/ and/or such other domain(s) as Phocas may notify to the Customer from time to time or by logging in to the applicable Subscribed Service;
Fees means the Subscription Fee, the Platform Fee together with any other amounts payable to Phocas under an Order Form, including any Professional Service Fees and Hosting Fees;
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Hosting Fee means any fee charged by Phocas for hosting the Subscribed Services as set out in the Order Form;
Information Security Policy means the document setting out Phocas’ measures in respect of data security under the Agreement (as Updated from time to time), which as at Order Acceptance is the latest version available at https://www.phocassoftware.com/platform/technology;
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing;
Materials means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Phocas in connection with the Services, but excluding all Customer Data;
Non-Phocas Application means an online or offline software application or service that is provided by the Customer or a third party and interoperates with a Subscribed Service;
Open Source Software means any software subject to any ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of the Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of the Agreement;
Order Acceptance means the date that the Order Form is signed (digitally or otherwise) and accepted by the Customer;
Order Form means the electric or physical proposal and statement of work form (including its schedules, annexes and appendices (if any)) ordering the Subscribed Services and any Professional Services, entered into by or on behalf of the Customer and Phocas, incorporating this Phocas End User License Agreement and the Agreement (and as varied by the parties by agreement in writing from time to time);
Permitted Downtime means: (i) scheduled maintenance which Phocas will use reasonable endeavours to undertake as set out in https://www.phocassoftware.com/terms/scheduled-maintenance-policy; (ii) a period of emergency maintenance; or (iii) downtime caused in whole or part by Force Majeure or a Non-Phocas Application;
Permitted Purpose means use solely for the Customer’s internal business operations and, in respect of each Subscribed Service, in accordance with the applicable Documentation and the Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law: (a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of any Subscribed Service or Documentation; (b) permitting any use of any Subscribed Service or Documentation in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties) or making any Subscribed Service or Documentation (or any part) available to any third party or allowing or permitting a third party to do any of the foregoing; (c) combining, merging or otherwise permitting any Subscribed Service (or any part of it or any Application) to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or (d) attempting to reverse engineer, observe, study or test the functioning of or decompile the Applications or the Subscribed Services (or any part), in each case except as expressly permitted under the Agreement;
Phocas means the Phocas Entity listed on the Order Form entered into by the Customer to receive the Subscribed Services;
Phocas End User License Agreement means the terms set out in the clauses and other provisions of this document (including the schedule), as Updated from time to time;
Phocas Entity means one of Phocas UK Ltd, Phocas Inc, Phocas Development NZ Ltd or Phocas Pty Ltd (as applicable);
Phocas Provided Materials means all of the Materials provided or made available by or on behalf of Phocas, but excluding all Customer Data and all Third-Party Materials;
Professional Services means services supplemental to the Subscribed Services, including implementation, configuration and training services, to be performed for Customer by Phocas’ employees or contractors, as specified in the Order Form. Performance of Professional Services is additionally subject to the Phocas Professional Services Terms at https://www.phocassoftware.com/terms/professional-services, which form part of the Agreement;
Professional Services Fees means charges payable for Professional Services as referenced in the Order Form, in accordance with the Professional Services Terms;
Protected Data has the meaning given in the Data Protection Addendum;
Purchased Authorised User Accounts means, in respect of each Subscribed Service, the number of Authorised Users who may use that Subscribed Service as set out in the Order Form as may be increased pursuant to clause 7.9;
Renewal Period has the meaning given in clause 18.1;
Services means the Subscribed Services and any Professional Services;
Set-up Period means the period beginning on Order Acceptance and ending on Phocas notifying the Customer in writing that the Services are ready to be accessed by the Customer;
Subscription Term means the period beginning on Order Acceptance and ending with the last of the Subscribed Subscription Terms;
Software means the Applications provided by Phocas to Customer for local installation in the Customer System;
Subscribed Subscription Term means (subject to clauses 18 and 19) in respect of each Subscribed Service, the duration during which such services are to be provided as initially set out in the Order Form and as varied in accordance with the Agreement;
Subscribed Services means each service offering to which the Customer has subscribed as set out in the Order Form, including any Content or Software provided in relation to such service, and any Custom Configurations (and Subscribed Service will refer to each respective service separately);
Subscription Fee means, in respect of each Subscribed Service, the fees payable by the Customer in consideration of that Subscribed Service as set out in the Order Form;
Third-Party Materials means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Third-Party Materials which may be linked to, interact with or used by the Subscribed Services) and all other Materials expressly identified as Third-Party Materials in the Agreement;
Update has the meaning given in clause 6.2, and Updated will be construed accordingly; and
Update Notification has the meaning given in clause 6.1.
In the Agreement, unless otherwise stated:
Phocas and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
words in the singular include the plural and vice versa;
any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions will be construed as illustrative only and will not limit the sense of any word, phrase, term, definition or description preceding those words;
a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing will, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
In the Agreement:
each Order Form entered into by the Customer will form a separate agreement, incorporating this Phocas End User License Agreement, together with the Data Protection Addendum, the Acceptable Use Policy and (as applicable) the Professional Services Terms (the Agreement);
in the event of any conflict in respect of the provisions of the Agreement and/or the documents referred to in it the following order of priority will prevail (in descending order of priority):
(a) the Order Form;
(b) the Data Protection Addendum;
(c) the Professional Services Terms;
(d) the Phocas End User License Agreement; and
(e) the Documentation; and
subject to the order of priority between documents in clause 1.3.2, later versions of documents will prevail over earlier ones if there is any conflict or inconsistency between them.
Upon Order Acceptance and subject to the terms of the Agreement, Phocas grants the Customer a non-exclusive, non-transferable, personal right to use each Subscribed Service during the Subscribed Subscription Term for the Permitted Purpose.
The Customer acknowledges that access to the Subscribed Services will not be fully available or function in accordance with the Documentation during the Set-up Period, and that use of the Subscribed Services is at all times subject to the Customer’s compliance with the Agreement and the requirements identified in the Agreement.
The Customer acknowledges that the Services do not include: (i) other than as set out Phocas’ data retention practices specified in the Documentation, dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or (ii) legal, accounting or other professional or regulated services and that, except as expressly stated in the Agreement, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
The Customer will ensure that only Authorised Users use the Subscribed Services and that such use is at all times in accordance with the Agreement.
The Customer will ensure that the number of Authorised Users for each Subscribed Service does not exceed the number of Purchased Authorised Users Accounts for the relevant Subscribed Service at any time. The Customer is entitled to remove one individual as an Authorised User and replace them with another individual in accordance with the terms of the Agreement, but Authorised User accounts cannot be shared or used by more than one individual.
Without prejudice to any other right or remedy of Phocas, in the event the Customer is in breach of clause 3.2 then the Customer will be liable to pay for the number of Authorised Users above the number of Purchased Authorised Users Accounts for that Subscribed Service for the relevant period during which infringement occurred in accordance with the amount payable under the relevant Order Form.
The Customer will:
be liable for the acts and omissions of the Authorised Users as if they were its own;
only provide Authorised Users with access to the Subscribed Services via the access method provided by Phocas and will not provide access to (or permit access by) anyone other than an Authorised User; and
procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under the Agreement, including all obligations and restrictions relating to Phocas’ Confidential Information.
The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators) will, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer’s organisation as necessary for use of the Subscribed Service) their password or access details for any Subscribed Service.
The Customer will (and will ensure all Authorised Users will) at all times comply with the Acceptable Use Policy and all other provisions of the Agreement.
If any password has been provided to an individual that is not an Authorised User, the Customer will, without delay, disable any such passwords and notify Phocas immediately.
The Customer will comply (and will ensure all Authorised Users comply) with all applicable laws, rules, and regulations governing export that apply to the Subscribed Services, the Customer Data and the Documentation (or any part), and will not export or re-export, directly or indirectly, separately or as a part of a system, the Subscribed Services, the Customer Data or the Documentation (or any part) to, or access or use the Subscribed Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under any applicable laws of, without first obtaining such licence or other approval. Without prejudice to Phocas’ obligations under the Data Protection Addendum, the Customer will be solely responsible for ensuring its access, importation and use of the Subscribed Services, the Customer Data and Documentation complies with all export and other laws.
The Customer acknowledges and agrees that Phocas and its Affiliates may from time to time at any time during or after the terms of the Agreement send promotional material (including by email) to Authorised Users in respect of software and services of Phocas and its Affiliates, in compliance with the then-current version of Phocas’ privacy policy, available at https://www.phocassoftware.com/terms/privacy-and-cookies-policy.
Clauses 3.4 to 3.8 (inclusive) will survive termination or expiry of the Agreement.
The Customer shall be responsible for ensuring that any Custom Configuration does not negatively impact the security and confidentiality of the Subscribed Services or the Customer Data.
Phocas’s warranty in clause 8.1 shall not apply to the extent of any non-conformance which is caused by any Custom Configuration.
Phocas shall be entitled to suspend the Subscribed Services at any time in the event that, in its reasonable opinion, the Custom Configuration may negatively impact the security or confidentiality of the Software or the Customer Data.
Phocas shall have no liability for any loss or damage caused by Custom Configuration.
Phocas will use commercially reasonable endeavours to make the Subscribed Services available 24 hours a day, seven days a week, except for Permitted Downtime.
Phocas will provide its standard support for the Subscribed Services for each Subscribed Service to the Customer for the duration of the respective Subscribed Subscription Term, to the extent and in the manner specified in the Order Form.
Phocas will use reasonable endeavours to provide updates on https://status.phocassoftware.com/ in advance of scheduled or unscheduled maintenance but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance.
Phocas may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in clause 1.3.2 or other documents referred to in any part of the Agreement (excluding in each case the Order Form) from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other reasonable means which Phocas elects (Update Notification). Phocas will comply with its related obligations in the Data Protection Addendum.
The document(s) subject to such Update Notification will replace the preceding version of the same document(s) for the purposes of the Agreement from the date 10 Business Days’ after Update Notification of such revised document(s) (the Update) (or at such later date as Phocas may specify).
In the event that the Customer reasonably believes that any Update materially impacts it negatively in any manner it may by notice elect to terminate the Agreement in respect of all impacted Subscribed Services provided it exercises such right prior to such Update taking effect pursuant to clause 6.2 on not less than 10 Business Days prior written notice and notifies Phocas at the time of exercising such right of the negative impact which has caused it to exercise this right. In the event of such termination the Customer will receive a refund of any pre-paid Subscription Fees in respect of such terminated Subscribed Services pro-rata to the unexpired portion of the then-current Subscribed Subscription Term.
The Customer acknowledges that Phocas will be entitled to modify the features and functionality of the Subscribed Services. Phocas will use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the relevant Subscribed Service(s) by Phocas’ customers generally. Phocas may, without limitation to the generality of this clause 6.4, establish new limits on the Subscribed Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Subscribed Service, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents. Phocas will comply with its related obligations in the Data Protection Addendum.
The Customer acknowledges and agrees that the Customer has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality in respect of the Services.
The Subscription Fee is payable upfront on the frequency set out in an Order Form. Except as otherwise specified in the Order Form, Phocas will issue an invoice within five (5) Business Days of Order Acceptance and the Customer must make payment on the due date stated on the invoice. Fees are payable via credit card or direct deposit to a bank account advised by Phocas. Fees will be deducted automatically by Phocas from the credit card or bank account designated by the Customer on the day that the invoice is due. The Customer authorises Phocas to automatically charge the credit card account, or debit its nominated bank account, for the Fees in advance or as otherwise agreed to by the parties in writing without any further authorisation from the Customer. The Customer acknowledges that the authorisation will remain in effect until the Customer cancels such authorisation by providing written notice to Phocas. If the Customer fails to register its credit card or nominated bank account with Phocas to deduct the Fees, Phocas may in its absolute discretion charge an administrative fee for any work incurred by Phocas in processing the Customer’s payment. Unless prohibited by applicable law, Phocas may impose a surcharge on any payment remitted by credit card that will not exceed the lesser of 4% or the amount charged to Phocas by the credit card issuer.
Professional Services Fees are payable as set out in the Order Form in accordance with the Professional Services Terms.
Hosting Fees are payable as set out in the Order Form.
The Fees are exclusive of any value added tax, sales tax, other taxes, levies and duties.
Phocas will have the right to charge interest on overdue invoices at the rate of (i) 1.5% per month or (ii) the highest rate permitted under applicable law.
Phocas will be entitled to increase the Fees for any and all Services at any time by notice to the Customer provided that Phocas will not be entitled to increase the Fees on less than two weeks prior notice or more than once every 12 months. If the Subscribed Subscription Term is less than 12 months, increases to Subscription Fees will become effective beginning upon the first day of the next Renewal Period.
To the extent the Agreement terminates or expires (other than due to termination by the Customer under clauses 6.3 or 19.2) the Customer will not be entitled to any refund or discount of Fees paid for any parts of any month during which the Subscribed Services cease to be provided.
If Customer wishes to reduce the volume of Authorised User allocation comprised in its subscription, then the Customer must provide notice to Phocas at least 90 days prior to the next Renewal Period for the applicable Subscribed Service, and the reduction will be effective at the start of that next Renewal Period.
If the Customer wishes to increase the volume of Authorised User allocation comprised in its subscription above their current subscription (Additional Subscriptions), any Additional Subscriptions will be granted to the Customer at the Phocas list price for that licence type at the time of issue, and for a term equal to the period remaining for that underlying subscription.
Subject to the remainder of this clause 8, Phocas warrants that from the end of the Set-up Period: (i) each Subscribed Service will operate materially in accordance with its Documentation when used in accordance with the Agreement under normal use and normal circumstances during the relevant Subscribed Subscription Term; and (ii) it will provide each of the Subscribed Services with reasonable care and skill.
If there is a breach of any warranty in clause 8.1 Phocas will use reasonable endeavours to repair or replace the impacted Subscribed Services within a reasonable time. To the maximum extent permitted by law, this clause 8.2 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of the warranty in clause 8.1.
The warranties in clause 8.1 are subject to the limitations set out in clause 16 and will not apply to the extent that any error in the Subscribed Services arises as a result of:
incorrect operation or use of the Subscribed Services by the Customer or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
use of any of the Subscribed Services other than for the purposes for which it is intended;
use of any Subscribed Services with other software or services or on equipment with which it is incompatible (unless Phocas recommended or required the use of that other software or service or equipment in the Documentation);
any act by any third party (including hacking or the introduction of any virus or malicious code);
any modification of Services (other than that undertaken by Phocas or at its direction); or
any breach of the Agreement by the Customer (or by any Authorised User).
Phocas may make Third-Party Materials available for the Customer’s use in connection with the Services. The Customer agrees that:
Phocas has no responsibility for the use or consequences of use of any Third-Party Materials;
the Customer’s use of any Third-Party Materials will be governed by the applicable terms between the Customer and the owner or licensor of the relevant Third-Party Materials;
the Customer is solely responsible for any Third-Party Materials used in connection with the Services and for compliance with all applicable third party terms which may govern the use of such Third-Party Materials; and
the continued availability, compatibility with the Services and performance of the Third-Party Materials is outside the control of Phocas and Phocas has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Third-Party Materials.
The Customer acknowledges that no liability or obligation is accepted by Phocas (howsoever arising whether under contract, tort, in negligence or otherwise):
that the Subscribed Services will meet the Customer’s individual needs, whether or not such needs have been communicated to Phocas;
that the operation of the Subscribed Services will not be subject to minor errors or defects; or
that the Subscribed Services will be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Documentation.
Other than as set out in this clause 8, and subject to clause 16.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
The Customer will (and will ensure all Authorised Users will) at all times comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.
The Customer will:
co-operate with Phocas in all matters relating to the Services;
provide Phocas, its employees, agents, consultants and subcontractors with access to the Customer System as reasonably required by Phocas for the purposes of providing the Services;
provide Phocas with such information and materials as Phocas may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
respond to any requests made by Phocas in a timely manner, and allocate appropriate resources to any such request;
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
provide Phocas with (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information as may be required by Phocas, in order to provide the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer System and the Customer's other business applications; and
carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner.
If Phocas's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, Phocas shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any such failure or delay of Phocas to perform any of its obligations.
The Customer acknowledges that the Services may enable or assist it to correspond with third parties via Non-Phocas Applications and that it does so solely at its own risk. Phocas makes no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Non-Phocas Applications, or any processes initiated by or with any such Non-Phocas Applications. Phocas recommends that the Customer refers to the third party's terms and conditions and privacy policy prior to using the relevant Non-Phocas Applications. Phocas does not endorse or approve any Non-Phocas Applications nor the content of any of the Non-Phocas Applications made available via the Services.
The Customer will comply with all terms and conditions that apply in relation to any Non-Phocas Applications.
The Customer grants Phocas permission to do all things necessary to grant the provider of that Non-Phocas Application access to Customer Data as required for the interoperation of that Non-Phocas Application with the Subscribed Services. Any determination as to whether access to Customer Data is required for the interoperation of that Non-Phocas Application with the Service will be made by Phocas in its absolute discretion. Phocas is not responsible or liable for any disclosure, modification or deletion of Customer Data resulting from it being accessed by a Non-Phocas Application or any provider of a Non-Phocas Application.
If the provider of a Non-Phocas Application ceases to make the Non-Phocas Application available for interoperation with the corresponding Subscribed Service features on terms reasonable to Phocas, Phocas may cease providing those Subscribed Service features. Any decision to cease providing Subscribed Services in respect of Non-Phocas Applications will be made by Phocas in its absolute discretion and where such a decision is made by Phocas, the Customer will not be entitled to any refund, credit, or other compensation.
All Intellectual Property Rights in and to the Services (including in all Applications, Documentation and all Phocas Provided Materials) belong to and will remain vested in Phocas or the relevant third party owner.
Without limitation on clause 11.1, all Custom Configurations will belong to and will remain vested in Phocas. To the extent that any Custom Configuration embodies or is derived from any template or specification or other item in respect of which the Customer owns any Intellectual Property Rights (Customer Requirement), the Customer hereby grants to Phocas and its Affiliates, under all of such Intellectual Property Rights, a royalty-free, irrevocable, worldwide, non-exclusive licence to use, reproduce, create improvements, modifications, translations and derivative works of, distribute, sublicense, perform, and display any such Customer Requirement, including as part of any software or services provided to any third party, during and after the term of the Agreement.
Except as expressly stated in an Order Form, Phocas has no obligation to deliver any copies of any software to the Customer in connection with the Agreement or the Services.
The Customer and Authorised Users may be able to store or transmit Customer Data using one or more Subscribed Service and the Subscribed Services may interact with Customer System. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Phocas (and each of its direct and indirect sub-contractors) to use, copy and otherwise utilise the Customer Data and Customer System to the extent necessary to perform or provide the Services or to exercise or perform Phocas’ rights, remedies and obligations under the Agreement.
To the extent Third-Party Materials are made available to, or used by or on behalf of the Customer or any Authorised User in connection with the use or provision of any Subscribed Service, such use of Third-Party Materials (including all licence terms) will be exclusively governed by applicable third-party terms notified or made available by Phocas or the third party and not by the Agreement. Phocas grants no Intellectual Property Rights or other rights in connection with any Third-Party Materials.
Phocas may use any feedback and suggestions for improvement relating to the Services provided by the Customer or any Authorised User without charge or limitation.
Except for the rights expressly granted in the Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, will not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.
This clause 11 will survive the termination or expiry of the Agreement.
Subject to clauses 12.2 and 12.5, Phocas will:
defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Subscribed Services infringes any copyright, database right or registered trade mark, registered design right or registered patent (an IP Claim); and
pay, subject to clause 12.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
The provisions of clause 12.1 will not apply unless the Customer:
promptly (and in any event within 2 Business Days) notifies Phocas upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
makes no comment or admission and takes no action that may adversely affect Phocas’ ability to defend or settle the IP Claim;
provides all assistance reasonably required by Phocas subject to Phocas paying the Customer’s reasonable costs; and
gives Phocas sole authority to defend or settle the IP Claim as Phocas considers appropriate.
The provisions of clause 16 will apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 12.1.
In the event of any IP Claim Phocas may elect to terminate the Agreement immediately by written notice and promptly refund to the Customer on a pro-rata basis any unused proportion of Fees paid in advance. This clause 12.4 is without prejudice to the Customer’s rights and remedies under clause 12.1.
Phocas will have no liability or obligation under this clause 12 in respect of (and will not be obliged to defend) any IP Claim which arises in whole or in part from:
any modification of the Services (or any part) without Phocas’ express written approval;
any Third-Party Materials;
any Non-Phocas Applications;
any Customer Data;
any Open Source Software;
any breach of the Agreement by the Customer;
installation or use of the Services (or any part) otherwise than in accordance with the Agreement and the Documentation;
any Custom Configuration; or
installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Phocas.
Subject to clause 16.6, the provisions of this clause 12 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
Customer Data will at all times remain the property of the Customer or its licensors.
Except to the extent Phocas has direct obligations under data protection laws, the Customer acknowledges that it is responsible for the content of any Customer Data hosted as part of the provision of the Subscribed Services. The Customer will ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Subscribed Service) complies with all applicable laws and Intellectual Property Rights.
If Phocas becomes aware of any allegation that any Customer Data may not comply with the Acceptable Use Policy or any other part of the Agreement, Phocas will have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Subscribed Services.
Except as otherwise expressly agreed in the Agreement, Phocas will not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Subscription Term. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s businesses. The Customer will, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its and its Authorised User’s needs) and extracts it from each Subscribed Service prior to the termination or expiry of the Agreement or the cessation or suspension of any of the Subscribed Services.
Phocas routinely undertakes regular backups of the Subscribed Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Phocas responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Phocas will not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
Phocas will comply with the Information Security Policy in its processing of Customer Data. The Customer acknowledges that Phocas cannot guarantee that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat the security measures of Phocas or those of its third-party service providers.
Unless otherwise set out in the Order Form or subsequently agreed by the parties in writing, the Customer hereby instructs that Phocas will within 90 days of the earlier of the end of the provision of the Subscribed Services (or any part) relating to the processing of the Customer Data securely dispose of such Customer Data processed in relation to the Subscribed Services (or any part) which have ended (and all existing copies of it) except to the extent that any applicable laws require Phocas to store such Customer Data. Phocas will have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with the Agreement.
Phocas may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymised sets of data derived from the data of multiple Phocas customers (including Customer Data). Aggregate Data does not include any personal data (as defined in applicable data protection laws) relating to Customer, Authorised Users, Customer’s clients or customers, or other information that could reasonably identify a natural person or Customer. Phocas retains all Intellectual Property Rights in the Aggregate Data.
To the extent that Customer Data comprises any intelligence, analysis, benchmarking or other data (not being Personal Data) which is, or is derived from, any non-confidential information (including from any information on a website accessible to the public) (such Customer Data being “Industry Data”), Phocas shall be entitled to use, adapt and include such Industry Data in its software and services as provided to any other customers, and to authorise its Affiliates to do the same.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information will not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party's lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 14.4, each party will hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.
Each party will take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
A party may disclose the other’s Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
The Customer acknowledges that details of the Services (subject to clauses 14.1.1 to 14.1.4), the Content, the Software and the results of any performance tests of the Services, are examples of Phocas’ Confidential Information.
Phocas acknowledges that (subject to clauses 14.1.1 to 14.1.4) the Customer Data is the Confidential Information of the Customer.
No party will make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
At any time during or after the term of the Agreement, Phocas may, in its promotional material and properties publicly identify the Customer as a user of Phocas services. If the Customer does not want Phocas to identify it as a user, it may submit its request at https://www.phocassoftware.com/customers/dni-opt-out. It may take Phocas up to 30 days to process such request. Phocas will not imply any untrue sponsorship, endorsement, or affiliation between the Customer and Phocas.
The provisions of this clause 14 will survive termination of the Agreement, however arising.
To the maximum extent permitted by law, Phocas will not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of the Agreement to the extent it (or the circumstances giving rise to it) arises or was contributed to by any means of any breach of the Agreement by the Customer, any Force Majeure, or any Third-Party Materials or Non-Phocas Applications.
The extent of Phocas’ liability under or in connection with the Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) will be as set out in this clause 16.
Subject to clauses 16.3 and 16.6, aggregate liability in respect of each individual Subscribed Service (and all support services and Professional Services provided in connection with the same) (howsoever arising under or in connection with the Agreement) will not exceed the greater of:
an amount equal to the Subscription Fees for the relevant Subscribed Service paid to Phocas by the Customer in the 12-month period immediately preceding the first incident giving rise to any claim under the Agreement; or
an amount equal to 12 times the Subscription Fees for the relevant Subscribed Service due or paid to Phocas in respect of the first month of the relevant Subscribed Subscription Term.
Subject to clause 16.6, Phocas’ total aggregate liability howsoever arising under or in connection with the Agreement will not exceed the greater of:
an amount equal to the Fees for all Subscribed Services paid to Phocas in the 12-month period immediately preceding the first incident giving rise to any claim under the Agreement; or
an amount equal to 12 times the Fees due or paid to Phocas in respect of the Subscribed Services provided in the first month of the Subscription Term.
Subject to clause 16.6, Phocas will not be liable for consequential, indirect or special losses.
Subject to clause 16.6, Phocas will not be liable for any of the following (whether direct or indirect):
loss of profit;
destruction, loss of use or corruption of data;
loss or corruption of software or systems;
loss or damage to equipment;
loss of use;
loss of production;
loss of contract;
loss of opportunity;
loss of savings, discount or rebate (whether actual or anticipated); and/or
harm to reputation or loss of goodwill.
Notwithstanding any other provision of the Agreement, Phocas’ liability will not be limited in any way in respect of the following:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; or
any other losses which cannot be excluded or limited by applicable law.
This clause 16 will survive the termination or expiry of the Agreement.
Phocas may suspend access to the Subscribed Services (or any part) to all or some of the Authorised Users if:
Phocas suspects that there has been any misuse of the Subscribed Services or breach of the Agreement;
the Customer fails to pay any sums due to Phocas by the due date for payment; or
required by law, by court or governmental or regulatory order.
Where the reason for the suspension is suspected misuse of the Subscribed Services or breach of the Agreement, without prejudice to its rights under clause 19, Phocas will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
In relation to suspensions under clause 17.1.2, access to the Subscribed Services will be restored promptly after Phocas receives payment in full and cleared funds.
If Phocas is required by a licensor to remove Content, or receive information that Content provided to the Customer may violate, or is violating, any applicable law or third-party rights, Phocas may so notify the Customer and in such event the Customer must immediately remove such Content from the Customer System.
If Phocas receives information that a Non-Phocas Application may violate, or is violating, any applicable law or third-party rights, Phocas may notify the Customer and in such event the Customer must immediately disable such Non-Phocas Application or modify the Non-Phocas Application to resolve the violation or potential violation.
If the Customer does not take the action required pursuant to this clause 17, or fails to take sufficient action to rectify the issue, or fails to take immediate action, as determined by Phocas, Phocas may immediately disable the applicable Content, Subscribed Service and/or Non-Phocas Application or suspend access to the same until the violation or potential violation is resolved and will not be liable for any loss or damage suffered by the Customer as a result of such suspension or disablement.
Fees will remain payable during any period of suspension pursuant to this clause 17 notwithstanding that the Customer or some or all of the Authorised Users may not have access to the Subscribed Services.
Unless the Order Form specifies there will be no automatic renewals, and subject to clause 18.2, on expiry of the initial Subscribed Subscription Term indicated in the Order Form for each Subscribed Service the Subscribed Subscription Term will continue and automatically renew for further successive period of 12 months (each a Renewal Period).
If either party wishes for the Subscribed Subscription Term to expire at the end of the initial Subscribed Subscription Term (or Renewal Period, as the case may be), it may cause the Subscribed Service to so expire by providing notice at least 90 days prior to the commencement of the next Renewal Period. If notice is not served within the timeframe set out in this clause 18.2, the Subscribed Service will renew in accordance with clause 18.1.
The Agreement will come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, will continue for the duration of the Subscription Term after which it will automatically expire.
Either party may terminate the Agreement immediately at any time by giving notice in writing to the other party if:
the other party commits a material breach of the Agreement and such breach is not remediable;
the other party commits a material breach of the Agreement which is not remedied within 20 Business Days of receiving written notice of such breach; or
the other party has failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.
Immediately on termination or expiry of the Agreement (for any reason), the rights granted by Phocas under the Agreement will terminate and the Customer will (and will procure that each Authorised User will):
stop using the Subscribed Services; and
destroy and delete or, if requested by Phocas, return any copies of the Content and Software in its possession or control (or in the possession or control of any person acting on behalf of any of them).
Termination or expiry of the Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and will not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.
The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Without limitation, any term or condition stated in any purchase order or other of the Customer’s order documentation (excluding Order Forms) will not apply and does not form part of the Agreement. Each party acknowledges that it has not entered into the Agreement in reliance on, and will have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement. Nothing in the Agreement will limit or exclude any liability for fraud.
Any notice required to be given under the Agreement will be in writing and sent by email to (in the case of notices to the Customer) the address specified in the Order Form and (in the case of notices to Phocas) to legal@phocassoftware.com (or in either case such other email address as the other party may have notified in accordance with this clause). A notice sent by email will be deemed to have been received at the time of transmission. This clause does not apply to notices given in legal proceedings or arbitration.
No variation of the Agreement will be valid or effective unless it is an Update made in accordance with the Agreement, or is made in writing, refers to the Agreement and is duly signed or executed by, or on behalf of, each party.
Except as expressly provided in the Agreement, Phocas may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under the Agreement. Except as expressly permitted by the Agreement, the Customer may not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under the Agreement (including the licence rights granted), in whole or in part, without Phocas’ prior written consent.
Each party will pay all sums that it owes to the other party under the Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
The parties are independent and are not partners or principal and agent and the Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party will have, nor will represent that it has, any authority to make any commitments on the other party’s behalf.
If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Agreement will not be affected. If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question will apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties will negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Agreement will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right, power or remedy. No single or partial exercise of any right, power or remedy provided by law or under the Agreement will prevent any future exercise of it or the exercise of any other right, power or remedy. A waiver of any term, provision, condition or breach of the Agreement will only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
Phocas’ Content licensors will have the benefit of Phocas’ rights and protections hereunder with respect to the applicable Content. Otherwise, a person who is not a party to the Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
Each party represents and warrants to the other that it has the right, power and authority to enter into the Agreement and grant to the other the rights (if any) contemplated in the Agreement and to perform its obligations under the Agreement.
The Agreement and any disputes or claims arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of the Applicable Jurisdiction.
The parties irrevocably agree that the applicable jurisdiction will be the jurisdiction in which the Phocas Entity listed on the Order Form is located (Applicable Jurisdiction).
The parties irrevocably agree that the courts of in the Applicable Jurisdiction have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement, or its subject matter or formation (including non-contractual disputes or claims.).
Each party agrees to the Applicable Jurisdiction without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts in the Applicable Jurisdiction.
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