Terms of Business
XYZ Group Ltd is a company registered in England and Wales, reg no 10447504 and with registered offices at 6a St Andrews Court, Wellington Street, Thame, Oxfordshire, OX9 3WT. XYZ Group Ltd place of business is Building 14 Venture Park, Westcott HP18 0XB.
XYZ Group Ltd is hereinafter referred to as XYZ.
XYZ PRIMARY is a product in the XYZ Group portfolio of products and is a fully-fledged school music curriculum manager suitable to be used either as a standalone application or as a support application towards an already established school programme. XYZ PRIMARY offers a bespoke approach to music teaching and permits schools to shape a curriculum overview around their own resources. It is user-friendly, inclusive and accessible to both music specialists and generalist classroom teachers covering all levels of ability. XYZ PRIMARY covers government statutory and non-statutory guidance, as well as a diverse variety of practical and theory-based tools.
You, the customer/representative of the purchasing organisation, hereinafter referred to by “you” has agreed to licence the use of XYZ PRIMARY and the following are the TERMS OF BUSINESS against which the XYZ PRIMARY application will be provided and are exclusive to any other form of agreement howsoever stated.
XYZ and you are also referred to hereinafter as Party in the singular or Parties in the Plural, as the context implies.
Please be sure that you have read these terms and that you agree with them. If you have any questions it is important that you seek clarification as your acceptance to proceed will form a legally binding contract between you (as a representative of your organisation) and XYZ.
- Interpretation
In these Terms of Business, unless the context otherwise requires, the following expressions have the following meanings:
- References to “Agreement” and or “this Agreement” are references to the current issue of these Terms of Business and any attachments and schedules appended thereto.
- References in this Agreement to “writing” includes electronic communications such as e-mail or fax but excluding SMS text messages
- References to a statute or a statutory provision is a reference to that statute or statutory provision as enacted or amended at the relevant time
- The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement
- References to singular values shall include the plural value and vice versa
- References to either gender shall include the other gender
- Definitions
XYZ PRIMARY | means the software application and associated functionality forming the music curriculum manager as specified and configured between XYZ and you. |
Effective Date | means the date this Agreement is executed by the Parties |
Fees | means the Fees to be paid to XYZ for provision of the Services as set out in this Agreement |
Service(s) | means collectively the software application and associated functionality to be provided by XYZ under this Agreement |
Curriculum | means the specific configurations of the Services as agreed between the Parties and as may be amended in writing from time to time |
Authorised Users | means a user authorised by the School to have access to the Services and set up as such in accordance with XYZ procedures |
- Registration of Authorised Users
- You and your organisation will be provided with a customised music curriculum site to enable authorised users to access the Service via the XYZ team. It shall be the responsibility of you and your organisation to manage the authorised users in a secure and responsible manner. XYZ accepts no liability for the consequences of a failure of you and your organisation to manage authorised users in an appropriate manner.
- XYZ reserves the right to suspend access to the Service if in the sole judgement of XYZ appropriate operating procedures and security measures are not adhered to.
- Charges and Payments
- The annual Fees for the Service are £ xxxxx (amount in words) payable in advance as of the Effective Date [INSERT DATE]
- The Fees in 4.1 are subject to VAT at the, then, prevailing rate
- The preferred method of payment is by Direct Debit but XYZ is willing to consider other secure payment methods, such methods to be agreed in writing at the commencement of the Service
- Term
- This Agreement shall commence on the Effective Date and shall be subject to an initial term of 12 (twelve) calendar months (the Minimum Term).
- Your organisation will be invoiced in advance for the Minimum Term, such invoice to be settled within 30 (thirty) calendar days of the issue date of the invoice.
- The Agreement shall thereafter renew automatically on each anniversary date and invoiced accordingly for further terms each of 12 (twelve) calendar months, subject only to a notice to terminate of 3 (three) calendar months to be issued prior to the end of the then current Term, such notice to be provided in writing.
- Either of the Parties may terminate this Agreement with immediate effect by giving written notice to the other Party;
- if the other Party commits a terminable breach which is not rectified within a reasonable period following written notification of the breach; or
- if the other Party commits a terminable breach which is not able to be rectified; or
- if the other Party becomes subject to an administration order (within the meaning of the UK Insolvency Act 1986) or has a receiver or administrator appointed or is subject to a bankruptcy order or equivalent situation; or
- if for any reason the other Party ceases, or threatens to cease to carry on business; or
- if the other Party is required by any law enforcement or other government or regulatory organisation of competent authority or by the Courts to terminate this Agreement.
- Selection and Continuity of the Service
- You and your organisation accepts responsibility for the selection of the Service to meet its requirements. DSIL does not warrant the suitability or fitness for purpose of the Software for purposes beyond the descriptions, illustrations or specifications provided to your organisation by XYZ or for other purposes that have not been stated expressly in this Agreement.
- XYZ cannot guarantee the Services to be error free or that the use of the Services will be uninterrupted. However, XYZ undertakes to use reasonable endeavours promptly to resolve errors and interruptions following their reporting to XYZ in accordance with the established reporting procedures. Provided always that XYZ responds to such requests in a timely manner the existence of any such errors or interruptions shall not constitute a breach of this Agreement by XYZ.
- Any warranties provided by XYZ under this Agreement shall not apply if you use the Services in a manner for which it was not intended, or use the Services other than as permitted under this Agreement.
- Intellectual Property and Copyright
You and your organisation acknowledges and agrees that the skills, know how and methods utilised by XYZ constitute valuable trade secrets and Confidential Information of XYZ. You and your organisation agrees that all such Intellectual Property Rights in the processes and means of delivery to provide the Services that can properly be claimed to be owned by XYZ shall remain at all times with XYZ. You and your organisation agrees further that the Intellectual Property Rights in any general improvements or changes to the Service provision and methodology during or subsequent to the Term of this Agreement, including improvements or changes suggested or made by you and your organisation shall at all times vest in XYZ and you and your organisation agrees to take all necessary actions to ensure all such rights are so assigned to XYZ.
- Confidentiality
The Parties agree to treat as secret and confidential and not at any time for any reason to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information defined as Confidential Information either before or after the Effective Date of this Agreement.
- Limitation of Liability
- Nothing in this Agreement shall exclude or limit the liability of either Party for death or personal injury due to their negligence or for an act of fraud or fraudulent misrepresentation.
- XYZ shall not be liable to you and your organisation whether in contract, tort or otherwise, which arises under or in connection with this Agreement for any special, indirect or consequential loss or damage including, but not limited to business interruption, loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of or corruption of data or information, or any economic loss, costs, damages, charges or expenses, howsoever caused.
- Except as stated in Clause 9.1 the total liability of XYZ to you and your organisation for all claims arising from or in connection with this Agreement shall be limited in aggregate to an amount not exceeding the total of Fees paid to date to XYZ in the then current term of this Agreement.
- Relationship of the Parties
The relationship of XYZ to you and your organisation is that of an independent contractor and nothing in this Agreement shall render XYZ or any of its personnel an employee, worker, agent or partner of you and your organisation
- Dispute Resolution
- If a dispute under this Agreement cannot be resolved directly between the Parties or is deemed beyond the scope or authority of the Parties to resolve directly between them the Parties irrevocably agree to pursue a resolution through mediation by using a recognised UK mediation process and a formally appointed UK mediation body selected by agreement of the Parties. Only at a point where, in the exclusive opinion of the appointed mediator, the dispute or difference cannot reach a satisfactory conclusion may either or both of the Parties submit to the jurisdiction of the courts for the purposes of hearing and determining the dispute.
- Each Party shall bear its own costs in relation to preparing for and pursuing mediation. External and third party fees and other costs properly incurred during the mediation process in arriving at a determination (including any fees and costs of any advisers appointed by the mediators) shall be borne by the parties in such proportions as the mediator shall direct.
- In the event that mediation is unsuccessful and the Parties submit to the jurisdiction of the courts the unsuccessful Party in such action shall be liable to pay to the successful Party a reasonable sum (or such sum as may be directed by the courts) for the successful Party’s legal fees in addition to all other sums that either of the Parties may be called upon to pay.
- Force Majeure
Neither Party shall be liable to the other for a delay or failure to perform its obligations under this Agreement resulting from war, armed conflict, civil disturbance, act of God, fire, explosion, accident, flood, industrial dispute, or other cause beyond the reasonable control of either Party.
- Waiver
A failure or delay by XYZ to exercise any of its rights under this Agreement shall not be deemed to be a waiver of that right, and a waiver by XYZ of a breach of any provision of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Assignment
Neither Party may assign or otherwise transfer any of their rights or obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or transfer made without such prior written consent shall be null and void.
- Data Protection
Both Parties agree that their respective operations and activities shall at all times be in full compliance with the provisions of the Data Protection Act 2018 (DPA 2018), and the UK General Data Protection Regulation (UK GDPR)
- Severability
If any term of this Agreement is declared void or illegal, it shall be deleted and the remainder of this Agreement shall continue in force with the substitution of legal terms that approximate as closely as is legitimate to the terms declared void or illegal.
- Amendment
This Agreement shall not be altered, waived, modified, supplemented or amended except by agreement in writing between the Parties.
- Survival
The representations warranties and covenants contained in clauses 7, Intellectual Property, 8, Confidentiality and 9, Limitation of Liability of this Agreement, shall survive the term of this Agreement.
- Third Party Rights
A person or entity who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
- Notices
Notices under this Agreement must be in writing. Such notice will be deemed to be received on the day of delivery when delivered in person during business hours or on the next Business Day when delivered by email provided an electronic receipt is produced
- Entire Agreement
This Agreement represents the final, complete, and exclusive statement of the terms of the understanding and agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements made between the Parties. No other agreements, representations, warranties, inducements or promises made by or on behalf of either Party, whether oral or otherwise shall add to or vary this Agreement or be of any force or effect.
IN WITNESS WHEREOF this Agreement has been duly executed
Signed by for and on behalf of XYZ Group Ltd Signed ______________________________ Name _______________________________ Date _____________________ | Signed by for and on behalf of You and your organisation Signed ______________________________ Name _______________________________ Date _____________________ |