This is a legal agreement between you (Customer or you) and Trade Software Solutions Limited (Tradesoft or we) for:
• Use of the subscription services provided by us to you under this agreement via www.trade-soft.co.uk or any other website notified to you by us from time to time (Services); and
• the documentation made available to you by us online via www.trade-soft.co.uk or such other web address notified by us to you from time to time which sets out a description of the Services and the user instructions for the Services (Documentation).
We licence use of the Software and Documentation to you on the basis of this Licence. We do not sell the Software or Documentation to you. We remain the owners of the Software and Documentation at all times.
You should print a copy of this agreement for future reference.
This agreement applies without prejudice to any software licences that you may have entered into with Tradesoft.
For more information about our products and services, please visit https://www.trade-soft.co.uk.
1. Tradesoft shall, during the Subscription Term, provide the Services and make available the Documentation to you on and subject to the terms of this agreement.
2. Tradesoft shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
2. unscheduled maintenance performed outside Normal Business Hours, provided that Tradesoft has used reasonable endeavours to give you at least 4 Normal Business Hours’ notice in advance, and if the Services experience any Downtime in excess of the Service Level then Tradesoft will provide you with service credits as set out in clause 29.
2. Additional user subscriptions
1. Subject to clause 3.1 and clause 3.1, you may, from time to time during any Subscription Term, purchase additional User Subscriptions at the price set out in Tradesoft’s Price Guide and Tradesoft shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement. If you wish to purchase additional User Subscriptions, please use the users section within the main admin area.
2. You must pay to Tradesoft the relevant fees for such additional User Subscriptions. If such additional User Subscriptions are purchased by you part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
3. User subscriptions
1. Subject to you purchasing the User Subscriptions in accordance with clause 3.1 and clause 10.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Tradesoft hereby grants to you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for your internal business operations.
2. In relation to the Authorised Users, you undertake that:
1. the maximum number of Authorised Users that you authorise to access and use the Services and the Documentation shall not exceed the number of User Subscriptions you have purchased from time to time;
2. you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services or Documentation;
3. each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
4. you permit Tradesoft to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Tradesoft’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
5. if any of the audits referred to in clause 2.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Tradesoft’s other rights, you shall promptly disable such passwords and Tradesoft shall not issue any new passwords to any such individual; and
6. if any of the audits referred to in clause 2.2.4 reveal that you have underpaid Subscription Fees to Tradesoft, then without prejudice to Tradesoft’s other rights, you shall pay to Tradesoft an amount equal to such underpayment as calculated in accordance with the prices set out in Tradesoft’s Price Guide within 10 Business Days of the date of the relevant audit.
3. You shall not access, store, distribute or transmit any material during the course of your use of the Services that is prohibited by Tradesoft’s Acceptable Use Policy and Tradesoft reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches its Acceptable Use Policy.
4. You must not:
1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
1. and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or
2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2. access all or any part of the Services or Documentation in order to build a product or service which competes with the Services; or
3. use the Services or Documentation to provide services to third parties; or
4. subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Documentation available to any third party except the Authorised Users; or
5. attempt to obtain, or assist third parties in obtaining, access to the Services or Documentation, other than as provided under this clause 2; and
5. You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify Tradesoft.
6. The rights provided under this clause 2 are granted to you only and, if you are a company, shall not be considered granted to your subsidiary or holding company.
1. The definitions and rules of interpretation in this clause apply in this agreement.
3. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
4. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
8. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
9. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
10. A reference to writing or written includes faxes but not e-mail.
11. References to documentation includes electronic documentation.
12. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
1. Tradesoft will, as part of the Services and at no additional cost to you, provide you with Tradesoft’s standard customer support services during Normal Business Hours in accordance with Tradesoft’s Support Services Policy in effect at the time that the Services are provided. Tradesoft may amend the Support Services Policy in its sole and absolute discretion from time to time. You may purchase enhanced support services separately at Tradesoft’s then current rates as set out in Tradesoft’s Price Guide .
2. As set out in Tradesoft’s Support Services Policy, Tradesoft’s customer support services are specifically aimed at assisting Authorised Users with issues with technical issues with the Services and are not intended to provide training in the use of the Services. Training in the use of the Services may be purchased at Tradesoft’s then current rates as set out in the Tradesoft’s Price Guide .
5. Customer data
1. You shall own all right, title and interest in and to all of your Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of your Customer Data.
2. Tradesoft shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as such document may be amended by Tradesoft in its sole discretion from time to time. In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for Tradesoft to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Tradesoft in accordance with the archiving procedure described in its Back-Up Policy. Tradesoft shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Tradesoft to perform services related to Customer Data maintenance and back-up).
4. If Tradesoft processes any personal data on your behalf when performing its obligations under this agreement, the parties record their intention that you shall be the data controller and Tradesoft shall be a data processor and in any such case:
5. you acknowledge and agrees that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and Tradesoft’s other obligations under this agreement;
6. you shall ensure that you are entitled to transfer the relevant personal data to Tradesoft so that Tradesoft may lawfully use, process and transfer the personal data in accordance with this agreement on your behalf;
7. you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
8. Tradesoft shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by you from time to time; and
9. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damages.
6. Third Party Providers
7. Supplier’s obligations
1. Tradesoft undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Tradesoft’s instructions, or modification or alteration of the Services by any party other than Tradesoft or Tradesoft’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Tradesoft will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Tradesoft:
1. does not warrant that your use of the Services will be uninterrupted or error-free or that the Services, Documentation or the information obtained by you through the Services will meet your requirements; and
2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. This agreement shall not prevent Tradesoft from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products or services which are similar to those provided under this agreement.
4. Tradesoft warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. Your obligations
1. You must:
1. provide Tradesoft with:
1. all necessary co-operation in relation to this agreement; and
2. all necessary access to such information as may be required by Tradesoft; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
1. comply with all applicable laws and regulations with respect to its activities under this agreement;
2. carry out all of your other responsibilities as set out in this agreement in a timely and efficient manner;
3. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement, including the policies incorporated by and listed in clause 17 below, and shall be responsible for any Authorised User’s breach of this agreement;
4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Tradesoft, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
5. ensure that your network and systems comply with the relevant specifications provided by Tradesoft from time to time; and
6. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Tradesoft’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
9. Electronic contracting
Your use of the Services includes the ability to enter into agreements and to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into through the Services, including notices of cancellation, policies, contracts and applications. In order to access and retain the electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
10. Charges and payment
1. You must pay the Subscription Fees to Tradesoft for the User Subscriptions in accordance with this clause 10 and Tradesoft’s Price Guide .
2. You must on signing up for the Services provide to Tradesoft a valid, up-to-date and complete credit or debit card details or approved purchase order information acceptable to Tradesoft and any other relevant valid, up-to-date and complete contact and billing details. By providing credit or debit card details to Tradesoft, you hereby authorise Tradesoft to bill such credit or debit card:
1. on the Agreement Date for the Subscription Fees payable in respect of the first Renewal Period; and
2. subsequently, subject to clause 16.1, on the last Business Day prior to the start of each subsequent Renewal Period.
3. If Tradesoft has not received payment by the start of a Renewal Period, and without prejudice to any other rights and remedies of Tradesoft:
1. Tradesoft may, without liability to you, disable your password, account and access to all or part of the Services and Tradesoft shall be under no obligation to provide any or all of the Services until payment for that Renewal Period is made (there shall be no reduction in the payment due in respect of the Renewal Period as a consequence of such suspension); and
2. if the invoice concerned remains unpaid 14 days after falling due then Tradesoft may terminate this agreement in accordance with condition 16.3.1;
3. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of National Westminster Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment; and
4. All amounts and fees stated or referred to in this agreement:
1. are, subject to clause 14.6.2, non-cancellable and non-refundable;
2. are exclusive of value added tax, which shall be added to Tradesoft’s invoices at the appropriate rate.
5. If, at any time whilst using the Services, you exceed the amount of disk storage space specified in the Documentation, Tradesoft shall charge you, and you shall pay, Tradesoft’s then current excess data storage fees as set out in Tradesoft’s Price Guide .
6. Tradesoft shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.1 or the excess storage fees payable pursuant to clause 10.5 in accordance with clause 20.4.
7. You acknowledge and agree that we will send invoices to you electronically only. You must provide us with a valid and current e-mail account to which we will send your invoices. The accuracy of the e-mail address you provide to us for this purpose is entirely your responsibility.
8. You must pay to Tradesoft on demand and on an indemnity basis all such legal costs or expenses which Tradesoft may reasonably incur from time to time incur in connection with:
1. enforcing the payment of any sum due to it under this agreement; or
2. successfully defending a claim brought by you relating to this agreement.
11. Proprietary rights
1. You acknowledge and agree that Tradesoft or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
2. Tradesoft confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
1. is or becomes publicly known other than through any act or omission of the receiving party;
2. was in the other party’s lawful possession before the disclosure;
3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, shall 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 this agreement.
3. Each party shall 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 this agreement.
4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
5. You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Tradesoft’s Confidential Information.
6. Tradesoft acknowledges that your Customer Data is your Confidential Information.
7. No party shall make, or permit any person to make, any public announcement concerning this 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.
8. The above provisions of this clause 12 shall survive termination of this agreement, however arising.
1. You shall defend, indemnify and hold harmless Tradesoft against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and Documentation, provided that:
1. you are given prompt notice of any such claim;
2. Tradesoft provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
3. you are given sole authority to defend or settle the claim.
2. Tradesoft shall defend you, your officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Agreement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
1. Tradesoft is given prompt notice of any such claim;
2. you provide reasonable co-operation to Tradesoft in the defence and settlement of such claim, at Tradesoft’s expense; and
3. Tradesoft is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Tradesoft may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
4. In no event shall Tradesoft, its employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
1. a modification of the Services or Documentation by anyone other than Tradesoft; or
2. your use of the Services or Documentation in a manner contrary to the instructions given to you by Tradesoft; or
3. your use of the Services or Documentation after notice of the alleged or actual infringement from Tradesoft or any appropriate authority.
5. The foregoing and clause 14.6.2 state your sole and exclusive rights and remedies, and Tradesoft’s (including Tradesoft’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. Limitation of liability
Your attention is drawn particularly to this clause.
1. You acknowledge that it is reasonable for Tradesoft to limit its liability for any Claim under this agreement as:
1. it is not commercially sensible for Tradesoft to accept unlimited liability especially given the nature and complexity of the Services; and
2. in the interests of keeping the price to a reasonable level Tradesoft cannot cover every risk normally associated with services in the nature of the Services given that software in general is not error free; and
3. it is not possible for Tradesoft to test the Services on all possible hardware configurations and platforms which you may wish to deploy.
2. You acknowledge that:
1. it is your responsibility to ensure that the facilities and functions of the Services meet your requirements. We shall not be liable for any failure of the Services to provide any facility or function not specified by us in writing.
2. software in general is not error free and you agree that the existence of such errors shall not constitute a breach of this agreement.
3. the Services may use technology that is not fault tolerant and the Services are not designed manufactured or intended for use in environments or applications in which their failure could lead to death personal injury or severe physical property or environmental damage.
4. it is your responsibility to back up your data so that it can be recovered in the event of any data loss. We shall not be liable in any way for any loss of data.
5. it is your responsibility to ensure that your username and password for any Service is kept secure. We will not be liable in any way for any loss or damage arising out of your loss of or the misuse of your password.
6. you must ensure that you have access to your email account which you use to register for any of our Services. Should you change your email account you agree to immediately update the email account used to contact you in respect of each Service. We will not be liable in any way for either (i) any loss or damage arising out your inability to access your email account or (ii) your failure to notify the provider of any Service of your change of email account.
3. This clause 14 sets out the entire financial liability of Tradesoft (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:
1. arising under or in connection with this agreement;
2. in respect of any use made by you of the Services and Documentation or any part of them; and
3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
4. Except as expressly and specifically provided in this agreement:
1. you assume sole responsibility for results obtained from the use of the Services and the Documentation by you, and for conclusions drawn from such use. Tradesoft shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Tradesoft by you in connection with the Services, or any actions taken by Tradesoft at your direction;
2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
3. the Services and the Documentation are provided to you on an “as is” basis.
5. Nothing in this agreement excludes the liability of Tradesoft:
1. for death or personal injury caused by Tradesoft’s negligence; or
2. for fraud or fraudulent misrepresentation;
3. any other matter for which it would be illegal for Tradesoft to exclude or attempt to exclude liability.
6. Subject to clause 14.4 and clause 14.5:
1. Tradesoft shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
2. Tradesoft’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
15. Warranty and indemnity
1. You warrant and represent that your and your employees’, agents’ and sub-contractors’ use of the Services will be for lawful purposes and within the scope of this Agreement.
2. You warrant and represent that your and your employees’, agents’ and sub-contractors’ use of the Services will not violate any applicable law, regulation or treaties and that such use will not be infringe the intellectual property rights of any person.
3. You shall indemnify and hold Tradesoft harmless against and shall pay to Tradesoft on demand all claims, liabilities, losses (including any direct indirect or consequential losses loss of profit and loss of reputation loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) damages, costs and expenses incurred or suffered by it (including but not limited to claims in respect of defamation breach of copyright or other intellectual property right infringement) arising out of or in connection with:
1. any claim or demand including for reasonable legal charges made to Tradesoft by any third party due to or arising out of anything you submit store post to or transmit through the Services, your use of the Services or your connection to the Services; or
2. any breach of conditions 15.1 and 15.2; or
3. any breach, failure to perform or delay in the performance of any of your obligations under these Conditions; or
4. any fraud or negligence by you, your employees or agents.
16. Term and termination
1. This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Agreement Date and shall continue for one month and, thereafter, this agreement shall be automatically renewed for successive periods of one calendar month (each a Renewal Period), unless:
1. either party notifies the other party of termination, in writing, at least 7 days before the end of any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Renewal Period; or
2. otherwise terminated in accordance with the provisions of this agreement;
and the period from the Agreement Date to the date of termination of this agreement shall constitute the Subscription Term.
1. Without affecting any other right or remedy available to it, Tradesoft may terminate this agreement with immediate effect by giving written notice to you if any sum due is not
2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
8. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.3.3 to clause 16.3.10 (inclusive); or
12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
3. On termination of this agreement for any reason:
1. all licences granted under this agreement shall immediately terminate;
2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
3. Tradesoft may destroy or otherwise dispose of any of your Customer Data in its possession unless Tradesoft receives, no later than ten days after the Agreement Date of the termination of this agreement, a written request for the delivery to you of the then most recent back-up of your Customer Data. Tradesoft shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Tradesoft in returning Customer Data as set out in Tradesoft’s Price Guide; and
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17. Supplementary documents
1. The Supplementary Documents are:
1. Price Guide
1. Force majeure
Tradesoft shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Tradesoft or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
1. Changing this agreement
1. You may add to or reduce the Services from time to time by using the WEB PORTAL or contacting our customer services team.
2. Tradesoft may at any time modify, amend or alter the terms of this agreement or the Services:
1. if there is any change or amendment to any law or regulation which applies to Tradesoft or the Services provided to you;
2. if Tradesoft decides that the Services should be altered for reasons of quality of service or otherwise for the benefit of customers or, in our reasonable opinion, it is necessary to do so;
3. for security, technical or operational reasons;
4. if the changes or additions are minor and do not affect you significantly or Tradesoft wishes to have all its customers on the same terms and conditions; or
5. in all other events, where Tradesoft reasonably determines that any modification to the relevant system or change in trading, operating or business practices or policies is necessary to maintain or improve the Services provided to you.
3. Due to the nature of the Services, they will be updated and the content will change from time to time.
4. Tradesoft may change its charges as set out in Tradesoft’s Price Guide at any time. Any changes will be published by Tradesoft on the website at www.trade-soft.co.uk and we will also give you notice of any change at least 30 days before any change takes effect and you may terminate this agreement in accordance with clause 16.1. If you do not terminate this agreement then you will be deemed to accept the change.
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
19. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
2. Entire agreement
1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
2. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
1. You shall not, without the prior written consent of Tradesoft, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.
2. Tradesoft may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
4. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
1. Contacting each other
1. Tradesoft will contact you using the contact details you provide and which can be updated in your USER AREA. You must ensure that the contact details Tradesoft have for you are at all times true current accurate and complete and you must tell us if your name or contact details change. If you do not tell us Tradesoft will go on using the details you last provided and Tradesoft will not be responsible if it fails to contact you or if it sends confidential information to the wrong address using out-of-date details.
2. Tradesoft will communicate with you by e-mail. For contractual purposes you consent to receive communications from Tradesoft electronically and you agree that all agreements, notices, disclosures and other communications that Tradesoft provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
3. You agree that an e-mail shall be deemed received and properly served at 9 am on the Business Day following the day on which it is sent. In order to prove that you have received an email it will be sufficient for Tradesoft to show that the e-mail was sent to your specified e-mail address.
4. Tradesoft’s registered office is Unit 3 Boscomoor Industrial Estate, Boscomoor Lane, Penkridge, Staffordshire, England ST19 5QY. It is a company registered in England with company number 09838297.
5. You must contact Tradesoft using the following contact details:
Address: Unit 3 Boscomoor Industrial Estate, Boscomoor Lane, Penkridge, Staffordshire, England ST19 5QY
1. Tradesoft may listen into or record any telephone calls with you to check Tradesoft has carried out your instructions correctly and to help improve its service.
22. Service level
1. Subject to paragraph 29.2 below, if in relation to the provision of the Services to you the Downtime for any Renewal Period exceeds the Service Level then Tradesoft will provide to you a service credit of 1% of the price paid by you to Tradesoft for the provision of the Services for the relevant Renewal Period for each complete hour that the Services experience Downtime during that Renewal Period in excess of the Service Level.
2. You agree that your right to receive service credits pursuant to this condition 29 with respect to any Renewal Period and in relation to the provision of the Services to you is subject to the following provisions:
1. In the event that you contend that Tradesoft are liable to provide service credits to you pursuant to this condition 29 you shall within 5 days of the Downtime notify Tradesoft in writing that you contend that a liability to provide service credits has arisen, the period of Downtime which you consider to have occurred and any other information reasonably requested by Tradesoft to enable it to verify your contentions. Tradesoft shall investigate whether such liability has arisen and the extent of such liability and if the liability has arisen account for the service credits due in accordance with condition 29.2.2 below.
2. In the event that Tradesoft is due to provide service credits to you pursuant to paragraph 29.2.1 above the amount of such service credits shall be credited against the next payment due to be paid by you to Tradesoft for any Services. If no further payment is due, the amount of the service credits shall be paid to you into the account from which payment was received by Tradesoft, and you shall provide any other information reasonably requested by Tradesoft to enable it to make such payment.
3. Tradesoft’s liability to pay service credits in respect of any Renewal Period shall not in any event exceed the price paid by you to Tradesoft for the provision of the Services for the relevant Renewal Period.
23. Trial Period
1. Save for the provisions in respect of charges, the terms of this Agreement shall apply to you during any Trial Period. Whilst you are in a Trial Period you may at any time (through WEB PORTAL) choose not to continue to paid subscription at the end of the Trial Period.
2. If you select not to continue at the end of the Trial Period this Agreement will terminate at the end of the Trial Period and your licence and right to use the Services will cease at the end of the Trial Period unless a further Trial Period is agreed or you subscribe to the Software from the expiry date of any such Trial Period.
24. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Last Updated: 29 April 2016
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