Terms and Conditions
The Agreement (“this Agreement”) governs the provision of software support services between Soapy Co Limited (“Cart45”) and any End-user who agrees to its terms (“you”) (together “the parties”). DEFINITIONS “Cart45 Product” means the current release of Cart45 or its immediate predecessor; “End-user” means an individual or company licensed to use an Cart45 Product under an End-user Agreement; “End-user Agreement” means the software licence agreement between Cart45 and an End-user set out in the relevant Cart45 Product as amended from time to time. “Cart45 Hosting Terms of Service” means the agreement for using the Cart45 Hosting service. All capitalised terms shall have the same meaning given to them in the relevant End-user Agreement in this Agreement, unless specifically defined in this Agreement. SUPPORT Cart45 will provide telephone and email technical support in response to your enquiries relating to: 1) installation of the Cart45 Product; 2) basic functionality of the Cart45 Product as described in the Software Documentation supplied with the Cart45 Product; and 3) installation of upgrades to the Cart45 Product (“Support”). You acknowledge that due to the multiple hardware and software environments into which the Cart45 Product may be put, Cart45 cannot guarantee that every enquiry or connectivity issues between third party services, service providers, hardware or software will be resolved. Subject to and in accordance with the terms of this Agreement, Cart45’s sole support obligation is to provide reasonable and good faith efforts to resolve your enquiries arising from your use of the Cart45 Product in accordance with the Software Documentation. Support calls may be recorded to maintain quality of service and for training purposes. WHERE SUPPORT WILL NOT BE PROVIDED Cart45 may not provide Support where it reasonably determines (in its sole discretion) that: 1) your enquiries relate to business practice, application consulting or training; 2) your use of the Cart45 Product is outside that set out in the Software Documentation; 3) your use of the Support is excessive and unreasonable; 4) your use of the Support is abusive or fraudulent; 5) you are using the Cart45 Product for the sale of goods or services that are illegal, obscene, offensive or distasteful site; 6) you are not using the current release of the Cart45 Product or is immediate predecessor; or 7) you have breached the End-user Agreement. Cart45 License Agreement You may only install Cart45 on one domain, this does not include demonstration domains or subdomains. Usage of Cart45 outside of the licensed domain will incur a second license at the current software version's full price. Domain licenses can be transferred. Cart45 PRODUCT UPGRADES During the Term, you will be entitled to all software upgrades for the relevant Cart45 Products licensed to you without further charge. In the event that you purchase an upgrade from one Cart45 Product to another (for example, Cart45 Catalog to Cart45 Business) but do not elect to pay any further Fees necessary to upgrade the Support under this Agreement to match the upgraded Cart45 Product, this Agreement will terminate. You will be entitled to a refund of a proportion of the Fees attributable to the unexpired complete months before the end of the Term. Cart45 HOSTING During the term you will be entitled to use the Cart45 Hosting for a total period of up to 30 days should your existing hosting supplier go out of commission or experience service issues. Use of Cart45 Hosting is subject to a separate agreement; Cart45 Hosting Terms of Service. Cart45 reserves the right to limit the number of separate occasions that the hosting service is used during the term. PAYMENT Payment of the published fees shall be made annually in advance by credit card or cheque or by 12 monthly direct debit payments. For the avoidance of doubt, Cart45 shall have no obligations under this Agreement until it has received cleared funds, or a direct debit mandate, to cover the published fees (for that 12 month period) of the Cart45 Cover support package relating to the relevant Cart45 Product. REFUNDS/RIGHTS TO WITHDRAW You may cancel this Agreement without cause during the first 14 days from the date you accept this Agreement, subject to the following charges: where you have not used the Support, Cart45 will refund the Price, less a £25 (+ VAT) cancellation charge; or where you have used the Support, Cart45 will refund the Price, less a £25 (+ VAT) cancellation charge and £25 per incident; or where you have received an upgrade, Cart45 will refund the price, less the cost (+ VAT) of the upgrade at the published price. RENEWAL OF AGREEMENT This agreement will be renewed on the day following the last day of the Term for further 12 month periods unless you indicate your desire to terminate this agreement in writing at least 14 days prior to the last day of the Term VARIATION AND TERMINATION Cart45 may vary the terms of this Agreement relating to Payment and Support on one month’s written notice by email to the email address given on registration. Whenever such notice is given you shall have the right to terminate this Agreement if you have notified Cart45 in writing of your intention to terminate before the end of the notice period. Except as set out above, no amendment or variation shall take effect unless it is in writing and signed by an authorised representative of each of the parties. Without prejudice to any other rights, Cart45 may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement or the End-user Agreement or if you suffer any form of insolvency or administration. TRANSFERABILITY Support is non-transferable and is valid for the individual purchaser only (who must be an End-user). EXCLUSION AND LIMITATION OF LIABILITY Nothing in this Agreement shall exclude or limit the liability of either party for death or personal injury resulting from the negligence of that party or in respect of fraud or of any statements made fraudulently by that party, or arising under Part 1 of the Consumer Protection Act 1987 in respect of any defect in an Cart45 Product Subject to the exception set out in paragraph 1 above and to the extent permissible by law, Cart45 will not be liable to you whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any (whether direct or indirect): (a) loss of profit; (b) loss of revenue; (c) loss of sales; (d) loss of anticipated savings; (e) loss or corruption of data; (f) loss of contract or opportunity; (g) loss of goodwill; (h) costs incurred in modifying Cart45 Products (whether in accordance with the Software Documentation or not); (i) unreasonable costs in remedying any loss; or (j) indirect or consequential loss. Subject to the exception set out in paragraph 1 above and to the extent permissible by law, in the event that Cart45 is liable to you in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise its liability shall be limited to a claim for the fees paid to Cart45 during any single consecutive 12 month period after your acceptance of this Agreement for any one event or series of connected events. Any action against Cart45 must be brought within 2 years after the cause of action arises. For purposes of this section, “Cart45” includes its employees, sub-contractors and suppliers. You acknowledge that given the price paid for the Cart45 Products and the Cart45 Cover Support Package, the complicated nature of the software, the almost limitless number of software and hardware environment combinations into which the software might be introduced, the fact that Cart45 cannot anticipate the particular purpose for which you are using the software and the availability of insurance for any loss that the above limitations and exclusions are reasonable in all the circumstances. If any provisions of this agreement are held to be invalid under any applicable statute or rule of law, they are to that extent omitted from the agreement without affecting the validity or enforceability of the remainder. Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations. INTELLECTUAL PROPERTY RIGHTS All intellectual property rights and any analogous rights of any nature created during the provision of the Support are the property of Cart45. You hereby assign all right, title and interest in any such intellectual property rights and agree to provide any assistance that Cart45 may require to perfect its title to such rights. Nothing in this Agreement shall prevent or restrict Cart45 from using and exploiting any intellectual property rights, techniques, tools, ideas or know-how created, used or developed during the provision of the support for any purpose whatsoever. You will keep Cart45 fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Cart45 howsoever arising through infringement of third party intellectual property rights in any software or other material you have combined with the Cart45 Products when Cart45 is performing its obligations in accordance with this Agreement. GENERAL This Agreement contains the whole agreement between the parties in relation to Support of the Cart45 Products and supersedes any prior written or oral agreements relating to the same. The failure or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy. CHOICE OF LAW AND JURISDICTION This agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts. DATA PROTECTION Both parties undertake to comply with provisions of the Data Protection Act 1998 (“the Act”) in relation to the disclosure, use and storage of any personal information as defined in the Act. Your name, phone, fax number, address and email address (“Your Data”) will be put onto the Cart45 database and processed by us in servicing our relationship with you, including disclosure to third party outsourcers and consultants. This may include, but is not limited to, Cart45’s provision of information about the Cart45 Products and updates, notification of changes to the Support or Payment and notification that this Agreement is about to expire. By submitting your Data to us you agree to our storage, use and disclosure of that data. Unless you notify us otherwise you agree that we may use and analyse Your Data to give you information about our services which may be of interest to you. If you do not wish to be contacted for marketing purposes by us or by third parties please send an email to the following address [email address]. You agree that for the purposes described above Your Data may be transferred to countries outside the EEA.