Kaptura terms of trade
Services and deliverables (mutually “the Services” and “‘Services”) as specified in the engagement letter (“the Engagement”) are to be supplied by Kaptura Limited (“Kaptura”) to the customer (“the Customer”) solely on the following terms which cancel all previous terms and together with the Engagement constitute the complete and legally binding agreement between Kaptura and the Customer (mutually “the parties”) regarding the Services:
Trading Issues
Kaptura reserves the right to decline in its sole discretion any order for the Services; in which case any such prospective customer will be advised as soon as reasonably possible. Kaptura reserves the right to suspend the Services should the Customer breach these terms and such suspension may be up to such time as the breach has been remedied in full by the Customer (and to the reasonable satisfaction of Kaptura) and if required by Kaptura up to the time that suitable arrangements (at the sole discretion of Kaptura) are put in place to try and prevent any further breach.
Kaptura shall not be bound to accept any change to the Engagement until such change has been accepted in writing by Kaptura.
The Customer acknowledges that Kaptura provides similar consulting services to other customers, and agrees that nothing in these terms or otherwise shall be deemed or construed as preventing Kaptura from continuing to carry on such business at any time. Kaptura therefore grants the Customer a perpetual, royalty-free, irrevocable, worldwide, non-exclusive licence to use the Services, and create and use works derived from the Services, so long as in doing so, Kaptura does not disclose the Customer’s identity or commercially sensitive or confidential information belonging to the Customer. All decisions about the implementation and the use of the Services shall be made by the Customer and are the sole responsibility of the Customer.
Price and Payment
Kaptura’s costs are fully detailed by the Engagement. Kaptura will promptly inform the Customer in writing of any increased fees that will result from any changes requested by the Customer which materially affect the agreed scope or nature of the Services. If the Customer raises no objection before Kaptura undertakes steps to make the changes, the Customer is deemed to have accepted the increased fees.
The Customer shall pay Kaptura costs in full and without deduction, counterclaim or setoff for the Services on or before the 15th day following the date of Kaptura’s invoice (time being of the essence).
Kaptura reserves the right to charge interest on overdue accounts at the rate of 1.5% per month on the balance outstanding from the date payment was due until payment is received. Kaptura further reserves the right to recover from the Customer all costs and/or expenses incurred by Kaptura in instructing a solicitor or collection agency to recover any amount overdue for payment and such costs and expenses shall bear interest as provided for above from the date on which Kaptura pays the third party. The rights expressed in this clause are in addition and without prejudice to Kaptura‘s other rights in respect of non or late payment under these terms or at law.
Title
Kaptura shall retain full legal and equitable title in all Services and title shall not pass to the Customer and there shall be no right to use the Services until all payments (including delayed or deferred payments on a credit basis) have been paid in full (without deduction, counterclaim or setoff) by the Customer in cleared funds or as otherwise specified by Kaptura. Upon payment as above and there being no existing breach of these terms, Kaptura grants the Customer a perpetual, royalty-free, irrevocable, worldwide, non-exclusive licence to use the Services. For the purposes of this clause Services shall exclude other products or software provided to the Customer pursuant to a separate license agreement.
Warranties and Limitation of Liability
Subject to these terms, Kaptura shall use its best and reasonable endeavours to provide commercially acceptable Services for the Customer. Kaptura expressly warrants that for 60 days after the provision of the 2 completed Services that the Services and any resultant programme and/or associated documents shall materially confirm with the specifications set out in the Engagement.
Kaptura shall also consider and remedy at Kaptura’s sole cost any good faith and valid complaint regarding the completed Services which are made by the Customer within a reasonable time from supply; for the purposes of this clause it is agreed that any complaint must be made within at least 60 days from the time of the supply, failing which the Customer shall be deemed to have accepted the Services. In the event that Kaptura is unable to remedy the defect complained of then Kaptura shall refund the amount paid for by the Customer for that part of the Services.
If the Customer acquires the Services for the purposes of business, it agrees and acknowledges that it is not a “consumer” as defined by the Consumer Guarantees Act 1993 (“the Consumer Act”) and that the Services supplied to the Customer are for the purpose of business; and the Customer further agrees that the guarantees and rights available to it under the Consumer Act including the right to consequential losses are expressly excluded pursuant to section 43(2) of the Consumer Act.
Kaptura otherwise limits its liability to either: the price paid for the Services, or to the amount actually received as indemnification under any relevant insurance policy held by Kaptura or to the actual loss or damage suffered by the Customer as a result of the defective Services whichever of the above shall be the lower. No liability shall be assumed by Kaptura for the Customer’s losses of profits, revenue, business opportunity, from anticipated savings, wasted overheads and damage to goodwill including any indirect or consequential damages or losses of any kind.
Termination
Kaptura may terminate the agreement for the supply of the Services by providing written notice to the Customer if the Customer fails to comply with its obligations under these terms and such failure, if capable of remedy, is not remedied within 7 days of the receipt of a written notice of such failure (such notice shall sufficiently detail the failure and what is required to remedy it).
Either party may immediately terminate the agreement for the provision of the Services by providing written notice to the other party if the other party: commits an act of bankruptcy or any conditions necessary to render the party to be wound up exist (except for the purpose of a solvent reconstruction or amalgamation); or a receiver, administrator or statutory manager is appointed in respect of the whole or any part of its assets; or if it makes any assignment for the benefit of or composition with its creditors or threatens to do any of these things.
Upon any termination, the Customer shall pay to Kaptura all outstanding fees in connection with the performance of the Services up to the effective date of such termination. The Customer shall also reimburse Kaptura for all direct costs and expenses associated with any termination and incurred by Kaptura, except in case the Agreement has been terminated due to a material breach by Kaptura.
Co-operation by Customer and Undertakings / Third Party Products
The Customer shall co-operate with Kaptura in its provision of the Services and shall promptly provide adequate information, facilities and suitably qualified personnel to liaise with and provide such information to Kaptura as requested by Kaptura and on an on-going basis. The Customer acknowledges that any failure to do so will adversely affect Kaptura’s ability to perform it obligations to the Customer, for which Kaptura will not be responsible.
The Customer undertakes to Kaptura that Kaptura is entitled to reply on the accuracy of the information and advice provided to Kaptura and that to no supplied material in any form to Kaptura will give rise to any claims or liabilities for Kaptura; infringe copyright, trade mark or other intellectual or industrial property rights of any person. The Customer shall indemnify Kaptura on a continuing and unlimited basis from any claim arising from the Customer breach of this undertaking.
The Customer shall be responsible to secure all rights related to any third-party products and look solely to the third-party provider for all remedies and support with such products. Open-source software incorporated into the Services shall be deemed a third-party product.
Care of Customer’s Property
Kaptura will endeavour to take reasonable care of the Customer’s information in its custody and control, but will not be liable for any direct or consequential loss or damage suffered by the Customer (even if caused by Kaptura’s negligence). The Customer shall take appropriate back-up copies of its information whatever its form before its supply to Kaptura.
Collection of Information / E-mail Marketing
The Customer noting the requirements under the Privacy Act 1993 acknowledges, authorises and directs that Kaptura can seek and obtain from any other trader, merchant, organisation or other agency or source any information concerning the credit or business standing of the Customer and the Customer authorises and directs any such person or entity to supply such information to Kaptura. The Customer further acknowledges that information so obtained may be used by Kaptura or its agents to verify information provided by the Customer, to carry out credit checks on the Customer for the provision of credit (if applicable) and for debt recovery proceedings against the Customer if required. The Customer consents to receiving commercial electronic messages from Kaptura until such time as this consent is expressly withdrawn.
Independent Contractor
It is understood and agreed that each of the parties is an independent contractor, and that neither party is, nor shall be considered to be, an agent, distributor, fiduciary, or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other, or in any manner assume or create any obligation on behalf of, or in the name of, the other.
Assignment
The Customer shall not assign, transfer, or delegate any of the rights or obligations hereunder without the prior written consent of Kaptura. The Customer shall not disclose, provide access to or otherwise deal with any information derived from the Services or transfer such to any subsidiary or third party without the prior written consent of Kaptura.
Health and Safety Obligations
Kaptura requires that the Customer will provide a safe and healthy working environment (in compliance with all applicable legislation, regulation and codes) for Kaptura’s employees or agents who are required to perform work for the Customer at any premises (other than Kaptura’s premises).
Mediation
If either party is not satisfied with the other party’s performance of its obligations, a written description of the problem shall be provided to the other party, and a good faith effort shall be promptly made by the parties to resolve the problem shall be made by both parties before proceeding to any form of litigation or arbitration.
General Terms
(a) In the case of any conflict between these terms or any other document provided by Kaptura, these terms shall prevail.
(b) These terms shall not be modified or varied unless agreed to in writing by both the Customer and Kaptura.
(c) Where Kaptura fails to enforce any term or fails in any way to exercise its rights under these terms, Kaptura shall not be deemed to have waived those rights with respect to any breach or subsequent breach of any term.
(d) If any of these terms are held to be invalid or unenforceable for whatever reason, the remaining terms shall remain in full force and effect between the Customer and Kaptura.
(e) The Customer by making an order for the Services by any medium does so on the basis that the Customer has read, understood and agrees to be bound by these terms. Should the Customer have any queries regarding these terms it should seek independent legal or other professional advice before accepting these terms and the Engagement as Kaptura shall not be responsible for any incorrect interpretation.
(f) The following expressions: “Customer” means the user of the Services and where the order has been placed with Kaptura by a broker, agent or a third party, includes that broker, agent or third party, personally or otherwise.
(g) Where an act of god, war, revolution or any other unlawful act against public order or authority, and any other event which is not within the reasonable control of Kaptura (“force majeure”) prevents or delays Kaptura from performing an obligation under these terms, that obligation is suspended as long as the force majeure continues.
(h) Each notice or other communication under these terms is to be in writing, is to be made by e-mail or by personal delivery to the other party and is to be marked for the attention of the person or office holder (if any) from time to time designated for such purpose by a party. The e-mail, physical address and relevant person or officer are set out on the Engagement. No communication is to be effective until received. A communication is to be deemed to be received by the addressee: in the case of an e-mail upon receipt (and receipt shall not be deemed by an “out of office” reply) and in the case of personal delivery, upon delivery provided that delivery is only to take place on a working day and between the hours of 9.00am and 5.00pm.