TERMS AND CONDITIONS

 

This Agreement is made between:
Progressclaim.com (UK) Limited (09927146) with its registered office situated at Office 101 Cobalt Business Exchange, Cobalt Park Way, Newcastle upon Tyne, NE28 9NZ (hereinafter “Progressclaim.com”)
 and the legal person whose full legal name and physical address which is specifically identified in the registration for User Codes on the Web Site (hereinafter “the User Organisation”)

 

Recitals

  1. Progressclaim.com or its licensors owns the Web Site and is the provider of the Services.
  2. The User Organisation has requested to use the Web Site and the Services.
  3. The Parties have agreed for Progressclaim.com to:

(a) grant a licence to the User Organisation (and its Authorised Users) to use the Web Site; and

(b) provide the User Organisation with the Services:

both upon the terms and conditions of this Agreement.

 

It is agreed as follows

 

  1. Definitions and Interpretation

1.1. Definitions 

 

In this Agreement, the following definitions shall apply, except where the context indicates to the contrary:

 

(a) “Agreement” means this agreement;

(b) “Authorised User” means any individual who has been authorised by the User Organisation to access and use the Web Site and Services on behalf of the User Organisation and is granted such access by Progressclaim.com;

(c) “Confidential Information” of a Party means all personal, organisational, technical, business and financial information, know-how, trade secret(s) and all other commercially valuable information of that Party, in whatever form and of whatever description, which that Party claims is confidential to itself and over which it has full control and includes all other such information that may be in the possession of that Party, but does not include information which:

(i)              is already in the public domain; or

(ii)            hereafter becomes part of the public domain, through no fault of the receiving Party; or

(iii)           is received by the receiving Party on a non-confidential basis from a third party lawfully entitled to disclose the same; or

(iv)           is rightfully known by the receiving Party (as evidenced by its written record) prior to the date of first disclosure to it hereunder; or

(v)             is independently developed by an officer or employee of the receiving Party who has no knowledge of such information;

(d) “Commencement Date” means either:

(i)              the date upon which the User Organisation pays the Service Fee; or

(ii)            the date upon which a User uses or clicks the “I ACCEPT” interactive function button, which is displayed on the Web Site; or

(iii)           the date upon which a User first uses the Web Site for the Purpose:

whichever is the first to occur;

(e) “End Date” means either:

(i)              the date upon which the User Organisation ceases to pay the Service Fee; or

(ii)            the date upon which a User uses or clicks the “I TERMINATE” interactive function button and which is displayed on the Web Site:

whichever is the first to occur;

(e) “Force Majeure Circumstance” means in respect of a Party, any circumstance or event which, despite using all reasonable endeavours, the Party is unable to control, including without limitation, any act of God, flood, fire, damage caused by lightening, storm or tempest, floods, industrial strikes or lock outs or other industrial disturbances, acts of war, civil disturbance or terrorism or any policy enactments of any government;

(f) ”Intellectual Property Rights” means patents, rights to inventions, copyright and neighboring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

(g) ”Party” means either party to this Agreement and “Parties” shall mean both of them;

(h) ”Privacy Statement” means Progressclaim.com’s privacy policy which is published in the Web Site and any amended privacy policy which is displayed on the Web Site after the Commencement Date;

(i) ”Purpose” means for the purpose of Progressclaim.com providing the Services to the User Organisation;

(j) ”Services” means the web-site contract payment management services to be provided by Progressclaim.com and which are specifically defined in the Schedule;

(k) ”Service Fee” means service fee and which is specified in the Subscription Plan;

(l) ”Subscription Plan” means the financial plan and time periods of which the User Organisation has agreed to pay Progressclaim.com for the Services under this Agreement and which is separately displayed on the Web Site;

(m) ”Trade Mark” means a UK registered and/or unregistered trade mark of the User Organisation;

(n) ”User Content” means all information (including without limitation, all numerical, literary and financial data and material), the User Code and all literary works (including all written reports, texts and graphics) and all other subject matter which is originally created by the User Organisation for the Purpose and first uploaded by an Authorised User onto the Web Site;

(o) ”User Code” means numerical and/or literary code and password issued to each Authorised User by Progressclaim.com for the purpose of that Authorised User accessing the Web Site under this Agreement and where the context requires, includes that Authorised User’s personal name, IP address, mobile telephone, land line telephone number, street address and e-mail address;

(p) ”Web Site” means the collection of web page(s) having a specific hypertext transfer protocol (“HTTP”) address and accessible through the internet and which is situated at www.progressclaim.com, including without limitation: all “look and feel” and functionality (including all graphic user interfaces, tool bars and interactive click buttons); all software (including all object code, source code and meta-tags); all literary works (including financial forms, financial spread-sheets and tables, scripts, all numerical text, financial and business data, advertisements, including third party advertisements); all artistic works (including photographs and drawings), music works, sound recordings (including audio streaming), cinematographic films (including video and digital images); all registered and unregistered trade marks; this Agreement; the Subscription Plan; the Privacy Statement; and the copyright notices; and any other legal notices; but in all cases excluding both the Web Site Content and the User Content;

(q) ”Web Site Content” means all information (including without limitation, all numerical, literary and financial data and material) and all literary works (including all written reports, texts and graphics) and all other subject matter which is either:

(i)     created and uploaded onto the Web Site by Progressclaim.com as a result of using the User Content for the Purpose; or

(ii)   created and uploaded onto the Web Site by any third party users as a result of using the User Content for the Purpose;

(r) ”World” means all countries of the world.

 

1.2 Interpretation
In this Agreement, except where the context indicates to the contrary:

 

 

1.3 Recitals and Schedule
The Schedule and the Recitals form part of this Agreement.

 

  1. Commencement and Term

 

This Agreement and the Services will both commence on the Commencement Date and will continue until the End Date, subject to earlier termination under clause 20.

 

  1. Web Site Services

 

Progressclaim.com hereby agrees to provide the User Organisation with the Services in accordance with the terms and conditions of this Agreement and the Subscription Plan.

 

  1. The User Organisation’s Role, Risks and Responsibilities

 

 

  1. Grant of Licence to Use the Web Site

 

 

  1. Ownership of the Web Site

 

The Parties confirm and agree that ownership of all title, rights and interest in and to the Web Site (including all Intellectual Property Rights throughout the World subsisting therein) remain vested solely in Progressclaim.com and its licensors.

 

 

 

 

  1. Ownership of Web Site Content

 

 

  1. Ownership and Grant of Licence to User Content

 

 

  1. Data Protection

 

(a)     The User Organisation and/or Authorised User and Progressclaim.com acknowledge that for the purposes of the Data Protection Act 1998, the User Organisation and/or Authorised User is the Data Controller and Progressclaim.com is the Data Processor in respect of any Personal Data. ‘Data Controller’, ‘Data Processor’, ‘Data Subject’ and ‘Personal Data’ are as defined under section 1(1) the Data Protection Act 1998.

(b)  Progressclaim.com shall process the Personal Data only in accordance with the User Organisation’s or Authorised User’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the User Organisation and/or Authorised User.

(c)     Progressclaim.com shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

(d)     Each Party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

(e)     Progressclaim.com warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:

 

  1. Warranties

 

 

  1. Subscription Plan and Service Fee

 

 

  1. Confidential Information

 

 

  1. Changes to these Terms and Conditions

 

 

  1. Use of a Party’s Trade Mark and Corporate Name

 

 

  1. User’s Web Site Behaviour

 

 

  1. Warranties and Limitation of Liability

 

(i)   the User Organisation assumes sole responsibility for results obtained from the use of the Services, Web Site and Web Site Content by the User Organisation, and for conclusions drawn from such use. Progressclaim.com shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Progressclaim.com by the User Organisation in connection with the Services, Web Site and Web Site Content or any actions taken by the Progressclaim.com at the User Organisation’s direction;

(ii)  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

(ii)  the Services, Web Site and Web Site Content are provided to the User Organisation and Authorised Users on an “as is” and “as available” basis.

(b)  Nothing in this Agreement excludes the liability of Progressclaim.com:

(i)   for death or personal injury caused by Progressclaim.com’s negligence; or

for fraud or fraudulent misrepresentation.

(c) Subject to clause 16(a) and 16(b):

(i)   Progressclaim.com 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 and/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

(ii)  Progressclaim.com’s total aggregate liability in contract (including in respect of the indemnities under this Agreement) 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 Service Fees paid by the User Organisation during the 12 months immediately preceding the date on which the claim arose.

(d)  Subject to clause 16(a) and 16(b), Progressclaim.com has not made and hereby excludes all other warranties, conditions, terms and undertakings whether express or implied, written or oral, statutory or otherwise, including any implied warranty of merchantability or fitness for purpose, in respect of the Services, the Web Site and the Web Site Content. To the maximum extent permitted by the laws of England, any conditions or warranties imposed by such legislation are hereby excluded. In so far as liability under such legislation may not be excluded, such liability is limited at the exclusive option of Progressclaim.com to:

(e) Without limiting the generality of this clause 16, Progressclaim.com hereby excludes the following warranties that the:

(i)     Web Site will be operating continuous and uninterrupted; and

(ii)   Web Site and Web Site Content is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and

(f)     The User Organisation hereby releases and indemnifies and continues to release and indemnify Progressclaim.com (and all of its respective directors, officers, employees, agents, contractors, sub-contractors and representatives) all individually and collectively referred to in this clause 16(f) as the “Indemnified Party”) from and against all actions, claims, proceedings and demands, which may be brought by any person whether against the Indemnified Party or both the User Organisation and the Indemnified Party, either on their own or jointly with third parties, in respect of any loss, injury or damage (whether personal, property, financial, consequential financial loss or infringement of any Intellectual Property Rights throughout the World) howsoever arising, that the Indemnified Party may suffer, incur or sustain as a result of:

and from and against all damages, costs and expenses incurred or sustained, in defending or settling any such actions, claims, proceedings or demands.

(g) The User Organisation hereby warrants to Progressclaim.com that:

(i)     it owns all title, right and interest in and to the Trade Mark (including all Intellectual Property Rights throughout the World subsisting therein);

(ii)   to its actual knowledge, information and belief as of the Commencement Date and after making all enquiries, the use of the Trade Mark by Progressclaim.com will not infringe any third party’s Intellectual Property Rights in any part of the World.

(h)   Whilst Progressclaim.com provides the Services and the Web Site under this Agreement, the User Organisation must seek independent legal and accounting advice to satisfy itself that it has complied with all applicable contractual, legal and statutory obligations, including those statutory obligations under the Housing Grants, Construction and Regeneration Act 1996.

(i)     This clause 16 will survive expiration and earlier termination of this Agreement.

 

  1. Third Party Proceedings

 

(a)     Each Party must immediately notify the other Party of:

(i)              any claim or allegation that the exercise of any of its rights under this Agreement constitutes an infringement of the rights, including the Intellectual Property Rights of any third party in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark; or

(ii)             any third party’s actual infringement or threatened infringement of any of the Party’s rights, including any Intellectual Property Rights in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark:

-that it becomes aware of.

(b)     The Parties must confer as to what steps, if any, are to be taken against any person infringing any part of the Web Site, the Web Site Content and the Trade Mark.

(c)     If Progressclaim.com decides to commence legal proceedings, Progressclaim.com will be responsible for all legal costs, damages and expenses incurred, sustained or awarded and will be solely entitled to any damages, account of profits or other compensation recovered by such applications or legal proceedings. The User Organisation must furnish all such necessary assistance in relation to those applications or legal proceedings, at the cost of Progressclaim.com.

(d)     The terms and conditions of this clause 17 will survive expiration or earlier termination of this Agreement.

 

  1. Value Added Tax (VAT)

 

 

  1. Force Majeure

 

 

  1. Termination

 

 

  1. Dispute Resolution

 

 

  1. Applicable Law

 

 

  1. Non-Assignment

 

The User Organisation must not assign, transfer, subcontract, mortgage, charge or declare a trust over any of its rights, title and interest under this Agreement to any third party, unless it has obtained the prior written consent of Progressclaim.com, which may be withheld by Progressclaim.com in its absolute discretion.

 

  1. No Waiver

 

A Party’s failure to exercise or delay in exercising any power or right, does not operate as a waiver of that power or right. The exercise of a power or right, does not preclude its future exercise or the exercise of any other power or right.

 

  1. Amendment

This Agreement may only be amended or modified by mutual written agreement of the Parties.

 

  1. Severance

 

 

  1. Notices

 

 

  1. Costs

 

Each Party is responsible for its own legal costs incurred in relation to the negotiation and settlement of this Agreement.

 

  1. Relationship

 

 

  1. Privacy

 

The User Organisation’s (and each Authorised User’s) rights to access the Web Site under this Agreement are subject to the Privacy Statement as amended from time to time, which is incorporated herein by reference.

 

  1. Entire Agreement

 

This Agreement contains the whole understanding of the Parties relating to its subject matter and it supersedes and cancels any and all representations, agreements, commitments, warranties and promises, made by the same Parties with respect to the same subject matter. Any purported representations, agreements, commitments, warranties and promises of the Parties not recorded in this Agreement are of no effect.  Nothing in this clause shall limit or exclude any liability for fraud.

 

  1. Inconsistency

 

In the event of any inconsistency, the following items prevail over the other items from highest paramountcy to lowest paramountcy as herein presented:

 

 

 

 

 

 

 

Schedule

 

The Services

 

The User’s Responsibilities