Terms and Conditions
“Agreement” means the contract of supply between Uniform Leavers Applications Service (Exploria) and Customer relating to the Products subject to these conditions.
“Assignee” means a party to which Exploria may assign its rights, title and interest in and to the Products and all payments due under the Agreement which shall include the right to enforce the payment of all the sums due under this Agreement.
“Authorised Users” means those users who are authorised by the Customer to use the Exploria software.
“Exploria Software” see “Software”
“Exploria” or “Company” means Uniform Leavers Application Service Ltd
“Contract Start Date” means the date that Exploria commits resources to the contract and is the same as the Customer’s purchase order date.
“Customer” means the school, academy, dealer, distributor or other entity that is party to this contract with Exploria.
“Delivery Date” means the date specified in the Order Acknowledgement for delivery of any Products. This date may be varied from time to time in respect of any Product by Exploria giving notice to Customer.
“Follow Up Term” means the contract period which follows the Initial Term (or a previous Follow Up term). A Follow Up Term is a 5-year long term which follows the Initial Term (or a previous Follow Up term) unless notice is given by Customer to Exploria at least 90 days in advance of the end of the Initial Term (or previous Follow Up term). The Follow Up term is on the same conditions as the Initial Term (or previous Follow Up term).
“Help Desk” is the Exploria Help Desk which provides help and guidance by telephone, email, or other means to the Customer subscribing to the Help Desk service. Exploria Help Desk provides help and guidance in the understanding of the Software, in the use of the Software and with any problems experienced using the Software and such help and guidance including the examination of and the provision of a solution to any reported problems with the Software.
“Initial Term” means the contract period shown on the Exploria Quotation sent to the Customer and will be for a 1-year or multiple year contract. At the end of the Initial Term the contract will roll over on the same conditions to a 5-year long term (the Follow Up term), unless notice is given by Customer to Exploria at least 90 days in advance of the end of the Initial Term to either terminate the contract at the end of the Initial Term or enter into a new contract for one year.
“Order Acknowledgement” or “Invoice” means Exploria’s Order Acknowledgement or Invoice acknowledging and accepting a purchase order from a Customer subject to these terms.
“Products” means the Exploria Software and services provided in the Agreement
“SaaS” means Software provided to the Customer as a Service in the form of “Software as a Software”. The Software is hosted and maintained on behalf of Exploria and made available for use by the Customer from a Web Site Address that shall be notified to the Customer.
“Software” or “Exploria Software” means the computer programs created Exploria or on its behalf and accompanying documentation specified in the Order Acknowledgement together with any subsequent releases or updates of those programs (contracted for by the Customer) or documentation from time to time supplied or licenced by Exploria to Customers. Software is a licence instalment to use as SaaS.
“Warranty Period” and “Warrant Claim Amount” means in relation to each item of Exploria Software the period of the contract term and any warranty claim amount is limited to the purchase price paid by the customer of the software.
Customer agrees to buy and Exploria agrees to sell Exploria Software and/or licence the user of the Exploria Software and/or provide the Software annual maintenance service payment by Customer of the price and other sums including VAT and any other taxes specified in the Order Acknowledgement subject to these terms and conditions
3. Term or length of Agreement
4. Licence to use Exploria and other software
- 4.1 Exploria licences the use of the Software subject to payment by customer of the software annual maintenance fee.
- 4.2 Exploria hereby grants to the Customer a non-exclusive, non-transferable licence to access or use Exploria and other software made by Exploria.
- 4.3 Customer shall not sell, lease, hire or otherwise part with any part of, or part with their access rights to, Exploria or other Software and/or associated documentation nor act as a bureau service to a third party by using the facilities of Exploria or other software to produce information for third parties, nor attempt, nor allow third parties to attempt to copy, decompile, or reverse engineer Exploria or Other Software, nor permit any third party to use Exploria or Other Software and/or documentation either on behalf of Customer or for the benefit of any third party and undertakes not to make Exploria or Other Software available in any way to any party unless authorised by Exploria. Customer further undertakes not to use sell, lease, hire or otherwise make available in any way, any software developed by Customer, and person(s) acting on behalf of the Customer, which is dependent or integrates with Exploria and Other Software unless written agreement has been obtained from Exploria.
- 4.4 Exploria Software Warranties
- 4.5 Exploria supplies “Off the Shelf” also known as “Commercial Off the Shelf” software that is configurable and does NOT supply “custom written”, “bespoke” or “specifically written” software” unless specifically otherwise agreed in writing.
- 4.6 Exploria warrants that the latest version of the Software which it delivers to the Customer shall operate generally in accordance with the software description and/or the software upgrade notification and with any Software manuals, which may form part of the documentation supplied with such Software. Whilst no software from any supplier can be said to be error free, Exploria’s obligation under this warranty shall be use reasonable endeavours to correct any faults that are found and reported in accordance with its Software annual maintenance procedures and routines.
- 4.7 Exploria provides the Software annual maintenance service as a compulsory part of the licencing of the Software. The payment of a Software annual maintenance fee by Customers includes Software annual maintenance (including but not limited to the fixing of bugs, the provision of necessary software updates as a result of statutory changes imposed by the Department for Education (in England), the review and rearrangement of software modules, etc) the Software licence fee, a hosting fee for SaaS Software, the Customer Care service and the Help Desk service.
- 4.8 For invoicing purposes, the first period of Software annual maintenance covers the period from the effective date of the Agreement for such period of one year after the effective date. Year one of the Software year starts from the date on which the Customer school/college is provided with the SaaS or cloud account, unless otherwise specified in writing.
- 4.9 Software annual maintenance invoicing shall continue from year to year automatically running from the anniversary of the end of Year One, during the Initial Term and Follow Up Terms(s).
Hosting provider offers strong performance and reliability by having two locations. This provision ensures the network stays connected because an uninterrupted route will be available.
5. Pricing and Payment
- 5.1 Customers shall pay Exploria the price of the licence fees for the Exploria Software (including the Cloud service charge for SAAS) and/or other Software and/or any other services or fees as specified in the Order Acknowledgement in pounds sterling on the date[s] specified in the Order Acknowledgement. All such amounts are exclusive of VAT and equivalent taxes on sales and supplies unless otherwise stated. The said taxes will be added to the invoice and the whole price including taxes shall be paid without set-off of deduction and free from all withholdings.
- 5.2 All Payments to be made by the Customer under this Agreement shall be paid to an account designated by Exploria either by direct debit instruction or BACS transfer and shall arrive on or before the due date in cleared funds. Prompt payment of all sums dues under this Agreement is an essential condition of the Agreement.
- 5.3 The Customer agrees and accepts that its obligation to pay all the sums dues under this Agreement on each due date for payment is absolute and unconditional and shall not be subject to any right of set-off, counterclaim, abatement, reduction, deferment or withholdings area required by law, the Customer undertakes to pay such additional amounts as necessary in order that the net amount received by Exploria after all deductions and withholdings will not be less than such payments would have been in the absence of such deductions and withholdings.
- 5.4 The Customer agrees that Exploria may assign all or part of its right, title and interest in and to the sums dues under this Agreement to an Assignee. The Customer will be notified of the assignment and the Customer’s payment obligations will then be owed to and enforceable by the Assignee and the Assignee shall be entitled to give the Customer good discharge for all the sums due and assigned to it under this agreement. Following an assignment to the Assignee any payment made by the Customer to Exploria will not release its payment obligation to the assignee.
- 5.5 The Customer hereby irrevocably consents to the assignment to the Assignee and undertakes that it will, if requested, confirms its consent to the assignment in writing.
- 5.6 The Customer further agrees that the Assignee shall have no responsibility for the Products, or any of the service performed or to be performed by Exploria and that it is reasonable for the Assignee to exclude its liability for these. The Customer’s sole remedy for any breach by Exploria under this Agreement is a matter between the Customer and Exploria.
- 5.7 In addition to and without prejudice to any other remedies that may be available, interest will accrue on the unpaid amount owing to Exploria.
- 5.8 During the INITIAL term and any FOLLOW UP term the total of the charges for the term become payable at the start of the contract. However, as a standard procedure Exploria typically allows for payments to be made annually in advance during the contract term. Please note that should there be a termination by the Customer before the end of the term or an irreparable breach of the contract by the Customer at any time during the term, the remaining sum in the remaining contract term or terms becomes payable immediately.
6. Exploria Help Desk
- 6.1 Use of the Exploria Help Desk is subject to these conditions. Exploria Help Desk agents will expect customers to be using the Exploria Software according to the Software licence terms (section 4 above). In consideration of said Software annual maintenance service, which includes the Exploria Help Desk service, the Customer, shall, subject to the conditions in this agreement, pay to the company the Company’s invoices to the Customer, each such payment to be made in advance of the period covered.
- 6.2 The service provide by the Exploria Help Desk includes examination of any reported problem with the Software by the use of Telephone, email, or other means. Exploria Help Desk will assist the Customer in understanding the software.
- 6.3 Help Desk support excludes the examination and solution of problems concerning the Customer’s specific application of the Software, which can be provided in the form of consultancy.
- 6.4 Help Desk support excludes the examination of problems where the Customer contact concerned has not been trained or appears not to have been trained to use the Software. The service provided by the Exploria Help Desk is not designed to be a substitute for proper and adequate training. Exploria Help Desk will endeavour always to provide a solution to a problem experienced in the use of the software. However, where a Customer contact is experiencing difficulty understanding inter alia basic principles in the use of an application/module/work method, Help Desk may be obliged to recommend a training course as the solution.
- 6.5 If Help Desk is not able to provide a solution to a reported problem within reasonable timescales because of a fault with the Software, the agent will report the problem to the Software or Other Software creator. In the case of a Exploria Software problem this will be reported to the Head of Software at Exploria. As an interim solution the Software or other Software creator may provide alternative methods of achieving the required results (i.e. a work around) which should be used while a software fix is engineered. The Customer should use the work-around until such time as the software fix is engineered and presented via a software upgrade or other method.
- 6.6 Where a fault is found in the Exploria software, Exploria will use every reasonable endeavour to repair the Software or find a work-around where one is available. Help Desk is not responsible, under this Agreement, for fixing reported faults or malfunctions in Other Software and the provision of an updated or fixed version of Other Software, if available, is at the discretion of Help Desk.
- 6.7 Customers using SaaS automatically grant Exploria Help Desk permissions to access their remotely hosted data for the purposes of carrying out the Help Desk function.
- 6.8 Exploria Help Desk is not responsible for any failure to fulfil or display in fulfilling it’s obligations under the terms of this Agreement due to cause beyond its control, including Acts of God.
- 6.9 Exploria Help Desk is not responsible for the consequential loss suffered directly or indirectly by the Customer or any of his clients if applicable as a result of the Help Desk support supplied under this Agreement.
- 7.1 Warranty Period means in relation to each item of Exploria Software the period of 90 days after their performance.
- 7.2 The Warranty claim amount will be limited to the purchase price paid by the customer for the software.
- 7.3 Exploria warrants that the Exploria Software shall materially conform to the performance described in its documentation (manuals and guides) if available relating thereto during the Warranty Period, and always subject to the terms in this Agreement. Services shall materially conform to the description defined in related correspondence between Exploria and the Customer.
8. Termination by either party
- 8.1 Notice may be given by either Exploria or the Customer at least 90 days in advance of the end of the Initial Term or the Follow Up Term. Terminate the contract completely at the end of the term. To effect termination of the contract by Customer as outlined above, written and posted notice is required to be sent on school/academy headed paper, signed by the head teacher or authorised signatory, together with a note of the type of termination required. Termination of the contract shall not entitle Customer to any return of monies paid or cancellation of monies remaining due to Exploria respect of the Customer’s contractual obligations and payment to the end of the Initial Term or Follow Up Term becomes due.
- 8.2 Termination by Exploria: in the event [a] the customer goes into liquidation or becomes unable to pay it’s debts when they become due; or [b] has a receiver or administrative receiver appointed over any of its assets; [c] makes any arrangement or compound with its creditors; or [d] should a Judgement be obtained against the Customer and remain unpaid for a period in excess of 28 days.
9. PATENT, IPR, COPYRIGHT
10.1 Each party may be given access to Confidential Information from the other party in order to perform obligations under the agreement, Each party shall:
- Keep confidential and not disclose any such Confidential information to any person save as expressly permitted by this Clause 10; and
- protect the Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own Confidential information of similar nature, being at least a reasonable degree of care.
- 10.2 Confidential information of a party may be disclosed by the other party to its employees, agents and advisors who needs to know the Confidential information for the purpose of exercising their rights of carrying out their obligations under the Agreement without the prior written consent of the other party.
10.3 The obligations set out in this Clause 10 shall not apply to Confidential Information that:
- is or becomes publicly known (other than through a breach of an obligation of confidence);
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receive party by a third party without restriction on disclosure;
- independently developed by the receiving party, which independent development can be shown by written evidence; or
- Confidential information that is required to be disclosed by law or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirements must where permitted by law give to the other party prompt written notice of their disclosure requirement.
- This clause 10 shall survive termination of the Agreement, howsoever arising.