Vital Statistics Customer Agreement

Definitions

In this Agreement the following words shall have the following meanings unless otherwise expressly stated: 

The Company means Purple Seven Ltd whose registered office is Midway House 23a Coten End Warwick CV34 4NT 

Customer means the organisation or company with whom Purple Seven Ltd is contracted to provide access to the data, supplied by the Data Supplier, through the Application, as identified on the Customer Form. 

Data Supplier means the organisation supplying data for use by the Customer within the Application 

Application means the application described in the Application section of the Customer Form provided to the Customer by Purple Seven under this Agreement; 

Purple Seven Materials means any Documentation, materials, software, equipment, data and all other materials licensed by or to Purple Seven and used by Purple Seven (excluding the Customer Data) in providing the Application or performing its obligations under this Agreement and shall be deemed to include any developments to such materials made during the course of providing the Application to the Customer; 

Charges means the charges payable by the Customer to Purple Seven in respect of the Application and (where applicable) the Services as set out in the relevant section of the Customer Form applicable at the Commencement Date and as may be amended from time to time in accordance with Clause 10; 

Intellectual Property Rights means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, know-how, model, unregistered design (and any application for any such right) or other intellectual property right anywhere in the world; 

Licence means the licence to use the Application as granted in Clause 3; 

Customer Data means the data inputted by the Customer into the Box Office System from time to time which forms the basis of the reports and information produced by the Application or any other data supplied by the Customer to Purple Seven in the course of this Agreement; 

Customer Form means the Purple Seven document so entitled containing (inter alia) details of the Customer, the Application relevantModules and Services (if any) and the Charges; 

System Specification means the minimum system specification specified by Purple Seven in the Daily Data Extractor Schedule and as updated by Purple Seven from time to time on notice to the Customer; 

Software means the application known as Daily Data Extractor (DDX) that will which automatically transfers data from the a box office database to the Vital Statistics Server. 

Box Office System means the computerised ticketing system, compatible with the DDX, used by the Data Supplier/Customer (as the case may be) to collect and retain customer information at point of sale 

Commencement Date means the date on which this Agreement shall commence as set out in the relevant section of the Customer Form, or such other date as the parties may agree in writing; 

Confidential Information means any and all secret or confidential commercial, financial, marketing, technical information, know-how, trade secrets and other information in written, electronic or any other form or medium whether disclosed orally or in writing before, on or after the date of this Agreement; means the date on which this Agreement shall commence as set out in the relevant section of the Customer Form; 

Initial Term means the duration set out in the relevant section of the Customer Form commencing on the later of the Commencement Date or the Licence Start Date 

Year means a period of 12 months commencing on the later of the Commencement Date or the Licence Start Date and thereafter on any subsequent anniversary of such date. 

Force Majeure means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Agreement including without limitation: fire; flood; lightning; war; revolution; terrorism; riot; strike; lock-out or other industrial action; failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services 

Modules means any additional features available for use with the Application produced by the Company from time to time as set out in the Customer Form   

Services means any services provided by Purple Seven in respect of this Agreement including without limitation the Training and the Support Services requested by the Customer and provided in accordance with Clause 9 ;

Documentation means the manuals, work books and associated written material supplied by Purple Seven for the purposes of the Application;

 Daily Data Extractor Schedule means the schedule describing the activities of the system used by Purple Seven to extract data from the Customer's information systems and Purple Seven's requirements of the Customer in order for that system to work properly;

1. Interpretation

1.1 The headings contained in these terms and conditions are for convenience of reference only and shall not affect its interpretation.

1.2 References to persons include an individual, company, corporation, firm or partnership.

1.3 Words indicating the singular shall include the plural and vice versa.  Words indicating a gender shall include each gender.

1.4 The words and phrases including and in particular shall be without limitation to the generality of any preceding words and anypreceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.

2. Duration

2.1 This Agreement shall come into force on the Commencement Date and (subject to the provisions for earlier termination in this Agreement) shall continue for the Initial Term and thereafter from Year to Year unless and until either party gives to the other not less than Sixty (60) days prior written notice of termination prior to the end of the Initial Term or the relevant Year.

3. Licence to use the Application

3.1. In consideration of the payment of the Charges, Purple Seven hereby grants to the Customer a non-exclusive, non-transferable, licence to use the Application and the Documentation for the Concurrent Users for the duration of this Agreement and in accordance with the terms of this Agreement.

4. Password and User Identification

4.1. On or before the Commencement Date, Purple Seven shall issue the Customer with a unique administrator password and user identification which will allow the Customer's administrator to access the Application.  Purple Seven shall be entitled to change the administrator password from time to time on notice to the Customer.

4.2. The Customer shall be responsible for issuing or procuring the issue individual user passwords and user identifications within its organisation and shall keep all passwords and user identifications secure and confidential.

4.3. In the event that the Customer has cause to believe the passwords or user identifications may be used by an unauthorised person the Customer shall notify Purple Seven immediately

5. Training

5.1. Purple Seven will provide introductory training in the use of the Application and Software to the Customer.  Any additional training shall be on terms and at a cost agreed between the Parties.

6. Customer Obligations

6.1. The Customer undertakes;

6.1.1. not to make available the Application in whole or in part and in any form, whether for sale or otherwise, to any person without prior written consent from Purple Seven;

6.1.2. to use the Application solely for its internal business purposes and not to use the Application to provide any form of bureau services, managed services, outsourced services, sublicensing, time sharing, rental, facility management, or to process data on behalf of a third party or provide any other form of services or access to the Application to any third party;

6.1.3. not to allow any use of the Application by any more than the maximum number of Concurrent Users;

6.1.4. to operate the Application on a system compliant with the System Specification detailed in the Customer Form.

6.2. The Customer shall:

6.2.1. provide all reasonable assistance, and access to such reasonable facilities, hardware, software and personnel as Purple Seven may reasonably require in order to undertake its obligations pursuant to this Agreement;

6.2.2. notify Purple Seven within 30 days of Purple Seven making available the Application or performing any Services, if the Application or any of such Services are not provided in accordance with this Agreement. The Customer will be deemed to accept the Application and each part of the respective Services in the event that it has not provided any such notice to Purple Seven within such 30 day period;

6.2.3. save in respect of the rights to use the Application granted by Purple Seven under this Agreement, the Customer agrees to obtain all necessary consents, licences and permissions which are necessary in order for the Customer to use the Application;

6.2.4. consent to the data extraction activities set out in the Daily Data Extractor Schedule, and comply with its requirements; and

6.2.5. appoint a person or persons to deal with system support issues and to act as the main point of contact between the Customer and Purple Seven and submit one such person to Purple Seven for training in the handling of system support issues .

6.3. The Customer warrants to Purple Seven that it has full capacity and authority to enter into this Agreement.

7. Purple Seven's Warranties

7.1. Purple Seven warrants to the Customer that:

7.1.1. it has full capacity and authority to enter into this Agreement and grant the Licence;

7.1.2. the Application when used in accordance with this Agreement and without unauthorised modification, will function materially in accordance with the Documentation but Purple Seven makes no representation or warranty that the Application is error or defect free or is capable of operation with any other Application;

7.1.3. the Application, when used in accordance with this Agreement, will not infringe the Intellectual Property Rights of a third party; and

7.1.4. it will perform the Services with reasonable skill and care.

7.2. In the event that Purple Seven fails to comply with Clause 7.1 or any other provision of this Agreement, then Purple Seven will at its sole discretion, either:

7.2.1. correct the Application or re-perform those Services which have not been performed satisfactorily, without any additional charge; or

7.2.2. refund the Charges in respect of the Application or those Services which have not been satisfactorily performed.

7.3. The Customer agrees that Clause 7.2 represents its sole and exclusive remedy in respect of unsatisfactory performance of the Application or the Services.

7.4. Purple Seven shall use its reasonable endeavours to make the Application available at all reasonable times however due to the nature of the Internet the Customer acknowledges and accepts that there may be periods when the Application may not be available.

7.5. The Customer also acknowledges that the Application may be unavailable during periods of maintenance undertaken by Purple Seven or its contractors and Purple Seven shall notify the Customer of any periods of unavailability of the Application in excess of four hours duration.

8. Customer Data

8.1. The Customer shall be solely responsible for the accuracy, use and/or misuse of the Customer Data and acknowledges that the accuracy of the reports and other information created by the Application are entirely dependent on the accuracy of the Customer Data.

8.2. To the extent that any of the Customer Data contains personal data the Customer shall be the data controller for the purposes of such personal data and the Customer warrants that it has complied with its obligations under the Data Protection Act 1998 (as amended) (the Act) and in particular the Customer warrants that it has obtained all required consents for the processing of the Customer Data by Purple Seven for the purposes of this Agreement including those activities described in Clause 8.5.

8.3. Purple Seven warrants that it shall act only on the instructions of the Customer and Data Supplier in respect of any data supplied by the Customer and Data Supplier respectively.

8.4. Purple Seven warrants that it shall take reasonable technical and organisational measures to ensure the security and integrity of the Customer Data while it is in the custody or control of Purple Seven to prevent the unauthorised disclosure, copying or use of personal data and that it shall comply with the seventh principle of the Act.

8.5. The Customer acknowledges that the Application contains a data sharing facility which if utilised by the Customer will allow the Customer to share its Customer Data with third parties and the Customer warrants that by selecting this facility on the Application it is authorising Purple Seven to share the relevant Customer Data with such third party on its behalf.

8.6. For the purposes of this Clause 8 the terms personal data and data controller shall be as defined in the Act.

8.7. All transactional data held by Purple Seven as a result of the Customer using the Application will be added into the aggregated data set for the purposes of anonymous industry benchmarking unless a customer requests in writing that their data be excluded.

9. Services 

9.1. The Company shall provide such Services to the Customer as are set out in the Customer Form

9.2. Where such Services consist of technical support services they shall (unless otherwise agreed in writing) consist solely for the purpose of providing advice and assistance to the Customer in the use of the Application and shall not include the any of the following:

9.2.1. support of other software not supplied by Purple Seven;

9.2.2. rectification of lost or corrupted data;

9.2.3. diagnosis and/or rectification of problems not associated with the Software;

9.2.4. loss or damage caused directly or indirectly by operator error;

9.2.5. on-site support to the Customer.

10. Charges

10.1. The Customer shall pay the Charges in accordance with this Agreement at the times and in the amounts set out on the Customer Form together with VAT at the prevailing rate and without deduction, withholding or set off.

10.2. All invoices issued by Purple Seven in accordance with this Agreement shall be due and payable by the Customer (unless other payment terms are detailed on the Customer Form) within 30 days of presentation of invoice.

10.3. Without prejudice to any other right or remedy of Purple Seven, if the Customer fails to make any payment under this Agreement on or before the due date for payment then Purple Seven shall be entitled to suspend access to the Application and Software and charge the Customer, and the Customer shall pay Purple Seven on demand, interest on the unpaid amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment until the payment is received in full by Purple Seven.

10.4. The Charges may be amended from time to time by Purple Seven on an upwards only basis by not less than 30 days prior notice to the Customer which increase shall become effective at the commencement of the Year following the Year in which notice is given.

10.5. All sums payable hereunder are exclusive of VAT or any other applicable tax or duty payable upon such sums, which shall be added where applicable at the rate prevailing at the relevant tax point.

11. Intellectual Property Rights

11.1 All Intellectual Property Rights in the Purple Seven Materials shall remain vested in Purple Seven and the Customer shall acquire no rights therein.

12. Confidentiality

12.1. Subject to Clause 12.2, all Confidential Information disclosed or obtained as a result of this Agreement shall be kept confidential by the parties and neither party shall use or disclose such Confidential Information.  Where such Confidential Information is disclosed by a party to its employees, agents or sub-contractors, it shall be subject to confidentiality obligations equivalent to those set out in this Agreement.  Each party shall procure that any such employee, consultant, sub-contractor or agent complies with such obligations.

12.2. Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.

12.3. The obligations of confidentiality in Clause 12.1 shall not extend to any disclosure of Confidential Information which either party can show:

12.3.1. is necessary for the proper performance of its obligations under this Agreement; or

12.3.2. has been carried out with the prior consent of the other party; or

12.3.3. is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or

12.3.4. was in its records prior to the Commencement Date (other than in contemplation of this Agreement); or

12.3.5. was independently disclosed to it by a third party entitled to disclose the same; or

12.3.6. that the whole or any part of the Information to be disclosed is the subject of a request under the Freedom of Information Act 2002 (for information which is not exempt from disclosure under such Act) in which instance one party's only obligation to the other will be to consult that other (giving that other 5 working days to respond) and to take any observations received on the disclosure of the information requested into account before making a determination on the request.

12.3.7. is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

12.4. Nothing in this clause 12 shall prevent the Company from exploiting any inventions or software that it develops during the course of this Agreement.

13. Limitation of Liability

13.1. Nothing in this Agreement shall restrict or exclude either party's liability for death or personal injury resulting from that party's negligence.  Nothing in this Agreement shall restrict or exclude either party's liability for fraud, nor for fraudulent misrepresentation.

13.2. Subject to Clause 13.4, neither party shall be liable in any circumstances to the other party for consequential, special or indirect losses, or the following losses whether direct or indirect: loss of profits, loss of revenue, economic loss, loss of business or contracts, loss of anticipated savings or goodwill, loss of data, (or any losses arising from a claim by a third party for any of the above losses); whether arising under contract, statute, tort (including without limitation, negligence), or otherwise.

13.3. Subject to Clauses 13.1, 13.2, and 13.4, the aggregate liability of either party for all claims arising under or in connection with this Agreement (whether arising under contract, statute, tort (including without limitation negligence) or otherwise) shall be limited to the Charges paid to Purple Seven by the Customer under this Agreement in the Year that the breach giving rise to liability occurs.

13.4. Nothing in this Clause 13 shall exclude or restrict the Customer's obligation to pay the Charges.

13.5. The Charges have been calculated on the basis that each party will exclude or limit its liability as set out in this Agreement.

13.6. Purple Seven will not be liable for:

13.6.1. any failure to comply with the provisions of this Agreement if such default is attributable to any extent to the acts or omissions of the Customer its agents, employees or contractors, including without limitation the failure of the Customer to perform its obligations under this Agreement;

13.6.2. any consequences arising from Purple Seven complying with the Customer's instructions or requirements;

13.6.3. any consequences arising from the Customer failing to secure any necessary consents, licences or permissions; or

13.6.4. any consequences arising from software or equipment not supplied by Purple Seven or the Internet or the Customer's Internet connection.

14. Termination

14.1. Either party may terminate this Agreement immediately upon notice in writing to the other party in the event that the other party commits a breach of its obligations under this Agreement and:

14.1.1. such breach is material and cannot be remedied; or

14.1.2. such breach is material and capable of remedy and that other party fails to remedy such breach within thirty (30) days of having been required in writing to remedy such breach.

14.2. Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the Defaulting Party) in the event that the Defaulting Party shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts.

14.3. Purple Seven shall be entitled to terminate this Agreement immediately in the event that:

14.3.1. the Customer is in breach of its undertakings in Clause 6.1; or

14.3.2. the Customer fails to pay the Charges; or

14.3.3. the Customer discontinues use of the Application.

15. Consequences of Termination

15.1. The termination of this Agreement shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.

15.2. The provisions of Clauses 1, 6, 8, 10, 11, 12, 13, 14, 15, and 18  to 24 (inclusive), together with those provisions which are intended or expressed to survive termination, shall so survive.

15.3. Each party shall immediately return to the other party all of the other party's property (including without limitation Confidential Information) in its possession at the date of termination.

15.4. In the event of a termination of the Licence the Customer shall immediately cease using the Application and the Purple Seven Materials, and within 7 days of termination furnish Purple Seven with written notice that the same has been done.

16. Force Majeure

16.1. If either party is affected by Force Majeure it shall not be in breach of this Agreement or otherwise liable to the other by reason of any delay in performance or non-performance of any of its obligations due to such event.

16.2. If such Force Majeure persists for a period of three (3) months then the party prevented from complying with its obligations by such event shall be entitled while the Force Majeure persists, to terminate this Agreement immediately upon notice to the other party.

17. Assignment and Sub-contracting

17.1. The Customer shall not assign, delegate, sub-contract, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of Purple Seven.

17.2. Purple Seven shall be permitted to assign, delegate, sub-contract, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of the Customer.

18. Contracts (Rights of Third Parties) Act 1999

18.1. The Parties to this Agreement do not intend any third party to have any benefit under this Agreement.  The Parties therefore agree that no third party shall have the right to enforce any term of this Agreement

19. No Partnership

19.1. Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties to this Agreement.

20. Variations

20.1 No variation of this Agreement shall be effective unless it is in writing and is signed by an authorised representative of each party.

20.2. Where a Customer requires additional Services or Modules during the subsistence of the Agreement it the Company shall record such variations in a Customer Agreement Addendum, which when signed by both parties shall be deemed to have been incorporated into this Agreement which shall in other respects remain in full force and effect.

21. Severability

21.1. If at any time any part of this Agreement or a clause of this Agreement becomes void or unenforceable under any applicable law it shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue unaffected.

22. No Waiver

22.1No provision of the Agreement shall be waived unless agreed to be waived by both parties in writing. If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both parties in writing.

23. Entire Agreement

23.1. This Agreement together with any Customer Agreement Addendum issued in accordance with Clause 20.2 and the Daily Data Extractor Schedule (if applicable) contains the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all other written and oral communications between the parties.  The express terms, conditions and warranties of this Agreement are in lieu of all warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise all of which are hereby excluded to the fullest extent permitted by law. The parties hereby confirm that they have not relied upon any representations, communications or other matters which have not been expressly stated in this Agreement.

24. Law and Jurisdiction

24.1. This Agreement and any dispute or claim arising in connection with it shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit