These terms and conditions (the “Conditions”) apply to the Customer’s access and use of the System, provided by Barker Brettell (“BB”), a Limited Liability Partnership regulated by the Intellectual Property Board.
The Customer should review the Conditions carefully and only use the System if they agree to be bound by the Conditions. Use of the System by the Customer shall be deemed acceptance by the Customer of the Conditions.
These Conditions are in addition to, and not in limitation of, the provisions of any other terms between the Customer and BB (e.g. terms of engagement). In the event of any conflict between these Conditions any other terms between the Customer and BB, in relation to access to the System these Conditions will take precedence.
The Customer's attention is particularly drawn to the provisions of Conditions 2 (use of the System)and 6 (liability).
In these Conditions, the following definitions apply:
Contract: these Conditions relating to the use of the online System.
Authorised Users: those employees, agents and independent contractors of the Customer authorised by BB and the Customer to access the System as in accordance with Condition 2.5;
Commencement Date: the date written on the preceding page.
Confidential Information: information that is proprietary or confidential to a party (including the System, Software and Documentation and, the terms of this Contract) and which is not public knowledge or already known to the receiving party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, or subsequently comes lawfully into the possession of the receiving party from a third party.
Customer: the person or firm described on the preceding page who is permitted access to the System by BB pursuant to this Contract.
Customer Data: that data held on the System relating to the Customer’s intellectual property registrations and applications.
Documentation: any documents made available to the Customer by BB which set out a description of the System and any Software and any user instructions in respect of the same.
Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Software: the software, if any, provided to the Customer by BB to enable the Customer to access the System.
System: the database developed and maintained by BB holding, amongst other data, the Customer Data, which database may be operated and hosted by BB or a third party and which may be provided via another third party system.
2.1 Subject to the Customer complying with the Conditions of this Contract, the Customer shall have the right on a free of charge basis to:
(a) access the System to view the Customer Data only;
(b) use the Customer Data only;
(c) use the Documentation in respect of its access and use of the System only; and
(d) use any Software provided by BB only to access and use the System.
2.2 All rights granted under Condition 2.1 are for the duration of the Contract only, are revocable, non-exclusive and non-transferable and may only be exercised by the Customer for its own business purposes.
2.3 The Customer acknowledges and agrees that the System may be operated and hosted by BB or a third party and may be provided via another third party system or server.
2.4 The Customer acknowledges and agrees that BB may through the use of cookies on the website via the System, track and store information relating to the System use by the Customer.
2.5 The Customer shall access and use the System, Software and Documentation strictly in accordance with these Conditions and any instructions set out in the Documentation or given by BB or such third party who may be involved in the operation, hosting or provision of the System from time to time.
2.6 The Customer shall submit to BB for its prior approval a list of its proposed Authorised Users. BB shall not unreasonably withhold or delay such approval.
2.7 BB shall provide or shall procure the relevant third party to provide to a single contact at the Customer (the “Administrator”) one or more pass code and user names that will allow the Administrator to set up access to the System for those Authorised Users agreed by the parties pursuant to Condition 2.5 to access and use the System (“Pass Code/User Name”). The Customer shall:
(a) ensure that the Authorised Users access and use the System, Software and Documentation in accordance with the Conditions of this Contract;
(b) ensure that the Pass Codes and User Names are kept secure and confidential and ensure that the same are only used to access the System by the Authorised Users;
(c) not allow anyone to access the System other than the Authorised Users;
(d) notify BB immediately of any known or suspected loss, theft or unauthorised disclosure of Customer Pass Codes and User Names or any unauthorised access to the System or unauthorised use of the Software or Documentation; and
(e) maintain a written, up to date list of current Authorised Users and provide such list to BB within 5 days of BB’s written request.
2.8 BB will provide the Customer with such Documentation as is available in respect of the System and which is in the opinion of BB relevant to the Customer’s access and use of the System.
2.9 BB shall have sole discretion and control over, and the right to:
(a) modify at any time, the System’s functionality, configuration, appearance and content; and
(b) suspend or restrict access to the System or any part thereof at any time, or to impose limits on the use of the System, either generally or, in respect of specific transactions or users, or to discontinue transmitting information.
2.10 BB will endeavour to ensure that information, including Customer Data, made available within the System (including information provided to BB by third party providers is accurate, however, BB does not warrant the accuracy, completeness, timeliness or correct sequencing of such information. Any Customer use of or reliance on any such information provided via the System will be at the Customer's own risk and neither BB nor any third party provider will be liable in any way for any inaccurate, incomplete or out of date information or any decision made or action taken by the Customer relying upon such information.
3.1 The Customer shall:
(a) assume full responsibility for any and all access to and use, including any unauthorised use or misuse, of the System by any of its employees, agents or sub-contractors or, by any other person through the Customer’s facilities or using the Pass Codes and/or User Names, and the Customer acknowledges and agrees that any breach by such persons of any of the Customer’s obligations in respect of the System shall constitute a breach of such obligations by the Customer;
(b) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the System, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
(c) use the Software and Documentation only in connection with the use of the System;
(d) save as permitted by sections 50A to 50D of the Copyright, Designs and Patents Act 1988, not use, copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the Software;
(e) not sub-license, transfer, lease, rent, distribute or loan the Software, allow the Software to become the subject of any charge, lien or encumbrance;
(f) not disclose the Software or Documentation to any third party or, allow any third party to access the same (other than the Authorised Users); and
(g) only use the Customer Data obtained via the System for its own business purposes.
3.2 The Customer represents, warrants and undertakes that it will only use the System for lawful purposes and promptly inform BB of any actual or potential breach of this Condition 3.2. In particular, the Customer represents, warrants and undertakes that it will not:
(a) use the System in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will the Customer authorise or permit any other person to do so;
(b) upload, post, link to or transmit any material:
(i) which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(ii) containing a virus or other hostile computer program;
(iii) which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction; or
(iv) which is personal data and in contravention of any data protection regulation or legislation; or
(c) allow anyone below the age of 18 years to access or use the System; or
(d) do or omit to do anything which might give rise to a third party claim against BB.
3.3 The Customer will be bound by any affirmance, assent or agreement it transmits through the System, including but not limited to any consent it gives to receive communications from BB solely through electronic transmission. The Customer agrees that, when in the future it clicks on an “I agree”, “I consent” or other similarly worded “button” or entry field with its mouse, keystroke or other computer device, the Customer’s agreement or consent will be legally binding and enforceable and the legal equivalent of its hand-written signature.
4.1 Personal Data will be processed as set out in our Privacy Policy (www.barkerbrettell.co.uk/privacy-policy/) and in accordance with the data protection terms previously agreed between the parties.
5.1 The Customer acknowledges that all Rights in the System, Documentation and in any Software (including in all modifications to the same) belong to BB or such third party from whom the right to use the same derives, and that the Customer shall have no rights in, or to, the System, Software or the Documentation other than the right to use them in accordance with the terms of this Contract.
5.2 The Customer acknowledges that, in respect of any third party Rights in the System, Software or Documentation , the Customer's use of any such Rights is conditional on BB obtaining the required user licences from such third party.
5.3 Subject to Condition 5.4, each party shall:
(a) hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Contract; and
(b) take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Contract.
5.4 The Customer agrees that BB may disclose information relating to the Customer to such of BB’s employees, agents and sub-contractors as is necessary for the provision of the System and the Software.
5.5 This Condition 5 shall survive termination of the Contract.
6.1 This Condition 6 sets out the entire financial liability of BB to the Customer in connection with this Contract.
6.2 Nothing in these Conditions shall limit or exclude BB's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
6.3 BB:
(a) does not warrant that the Customer's use of the System and any Software will be uninterrupted or error-free; nor that the System, Software or Documentation and/or the information obtained by the Customer through the System (including the Customer Data) will meet the Customer's requirements; nor that the System or the server on which it is made available or any connected system is free from viruses or other harmful components; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the System and Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.5 Other than as a result of the wilful default or negligence of BB, BB will not be liable to the Customer for any losses, damages, claims, costs or expenses which arise out of or relate to:
(a) any of the matters set out at Condition 6.3;
(b) any interruption or failure for any reason of the whole of, or any part or function of, the System or the Software or any associated communications systems or equipment;
(c) any information, including the Customer Data, provided to the Customer via the System.
6.6 Subject to Condition 6.2:
(a) BB shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business or revenue, loss of reputation or goodwill, loss of data, loss of operation time or, for any special, indirect or consequential loss arising under or in connection with the Contract; and
(b) BB's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500 or the total fees paid for the use of the System in previous 12 months.
6.7 This Condition 6 shall survive termination of the Contract.
BB shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BB or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
8.1 This Contract shall commence on the Commencement Date or upon the date that the Customer first accesses the System (whichever is earlier) and shall continue in force unless and until terminated in accordance with this Condition 8.
8.2 BB may suspend access to the System and/or terminate this Contract at any time either with or without cause.
9.1 On termination of the Contract for any reason:
(a) the Customer will immediately cease to access and use the System, Software and Documentation and all rights of access and use granted under this Contract shall immediately cease;
(b) the Customer shall immediately return to BB and make no further use of any Confidential Information, Software and Documentation (and all copies of them) in its possession or control; and
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.1 Entire Agreement: The Customer acknowledges that it has not relied upon or been induced to enter into this Contract by any representation or warranty made by or on behalf of BB and not set forth in this Contract. The Customer waives all rights and remedies which, but for this sub-clause, might otherwise be available to it in respect of any such representation or warranty provided that nothing in this subparagraph shall limit or exclude any liability for fraud.
10.2 Assignment and subcontracting:
(a) BB may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of BB, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
10.3 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.7 Variation: Any variation to the Contract shall only be binding when agreed in writing and signed by BB.
10.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.