Terms & Conditions

Here are our terms and conditions, should you wish to check the small print.

 

1. NFP 365 ACCELERATOR

1.1 This Agreement contains the terms applicable to the installation (into the Customer’s existing Microsoft Dynamics 365 Tenancy) and use of the Licensed Software by the Customer. This Agreement does not deal with any terms applicable to the use by the Customer of any Third Party Software which is connected to or linked to the Licensed Software.

1.2 This Agreement takes effect on the earlier of (i) the day the Customer installs the Licensed Software and (ii) the day the Customer accepts the terms relating to the use of the Licensed Software (including this Agreement) and either option indicates the Customer’s intent and agreement to be bound by the terms of this Agreement.

2. DEFINITIONS AND INTERPRETATION

2.1 In this Agreement, the following words and expressions have the following meaning unless the context otherwise requires:

 

Agreement: means this software licence between m-hance and the Customer for use of the Licensed Software.

 

Applicable Laws: means, in relation to a Party, all applicable laws, enactments, regulations, regulatory policies, binding industry codes, regulatory permits and regulatory licences which are in force from time to time during the term of this Agreement and that apply to the performance of that Party’s obligations pursuant to this Agreement.

 

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks are open for business.

 

Customer: the entity installing the Licensed Software and identified as such in the applicable Microsoft AppSource account.

 

Data Protection Legislation: means any laws and regulations in the UK relating to privacy or the use or processing of data relating to natural persons, including: (a) the 2018 Data Protection Act (the DPA) and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) EU Regulation 2016/679 (GDPR); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR or DPA and in each case as amended or replaced from time to time.

 

Dispute Resolution Procedure: means the procedure for the resolution of Disputes specified in Clause 10.

 

Good Industry Practice: means, at any time during the term of this Agreement, the exercise of reasonable skill, care, prudence, efficiency, foresight and timeliness which would at that time be expected from a reasonably and suitably skilled, trained and experienced person providing services similar to the Services.

 

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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.

 

Licensed Software: means m-hance’s proprietary software referred to as “NfP 365 Accelerator”.

 

Losses: means claims, demands, actions, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all interest, fines, penalties, management time and legal and other professional costs and expenses).

 

m-hance: means m-hance Limited, incorporated and registered in England and Wales with company number 01369937 whose registered office is at Trinity House, Bredbury Park Way, Stockport, Cheshire, SK6 2SN, United Kingdom.

 

Party: m-hance or the Customer, as the case may be, and Parties shall mean both.

 

Personal Data: has the meaning given to that term in the GDPR.

 

Third Party Software: means any software for which m-hance is not the licensor.

Use: means:
(a) installing the Licensed Software in the Customer’s Microsoft Dynamics 365 Tenancy; and
(b) accessing the Licensed Software in conjunction with any required Third-Party software in accordance with the applicable terms of use for such Third Party Software.

User: means a user of the Licensed Software.

2.1.1 any reference to a statute or statutory provision includes, unless the context otherwise requires, a reference to that statute or statutory provision as from time to time amended, consolidated, extended, re-enacted, or replaced and to all statutory instruments, orders, regulations or rules made pursuant to it;

2.1.2 if a period of time is specified and such period dates from a given day or the day of an act or event, it shall be calculated exclusive of that day;

2.1.3 any phrase introduced by the term “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and the words following any of those terms shall not limit the sense of the words preceding any of those terms;

 

3. LICENCE AND INTELLECTUAL PROPERTY RIGHTS

3.1 Subject to the following terms of this clause 3, m-hance hereby grants the Customer a worldwide, perpetual, non-exclusive, royalty-free licence to Use the Licensed Software in the ordinary course of its business.

3.2 The licence granted in clause 3.1

3.2.1 does not permit the Use of the Licensed Software by any person other than a User;

3.2.2 excludes the right to (or to authorise or permit a Third Party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Software;

3.2.3 excludes the right to sub-license, assign or otherwise transfer or make available the Licensed Software to a Third Party (other than to Users), without m-hance’s prior written consent, to be granted at m-hance’s sole discretion.

3.3 It is a condition of the Customer’s Use of the Licensed Software that:

(a) the Customer does not:

(i) breach m-hance’s Intellectual Property Rights in the Licensed Software;

(ii) create any software whose expression is substantially similar to that of the Licensed Software; and/or

(iii) breach the terms of use of any Third Party Software, including for the avoidance of doubt any software licensed to the Customer by Microsoft.

(iv) sub-license, assign or novate the benefit or burden of this licence in whole or in part;

(v) allow the Licensed Software to become the subject of any charge, lien or encumbrance; and

(vi) deal in any other manner with any or all of its rights and obligations under this Service Agreement without the prior written consent of m-hance;

(b) the Customer:

(i) manages the authorisation of Users and each User’s access to the Licensed Software in accordance with the terms of this Agreement;

(ii) keeps a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;

(iii) notifies m-hance in writing as soon as it becomes aware of any unauthorized use of the Licensed Software by any person;

(iv) is liable for any act or omission of a User in relation to the Licensed Software.

3.4 Neither Party intends that any Intellectual Property Rights shall transfer from one Party to the other Party as a result of entering into this Agreement.

3.5 The Licensed Software is provided free of charge and “as is”. m-hance makes no warranty as to its performance or that it is fit for purpose. Without limiting the generality of the foregoing:

3.5.1 the Licensed Software is not guaranteed to run error-free;

3.5.2 m-hance does not provide any free support services in relation to the Licensed Software;

3.5.3 any support services to be provided by m-hance are subject to the terms of a separate support services agreement; and

3.5.4 the operation of the Licensed Software relies on the operation of the Microsoft Dynamics software environment, which m-hance has no control over.

 

4. TERM AND TERMINATION RIGHTS

4.1 m-hance may terminate this Agreement (and for the avoidance of doubt, the licence in clause 3.1) by written notice to the Customer if the Customer is in breach of any of the provisions in clause 3.

4.2 The following clauses shall survive termination of this Agreement and shall continue with full force and effect: 3, 6, 7, 9, 11 and 12.

 

5. CHARGES

5.1 The Licensed Software is provided free of charge by m-hance. Any additional services or additional software provided by m-hance (other than version upgrades to the Licensed Software) will be subject to additional terms, to be mutually agreed between m-hance and the Customer.

 

6. REGULATORY COMPLIANCE

6.1 Each Party shall comply with Applicable Law in the exercise of its rights and the compliance with its obligations pursuant to this Agreement, including, for the avoidance of doubt, compliance with Data Protection Laws.

 

7. LIMITATION OF LIABILITY

7.1 Nothing in this Agreement excludes or limits either Party’s liability for:

7.1.1 for death or personal injury caused by that Party’s negligence, fraud (including fraudulent misrepresentation) and other losses which cannot be excluded by law; or

7.1.2 for any wilful default or fraudulent act or omission.

7.2 Each Party indemnifies the other Party for any Losses arising out of or related to the indemnifying Party’s breach of clause 6.

7.3 In addition to the indemnity set out in clause 7.2,

7.3.1 the Customer indemnifies m-hance for any Losses arising out of or related to the Customer’s breach of clause 3; and

7.3.2 m-hance indemnifies the Customer for any Losses arising out of or related to a claim by a third party that the use by the Customer of the Licensed Software in accordance with the terms of this Agreement breaches the Intellectual Property Rights of that third party.

7.4 Subject to clause 7.1, m-hance’s aggregate liability for all claims arising out of or related to this Agreement (whether in tort or in contract), shall be limited to £100 (One hundred Pounds Sterling), save for any claim by the Customer pursuant to the indemnity set out in clause 7.3.2, for which m-hance’s aggregate liability under this Agreement shall be £5,000 (Five thousand Pounds Sterling).

7.5 Nothing in this clause 7 shall in any way reduce or affect each Party’s general duty to mitigate loss suffered by it.

 

8. INSURANCE

8.1 m-hance shall, for the duration of this Agreement, maintain insurance policies which are sufficient to cover the losses arising out of m-hance’s obligations under this Agreement.

8.2 The Customer must maintain insurance policies which are sufficient to cover potential liabilities arising out of the Use of the Licensed Software.

 

9. CONFIDENTIAL INFORMATION

9.1 Each Party agrees that it shall keep any information designated as confidential or which is otherwise clearly confidential in nature (“confidential information”) received by it from the other before or during the term of this Agreement and which relates to the business, assets, affairs, financial results, plans, customers and suppliers of the other Party strictly confidential and that it shall not use (save as is necessary in order to perform its obligations and/or exercise its rights under this Agreement) any such confidential information for its own benefit or disclose any such confidential information to any third party and that it shall ensure that no third Party shall have access to it. Notwithstanding the foregoing, each Party shall be entitled to disclose confidential information to its employees to the extent that those employees have a genuine need to know the same to enable the Parties to perform their obligations or exercise their rights under this Agreement.

9.2 The restrictions in clause 9.1 shall not apply to any confidential information which:

9.2.1 the recipient can prove is already known to it at the time of disclosure of the confidential information to it;

9.2.2 is public knowledge at the time of disclosure of the confidential information to the recipient or which subsequently becomes public knowledge through no fault of the recipient;

9.2.3 is subsequently disclosed to the recipient (other than subject to conditions of confidentiality and without any restriction on disclosure) by a third Party which is itself not subject to any restriction on disclosure imposed by the disclosing Party hereunder; or

9.2.4 is required to be disclosed as a matter of law or by the rules of a recognised stock exchange provided the recipient notifies the disclosing Party as soon as possible following any relevant demand or request for disclosure.

 

10. MISCELLANEOUS

10.1 Entire Agreement:

10.1.1 This Agreement sets out the entire agreement between the Parties relating to its subject matter. Neither Party has entered into this Agreement in reliance upon, nor shall either Party have any claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made by or on behalf of the other Party, any of its representatives or any other person which is not expressly set out in this Agreement.

10.1.2 This clause 10.1 is not intended to exclude any liability for or remedy in respect of fraudulent misrepresentation.

10.2 Waiver and Variation: A waiver of any right or remedy under this Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A Party that waives a right or remedy provided under this Agreement or by Law in relation to another Party does not affect its rights in relation to any other Party.

10.3 Assignment:

10.3.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of m-hance.

10.3.2 m-hance may, after having given prior written notice to the Customer:

(a) assign its rights under this Agreement to any person to which it transfers that part of its business to which that Agreement relates, provided that the assignee undertakes in writing to the Customer to be bound by m-hance’s obligations under that Agreement; or

(b) assign or novate this Agreement to a purchaser of the whole or substantially the whole of the business of m-hance.

10.4 No Partnership or Agency: Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.

10.5 Third Party Rights: A person who is not a Party to this SLSA may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

 

11. GOVERNING LAW AND JURISDICTION

11.1 This Agreement shall be governed by, construed and interpreted in accordance with English law and the Parties hereby agree, subject to the provisions of clause 11, to submit themselves and any claim or matter arising under or in connection with that Agreement to the exclusive jurisdiction of the English courts.