If you use the Service, or if you click “I agree” or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant that you are authorised to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorised to use the Service.
Essential Sales Process and ESP are trading names of Essential Sales Solutions Ltd (ESSL, the Company), registered in England and Wales no. 10295539.
- “Agreement”: means the agreement between the Company and the Customer. Also referred to as “Terms and Conditions”.
- “Customer”: refers to you, the person or organisation authorised to use the Service. Customers who distribute their login credentials to other users will assume responsibility for all actions of those users.
- “Service(s)”: is the intellectual property, software and any other supporting service provided by the Company.
- “Website”: relates to the Company’s website.
1.1 The Terms and Conditions take effect from the date that the Customer registers with or begins use of the Service and will remain effective until termination of the Service (see section on termination).
2.1 The Customer shall not use the Service for any immoral or illegal activities.
2.2 The Customer is responsible for all taxes and duties that are payable to HMRC and any other governmental or regulatory authority, body or organisation. The Company is not responsible for any liabilities a Customer may have.
2.3 The Customer shall comply with all instructions given by the Company regarding the use of the Service.
3.1 In consideration of the supply of the Service, the Customer agrees to pay the Company the fees in accordance with the payment terms agreed at the relevant time.
3.2 If the Customer fails to pay any amount payable under the Agreement then the Company reserves the right to restrict access to the Service until payment is made.
3.3 The Company reserves the right to alter pricing policies by providing Customers with 30 days or more notice.
3.4 No refund of any fees shall be given under any circumstances.
4. Intellectual Property Rights
4.1 The Customer acknowledges and agrees that all intellectual property rights, existing or arising in any materials, know-how, specifications, inventions, processes, software, data or information supplied by the Company shall at all times belong to and remain vested in the Company.
4.2 No proprietary rights or any other rights whatsoever are assigned, granted or shall otherwise pass to the Customer.
5.1 Subscription to the Service will be deemed to be terminated if the Customer does not elect to subscribe to the Service at the end of any trial period and/or the Customer cancels their subscription to the Service or fails to pay the agreed fees.
5.2 The Company may terminate the Agreement at any time by giving the Customer not less than one month’s prior notice by email.
5.3 Without prejudice to its other rights and remedies, either party may, by written notice to the other, terminate the agreement with immediate effect if the other party:
commits a material breach of the agreement and shall, in the case of any remediable breach, fail to remedy the same within 14 business days of receipt of a written notice from the non-breaching party requiring such remedy.
is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) or otherwise becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other party (other than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the other party’s assets or the other party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction or if it ceases to trade or threatens to cease to trade.
5.4 For the avoidance of doubt, failure by the Customer to pay any fees due to the Company in full in cleared funds by the due date shall constitute a material breach of the Agreement.
5.5 Upon termination of the Agreement, the Company shall cease to make the Service available to the Customer and the Customer shall cease to use the Service.
6.1 The Company does not warrant that the Service will meet the Customer’s requirements nor that the Service provided will be error-free or uninterrupted.
6.2 The Service is provided on an “as is” basis. All conditions, representations, warranties, undertakings or terms whether express or implied, statutory or otherwise, including in particular any implied warranty of satisfactory quality or fitness for any particular purpose or use are excluded from the Terms and Conditions to the fullest extent permitted by law.
6.3 The Customer confirms that neither the Company nor any of its representatives has made any claims or representations of guaranteed or anticipated profits that may result from the use of the Service and the Company expressly disclaims liability for any profit projections which may have been provided to the Customer.
7. Liability and Indemnity
7.1 Save in respect of liability for death or personal injury arising as a result of the Company’s negligence, the total aggregate of the Company’s liability howsoever arising under or in connection with the Service, whether in respect of a single occurrence or a series of occurrences, shall not exceed in any year the sum of the fees paid by the Customer from the 12 month period preceding the date when the claim arose.
7.2 The Company shall not be liable to the Customer for any loss of profits or goodwill or any other type of special, indirect or consequential loss of any nature whatsoever (including loss or damages suffered as a result of an action brought by a third party) whether arising from negligence, breach of contract or otherwise, even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same, and such liability is hereby excluded to the fullest extent permitted by law.
7.3 The Customer hereby undertakes and agrees to indemnify the Company and keep it fully indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by the Company arising out of or in connection with (i) any claims, proceedings, demands or actions by third parties arising out of or in connection with the Company’s supply of and/or the Customer’s use of the Service (including without limitation claims under the Data Protection Act 1998) and/or any breach of the Customer’s undertakings or obligations set out in the Agreement, and/or (ii) any breach by the Customer of its obligations under the Agreement, and/or (iii) the Customer’s negligence or willful misconduct.
7.4 The Customer agrees that all the limitations and exclusions of liability in favour of the Company in the Agreement are reasonable in the circumstances under which the Service is to be performed.
8.1 The parties recognise that they may receive each other’s trade secrets and/or confidential or proprietary information. All information belonging to or relating to a party including, without limitation, information concerning business plans, customers, supplies, services, intellectual property and/or financial results received by the other party as a result of entering into an Agreement which is designated as confidential by the disclosing party or is otherwise clearly confidential in nature constitutes “confidential information”.
8.2 Each party agrees not to use confidential information for any purpose other than the purpose for which it is supplied under the Agreement and agrees not to divulge confidential information received from the other party to any of its employees who do not need to know it, and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party except to its professional advisers or as may be required by law or any legal or regulatory authority.
8.3 Each party will use a reasonable degree of care which in any event will not be less than the same degree of care which the receiving party uses to protect its own confidential information to keep and ensure its employees and agents keep any and all such information confidential. This obligation will survive the termination of the Agreement, in respect of a particular item of confidential information, until such earlier time as that item of confidential reaches the public domain other than through the receiving party’s own default.
8.4 As part of the Service, the Company may analyse the data that a Customer provides to identify potential improvements to the Service.
9. Personal Data, Privacy and Security
10. Changes to the Terms
10.1 The Company may change the Terms and Conditions from time to time at its absolute discretion without prior notice to the Customer. The Customer agrees that such changes will be binding on it. Any changes will be posted on the Company’s Website and will amend and form part of this Agreement. The Customer is responsible for reviewing the Terms and Conditions on a regular basis to obtain timely notice of any such changes. The Terms and Conditions and any new Agreement entered into after such changes have been posted will include those changes.
10.2 The Company will usually notify its Customers if changes have been made but is not required to do so under this Agreement.
11. Force Majeure
11.1 Neither party will be liable to the other for any delay or non-performance of the other party’s obligations under this Agreement arising from any cause or causes beyond its reasonable control.
12.1 If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
13. Governing Law and Jurisdiction
13.1 This Agreement shall be governed by and construed in accordance with the laws of England. The English Court shall have exclusive jurisdiction over matters arising out of or in connection with this Agreement. This Agreement is written in the English language, which language shall be controlling in all respects.