Terms of Service

TERMS AND CONDITIONS

1. These are the Terms and Conditions for VC Products Limited, a company incorporated in Scotland (registered number SC565992) with registered office at 35 Regent Quay, Aberdeen AB11 5BE (“VCPL”) in relation to ClaimNote, its patent analysis subscription service (“Service”).
2. These Terms and Conditions together with the Services Confirmation form the agreement between VCPL and the Customer for the Services ("Agreement").

DEFINITIONS

1. Definitions used in the Services Confirmation will have the same meaning when used in these Terms and Conditions.
2. The following definitions apply to these Terms and Conditions.

   Authorised Users: the Customer, or those employees of the Customer who are authorised by the Customer to use the Services and the Documentation in accordance with the Agreement.

   Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

   Confidential Information: has the meaning provided in Condition 8.1.

   Customer: means the customer identified in the Services Confirmation.

   Customer Data: any information that is provided by the Customer to VCPL or inputted by the Customer as part of the Customer’s use of the Services, including any information derived from such data.

   Documentation: the documents made available to the Customer by VCPL (including by online means) which sets out a description of the Services and the user instructions for the Services.

   DPA: means the Data Protection Act 1998, and related subordinate legislation, as may be amended, updated or re-enacted from time to time

   Effective Date: the date of the Customer’s acceptance of the Services Confirmation.

   Initial Subscription Term: the initial period of subscription as set out in the Service

   Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

   Renewal Period: the subscription renewal period set out in the Services Confirmation.

   Results: means the results and data produced from the Customer’s use of the Services.

   Services: the ‘ClaimNote’ subscription services provided by VCPL to the Customer under the Agreement via the Website.

   Services Confirmation: means the transaction page of the Website containing details of the Subscription Fees and where these Terms and Conditions are accepted.

   Software: the online software applications provided by VCPL as part of the Services.

   Support Services Policy: VCPL’s policy for providing support in relation to the Services as notified to the Customer from time to time.

   Subscription Fees: the subscription fees payable by the Customer to VCPL under the Agreement.

   Subscription Term: means the term of the Agreement as provided for in Condition 11.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

   Website: means www.claimnote.com or any other website notified to the Customer by VCPL from time to time.

   User Subscriptions: the user subscriptions purchased by the Customer pursuant to Condition 7 which entitle Authorised Users to access and use the Services.

USE OF SERVICES AND USER SUBSCRIPTIONS

1. VCPL grants to the Customer from the Effective Date a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
2. Where the Services involve access to analytical data and/or reports via a password protected section of the Website, then the Customer undertakes that:
   1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased;
   2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
   3. each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep any password provided to him confidential;
   4. it shall provide an up-to-date list of current Authorised Users to VCPL within 5 Business Days of VCPL’s written request at any time or times;
   5. it shall permit VCPL to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at VCPL’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; and
   6. if any of the audits referred to in clause 4.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to VCPL’s other rights, the Customer shall promptly disable such passwords and VCPL shall not issue any new passwords to any such individual; and
   7. if any of the audits referred to in clause 4.2.5 reveal that the Customer has underpaid Subscription Fees to VCPL, then without prejudice to VCPL’s other rights, VCPL reserves the right to charge the Customer an amount equal to such underpayment, which amount shall be payable in accordance with clause 7.
3. The Customer shall not access, store, distribute or transmit any computer viruses, or any material during the course of its use of the Services that:
   1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
   2. facilitates illegal activity; or
   3. in a manner that is otherwise illegal or causes damage or injury to any person or property;
   4. and VCPL reserves the right, without liability to the Customer or prejudice to any of its other rights under the Agreement, to disable the Customer’s access to any material that breaches the provisions of this Condition.
4. The Customer shall not (except to the extent expressly permitted under the Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
   1. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
   2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
   3. use the Services and/or Documentation to provide services to third parties; or
   4. subject to Condition 13.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
   5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Condition 5.
5. The Customer shall keep all password and log-in details used in the relation to the Services secure, and shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify VCPL.
6. The rights provided under this Condition 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer Condition

SUBSCRIPTION SERVICES

1. VCPL shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
2. VCPL undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
3. The undertaking at Condition 3.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to VCPL’s instructions, or modification or alteration of the Services by any party other than VCPL or VCPL’s duly authorised contractors or agents. If the Services do not conform with this undertaking, VCPL will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Condition 3.2. Notwithstanding this, VCPL:
   1. does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
   2. 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. VCPL shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
   1. planned maintenance carried out during the agreed maintenance windows; and
   2. unscheduled maintenance performed outside Normal Business Hours, provided that VCPL has used reasonable endeavours to give the Customer advance notice.
5. VCPL will, as part of the Services and at no additional cost to the Customer, provide the Customer with VCPL’s standard customer support services during Normal Business Hours in accordance with VCPL’s Support Services Policy in effect at the time that the Services are provided. VCPL may amend its Support Services Policy in its sole and absolute discretion from time to time.

INTELLECTUAL PROPERTY, CUSTOMER DATA AND RESULTS

1. All Intellectual Property Rights in the Services are owned by or validly licensed to VCPL.
2. Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s use of the Services in accordance with the Agreement and are not provided, or to be used, for any other purpose.
3. The Customer shall own all right, title and interest in and to all of the Customer Data and all Results. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4. The Customer warrants that the Customer Data will not include any personal data (as that term is defined in the DPA) and shall indemnify VCPL against any loss, claim or damage suffered or likely to be suffered by VCPL as a result of a breach of this warranty.
5. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for VCPL to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up under VCPL’s archiving procedure. VCPL shall not be responsible for any loss, damage or disclosure of Customer Data caused by any third party.

SUPPLY OF SERVICES

1. VCPL warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
2. The Customer shall:
   1. provide VCPL with all necessary cooperation in relation to the Agreement and all necessary access to such information as may be required by VCPL to provide the Services (including Customer Data, security access information and configuration services);
   2. comply with all applicable laws and regulations with respect to its activities under the Agreement and shall carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner;
   3. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
   4. obtain and shall maintain all necessary licences, consents, and permissions necessary to enable it to receive the Services from VCPL; and
   5. ensure that its network and systems comply with any relevant specifications provided by VCPL from time to time and be solely responsible for procuring and maintaining its network and internet connections.
3. The Customer acknowledges that the Agreement shall not prevent VCPL from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

PAYMENT

1. The Customer shall pay the Subscription Fees for the User Subscriptions to VCPL in accordance with this Condition 7 at the intervals specified in the Services Confirmation, or where no such interval is specified, monthly in advance.
2. The Customer shall provide to VCPL valid, up-to-date and complete credit card details or approved purchase order information acceptable to VCPL and any other relevant valid, up-to-date and complete contact and billing details.
3. If the Customer provides:
   1. its credit card details to VCPL, the Customer hereby authorises VCPL to bill such credit card on or after the Effective Date for Subscription Fees payable;
   2. its approved purchase order information, VCPL shall invoice the Customer on or after the Effective Date and the Customer shall pay each invoice issued by VCPL within 30 days after the date of such invoice.
4. If the Customer fails to pay any amount payable by it under the Agreement, then without prejudice to any other rights and remedies of VCPL:
   1. VCPL may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and VCPL shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
   2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Royal Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
5. All amounts and fees stated or referred to in the Agreement shall be payable in the currency set out in the Services Confirmation, are non-cancellable and non-refundable, and are exclusive of value added tax, which shall be added to VCPL’s invoice(s) at the appropriate rate.
6. VCPL shall be entitled to increase the Subscription Fees upon 7 days' prior notice to the Customer, but not more than once during any 12 month period during the Agreement.

CONFIDENTIALITY

1. Each party (Receiving Party) shall keep in strict confidence any information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential, including all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain ("Confidential Information").
2. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Condition 8 shall survive termination of the Agreement.
3. Notwithstanding the terms of Conditions 8.1 and 8.2, VCPL shall be entitled to reference the Customer as being a customer of VCPL in relation to its marketing activities.

9. INDEMNITY

1. The Customer shall defend, indemnify and hold harmless VCPL against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
   1. the Customer is given prompt notice of any such claim;
   2. VCPL provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
   3. the Customer is given sole authority to defend or settle the claim.
2. Subject to Condition 10, VCPL shall defend the Customer, and if applicable, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
   1. VCPL is given prompt notice of any such claim;
   2. the Customer provides reasonable co-operation to VCPL in the defence and settlement of such claim, at VCPL’s expense; and
   3. VCPL is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, VCPL may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall VCPL, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
   1. a modification of the Services or Documentation by anyone other than VCPL; or
   2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by VCPL; or
   3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from VCPL or any appropriate authority.
5. The foregoing and Condition 10 state the Customer's sole and exclusive rights and remedies, and VCPL’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

LIMITATION OF LIABILITY

1. This Condition 10 sets out the entire financial liability of VCPL (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
   1. any breach of the Agreement however arising;
   2. any use made by the Customer of the Services; and
   3. any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
2. Subject to Condition 10.4, and except as expressly and specifically provided in the Agreement:
   1. the Customer assumes sole responsibility for its use of all Results, and for conclusions drawn from such use. The Customer acknowledges that VCPL has not undertaken any verification of Results and accepts no responsibility for, and makes no warranty or representation in respect of, the Results, their accuracy or completeness. Use of the Services does not guarantee the Customer any improvement in its business efficiencies or in relation to the success of any patent application which may be filed following consideration of the Results;
   2. VCPL shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to VCPL by the Customer in connection with the Services, or any actions taken by VCPL at the Customer's direction;
   3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
   4. the Services and Documentation are provided to the Customer on an "as is" basis.
3. Subject to Condition 10.4, in no event shall VCPL be liable for any loss of business, loss of profit, loss or corruption of data or for any indirect or consequential loss and VCPL’s total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to the total Subscription Fees paid by the Customer during the 12 month period preceding the date on which the claim arose.
4. Nothing in these Terms and Conditions shall limit or exclude VCPL’s liability for:
   1. death or personal injury caused by negligence; or
   2. fraud or fraudulent misrepresentation; or
   3. any other liability which by law cannot be limited or excluded.

11. TERM AND TERMINATION

1. The Agreement shall commence on the Effective Date and continue until the end of the Initial Subscription Term and, thereafter, automatically renew for successive Renewal Periods, unless or until:
   1. either party notifies the other party of termination, in writing, at least one month before the end of the Initial Subscription Term or Renewal Period, in which case the Agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period; or
   2. the Agreement is otherwise terminated in accordance with its terms.
2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:
   1. the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
   2. the other party is insolvent within the meaning of section 123 of the Insolvency Act 1986; or
   3. the other party ceases, or threatens to cease, to trade.
3. On termination of the Agreement for any reason:
   1. 11.3.1. the Customer shall immediately pay to VCPL all outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, VCPL may submit an invoice, which shall be payable immediately on receipt
   2. 11.3.2. all licences granted under the Agreement shall immediately terminate;
   3. 11.3.3. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
   4. 11.3.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

DISPUTE RESOLUTION

1. In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement, and except for claims for interdict or other similar relief, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by the Centre for Effective Dispute Resolution and the mediation will take place in Scotland. The mediation agreement referred to in the Model Procedure shall be governed by Scots law.
2. If the dispute is not settled by mediation within 10 days of commencement of the mediation or within such further period as the parties may agree in writing, the parties shall be free to seek to resolve the dispute by such other means subject always to Condition 14.

13. GENERAL

1. If VCPL chooses to waive any particular right it has under the Agreement on any particular occasion this does not prevent it from exercising that right on another occasion.
2. If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
3. No one other than a party to the Agreement shall have any right to enforce any of its terms.
4. No variation of the Agreement shall be effective unless it is in writing and signed by both of the parties (or their authorised representatives).
5. VCPL shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.
6. The Customer is not entitled to transfer or assign its rights and obligations under the Agreement to anyone else without VCPL’s prior written permission.
7. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
8. Any notice or other communication required to be given under or in connection with the Agreement, shall be in writing, addressed to the party at its registered office (or such other address as that party may have specified to the other party in writing in accordance with this Condition), and shall be delivered personally, by email (with either PDF or other non-editable file format attached) or sent by pre-paid first-class post, recorded delivery or by commercial courier. Any notice or other communication shall be deemed to have been duly received:
   1. if delivered personally, when left at the address;
   2. if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting;
   3. if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
   4. if sent by email, at the time of transmission if no failed delivery message is received by the sender.

LAW AND JURISDICTION

1. The Agreement, including the Services Confirmation referencing these Terms and Conditions, constitutes the complete and exclusive understanding and agreement between the Customer and VCPL regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter (including any proposal VCPL may have issued to the Customer). Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.
2. If there are any disputes arising out of use of the Service or relating to the Agreement then these will be governed by the laws of Scotland. If either party requires to raise court proceedings in relation to any such dispute then the courts of Scotland shall have exclusive jurisdiction under the Agreement in relation to those proceedings.