IMPORTANT: YOU SHOULD READ ALL OF THIS AGREEMENT TO CHECK THAT YOU AGREE TO IT, BEFORE YOU PARTICIPATE IN THE SAGE PEGG PROGRAMME AND/OR ACCEPT THE INVITATION (AS DEFINED BELOW). BY CLICKING THE LINK IN THE INVITATION AND/OR ACCESSING THE BETA TEST SOFTWARE (AS DEFINED BELOW), YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREE THAT:
YOU ARE AUTHORISED TO ACCEPT IT ON BEHALF OF THE BUSINESS ENTITY WHICH YOU REPRESENT; - THIS AGREEMENT GOVERNS THE USE BY YOUR BUSINESS OF THE BETA TEST SOFTWARE; AND - YOU, AND THE BUSINESS ENTITY WHICH YOU REPRESENT, WILL COMPLY WITH ALL ITS TERMS AND CONDITIONS.
If you do not accept this Agreement, you should not access or use the Beta Test Software.
This Agreement is between Sage (UK) Limited (registered number 1045967), whose registered office is at North Park, Newcastle upon Tyne, NE13 9AA (“Sage”, “we”, “our” or “us”) and you, the business entity which on accepting this Agreement, will be registered to use the Beta Test Software (“you”, “your”, or the “Tester”).
If you are registering to access and use the Beta Test Software for the first time in the capacity of an employee or contractor of a separate corporate body, partnership or similar business organisation, you must have the authority of that business organisation to: (a) use the Beta Test Software for that organisation’s business; and, (b) accept this Agreement on behalf of that organisation. In such circumstances you confirm and warrant to Sage that you are so authorised. If you are unsure about this, you must confirm that you have such authority with an appropriate senior manager or director or partner (or equivalent), or that this Agreement has already been accepted.
This Agreement is made in consideration of the obligations entered into (including for you to perform the obligations and Sage to permit you to use the Beta Test Software, in each case as described in this Agreement) and the rights granted by each of the parties. You and we agree as follows:-
1.1 For the purpose of this Agreement the following words or expressions shall have the meaning set out against them:-
Agreement: this document and any documentation specifically referred to in it;
Beta Test Software: the Sage PEGG application which shall be the software accessed in accordance with clause 3.1 of this Agreement;
Beta Test: those tests notified by us to you under this Agreement which you will run on the Beta Test Software;
Beta Test Period: from and including the Commencement Date to such a period as we notify you in writing or otherwise terminated in accordance with clause 8, during which you must carry out the Beta Tests on the Beta Test Software, as reasonably required by us;
Commencement Date: the date upon which you first access the Beta Test Software;
Live Environment: the day to day running of the Beta Test Software under normal operating condition in a live environment;
Project: the testing and evaluation of the Beta Test Software and Test Documentation by you in a Live Environment in accordance with the terms and conditions of this Agreement;
Invitation: the personal invitation provided by Sage via email (or such other URL as we may notify to you in writing from time to time) that enables you to access the Beta Test Software; and Test Documentation: any pre-release technical documentation, in draft form, which we may supply to you during the Beta Test Period.
Personal Data: any information provided by you that identifies an individual directly, or indirectly i.e. when combined with other data in Sage’s possession or likely to come into Sage’s possession.
1.2 Other technical expressions relating to computers and/or software programs shall have the meaning commonly attributed to them in the computer and information technology industry.
2. Grant of Licence
2.1. In consideration of you agreeing to participate in the Project and with effect from the Commencement Date, we hereby grant you during the Beta Test Period:
2.1.1. a non-exclusive, non-transferable, revocable and royalty-free licence to use the Beta Test Software and Test Documentation; and
2.1.2. access to any portal we may use, at no charge, in order for you to use the Beta Test Software and Test Documentation as we make available, in each case, solely for the purposes of the Project and subject always to the terms and conditions of this Agreement.
2.2. You are strictly forbidden from using the Beta Test Software and Test Documentation other than as described in this Agreement.
2.3. You are not permitted to make any copies of the Beta Test Software and/or the Test Documentation and you undertake not to alter or modify the Beta Test Software or the Test Documentation in any way.
2.4. Unless this Agreement is terminated earlier in accordance with clause 8 below, this Agreement and your right to use the Beta Test Software and the Test Documentation shall cease automatically without notice upon the expiry of the Beta Test Period. You may continue to use Sage PEGG following the expiry of the Beta Test Period in the event that we release the Sage PEGG application commercially subject always to you agreeing to any specific terms and conditions applicable to the applicable and (if applicable) your payment of our then-current charges for this software as published on our website from time to time.
2.5. In the event that the Beta Test Software can be integrated with any other Sage product that you may use, your use of such Sage product will be in accordance with any terms and conditions of use or such other licensing terms as we may inform you about during the Beta Test Period.
3.1. We will make the Beta Test Software and the Test Documentation available via the Invitation (or such other way or in such other format as we may specify in writing) on the Commencement Date. You acknowledge that the timing is not critical and time shall not be of the essence in relation to the performance of our obligations under this Agreement.
3.2. We may provide you with a username and password to enable you to access the Beta Test Software during the Beta Test Period. You must keep your username and password safe and secure at all times and you are not permitted to share your username or password with any third party, without obtaining our prior written consent.
4. Testing and use
4.1. During the Beta Test Period you warrant and represent that you will:
4.1.1. only use the Beta Test Software and the Test Documentation in an appropriate manner for the purposes of the Project and always use them in accordance with the terms and conditions of this Agreement and Sage’s reasonable instructions provided from time to time;
4.1.2. evaluate the Beta Test Software and the Test Documentation so as to measure its quality, performance, effectiveness, efficiency;
4.1.3. promptly report any problems, bugs or defects in the Beta Test Software or the Test Documentation to us;
4.1.4. take such steps as are necessary or desirable and in accordance with good industry practice to ensure that the Beta Test Software (and any and all data (including customer data) uploaded to that Beta Test Software and whether or not the software is operating in a Live Environment) is securely backed up on a regular basis (such back-ups to occur not less than daily) to protect the Beta Test Software (and all such data held within it) against loss, destruction and/or any unauthorised access or use;
4.1.5. provide regular reports (in such format and via such channels as may from time to time be specified by us) on the operation of and defects in the Beta Test Software and Test Documentation including recommendations as to modifications to improve operation or its facilities in addition to reporting on bugs or other operational difficulties;
4.1.6. If requested by us, provide us with a written evaluation of the quality, performance, effectiveness, efficiency and usability of the Beta Test Software and Test Documentation (the “Beta Test Evaluation”).
4.2 You agree to attend and participate in a conference call as agreed between you and us to discuss the Beta Test Evaluation and to provide us with any other information as reasonably requested by us in connection with the Beta Test Evaluation and/or the Project.
4.3 You understand and agree that any and all rights, title, interest in and to all intellectual property rights (including, without limitation, copyright) created by or on your behalf from your participation in the Project or your consideration of the Beta Test Software and/or the Test Documentation or any other information or material (including, without limitation, any improvements, suggestions, ideas, feedback and/or testimonials you provide to us) will belong solely and absolutely by us immediately upon their creation (the “Materials”). At our request and cost you will do any act or thing or sign any documentation which we consider reasonably necessary to give full effect to this clause 4.3. You further understand and agree that we may use the Materials as part of our business activities and you agree that we may exclusively and irrevocably use such Materials at our discretion for the promotion of Sage products and services and you hereby waive any moral rights you may have in such Materials in favour of Sage.
4.4 Support, including technical support will not be provided to you during the term of the Project.
4.5 You agree that your access and use of such Beta Test Software is solely for the purpose of testing and demonstration only and under no circumstance will you use the Beta Test Software as a live instance to input real data for any purpose including but not limited to running your own internal business affairs or that of a third party, any such access and use is subject always to the standard end user terms and conditions for the particular Sage software and services as well as this Agreement. In the event of a conflict, this Agreement takes precedent over the standard end user terms and conditions for any Sage software and services. Except as expressly provided otherwise in this Agreement, you shall not modify the Beta Test Software, incorporate it with other software or create derivative works from the Beta Test Software or any portion thereof.
4.6 Upon the expiry of the Beta Test Period, you must not use the Beta Test Software in a Live Environment or upload any live data or upload any customer data to the Beta Test Software without obtaining our prior written consent.
5. Data Protection
5.1. Your use of the Beta Test Software may result in some Personal Data being shared with Sage. In the event that any Personal Data is shared with Sage, we will only use this information for analysis purposes to assess the viability and effectiveness of the Beta Test Software, and to send you marketing and information about Sage’s “bot” technology or similar and related products and services, where you have chosen to receive such communications.
5.2. You acknowledge and accept that:
5.2.1. Any Personal Data you provide may be shared within the Sage group of companies (see section 17 of the document in the link provided) for the above noted purposes, or with third party service providers such as cloud-based data storage providers, to process this Personal Data on Sage’s behalf;
5.2.2. This use and sharing of Personal Data may require the transfer of Personal Data to a country other than your own, whose laws may not provide for the same level of protection of personal data. This may include a transfer outside of the European Economic Area (EEA) if you are an EEA resident;
5.2.3. For residents of Australia, please note that by providing your consent to this sharing of Personal Data, including the transfer outside of Australia, Sage will not be required to take reasonable steps to ensure the overseas recipient does not breach the Australian Privacy Principles;
5.3 Sage will ensure any Personal Data we hold will be kept secure by taking appropriate technical and organisational measures against its unauthorised or unlawful processing and against its accidental loss, destruction or damage, and will require any third party processors processing Personal Data on our behalf to maintain a similar standard of security.
6. Intellectual property rights
6.1. No copyright or any other intellectual property rights of whatever nature in the Beta Test Software and/or the Test Documentation or in any modification to or extension of the Beta Test Software or the Test Documentation shall pass to you and you agree that your rights in the physical material comprising the Beta Test Software and the Test Documentation and to the information contained in it are limited to such use as is specified in this Agreement. You also agree not to alter or remove any details of ownership, copyright legend, trade mark or other property or proprietary right connected with the Beta Test Software and/or the Test Documentation.
6.2. You shall notify us immediately in writing if you become aware of any unauthorised use of the whole or any part of the Beta Test Software or the Test Documentation by any third party. You shall at all times permit us to verify that your use of the Beta Test Software and the Test Documentation is within the terms of the licence granted under this Agreement, subject always to us complying with your reasonable security and access regulations.
6.3. We confirm that we and/or our licensors are the owner of the copyright and other intellectual property rights in the Beta Test Software and Test Documentation and that we own or have obtained valid licences and consents to any other intellectual property rights necessary for the fulfilment of all our obligations under this Agreement.
6.4. We indemnify you against any claim that the normal use or possession (as envisaged by this Agreement or the Test Documentation) of the Beta Test Software (including but not limited to any new updates and/or improved versions of the Beta Test Software) infringes the intellectual property right of any third party; provided always that you immediately notify us in writing of any claim (or alleged claim), that we are given immediate and complete control of any such claims, and that you give us such assistance as we may reasonably require to settle or oppose any such claim, provided that we shall meet your reasonable costs of doing so.
6.5. We shall have the right at any time to replace or change all or any part of the Beta Test Software in order to avoid infringement or alleged infringement. We shall, however, at all times use reasonable endeavours to ensure that you are in receipt of fully operational and functionally equivalent Beta Test Software.
6.6. The foregoing states our sole and exclusive liability to you in respect of the infringement or alleged infringement by the Beta Test Software of the intellectual property rights of any third party.
7. Warranty and indemnity
7.1. YOU USE THE BETA TEST SOFTWARE AT YOUR OWN RISK. The Beta Test Software and the Test Documentation is provided to you on an “as is” basis and, except as expressly provided in this Agreement (or which cannot be excluded by law), no warranty, condition, undertaking, guarantee, promise or term (express or implied), statutory or otherwise as to the condition, satisfactory quality, performance or fitness for purpose of the Beta Test Software and/or the Test Documentation is made, given or assumed by us, and all such warranties, conditions, undertakings, guarantees, promises and terms are hereby excluded.
7.2. You acknowledge and accept that the Beta Test Software and the Test Documentation have not been fully tested and that the purpose of this Agreement is to provide for the Beta Test Software and the Test Documentation to be tested and evaluated. As a result, you waive any and all claims that you may have against us, now or in the future, arising out of the performance, non-performance or other failure of the Beta Test Software and/or the Test Documentation.
7.3. Neither party excludes or limits the liability of either party for fraud, death or personal injury arising out of negligence or any warranty as to title or quiet possession implied by statute.
7.4. Notwithstanding any other provision of this Agreement in no event shall either party be liable to the other (whether in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise howsoever caused for:
7.4.1. special, indirect, incidental or consequential loss, costs, damages, charges or expenses; and/or
7.4.2. loss of profits, loss of business and/or revenue, loss of contracts, lost working time depletion of goodwill, loss of or corruption to data or information or loss of anticipated savings, in each case even if either party knew or should have known of the possibility of such loss.
7.5. In any event our total liability which arises under or in connection with this Agreement, whether in contract, tort (including negligence), from statute or otherwise will not exceed £100. For clarity, the previous sentence will apply if any exclusion, disclaimer or other provision contained in this Agreement is held to be invalid for any reason by a court of competent jurisdiction and we become liable for loss or damage that could otherwise be limited. This clause is subject always to clause 7.3.
8.1. You shall have the right to terminate this Agreement at any time by giving us notice in writing or you can stop using the Software by blocking it or otherwise removing in from the applications you use.
8.2. Without prejudice to any other rights or remedies which we may have, we may terminate this Agreement at any time and with immediate effect by giving you written notice if:
8.2.1. we elect to withdraw the Beta Test Software from Beta Test for any reason including, without limitation, if we wish to start charging for the use of the Beta Test Software in a Live Environment or if we consider that any or all of the functionality of the Beta Test Software is unable to meet our recommended requirements for operation in a Live Environment;
8.2.2. you commit a material or irremediable or continuing breach of any term of this Agreement;
8.2.3. you commit a remediable breach of any term of this agreement and you do not remedy that breach within 14 days of our written notice for you to do so; or
8.2.4. you have a petition presented or pass a resolution for winding up or have a receiver or administrator appointed over your assets or make an arrangement with your creditors to go into liquidation, cease to carry on business or suffer any other insolvency event.
8.3. Without prejudice to any other rights or remedies which we may have, we may terminate the licence granted under this Agreement with immediate effect by giving you written notice if you do or allow to be done any act or thing which may reasonably be considered to jeopardise any of our rights in the Beta Test Software and/or the Test Documentation (or any part thereof) and in particular but without prejudice to the generality of the foregoing, if you make or allow to be made any unauthorised copy of the Beta Test Software and/or the Test Documentation or you impart or divulge the contents of the Beta Test Software or Test Documentation or of any part thereof without our prior written consent.
8.4. You acknowledge and agree that immediately upon the expiry or termination of this Agreement, your rights to use the Beta Test Software and the Test Documentation shall cease with immediately effect.
8.5. Upon termination of this Agreement for any reason, 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 will not be affected or prejudiced. Furthermore, if this Agreement is terminated for any reason clauses 5 and 6 shall continue to have effect.
9.1. If a court or similar body decides that any wording in this Agreement cannot be enforced, that decision will not affect the rest of this Agreement, which will remain binding on both parties. However, if the wording that cannot be enforced could be enforced if part of it is deleted, we will both treat the relevant part of the wording as if it is deleted.
9.2. The headings of the clauses of this Agreement are provided for convenience only and shall be disregarded in construing this Agreement.
9.3. This Agreement may only be amended by written agreement between the parties, such amendment to be signed by duly authorised representatives of both parties to this Agreement.
9.4. This Agreement is personal to you and may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by you without our prior written consent. We may transfer, assign, subcontract, license, charge or otherwise deal with or dispose of (whether in whole or in part) this Agreement at any time without your consent.
9.5. All notices required to be given under this Agreement shall be in writing and given by hand, or sent by pre-paid first class post addressed to us at our registered office and to you at the address which we currently hold in our records, or at such other address as the appropriate party may from time to time designate and shall be deemed to have been delivered, if by letter, at the expiration of forty eight (48) hours after posting, and if by hand, upon receipt.
9.6. Except as expressly stated in this Agreement, any person who is not a party to this Agreement has no rights to enforce any term of this Agreement.
9.7. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and construed in accordance with the laws of England and we both agree that the courts of England will be the only courts that can decide on legal disputes or claims about this Agreement.