Terms and Conditions

1.1 The definitions and rules of interpretation in this clause apply in this Licence.

1.2 The definitions relied on in this Licence Agreement are as follows:

"Act” shall mean all enacted legislation in respect of the Scrap Metal Dealers Act 1964 and/or any other subsequent related legislation. Affiliate: includes, in relation to the Supplier, each and any subsidiary or holding company of the Supplier and or any other customer of the Supplier and or any person who the Supplier authorises to use the trading name of "Metal Track”.

"Customer” shall mean the end user of this Licence Agreement, being the person or business entity named in the Memoranda of Agreement.

"Fee" shall mean the sum agreed to be paid by the Customer to the Supplier for the grant of this Licence for the use of the Software. The Fee will ordinarily consist of a Set up Fee and a monthly fee, both of which are set out in the Memoranda of Agreement, which are attached to this Licence Agreement.

"Holding company and subsidiary” shall mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

"Intellectual Property Rights” shall mean all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world in respect of the Software (including Maintenance Release) and or the know-how and application of the Management System and any other supporting literature including operating manuals and online support including the trading name "MetalTrack” and any associated trademarks and/or any associated logos.

"Maintenance Release” shall mean the release of the additions and updates to the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.

"Memoranda of Agreement” shall mean the document produced by the Supplier recording the name of the Customer, the initial Term of the Licence Agreement, he option chosen by the Customer and the Fee to be paid by the Customer.

"Options” shall mean options 1 and/or 2 and/or 3, which are set out in the Memoranda of Agreement.

"Password” shall mean the password required to access the Software provided by the Supplier to the Customer in order that the Customer’s authorised employees may use the Software.

"Software” shall mean the computer programs to provide the Management Systems listed on the front page of this Licence and any Maintenance Release thereof.

"Standing Order” shall mean a standing order mandate signed and dated on behalf of the Customer addressed to the Customer’s bank which provides for payment of the Monthly Fee by electronic transfer to the Supplier.

"Supplier” shall mean IceBlue Marketing & Design Limited or any other company nominated by IceBlue Marketing & Design Limited.

"Term" shall mean the duration of the Licence Agreement that has been agreed by the Customer and the Supplier. The Term shall be for initial period set out in the Memoranda of Agreement, but will automatically renew in accordance with the provisions of the Licence Agreement.

"Username” shall mean the username required to access the Software provided by the Supplier to the Customer in order that the Customer’s authorised employees may use the Software.

"Website” shall mean www.metaltrack.co.uk and/or any other website which the Supplier may from time to time utilise for the purpose of this Licence without the prior written consent of the Supplier.

1.3 The headings in this Licence do not affect its interpretation. Except where the context otherwise requires, references to clauses of this Licence.

1.4 Unless the context otherwise requires:

(a) references to the Supplier and the Customer include their permitted successors and assigns;

(b) references to statutory provisions include those statutory provisions as amended or re-enacted;

(c) references to one gender includes a reference to the other genders; and

(d) references to "including" or "includes" shall be deemed to have the words "without limitation" inserted after them.

1.5 Words in the singular include the plural and those in the plural include the singular.

1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

2.1 In consideration of the Fee paid by the Customer to the Supplier within the time set out in this Licence Agreement, the Supplier grants to the Customer a non-exclusive licence to use the Software for the Term, subject to the Terms and Conditions herein.

2.2 Upon the payment of the Set-up Fee, the Customer will be provided by email with the relevant information in order to enable it to utilise the Software for the purpose of the Management System via the Website using the Password and Username. Further, Customer warrants that they will only use the Software for their own business use.

2.3 The Customer will only be entitled to use the Software within the Term of this Licence Agreement.

2.4 The Licence will be automatically renewed for a further period of 12 months, if it is not cancelled by the Customer in accordance with the cancellation provisions set out in clause 9.2 below.

2.5 In relation to scope of use:

(a) the Customer may not use the Software other than as specified in this Licence Agreement without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on the Customer taking additional Options.

(b) except as expressly stated in this Licence Agreement, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.

(c) the Customer shall be responsible to the Supplier to inform them if they want to terminate and/or alter a Username and/or Password and the Supplier shall endeavour to change such Username and/or Password within 24 hours of notification during the normal business day.

(d) the Customer shall be responsible for ensuring that the information inputted into the Website for the purpose of the Software is correct and to the extent that the information is incorrect then the Warranty will be null and void.

(e) the Supplier has agreed the Fee with the Customer based on the Utilisation Figure and to the extent that the Utilisation Figure is an underestimate of the actual use by the Customer then the Customer agrees that the Supplier will be entitled under the terms of this Agreement on 30 days’ notice to the Customer to increase the Fee to the appropriate amount, as determined solely at the discretion of the Supplier.

(f) the Customer shall be wholly responsible for providing a suitable continuous internet connection between its server and/or computer system and the Website.

(g) the Customer agrees that it will set up the Standing Order for payment of the Sums due under the Agreement, and to maintain the appropriate credit in their account for payment thereof.

(h) the Customer warrants to the Supplier that it has at the date hereof and during the continuance of this Licence fully complied with all data protection legislation and has obtained all relevant consents in order that it may upload its customers’ information via the Website using the Software for the purpose of the Management System.

(i) The Customer hereby indemnifies the Supplier in relation to any consequences (whether financial or otherwise) to the Supplier of the Customer or any of the Customer’s servants or agents using the Software in breach of any provisions of the Data Protection Act 1984.

2.6 The Customer may not use any such information provided by the Supplier or obtained by the Customer to create any software whose expression is substantially similar to that of the Software nor use such information in any manner that would be restricted by any copyright subsisting in it.

2.7 The Customer shall not:

(a) sub-license, assign or novate the benefit or burden of this Licence in whole or in part, without the written prior permission of the Supplier;

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

(c) deal in any other manner with any or all of its rights and obligations under this Licence, other than expressly permitted by the terms of the Licence Agreement.

2.8 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Licence, provided it gives written notice to the Customer.

2.9 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

2.10 Notwithstanding clause 5, a party assigning any or all of its rights under this Licence may disclose to a proposed assignee any information in its possession that relates to this Licence or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Licence Agreement shall be made until notice of the identity of the proposed assignee has been given to the other party.

2.11 The Customer shall exercise the rights granted by this Licence for up to two locations in which the Customer does business. Any locations in excess of this will require an additional fee as notified by the Supplier to the Customer and in absence of such agreement the Supplier can terminate this Licence in accordance with the terms of this Licence Agreement.

2.12 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

2.13The Customer shall allow the Supplier to attend any premises of the Customer in order to carry out an inspection of the Customer’s facilities and to ensure that the Software is being utilised by the Customer in accordance with this Licence.

2.14 The Customer shall, in addition to the Fees, immediately pay for all hardware included in the Special Terms (upon being invoiced by the Supplier) and where the Customer has purchased such hardware from a third party, then the Customer shall be responsible to ensure that such hardware is sufficient to meet the needs of the Customer and to enable the application of the Software in a manner expected by the Supplier.

2.15Where the Customer is a partnership, and any dispute arises in relation to the use by any partner of the Software, the Supplier will only agree to continued usage of the Software if the Licence is assigned to the appropriate partner. Such assignment will only take place upon the provision of evidence to the Supplier of the partner’s right to have the Licence assigned to him, such as the provision of a letter from a solicitor or a written agreement between the partners. The Supplier has sole discretion on the assignment of this Licence and the evidence required, in such circumstances.

2.16Where there is breach of any of the conditions set out in clause 2 of this Licence Agreement by the Customer and/or of this Licence then the Supplier shall be at liberty to suspend the use of the Software and/or Management System and/or Username and/or Password in its absolute discretion which shall be in addition to the other rights the Supplier has under this Licence

3.1The Supplier may periodically release additions and updates to the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.

4.1 The Customer shall pay to the Supplier the Fees as follows:

(a) The Set-up Fee on the date hereof and in advance of installation of the Software by the Supplier; and

(b) The Monthly Fee monthly in advance by Standing Order on or before the first day of the month in question after the date of this Licence;

(c) Notwithstanding the provisions of clause 4.1(a) and (b) above, the Customer shall pay the Supplier immediately upon receipt of the Supplier’s invoice.

4.2 All sums payable under this Licence are exclusive of VAT.

4.3 If the Customer fails to pay any amount payable by it under this Licence the Supplier may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.

4.4Further, and in any event, the payment of the Fee is a condition precedent to the Supplier permitting utilisation of the Software by the Customer, and a failure to pay the Fees due within the periods set out herein, will be treated as a repudiatory breach of contract entitling the Supplier to the Liquidated damages set out in clause 9 of this Agreement.

5.1 The Customer shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the Supplier to disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including, without limitation, trade secrets, information of commercial value, and the Fee paid by the Customer) which may become known to the Customer from the Supplier and which relates to the Supplier or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. The Customer shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

5.2 The Customer herein agrees to allow the Supplier to use any information that has come to its knowledge as a result of this Licence for the purpose of enhancing the Software and or the Management System and without prejudice to the generality of the foregoing, the Customer herein agrees with the Supplier that the Supplier shall be entitled to tell third parties that the Software and or the Management System is being used by the Customer.

5.3 Subject to clause 9.2, the Supplier shall provide the Customer with such information as the Supplier deems reasonable for the purpose of allowing the Customer to repopulate an alternative database and/or software product within 21 days of termination of this Licence.

6.1 The Supplier warrants that it will update the Software where it deems necessary to reflect any amendments that may be made to the Act as enacted by Parliament.

6.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.

6.3 The Customer accepts responsibility for the selection of the Management Systems on which the Software is based to achieve its intended results and acknowledges that the Management System and the Software has not been developed to meet the individual requirements of the Customer. However, if the Customer fails to select certain options within the Management System then it may not obtain the full benefit of the services.

6.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

7.1 Save as set out in clause 7.2 below, the Supplier's liability under the terms of this Agreement are expressly limited to the following:

(a) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise;

(ii) loss of profits;

(iii) loss of anticipated savings;

(iv) loss of business opportunity;

(v) loss of goodwill;

(vi) loss or corruption of data;

(vii) incompatibility of hardware provided by a third party and or utilised by the Customer which has not been supplied by the Supplier,

(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the total sum of the Annualised Fee; and

(c) the Customer agrees that, in entering into this Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than in accordance with the express terms of this Licence.

7.2 The exclusions in clause 6.5 and clause 7.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;

(b) fraud or fraudulent misrepresentation;

(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(d) any other liability which may not be excluded by law.

7.3 All dates supplied by the Supplier for the delivery of the Software shall be treated as approximate only. The Supplier shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

7.4 All references to "the Supplier" in this clause 7 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

8.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Release belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.

8.2 The Customer herein agrees with the Supplier that it shall do all things at its own cost that the Supplier may require in order to perfect the Supplier’s title in the Intellectual Property.

8.3 The Customer herein agrees to indemnify the Supplier for a breach of clause 8 and or any other breach of this Licence.

9.1 This Licence is for the Term agreed between the Supplier and the Customer.

9.2 The Customer has the right to terminate this Licence Agreement, as long as the Customer has provided a written letter of termination AT LEAST 3 months prior to the anniversary date of this Licence Agreement.

9.3 Where no written notice of termination prior to the anniversary date of this Licence Agreement, the agreement will renew for a further period of 12 months and any termination thereof will only be permitted in accordance with clause 9.2 above.

9.4 Without prejudice to any rights that have accrued under this Licence or any of its rights or remedies, the Supplier may at any time terminate this Licence by giving the Customer no less than 14 days’ written notice, if the Supplier is of the view that the Customer is in breach of this Licence (and or upon the happening of any the following events):

(a) the Customer fails to pay any amount due under this Licence on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b) the Customer commits a material breach of any term of this Licence (other than failure to pay any amounts due under this Licence) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the Customer repeatedly breaches any of the terms of this Licence in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Licence;

(d) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer.

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);

(h) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

(j) the Customer (being an individual) is the subject of a bankruptcy petition or order;

(k) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.4(c) to clause 9.4(i) (inclusive);

(m) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

(n) the Customer exceeds the Utilisation Figure and does not pay the increased fee; or

(o) the Customer utilises the Software and/or the Website from more than two locations in which it carries out business.

9.5 Upon such termination of this Licence in clause 9.4, the remainder of the Fee for the balance of the duration of the Term shall be immediately due and payable from the Customer to the Supplier (without deduction or set off) and the Customer herein agrees that it shall remove all Software relating to the Management System from any hardware that it may own and or use in its business.

9.6 Termination by the Supplier in accordance with the rights contained in this clause 9 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

9.7 On termination for any reason:

(a) all rights granted to the Customer under this licence shall cease;

(b) the Customer shall cease all activities authorised by this licence;

(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence (pursuant to the Liquidated Damages clause set out below); and

(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.

9.8 Any provision of this Licence which expressly or by implication is intended to come into or continue in force on or after termination of this Licence shall remain in full force and effect.

9.9 Liquidated damages: The Supplier is entitled to liquidated damages in the sum of the full amount of the remainder of the Fee for the balance of the duration of the Term, where the Customer has acted in repudiatory breach of this Agreement.

10.1 No failure or delay by a party to exercise any right or remedy provided under this Licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.

11.1 Except as expressly provided in this Licence, the rights and remedies provided under the Licence are in addition to, and not exclusive of, any rights or remedies provided by law.

12.1 This Licence and the documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

12.2 Each party acknowledges that, in entering into this licence and the documents referred to in it, 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 this Licence or not) ("Representation”) other than as expressly set out in this Licence or those documents.

12.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

12.4 Nothing in this clause shall limit or exclude any liability for fraud.

13.1 This Licence Agreement may not be varied by either party, save as set out herein.

13.2 Any variation agreed between the parties must be set out in writing and will only be binding upon the Supplier if the said variation to the Licence Agreement is signed by a Director of the Supplier.

14.1 If any court or competent authority finds that any provision of this Licence (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Licence shall not be affected.

14.2 If any invalid, unenforceable or illegal provision of this Licence 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.

15.1 This is carried out within the terms of the Privacy Policy Statement, which is available on our website and updated from time to time.

15.2 Data will be stored by the Supplier for a period of up to 12 months after the termination of this Licence Agreement.

15.3 Data may be stored at the request of the Customer for a period of more than 12 months after termination of this Licence Agreement on the payment of a further Fee and upon the parties entering into an additional Data Storage Agreement.

16.1 This Licence Agreement does not confer any benefits on any third parties. No third party may enforce any term of this Licence or of any provision of this Licence. The provisions of the Contracts (Rights of Third Parties) Act 1999 are expressly excluded from this Licence.

17.1 Nothing in this Licence 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

18.1 The Supplier is not liable for failure to perform any obligations under this Licence if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. No party is entitled to terminate this Licence Agreement in such circumstances.

19.1 Any notice (other than in respect of Software updates) required to be given under this Licence shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice as set out below:

19.2 Any notice shall be deemed to have been duly received:

(a) if delivered personally, when left at the address and for the contact referred to in this clause;

(b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or

(c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.

19.3 A notice required to be given under this Licence shall not be validly given if sent by e-mail.

19.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

20.1 Where this Licence Agreement has been entered into as a result of any form of distance selling and the Customer is "a consumer”, you have 14 days from receipt of this Licence Agreement to cancel it.

20.2 A cancellation form is appended to the end of this Licence Agreement for use within the stipulated period, should you decide to terminate this Licence Agreement.

21.1 This Licence 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 the law of England and Wales.

21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).

22.1 The Customer understands that by using the Software licenced to him by the Supplier, the Customer is bound by all of the Terms and Conditions of this Licence Agreement.