This document sets out the terms upon which you can buy products and services from us, including the purchase of licences to use our software.
Before you can purchase anything from us, you must first be registered. Your registration is subject to our Registration Terms and when you register, you accept that all purchases you might make will be subject to these Purchase Terms.
In these Purchase Terms, when we use the words “we”, “us” or “our”, we are referring to Edgeofmyseat Ltd, a company registered in England and Wales under company number 04735127. Sometimes you may see us using the trading name Edgeofmyseat.com. Our registered office is at Spike Island, 133 Cumberland Road, Bristol, BS1 6UX, England.
When we use words like “you” or “your”, it’s to you, the individual (or the company on whose behalf you are acting) that is purchasing products and/or services from us, that we refer.
These terms deal with your purchase of goods (physical items, including DVDs and other media containing software) and services (things that we do for you, including subscription services) from us. They also deal with your purchase of software, which doesn’t really fit in to either category. When you purchase software, you are not purchasing anything physical (unless you are purchasing it on some form of media) so much as a contractual permission from us (or the owner of the software if it isn’t ours) to use the software in question. That right comes with some important limitations on you as the purchaser and also on the person who actually uses the software (which may be a client or employee of yours). Anything to do with your purchase of the licence is dealt with in these Purchase Terms. Anything to do with the permission we give you to use the software is dealt with in our Licence Terms and you should read those in tandem with these terms if you are buying software from us.
If you are purchasing software licences on behalf of a company, you need to record the details of that company when making the purchase as it will be that company that is recorded as the licensee.
It makes things a lot easier if we define at the outset what certain words will mean when we use them in these terms and conditions. That means, for the words listed below, from this point on when you see them used in this document With Apparently Inappropriate Use of Capital Letters, the words will have the meanings you see here.
Our Software: the software (excluding the packaged Third Party Software) described in more detail on our website, or rather, the specific version of that software for which you have purchased or received a licence to use.
Account Centre: means the facility on our Website through which you can deal with administrative changes to your relationship with us.
Compatibility Test Suite: means the test facility that we provide on our Website.
Documentation: means help and support notes and guides available on the Website.
Intellectual Property Rights: all those intangible things that can be owned and controlled but are not physical. This includes things like copyright, trade marks, domain names, database right and a host of other Intellectual Property Rights, wherever they might take effect in the world. It covers all such Intellectual Property Rights, whether they are registered or not, and whether they exist at the date upon which you purchase a licence to use Our Software or come into existence some time later. This term also includes applications for registered Intellectual Property Rights that are pending as of now and Intellectual Property Rights whose term of protection has been renewed or extended somehow.
Project: the web development project specified by you via the Account Centre for which Our Software may be used in accordance with this licence.
Support: means support that we provide via the online ticketing system and forum on the Website only.
Third Party Software: means software supplied with Our Software, the Intellectual Property Rights within which are owned by third parties.
Website: our website, which is hosted at an IP address corresponding to http://www.grabaperch.com.
When you see the words “includes” or “including” used in these Conditions, it means without limitation to what then follows, which is really an example.
You can take it that when we refer to legislation, we are also referring to all subordinate legislation (rules and regulations) that are set down under or pursuant to that legislation. Those references also include instances where the original legislation we refer to is replaced by new legislation that does the job of the legislation we referenced.
When we refer to something being “in writing” or “written”, this includes emails or other forms of electronic communication, including messages sent to your account or notifications sent to you via any mobile application that you might be using.
Different “versions” of Perch are referenced by the numbers that follow the software title. The number that precedes the decimal point refers to a “major release”. Moving to the latest major release is described as an “upgrade” and the new package will contain major enhancements and new functionality.
The number (or numbers) that follows the decimal point refers to a “minor release” and moving to the latest minor release is an “update”. The new package will contain minor enhancements and fixes to the immediately previous version of the software referenced by the version number.
Under these Purchase Terms and the Licence Terms, you are entitled to download, install and use updates to the version for which you have purchased a licence. However, you are NOT entitled you to upgrades, so if you wish to upgrade to the latest major release, you will need to purchase the upgrade licence through the Account Centre.
There may be times when, following a major release, updates on the latest major release will overlap with updates to the previous major release as for a limited time we will continue to support and update both the current major release and the previous major release. However, there will come a time when we will discontinue updates and, eventually, support for earlier major releases. Although it is not mandatory, for security reasons we encourage you to move to the current version wherever possible as soon as you feel comfortable doing so.
New Versions may contain new functionality and features. We may also remove old functionality or features. You should read the Documentation relating to a new Version to make sure that you are happy that it contains all the functionality and features you require before installing an Update or an Upgrade. We will not be liable under and circumstances for any loss or inconvenience you suffer as a result of a change in the specification of Perch from one Version to another.
When you purchase Perch, you will pay the Licence Fee to us. In return, once we receive the Licence Fee from you, we will grant to you a right to download, install and use Perch in accordance with our Licence Terms.
Please note that the export of technology products from some countries to others may be the subject of state controls wherever you are. The use of technology products and the web generally is limited by some governments. Your use of Perch is subject to any limitations or prohibitions imposed by law local to you or to the users of the Project and, more generally, to those imposed by the law of the United Kingdom.
Third Party Software packaged with Perch is included subject to the licence terms from the owners/controllers of the Intellectual Property Rights in the software in question, copies of which we will provide.
Details of the limited support that we offer in respect of Perch may be found within the Licence Terms. No contractual support is offered for the Services. Further information relating to support and other useful sources of assistance may be found on the Website, however such support and assistance is not provided under contract and no warranty under these Purchase Terms is given as to its accuracy or quality.
Where you are making use of our free services, we will use reasonable endeavours to keep downtime to a minimum but we give no warranties about this. Where you are making use of our subscription services we will achieve a target service availability of not less than 99.5%, excluding planned interruptions. From time to time we will carry out maintenance on our services (including the server on which they are hosted) and this may involve taking services down for a short time time. We will aim to give you at least three days’ notice of any planned interruptions, but reserve the right to make interruptions on short notice in order to fix urgent, significant problems.
For our subscription services or multi-site subscription licensing, your use is dependent upon your payment of the applicable fees in advance. These fees may be a one-off purchase or they may be payable on a monthly, quarterly or annual basis – please see the Website for details – but your access to subscription services depends on our receipt of the applicable fees in advance. If we do not receive payment, you will not gain access to the services (or whatever access you have had will cease).
Remember that in the case of a Multi-site Subscription, if you stop paying for the subscription all sites will become unlicensed. You have the option at that point to replace the license with a one-off license key or to remove Perch from the website(s) in question.
In placing an order, you confirm that you are at least 18 years of age and that there is no other reason why you might be incapable of entering into legally binding contracts.
To complete your purchase you must provide us with all the information that we require, including your full name and email address. From time to time, we may also need your phone number, billing and delivery addresses and other information. You will also need a valid credit or debit card issued by a bank that we recognise.
Our Website (and the process of making sales to you) is designed to operate under United Kingdom law. However, the law where you are (if you are not in the UK) may be different. You may need special consents or permits to own or purchase the products or Services that you intend to buy from us. You should check the position where you are before you proceed with your purchase because we will not be liable if you purchase items that you cannot use or for which you are required to pay additional taxes, nor will we give any refunds in such a situation.
Please also note that you must comply with all applicable laws and regulations of the country for which the products are destined and it is your responsibility to make yourself aware of such laws and regulations. We will not be liable for any breach by you of any such laws, whether arising from your purchase of our products or in any other way connected with us.
If you are purchasing as a consumer (that is, for your own private use and you do not work in the industry), please be aware that the Distance Selling Regulations will not apply to your purchase and so you will have no right to cancel your purchase save as provided for within these Purchase Terms. This is because you will have access to the Services and the Perch licences as soon as practicable after we receive payment from you of the Fees. However, this does not affect any other protection you may have as a consumer apart from those regulations.
Your right to download, install and use Perch and/or make use of the Services in accordance with these Purchase Terms starts as soon as practicable after we receive payment of the Fees from you and continues indefinitely unless terminated in accordance with this clause. When we receive the Fees from you, we will let you know via a notification to your user account, which may, if applicable, contain details of any licences that you have purchased.
Details concerning the termination of Perch licences are set out in the Licence Terms.
We may, at our discretion, suspend or terminate your subscription to our services on written notice with immediate effect if:
You can terminate your use of the services at any time. Just follow the instructions on the Website. Please bear in mind that if you have purchased a subscription service, we will not refund any fees you’ve paid for the period (be it a month, quarter or whatever) in which you terminate your subscription. You will also need to cancel any direct debits, standing orders or repeat PayPal or credit card payments that you have set up. We will cancel at our end any direct debit arrangements we’ve set up with you but you should cancel them at your end too, just to be sure.
Some forms of payment only you can cancel and if you don’t, they will keep debiting to us until you do. We will refund any subscription fees that you’ve paid us accidentally since your termination took effect but only once we’ve received a written request from you (an email will be fine for this). Such refunds can only be to the account from which we’ve received payment and we reserve the right to deduct from such refunds any out-of-pocket expenses we incur in making the payment.
Where you are making use of our free services only, either you or we may terminate your registration without notice and with immediate effect and without further obligation.
Following a termination, you will remain liable for any and all sums accrued and which are due prior to, on or after the effective date of termination. If you have cancelled your payment arrangements when we attempt to make collection, we will forward you an invoice for the outstanding sum, payable within 14 days.
Perch and the Services are provided on an “as is” and an “as available” basis. We do not warrant that use of Perch or the Services will be uninterrupted or error-free. You hereby acknowledge and agree that any errors that occur or bugs that you find shall not constitute a breach of these Purchase Terms. You also acknowledge and agree that we shall not be responsible to correct any such errors or bugs.
WE EXCLUDE ALL LIABILITY FOR PROBLEMS CAUSED BY THE INTERACTION BETWEEN PERCH AND/OR THE SERVICES AND ANY HARDWARE, SYSTEMS, NETWORKS OR DATA. WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; OR ANY LOSS OF PROFITS, TURNOVER, DATA, BUSINESS OPPORTUNITIES, ANTICIPATED SAVINGS OR DAMAGE TO GOODWILL (WHETHER DIRECT OR INDIRECT).
OUR LIABILITY TO YOU IN RESPECT OF ALL OTHER CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER OR IN CONNECTION WITH THESE PURCHASE TERMS SHALL IN NO EVENT EXCEED THE FEES YOU HAVE PAID FOR THE PURCHASE THAT HAS GIVEN RISE TO THE LIABILITY IN QUESTION IN THE CALENDAR YEAR IMMEDIATELY PRIOR TO AND TERMINATING ON THE EVENT GIVING RISE TO THE LIABILITY.
We offer no warranties or guarantees concerning the performance of Perch or the Services and any representations given by us, whether about Perch, the Services or anything else, are excluded save where they are repeated in these Purchase Terms (or the Licence Terms, if applicable). You confirm that you have not relied upon any warranties or guarantees in entering into any contract based upon these Purchase Terms save for those that are set out within these terms or, if applicable, the Licence Terms.
We do not warrant that Perch or the Services are suitable for the purposes you intend even if you have informed us as to what your intentions may be. It is up to you to satisfy yourself that your chosen purchase meets your requirements and is compatible with your systems. We recommend that you make use of our Compatibility Test Suite (available free of charge on the Website) to test whether Perch is suitable for you. When you properly complete use of the Compatibility Test Suite, a Compatibility Pass or Fail will be issued by our system but please note that this is merely indicative. We will endeavour to make sure that the Compatibility Test Suite operates as accurately as reasonably possible, but ultimately the success or failure of your implementation of Perch is down to you.
Nothing in these Purchase Terms should be interpreted so as to act in any way to limit or exclude our liability for death or personal injury arising from our negligence or for fraud or fraudulent misrepresentation.
We warrant that your use of the Services in accordance with these Purchase Terms will not infringe the Intellectual Property Rights of any third party.
We will indemnify you against any loss, damage or expense that you suffer should we breach our warranty concerning the infringement of third party Intellectual Property Rights arising from the use of the Services providing that you notify us of any such actual or alleged infringement within 3 working days of your becoming aware of the same. This indemnity is also given on the basis that you will, should we so request, allow us to conduct all negotiations and litigation and that you will provide us with all reasonable assistance that we might request and that you will not attempt to compromise or settle any such infringement allegation.
We may, at our expense, modify or replace Services in order to avoid the infringement of third party Intellectual Property Rights or we may terminate your subscription to the Services in order to prevent further infringements occurring. Should we terminate your contract in respect of a Service, we will refund the Fees you have paid for any period during which you will be unable to use that Service.
Equivalent wording concerning the intellectual property rights in Perch may be found in the Licence Terms.
You will notify us as soon as possible should you become aware that any third party is infringing our Intellectual Property Rights in Perch, whether that infringement arises from the unauthorised use, copying, distribution of Perch or any other act.
We will not be liable to you for any failure on our part for reasons that are beyond our reasonable control. Should something go wrong that is beyond our reasonable control, we promise to do our best to try to put it right or find a work-around as quickly as reasonably practicable.
We are satisfied that the use of our Products and Services by yourself or your clients will comply with English law. You will ensure that when making use of the Products and Services, you (and your clients) will comply with all applicable laws and regulations whether under English law or the law of your (or your client’s) own jurisdiction, wherever that happens to be. We will not be liable should you (or your clients) fail, whether directly or indirectly, deliberately or accidentally, to comply with those laws and regulations and you will indemnify us for any loss or expense we incur as a result of dealing with any investigations, claims or other regulatory or civil action that occurs as a result of that failure.
You (our customer) and we (Edgeofmyseat Limited) are independent businesses and we are not operating in partnership or in any kind of principal/agent or employer/employee relationship, nor in any other relationship of trust to each other.
In order to have the effect intended for them, some of the provisions of these Purchase Terms will survive the termination of our contract with you, however that might come about.
The unenforceability of any part of these Purchase Terms will not affect the enforceability of any other part.
Just because we do not insist on your compliance with any one or more of your obligations under these Purchase Terms does not mean that we waive our right to insist on that compliance at some later date.
There may be occasions when the law requires information that we give you or communications you wish to send us have to be in writing. Where that is the case, you agree that such communications and information may be transmitted electronically. Nevertheless, if you wish to write to us in hard copy, you may address your letter to the registered office address given at the top of these Purchase Terms. For the purpose of these Purchase Terms, you may deem that we have received that letter seven days after the date you have posted it (to give us the chance to collect it). We may send notices to any address, electronic or street, that you have provided to us in creating your account on the Website or by sending notifications to your account.
You recognise that your breach (or threatened breach) of these Purchase Terms may cause irreparable harm to us and that in such a situation, we are entitled to seek an injunction or other equitable relief to prevent that breach or further occurrences of that breach in future.
With regard to any indemnity given by you to us or us to you under these Purchase Terms, the party with the benefit of that indemnity will take all reasonable steps to reduce or mitigate the loss covered by that indemnity.
No person who is not a party to these Purchase Terms shall have any rights under the Contracts (Rights of Third parties) Act 1999 to rely upon or enforce any of the provisions of these Conditions. However, this does not affect any right or remedy of the third party that exists or is available apart from that Act.
From time to time, the provision of new functionality or the removal of old functionality, the development of new products, changes to our business model or all manner of other things may require us to make changes to these Purchase Terms. Where the need arises, we will alert you to the terms of the new Purchase Terms as soon as possible and no later than 28 days before the new Purchase Terms come into force. Should you make further purchases once the new Purchase Terms come into force, you will be deemed to have accepted the new Purchase Terms.
Just to be clear, any new Purchase Terms that we adopt will not narrow the rights granted to you under the Licence Terms nor will we be entitled to charge any additional Licence Fee in respect of those rights.
These Purchase Terms are governed by the law of England and Wales and is subject to the exclusive jurisdiction of the English Courts.