Benchmark EULA

“Misuse” Misuse of the software is forbidden. The Licensee agrees not to attempt to examine the source code, copy the source code or alter the source code in any way without the express permission of the Licensor. The Licensee further agrees not to copy any elements whatsoever of Benchmark into any new software product that they may be developing for their own purposes or to sell on. The Licensee also agrees not to attempt to either force more user logons which they are legally entitled to logon, or attempt to logon more than once through their internet browser. Having multiple Benchmark logins or sessions active through the same internet browser session can damage your database and is strictly forbidden. Should the licensee need multiple Benchmark logons or sessions per device (up to the maximum number of licensed users) different browsers must be used (such as Chrome, Firefox, Internet Explorer, Edge etc)

“Notice Period” Notice Period of 6 calendar months should be given to the Licensor by the Licensee, should the Licensee wish to terminate their license. During the Notice Period the normal rental charges should be paid to the Licensor until the Notice Period has expired 6 months later.

“Software” means a Cloud-based SQL database
solution for ETHOS High Court Enforcement, Certificated Bailiffs, Enforcement
Officers, Debt Enforcement, Solicitors Pre-Legal industries and LUMOS Process
Serving and Private Investigations known as Benchmark and the Benchmark EXAP
license.

“Support hours” The licensors normal support hours are 0930 hrs to 1300 hrs and 1400 hrs to 1630 hrs Monday to Friday, excluding bank holidays and other times as specified to the Licensee in writing. Out of normal working hours support by arrangement only.

Please note we do not operate a 24/7 service at the moment.

“Upgrade” an upgrade, update, enhancement, improvement or patch to the Software supplied by the Licensor.

 “Warning – IMPORTANT” Do not under any circumstances include your login credentials on any email to anyone, including when communicating with the Licensor. Unless specialised security software is in use, Emails are not generally deemed as safe. It is the Licensees responsibility to keep their login credentials safe. Once issued, the Licensor will never ask for them. If the Licensee receives phishing emails or any other kind of communications requesting you to provide or re-confirm your login credentials, ignore it and please advise the Licensor immediately.

“Working hours” The head office licensors normal working hours are 0900 hrs to 1630 hrs Monday to Friday, excluding bank holidays and other times as specified to the Licensee in writing.

1.2          In this EULA, a reference to a statute or statutory provision includes a reference to:

(a)  that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)  any subordinate legislation made under that statute or statutory provision.

1.3          Where instructions in writing from either the Licensor or the Licensee are required, then either:

1. a written letter delivered by Royal Mail or other postal service; and/or
2. an email as long as the message contains no such login credentials

is deemed acceptable by all parties.

1.4          All times given are working week days Monday to Friday and exclude public bank holidays. Other times the Licensor’s offices are closed such as Christmas holidays will be notified to the Licensee in writing.

2. Terms of EULA

This EULA will come into force on the Effective Date and will continue in force for a minimum period of 12 calendar months from the Effective date, unless agreed otherwise.  During this period the agreed advanced monthly fee should be paid to the Licensor on or around the first working day of the month as per the EULA;

2.1          The Licensor acknowledges the right of the Licensee to terminate the contract within a 7 day cooling off period, provided no data has been created and/or stored on the Licensors database.

2.2          Notice of 6 calendar months (The Notice Period) must be given to the Licensor by the Licensee to terminate the contract period, subject to the minimum 12 calendar months having elapsed. The Notice Period must be paid either by a single payment or as 6 rental charges, whichever is preferred by the Licensee.

2.3          Should the Licensee fail to either provide the Notice Period or pay for the Notice Period rental charges to the Licensor, then unless agreed otherwise by both parties, the License shall not be terminated and the monthly rental and corresponding monthly rental payments shall continue as before. Should any legal action be required, it would be the responsibility of the Licensee to pay the Licensor for the legal fees. The minimum charge for legal fees unless otherwise agreed is £ 1000 plus VAT.

2.4          The Licensee is entitled to store up to 1GB of external data. As an example 1GB equates to approximately 10 thousand images (assuming each compressed image is approximately 100 kBytes in size).

The software will not upload external data greater than 5 MB in size. Always ensure your images are saved as a JPG image. Never attempt to store RAW images or Video on Benchmark. The software automatically compresses image files as they are saved to the case. Should you need to store other types of files on Benchmark, we may need to recommend that we supply you with a larger or perhaps a dedicated Fasthosts server.

2.5          Should the Licensee wish to store more than 1GB of external data a small additional in advance charge shall be invoiced to the Licensee. See the current Licensor’s price guide for further details.

2.6          The amount of licensed users allowed to logon to the Software will be restricted to the agreed number of concurrent users. Should the licensee wish to have more concurrent users accessing Benchmark, then the license will need to be upgraded and an additional cost per month charged as per the table below.

Our Agreement is as follows …

• As from 01/06/2022 License fees are variable dependent on the number of users, payable each month.

Additional 1 GB of storage would add £25.00 plus VAT per month to your monthly rental payment.

2.7          The Licensee may also request users be removed from the License, which will have an effect of lowering the monthly sum paid to the Licensor. See the current Licensor’s price guide above in section 2.6. The minimum number of users is two users.

2.8          Each ETHOS license has to have a number of Schemes attached to it. The minimum number of schemes is one scheme. Schemes include: PCN Enforcement, High Court, Enforcement, Council Tax, NNDR, CRAR, Sundry Debt, Pre-Legal and Evictions etc

2.9          Additional default schemes can always be added to a license at any time during the Licensors working day, currently as at 01/06/2022 the charge is £45 per scheme plus VAT per month. The only exception is Pre-Legal which is a more complex scheme which is charged at £100 plus VAT per month. More complex schemes which require an element of development work can also be added. The scheme charge would be quoted for on an individual basis.

2.10          Schemes cannot be removed from a license if there is any data whatsoever
attached to that scheme, either open or closed.

2.11          Invoices for the agreed Benchmark rental are usually generated
on or around the 1^st of each month. Payment for the advanced Benchmark monthly rental must be paid to the Licensor’s bank account (as provided on the said invoice) either on or the nearest first working day of each calendar month. It is recommended the Licensee sets up a standing order with their bank to ensure the payment is made on time.

2.12          Should the Licensee wish to provide a client or customer portal service so that their clients can login to the software for the purpose of viewing their own cases and performing a minimum of tasks such as adding notes, loading files, instructions, putting the case on hold etc then the service can be provided as at 01/06/2022 the charge is a one off £ 100.00 plus VAT for all clients per month. It is also possible to modify how your client or customer portal appears. Most of our clients just use the default template, while others provide a more sophisticated report. Anything is possible, however a development charge is made to the Licensee, for any development work undertaken. Please contact the Head Office to discuss your requirements in the first instance.

2.13        Should the Licensee fail to pay the agreed advanced monthly rental for the use of the software, the Licensor reserves the right to terminate any such contract, suspend or terminate access to the software and commence debt recovery proceedings to recover the amount outstanding (including any termination fee in lieu of notice). The minimum charge for legal fees unless otherwise agreed is £ 1000 plus VAT  and request that the court award interest and costs against the Licensee.  In the event of the Licensor suspending or terminating access to the software due to the Licensees failure to make full payments on time, then the Licensor will not be liable for any losses or damages incurred by the Licensee.

2.14        Should the Licensor uncover evidence of misuse of the Benchmark License, such as continued forced entries to avoid purchasing additional licenses, multiple logon attempts through the same internet browser, then the Licensor reserves the right to suspend or even eventually terminate the License which was found to be misused should the Licensee refuse to rectify the misuse.

2.15       The licensor has the rights to periodically inspect the BenchmarkUser Logs to determine if such evidence of misuse exists.

2.16        Should the Licensee contract be terminated by the Licensor for the reasons in 2.13 or 2.14, then that termination shall be notified to the Licensee by one of the prescribed methods.

2.17        Once any contract between the Licensor and Licensee has terminated, the Licensee’s SQL data may be made available to the Licensee in various formats, so that the Licensee can access their data using various software tools they may have available to them. The Licensor reserves the right to levy a reasonable charge for this work.

2.18        As part of the overall monthly charge, two components will be quoted for at the time of implementation

2.18.1    The rental cost of the Fasthosts server prevailing at the time, and the minimum rental period.

2.18.2    The cost by the Licensor to configure the said server upgrade and all costs associated with the transfer of the Licensee’s license and data to the said server in 2.18.1 above.

These costs to be quoted for in detail by the Licensor and must be agreed to in writing by the Licensee      prior to any work commencing.

2.19       Once any contract between the Licensor and Licensee has been terminated, the Licensor reserves the right to delete the Licensees data after a 31 day rest period, unless otherwise agreed between the Licensor and the Licensee.

2.20  Software development can be provided to the Licensee to have any aspect of their ETHOS license modified, or bespoke development added to. Unless agreed otherwise, or the client is paying for an agreed Software Development charge on their monthly rental; all time for development is charged at our current hourly rate of £70.00 plus VAT per hour or £490.00 per day plus VAT, per person involved with the work. For agreed monthly Software Development charges, the Licensee will need to make contact with the Licensor, to discuss their monthly development requirements. 

3. Support

3.1          The Licensor will be responsible for providing support for the software during the licensors advertised support hours.

3.2          The Licensor will be responsible for providing problem fixes and upgrades in the software, in the unlikely event of any problems being found.

3.3          Unless otherwise agreed, the Licensor shall not be responsible for the support of other software applications the Licensee may be using such as, but not limited to; workstation or other server operating systems, the internet browser or updates of, drivers, email software or associated software such as Microsoft Office.

3.4          Unless otherwise agreed, the Licensor is also not responsible for any Licensee hardware related support issues. This includes as an example other servers, server backup solutions, workstations, workstation backup solutions, web enabled devices, LAN’s, WAN’s, hubs, switchgear, routers, all printers, scanners, wiring, web enabled devices such as Tablets or Smartphone and Uninterruptable Power Supplies.

3.5          Training can be performed by the Licensor over a Skype connection by a pre-arranged appointment. Training sessions can only be provided once without charge and additional training at a later date can be provided at a charge of £360.00 plus VAT for a maximum of a 4 hour session. Additional hours can be added at a cost of £90.00 plus VAT per hour up until 4pm at latest.

3.6          Once trained, that trained person or persons, shall be responsible for all future co-ordination between the Licensee and the Licensor.

3.6.1      Once trained, that trained person or persons, shall be responsible for training other members of staff at the Licensees premises or homes, unless additional training has been purchased as in clause 3.5.

3.6.2      Once trained, additional training can be purchased at a cost of £ 360.00 plus VAT per maximum 4 hour morning session or £180.00 plus VAT for a 2 hour afternoon session. Training is performed over a Skype connection. The maximum sized training group is 3 persons.

3.7          The Licensor may be contacted by one of the following methods only:

For any development work, Chris Thompson on (07968) 206643 or email chris@benchmarkdebtsolutions.co.uk

For any Account Queries, Colin Walker on (0121) 747 9933 or email colin@benchmarkdebtsolutions.co.uk

For any Technical Support, Peter Thompson on (07813) 885963 or email peter@benchmarkdebtsolutions.co.uk

3.8          Unless otherwise advised, the normal working hours are defined in 1.1.  If for any reason, the office will not be manned, such as illness, holidays, unforeseen events, world pandemic, we will do our best to arrange alternative arrangements for the Licensee in one of the agreed communications methods.

3.9          From time to time software updates are uploaded onto the Fasthosts server, and indeed the server itself may need occasional updating, and as a result of this process it may be the case the server needs to be taken offline for short periods of time. These occurrences shall be kept to a minimum, however if it is unavoidable that the server has to be taken off line, thus resulting in the Licensee being unable to access their License or data, then the Licensor will endeavour to advise the Licensee using one of the agreed communications methods.

4. Backup

4.1          All programs and SQL data, images etc are automatically daily backed up to an independent Fasthosts server.

4.2         All Fasthosts servers are based in the UK. No data whatsoever is stored outside of the UK

5. Force Majeure Event

5.1          The software is new and has been tested prior to release. However, it is being continually updated with new functionality for the benefit of all users. For this reason it must be accepted that occasionally compatibility issues may arise, commonly known as bugs which will be corrected as soon as possible once they are made known to the Licensor. The Licensor accepts no responsibility for the Licensee coming across any issues and any resulting lost time and/or out of pocket expenses as a result of such issue whatsoever.

5.2          The licensor also accepts no responsibility for lost time and/or out of pocket expenses for the following reasons:

1. Incorrectly working Licensee’s computer hardware and/or software and/or data.
2. The Licensee misusing the hardware and/or software and/or data.
3. The licensee losing control of their login credentials to unknown third parties and/or loss of data/corruption of data/theft of data due to those of credentials or illegal access.
4. Inability of the Licensee to connect or reach any of the Fasthosts Server due to a failure of the internet and/or components of the internet.
5. Inability of the Licensee to connect or reach any of the Fasthosts Server due to the Internet Service Provider being faulty or being taken offline or similar such event.
6. Inability of the Licensee to connect or reach any of the Fasthosts Server due to a fault or similar problem or technical issue with the Internet Service Providers equipment or services.
7. Problems found within the software or the environment that it resides.

5.3          The Licensor gives an undertaking to the Licensee to resolve any issues reported to the Licensor as soon as reasonably possible:

1. Issues that are in the unlikely event found to be bugs, will be addressed with the highest priority within 2 hours. It is essential to provide as much detail as possible including the Licensee’s name and contact information, a description of the problem, the case reference, the URL address (at the top of the screen) and any further details which are relevant. Do not under any circumstances include your login credentials on your email.
2. Issued logged, with an email high importance will generally be looked into within 4 hours. It is essential to provide as much detail as possible including the Licensee’s name and contact information, a description of the problem, the case reference, the URL address (at the top of the screen) and any further details which are relevant. Do not under any circumstances include your login credentials on your email.
3. Issues logged without high importance will generally be looked into within 6 hours. It is essential to provide as much detail as possible including the Licensee’s name and contact information, a description of the problem, the case reference, the URL address (at the top of the screen) and any further details which are relevant. Do not under any circumstances include your login credentials on your email.
4. Other issues such as additional functionality requests will be addressed as soon as possible, within 5, but often 3 working days. All requests should be made in writing (email/postal service) and directed to Chris Thompson in the first instance.

6. Data protection

6.1          Both Parties will at all times comply with all applicable requirements of the Data Protection Legislation (GDPR).  This clause is in addition to, and does not relieve, remove or replace either party’s obligations or rights under the Data Protection (GDPR) legislation. The parties acknowledge that for the purpose of the Data Protection Legislation, that The Licensee is the controller and The Licensor is the processor. The Licensee will ensure that all necessary appropriate consents and  notices in place to enable lawful transfer of the personal data to the Licensor for the duration and purposes of this agreement.

6.2          The Licensor shall, in relation to any personal data processed in connection with the performance its obligations under this agreement; 

6.2.1    process that personal data only on the documented written instructions of the Licensee unless the Licensor is required by Applicable Law to otherwise process that personal data. 

6.2.2    ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Licensee, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); not transfer any personal data outside of the European Economic Area unless the prior written consent of the Licensee has been obtained and the following conditions are fulfilled:

1. appropriate safeguards are in place in relation to the transfer;
2. the data subject has enforceable rights and effective legal remedies;
3. the Licensor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; 
4. the Licensor complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the personal data; 
5. assist The Licensee in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6. notify The License without undue delay on becoming aware of a personal data breach; 
7. in compliance with 2.15, 2.17 at the written direction of the Licensee, delete or return personal data and copies thereof to the Licensee on termination or expiry of the agreement unless required by Applicable Law to store the personal data; and 
8. maintain complete and accurate Benchmark user logon records and information to demonstrate its compliance with this clause and allow for audits by the Licensee or the Licensee’s designated auditor and immediately inform the Licensee if, in the opinion of the Licensor, an instruction infringes the Data Protection Legislation.

6.3          The Licensor or Licensee will not transfer, disclose or use any Personal Data to any third party, except as required by law or for the purposes of carrying out the Services.

7. Disclaimer 

7.1          Benchmark Debt Solutions Limited will make every effort possible to ensure the accuracy of any information (in any form) supplied is to their best knowledge, information and belief. This includes any advice given on enforcement matters as no person at Benchmark Debt Solutions Limited are legally qualified to give any such legal advice. The advice is given free and given in good faith based on experience. Benchmark Debt Solutions Limited accepts no responsibility whatsoever for any inaccuracies contained in any information (in any form) so passed to clients or prospective clients and shall not be held responsible for any damages or costs incurred by the client or prospective clients as a result of such inaccuracies. We therefore recommend that you seek professional legal advice with a qualified enforcement person or legal advisor before making any decision or taking any actions.

8. Conclusion 

8.1         The Licensor reserves the right to update and/or modify this EULA without notice.