Blowfish Technology LTD - TERMS AND CONDITIONS
1. Definition
1.1 In this these terms and conditions, the following definitions will apply: "Commencement Date" means the commencement date as set out in the Specification, and if there is none, the date on which the Company begins to provide Services to the Client;
"Initial Period" means the initial period during which the contract term cannot be terminated which, if applicable, will be set out in the Specification; If not specified the standard initial period is 12 months.
"Services" means the services that the Company supplies to the Client under these terms and conditions;
"Software" means the software program(s) (if any) to be developed or provided by the Company as part of or incidental to the provision of the Services;
"Specification" means the written specification agreed between the parties describing the Services;
"Term" means the duration of the contract between the Company and the Client, which shall begin on the Commencement Date and continue until terminated in accordance with these terms and conditions;
"IT Managed Service" means the Services (where applicable) to be provided by the Company to the Client relating to IT Support & Manager Services;
"IT Managed Service Fee" means the fee payable (where applicable) by the Client to the Company for IT Support and Managed Services.
"Monitoring Device" means the device provided by the company to the client to allow for remote monitoring.
"Web Design Project" means the Services (where applicable) to be provided by the Company to the Client relating to web design;
"Web Design Fee" means the fee payable (where applicable) by the Client to the Company for completion of the Web Design Project.
1.2 The terms "Company", "Client" and "Support Fee" shall have the meanings given to them in the Specification.
2. The Services
2.1 The Company undertakes to carry out the Services during the Term with reasonable care and skill, in accordance with the Specification, and subject to these terms and conditions.
2.2 Hardware, software and other intellectual assets (such as computer code) will remain the property of the Company until full and final payment is received by the Company.
2.3 At any time during the Term, the Company may in writing recommend or the Client may in writing request changes to any part of the Specification. Following investigation the Company will give a written estimate showing the costs of the changes to the Client. Should the Client wish to proceed with a proposed change, it will instruct the Company in writing.
3. Client's responsibilities
3.1The Client will provide the Company with all reasonable information concerning the Client's operations and promptly provide answers to queries, decisions and approvals, which may be reasonably necessary for the Company to carry out the Services. The Client is responsible for ensuring that such information and answers are accurate and complete and acknowledges that the Company shall not be liable for any delay or defect caused by or contributed to by any inaccurate or incomplete information given to the Company.
3.2 The Client agrees to allow the Company to make reference to it as one of the Company's clients or in other marketing undertaken by the Company.
3.3 It is the Client's responsibility to obtain full licences for any Software provided by the Company.
3.4 In order that the Services may be provided remotely, the Client may be asked to install relevant remote access Software on its computer network.
4 Payment
4.1 The Company will invoice the Client monthly in advance.
4.2 The Company shall be entitled to review monthly the Support Fee should the Client increase its number of computers or due to any other significant change to the Client's network.
4.3 Any Services provided by the Company at the premises of the Client will be charged at a minimum of 1 hours work.
4.4 Support provided by the Company in addition to the Services set out in the Specification ("Additional Support") will be billed at a rate set out in the Specification or otherwise agreed between the parties. If not set out in the specification then the hourly rate of the company is £55.
4.5 If the Specification includes a Web Design Project the Company shall invoice the Client 50% of the Web Design Fee on agreement of the Specification. The balance of the Web Design Fee will be invoiced immediately following Completion (as described in clause 8).
4.6 The Client shall pay the Company's invoices within 30 days of the date of the invoice.
4.7 The Company reserves the right to charge the Client interest, calculated daily, in respect of the late payment of any sum due at the rate of 2% above the base rate of Barclays Bank Plc from the due date until paid.
4.8 The Company reserves the right to cease (temporarily or permanently) to provide Services at any time when the Company's invoices remain outstanding for more than 30 days.
4.9 All prices quoted/defined in the specification and in these Terms and Conditions are exclusive of Value Added Tax (VAT) and the client shall pay VAT applicable to Goods and/or services at the current rate.
4.10 The Company reserves the right to increase the service and support costs annually by up to 5%
5. Termination
5.1 All proposals made by the Company to the Client will be valid for one calendar month only, after which point they will be deemed to have been withdrawn, unless otherwise agreed by the Company.
5.2 Unless the contract is terminated by the client giving no less than 30 days written notice, expiring at the end of such initial period, that contract shall continue after the expiration of the initial period for an additional period of time equivalent to the initial period (extended term) and unless that contract is terminated by the client giving no less than 30 days written notice of such intended termination expiring at the end of that extended term that contract shall continue after expiration of the extended term for an additional period of time equivalent to the length of the extended term, and so on and so forth
5.3 If the service provided is IT Managed Service, then termination of the contract will cause the company to remove any Firewall/Routers/turtle Devices provided.
6. Warranties
6.1 The Client warrants and undertakes to the Company that any information, data, images or materials provided to the Company will not infringe the intellectual property or other rights of any third party and all information provided will comply with the requirements of the Data Protection Act 1988 (as amended) and the Client shall indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach by the Client of this clause.
6.2 The Company will not be liable to the Client for any direct, indirect or consequential loss, damage, cost or expense of any kind, whether arising under contract, tort (including negligence) or otherwise.
6.3 In all cases not falling within clause 6.2, the Company's total liability in connection with the Services shall not exceed the monthly Support Fee.
6.4 The Client acknowledges and agrees that the allocation of risk contained in this clause 6 is reflected in the Support Fee.
7. Non-solicitation
7.1 Neither the Client nor the Company will during the Term and for 12 months after termination, without the other's prior written agreement, directly or indirectly solicit or offer employment or engagement to any employee or contractor of the other party.
8. Web Design
8.1 If the Services include a Web Design Project the following terms will apply:
8.1.1 Subject to the provisions of this clause 8, the Client shall be granted a royalty free licence to use and operate, in perpetuity, all content, programming and material incorporated into the completed Web Design Project upon payment in full of the Web Design Fee.
8.1.2 The ownership of the copyright and all other proprietary rights whatsoever in all computer programs, source codes, documentation and other materials prepared or developed by the Company in connection with the Web Design Project, including bespoke work to alter the look, functionality, operation or other facet will remain at all times vested in and otherwise be the absolute property of the Company.
8.1.3 The Company shall notify the Client when the Web Design Project is ready for final testing ("Completion Notice"). Upon receipt of the Completion Notice the Client shall be entitled to test the website for performance in accordance with the Specification.
8.1.4 The Client shall carry out all the testing required to check the performance of the website promptly and in any event within 14 days of the Completion Notice (the "Test Period").
8.1.5 In the event of any defects being raised during the testing period, the Company shall be allowed a reasonable time to remedy such defect and then issue another Notice.
8.1.6 The Web Design Project shall be deemed to be completed and accepted by and entirely satisfactory to the Client upon the date that the Client confirms in writing to the Company that it accepts the website or following the Test Period after the Completion Notice issued by the Company, whichever shall be the earlier. Following the expiry of the Test Period, the Company shall be entitled to issue its final invoice(s) and the Client shall be required to pay all sums due to the Company in accordance with clause 4.5, whether or not the Client has taken the opportunity to test the website.
8.1.7 Any work required by the Client in respect of the website outside of the Test Period will be charged in accordance with its standard terms and conditions.
8.1.8 Unless specified by the Company in writing, the re-registration of domain names is always the Client's sole responsibility, including where the Company has undertaken initial registration of a domain name.
8.1.9 The Client agrees to allow the Company to make reference to it as one of the Company's clients and reproduce screen shots from the Services on the Company's web site or in other marketing undertaken by the Company. The Client agrees and authorises the Company to incorporate into web site of the Web Design Project a link to the Company's own web site.
9. IT Managed Service
9.1 The companies It Support Managed Services contract is called IT Managed Service.
9.2 As part of the IT Managed Service, the company requires a encrypted vpn tunnel to be created between the company and clients headquarters. This is done by using a enterprise grade firewall router on the companies and clients site. If a enterprise grade firewall router is not available on the clients site, the company will provide one for the term of the contract.
9.3 As part of IT Managed Service, the company requires a Monitoring Device to be placed on the client's site. This will allow for monitoring and it totally owned by the company. See clause 5.3 for termination of contract.
9.4 If Service level agreements are not specified within the specification then Remote Support response to be within 4 working hours and onsite response to be within 14 working hours.
10. Confidentiality
10.1 The Company agrees to keep all information disclosed to it in confidence in connection with the Services and shall use all reasonable endeavours to ensure that its employees adhere to the terms of this clause 9. The confidentiality obligation under this clause 9 shall not apply to the extent that information is: (i) required to be disclosed by any court of competent jurisdiction or competent regulatory body; (ii) or becomes public knowledge other than by a breach of the provisions of this clause 9; (iii) or becomes known by the Company in a lawful manner; or (iv) permitted to be disclosed by the Client.
11. General terms
11.1 The Company will not be liable for any act of ‘force majeure', being a delay or failure to perform any of Services caused by events beyond its reasonable control.
11.2 The Client confirms that it has not relied on any verbal representations made by or on behalf of the Company or upon any descriptions in any publicity material and it is agreed that the Specification and these terms and conditions shall together constitute the complete and exclusive statement of the contract between the parties relating to the Services superseding any previous communications or representations.
11.3 Unless specified herein, no change to these terms and conditions or the scope of the Services will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
11.4 A waiver by either party for a breach of these terms and conditions shall not be construed as a waiver of any future breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise any right operate as a waiver of any breach or default by the other party.
11.5 These terms and conditions are construed in accordance with and governed by the law of England and each party agrees to submit to the exclusive jurisdiction of the courts of England.
11.6 These terms and conditions shall apply to all future work undertaken for the Client by the Company unless specific agreement in writing is made by both parties.
BLOWFISH TERMS AND CONDITIONS FOR HOSTED & TELEPHONY SERVICES
Please read these Terms in conjunction with our Privacy Notice
1. DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions ("Terms") the following words shall have the following meanings:
Acceptable Use Policy the acceptable use policy in force from time to time that sets out the terms upon which you may use the Services;
Agreement the agreement between you and the Company for the supply of the Services in accordance with the Order and these Terms;
Authorised Provider the Company's authorised third party provider of the Services or Support Services;
Emergency Centre the premises where operators answer Emergency Calls;
Call a signal, message or communication which can be silent, visual or spoken, excluding text messages;
Charges the charges as notified to the Customer from time to time and payable by the Customer to the Company for the Services; Commencement Date the date of the Agreement;
Company, We, Us, Our Blowfish Technology Limited
Confidential Information any and all information whether disclosed in written or oral or machine-readable form or otherwise including without limitation information relating to the Company's services, equipment, operations, know-how, trade secrets and information of commercial value;
Configuration Portal the web based portal used by the Customer to create and manage telephone features;
Connect To Number the contact number used to connect to the relevant Emergency Services Organisation;
Customer, you the individual, company, entity, organisation or business that purchases the Services from the Company;
Customer Data data inputted or supplied by the Customer for, or in the use of, the Services but excluding any Personal Data;
Customer Information any documents or other materials and any data or other information provided by the Customer relating to the Services;
Customer IT any components of the Customer's IT infrastructure (including but not limited to cabling, systems, hardware and software); Data Protection Legislation up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Early Termination Fee means: (i) all Charges that are accrued up to and including the date of termination; plus (ii) an average per day value of the Call Charges accrued by the Customer in the three months prior to the date of termination chargeable each day from the date of termination until the date of expiry of the Minimum Term, Renewed Minimum Term or Subsequent Term (as the case may be); plus (iii) the total amounts of all Rental Charges still remaining on the Minimum Term, Renewed Term or Subsequent Term(as the case may be) from the date of termination until the date of expiry of the Minimum Term, Renewed Minimum Term or Subsequent Term (as the case may be);
Emergency a serious situation or occurrence that demands immediate action;
Emergency Call a Call to 999;
Emergency Calls Access the service conveying Emergency Calls as described in Clauses 3.10 to 3.14 inclusive and which forms part of the Services;
Emergency Services Database or ESDB the 999 call routing and address database;
Emergency Services Organisation the relevant local public police, fire, ambulance and coastguard services and other similar organisation providing assistance to the public in emergencies;
GDPR General Data Protection Regulation ((EU) 2016/679).
Incoming Calls calls from the destinations with E.164 numbers made to the Customer;
International Destination Network a network operated in an overseas country;
IP internet protocol;
IPR patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; . -
Minimum Term Thirty-six (36) months (or such other minimum period as is set out in the Order) from the Commencement Date;
Ofcom the Office of Communications or other replacement authority;
Order the Customer's order for the Services;
Outgoing Calls calls from the Customer to destinations outside of the Customer's Service subject to the restrictions set out in Clauses 3.7 to 3.11 inclusive;
Personal Data as defined in Clause 12.2;
PRS or Premium Rate Service a communications service where Call charges include a premium to cover the cost of content and/or an element of the service above the costs and charges attributable to conveyance;
Renewed Term the renewed term agreed with the Company in writing in accordance with Clause 9.2;
Rental the monthly fee (including line rental, equipment rental, and other rental) payable by the Customer for the Services, as set out in the Order or as otherwise notified by the Company;
Services the hosted email, hosted telephony and / or hosted desktop and other managed IT services as set out in the Order that the Company agrees to supply to the Customer;
Service Levels the standard of performance in respect of the provision of the Services set out in the Schedule;
Subsequent Term a minimum of twelve (12) months (or such other period set out in the Order);
Support Services the support services provided by the Company or its Authorised Provider in connection with the Services;
Working Day 09:00 to 17:00 Monday to Friday but excluding public holidays in the United Kingdom.
1.2. Construction. In these Terms, the following rules apply:
1.2.1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2. a reference to writing or written includes faxes and e-mails.
1.2.3. a reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.2.4. headings in the Agreement shall not affect interpretation.
2. ORDERS
2.1. The Order constitutes an offer by the Customer to purchase the Services in accordance with these Terms
2.2. Within 5 days of receipt of an Order or such other time as agreed with the Customer, the Company or its Authorise Provider shall carry out a feasibility check and audit of the Customer's system and/or software.
2.3. If, after carrying out a feasibility check and audit of the Customer's system and/or software the Company or its Authorise Provider determines that:
2.3.1. the Customer's system and/or software does not pass the feasibility check and audit it may reject the Order;
2.3.2. the Customer's system and/or software passes the feasibility check and audit it may accept the Order.
2.4. If the Customer's system and/or software passes the feasibility check the Order shall only be deemed to be accepted when the Company issues written acceptance of the Order or (if earlier) the Company provides the Services to the Customer at which point and on which date the Agreement shall come into existence (Commencement Date).
2.5. Once an Order has been accepted by the Company, the Customer may not cancel an Order.
2.6. We may accept or reject an Order at Our sole discretion.
2.7. The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Agreement.
2.8. These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1. We shall supply the Services to the Customer from the Commencement Date for the Minimum Term and any Renewed Term or Subsequent Term in accordance with these Terms.
3.2. The Customer acknowledges that it has limited rights to terminate the Agreement during the Minimum Term, Renewed Term or Subsequent Term (as the case may be). These rights are set out in Clause 9.5. If the Customer terminates the Agreement before the expiry of the Minimum Term, Renewed Term or Subsequent Term, the Customer shall pay any applicable Early Termination Fee.
3.3. Unless otherwise agreed with the Company in writing, the Services will be provided in the United Kingdom.
3.4. We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and We shall notify the Customer in any such event. 3.5. The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6. We do not warrant that the Services will be available without interruption or will be error free.
3.7. The Customer acknowledges that:
3.7.1. the Company's ability to perform its obligations under the Agreement is dependant upon the Customer's full and timely cooperation with the Company as well as the accuracy and completeness of any Customer Information the Customer provides to the Company. We shall not be responsible or liable for any delay in providing which arises directly out of the Customer or Customer's failure to perform its obligations hereunder or to co-operate with the Company or to provide complete and accurate Customer Information, all in a timely manner;
3.7.2. unless otherwise agreed by the Company in writing, the Services have not been developed to meet their individual requirements and that it is therefore the Customer's responsibility to ensure that the facilities and functions of the Services meets their requirements; 3.7.3. We shall not be liable or responsible for any delays, delivery failures or any loss or damage arising out of or resulting from the transfer of data including but not limited to Customer Data, over communications networks and facilities (including the internet) unless caused by an act or omission of the Company;
3.7.4. the Services may be subject to limitations, delays and other problems arising out of the use of such communications networks and facilities;
3.7.5. the Services are not designed to be a carrier interconnect and that the platform for this Service will not support diallers of any description;
3.7.6. scheduled downtime will occur from time to time. We will use Our reasonable endeavours to provide the Customer with at least three (3) Working Days' notice of any scheduled downtime;
3.7.7. the existence of any minor errors in the Services shall not constitute a breach of the Agreement;
3.7.8. some technical limitations with the Services may not become apparent until after the Services have been installed and working for some time;
3.7.9. the Services do not support conveyance of calls to International Destination Networks;
3.7.10. whilst the Services include capabilities which enables it to adhere to regulations including PCI (Payment Card Industry) for card payments, and Ofcom for outbound diallers, neither the Company or its Authorised Providers will be responsible for compliance to any such regulations by the Customer;
3.7.11. it is their responsibility to ensure compliance with the requirements of the telephone preference service. We shall not be responsible for such compliance by the Customer;
3.7.12. use of the Services, may carry certain security risks to the systems and networks of the Customer, the Company and third parties including, but not limited to: misuse; unauthorized access; alterations; theft; fraud; destruction; corruption; and attacks (Occurrences). The Customer will, at its own expense, take security measures including but not limited to the use of firewalls, passwords, access restrictions, encryption, policies, and physical access restrictions, to protect from Occurrences all, equipment, software, data and systems located on the Customer's premises or otherwise in the Customer's control and used in connection with the Services, whether owned by the Customer, the Company, or the Company's suppliers. The Customer is responsible for all security measures, even if the Customer uses a third party or the Company to configure and implement them;
3.7.13. We may occasionally suspend the Service for operational reasons (such as maintenance or Service upgrades), major service outages or because of an Emergency, but will use Our reasonable endeavours to give the Customer as much notice as possible; and
3.7.14. the Company or its Authorised Provider may at any time and without liability modify, expand, improve, maintain or repair the Services and this may require suspension of the operation or provision of the Services and We shall have no liability to the Customer in connection with any such adverse effect on the quality and availability of the Services.
3.8. The Customer will be able to make Calls to any destination unless Call barring has been set up, via the Configuration Portal, in relation to Calls to particular numbers or destinations.
3.9. If abnormally high Call volumes are conveyed via the Services for onward termination to an International Destination Network, the Company or the Company's Authorised Provider may instigate network management control measures including but not limited to Call barring.
3.10. The Services will not support the following Call types:
3.10.1. Outgoing Calls to 3.10.1.1. Non-E164 PSTN numbers for calls terminating outside of the UK;
3.10.1.2. 070 personal numbering services;
3.10.1.3. dial up internet services; and
3.10.1.4. video calls that require IP to TDM translation.
3.10.1.5. 1XX, 1XXX and 1XXXX codes (excluding directory enquiry services);
3.10.1.6. Premium Rate Services,
3.10.2. Incoming Calls to 070 personal numbering services; and
3.10.3. short message service and text messaging. Emergency Call Access
3.11. An Emergency Call Service will only be available where the Emergency call originates from a calling party located in the UK having a telephone number conforming to the National Telephone Numbering Plan, as set out on the Ofcom website, and being either from a geographic number range or from non-geographic number ranges with a prefix of: 055, 056, 03 or 08.
3.12. Subject to the provisions of this Clause, where Emergency Calls are conveyed to the Service platform, the Company or its Authorised Provider will use reasonable endeavours to:
3.12.1. convey Emergency Calls to one of the relevant Emergency Centres;
3.12.2. provide the Customers geographic address locations to the Emergency Services Database, based on the information provided by the Customer in the Order;
3.12.3. if the geographic location of the Emergency Call can be sufficiently identified, provide an onwards connect service to the relevant Emergency Services Organisation via an Emergency Centre telephone operator by means of two-way voice telephony;
3.12.4. liaise and co-operate with the Customer in attempting to resolve problems that may arise; and
3.12.5. assist the Emergency Services Organisations with requests for call-trace in an attempt to identify the geographic location of the Emergency Call and the Customer telephone number if not automatically provided.
3.13. If the Company or its Authorised Provider receives an Emergency Call for which it is not possible to clearly confirm the geographic location and appropriate Connect To Number, or the . - Terms and Conditions 014 APRIL 2018 SCL 2a.docx 7 information is incorrect or corrupted, the Company or its Authorised Provider will use reasonable endeavours to convey the Call to a Connect To Number for the appropriate Emergency Services Organisation.
3.14. We do not warrant that the Services is, or will be, free from faults, however, the Company or its Authorised Provider will correct faults with the Services which affect Emergency Calls in accordance with the Company or its Authorised Provider's normal engineering practices.
3.15. We will supply to the Customer an annual audit file which lists the name and address details of the Customers individual users by telephone number, which are held for 999 verification.
3.16. A fair usage policy will apply to the Services with regards to the number of voice channels available.
3.17. The Company's employees, agents, Authorised Provider's or sub-contractors are not authorised to make any representations concerning the Services unless confirmed by the Company in writing.
3.18. Any advice or recommendation given by the Company or its employees, agents, Authorised Provider's or sub- contractors to the Customer or its employees or agents as to the Services (whether under clause 3.6 or generally) which is not confirmed in writing by the Company is followed or acted on entirely at the Customer's own risk, and accordingly We shall not be liable for any such advice or recommendation which is not confirmed in writing.
4. THE COMPANY'S OBLIGATIONS
4.1. We shall use reasonable endeavours to meet any performance dates agreed in writing, but any such dates shall be estimates only. We shall not be liable for failure to meet them and time shall not be of the essence for performance of the Services.
4.2. We may:
4.2.1. change or withdraw some, or part, of the Services from time to time. This may be because of changing technologies, obsolescence, new or different product features, changing content providers or the need to remove, replace or modify content; and
4.2.2. determine how the Services are presented and delivered or are otherwise made available to the Customer. the Company can change the means or method of providing the Services or the way they are presented, delivered or otherwise made available to the Customer at any time provided that the altered Services shall meet the Service Levels.
4.3. We shall give the Customer not less than 1 months' notice in writing of any decision to vary the Services ("Notice of Variation") or discontinue the supply of all or any of the Services ("Notice of Discontinuance"). We shall use Our reasonable endeavours not to vary or cease to provide any service during the term of the Agreement.
4.4. In the event that the Company serves a Notice of Variation or Notice of Discontinuance upon the Customer, the Company or its Authorised Provider will continue to provide those Services that are being varied or discontinued and technical support in accordance with Clause 6 during the notice period set out in the Notice of Variation or Notice of Discontinuance.
4.5. We shall be entitled (at Our discretion) to make changes to the Service at any time without notice in order to comply with any safety or legal requirement applicable to the Services. 4.6. Within fourteen (14) days of receipt of a Notice of Variation or Notice of Discontinuance, the Customer has the right to terminate this Agreement on fourteen (14) days' written notice to the Company if such variation or discontinuance of the Services has a material adverse effect on the Customer's use of the Services
THE CUSTOMER'S OBLIGATIONS
5.1. The Customer may only use the Services:
5.1.1. in accordance with the Agreement;
5.1.2. in accordance with any instructions provided to the Customer by the Company from time to time; and
5.1.3. for their own internal business use.
5.2. The Customer may not resell or commercially exploit any of the Services or content without the prior written consent of the Company.
5.3. The Customer shall:
5.3.1. ensure that the terms of the Order are complete and accurate;
5.3.2. ensure that it is aware of and accepts any Acceptable Use Policy before using the Services and observes the Acceptable Use Policy at all times during the term of the Agreement;
5.3.3. ensure that, prior to the Commencement Date, adequate virus protection software is installed on all computer systems to which We will require access for the purpose of performing the Services;
5.3.4. ensure that it provides all Customer Information required by the Company and that all such Customer Information shall be accurate, full and provided in a timely manner;
5.3.5. afford to the Company all access and facilities that We shall reasonably require when attending the Customer's premises;
5.3.6. ensure that its equipment, IT infrastructure and connectivity shall be adequate to enable the Company to efficiently provide the Services;
5.3.7. ensure that We shall have such remote and other access to the systems and infrastructure of the Customer as it shall require to provide the Services;
5.3.8. enter into and maintain contracts directly with such third party providers as may be necessary to enable the Company to provide the Services and ensure that such contracts permit the Company to request resources directly from each provider on behalf of the Customer when required;
5.3.9. keep in place software maintenance agreements with the providers of all supported software applications used by the Customer to ensure adequate assistance from such vendors if required;
5.3.10. take all reasonable precautions to protect the health and safety of the Company's personnel, agents, Authorised Providers and sub-contractors whilst at the Customer's premises;
5.3.11. ensure that it is the owner of or is entitled to use all the Customer IT and equipment which is the subject of the Services to be provided by the Company (including any machines, drawings, connectors, cables, parts or other items, computer room documents, manuals, tapes, disk media, items of furniture and other equipment), or that it is authorised by the owner thereof to make them available to the Company if necessary ensure that any equipment connected (directly or indirectly) to or used with the Services is compatible with the Service and where applicable be on the authorised equipment list provided by the Company from time to time. Any equipment not listed as authorised equipment by the Company, where applicable, will not be supported by the Services;
5.3.13. ensure that the details of the existing hardware and software it uses and all current licenses it holds for software are complete and accurate;
5.3.14. ensure that any software, documentation or manuals (if any) provided by the Company to the Customer to enable the Customer to receive and use the Services, are used for the Customer's internal use only and, except as permitted by applicable law or as expressly permitted under the Agreement the Customer will not, without the Company's prior written consent, copy, de-compile or modify any software, nor copy the manuals or documentation relating to that software, nor knowingly allow or permit anyone else to do so;
5.3.15. ensure that all Customer Information and any Customer Data provided by it or stored on, or processed by, the servers of the Company shall not be obscene, defamatory, likely to result in any claim being made against the Company by any third party, or in breach of the Acceptable Use Policy;
5.3.16. not use the Services and will take all reasonable steps to ensure that the Services are not used by anyone:
5.3.16.1. to send, knowingly receive, upload, download, use or re-use material which is offensive, indecent, defamatory, obscene or menacing;
5.3.16.2. contrary to any instructions given by the Company under clause 5.1.2;
5.3.16.3. in a way that does not comply with the terms of any legislation or any licence applicable to the Customer;
5.3.16.4. in a manner that is in any way unlawful, fraudulent or in bad faith or, to the knowledge of the Customer, has any unlawful, fraudulent or bad faith purpose or effect;
5.3.16.5. in a manner that in the Company's reasonable opinion could materially affect the quality of the Services, or any other services, provided by the Company;
5.3.16.6. in a manner which is contrary to Clause 13; or
5.3.16.7. in a manner that that could reasonably be believed to have a detrimental effect on the Companys brand or reputation.
5.3.17. keep confidential and secure any user names and passwords provided or enabled by the Company and use them strictly in accordance with any instructions issued by the Company;
5.3.18. comply with all rules, regulations, legislation, statutes and laws that are applicable to the Services;
5.3.19. comply with all reasonable policies, procedures and practices applicable to the Services and as notified to it by the Company in writing from time to time;
5.3.20. indemnify the Company against any losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against the Company as a result of;
5.3.20.1. the Customer's breach of this Clause 5.3;
5.3.20.2. system outages arising out of or in connection with the Customer's breach or non-performance of the Acceptable Use Policy; 5.3.20.3. use by the Customer of the Services that causes damage to, interrupts or otherwise prevents the Company from supplying the Services to other customers or complying with obligations owed to other customers;
5.3.20.4. any use of the Services by the Customer that promotes or assists any illegal activity.
5.3.21. co-operate with and follow the Company's reasonable instructions to ensure the proper use and security of the Services.
5.4. If the Company's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.4.1. We shall without limiting Our other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;
5.4.2. We shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations under the Agreement; and
5.4.3. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5.5. The Customer shall own all rights, title and interest in and to the Customer Information and Customer Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality.
5.6. Neither the Company nor its Authorised Provider shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data except to the extent caused by the Company's negligence. Notwithstanding any other provision, We shall be entitled (but not obliged) to remove and/or delete (in Our absolute discretion) any Customer Data which it considers does not conform to the Acceptable Use Policy
6. SUPPORT SERVICES
6.1. The Company or its Authorised Provider shall provide 1st line support to the Customer for the Services as follows:
6.1.1. a help desk support facility to the Customer for first line technical support free of charge and in doing so, the Company's Authorised Provider may liaise with the Customer in order to fulfil its obligations under this Clause;
6.1.2. remote engineer support; and
6.1.3. visits to the Customer's sites at times convenient to the Company or its Authorised Provider, such visits to be free of charge in the event that the visit is the result of a fault by the Company, its Authorised Provider or its employees or agents. If the visit is not the result of a fault by the Company, it's Authorised Provider or its employees or agents fault then We may charge for the visit in accordance with Our then current table of charges.
6.2. The Customer shall immediately report any fault to the Company's Customer Services Department and provide details of the fault where it will be dealt with in accordance with the agreed fault repair service or the applicable Service Levels. We shall not be obliged to fix any fault if:
6.2.1. the fault arises because the Customer failed to follow any user manual or other documentation available from the Authorised Provider or the Company's oral or written instructions as to the use of the Services or (if there are none) good trade practice;
6.2.2. the defect is caused by improper use of the Services or use outside its normal application. 6.3. If the Company agrees to fix a fault: 6.3.1. caused by the circumstances set out in Clause 6.2; or
6.3.2. caused by the Customer; or
6.3.3. that otherwise falls outside the responsibility of the Company; or
6.3.4. where no fault is subsequently found We may charge the Customer for such work at Our applicable man-hour rate.
7. CHARGES AND PAYMENT
7.1. The Customer shall pay the Charges.
7.2. We will invoice the Customer monthly in advance and the Customer shall pay the full amount invoiced by direct debit within fourteen (14) days of the date of invoice.
7.3. The Customer shall pay the Charges in pounds sterling without set-off or deduction.
7.4. The Charges are exclusive of Value Added Tax, which shall be payable by the Customer in addition to the Charges at the rate applicable from time to time.
7.5. Time for payment of the Charges shall be of the essence of the Agreement.
7.6. If the Customer fails to make payment in full by the due date, in addition to the Company's right to suspend the Services as set out in Clause 8.1, We may withdraw passwords, accounts and/or access to the Services;
7.6.2. charge interest at the rate of 4% per annum above the base rate of the Bank of England on any amounts outstanding from the due date for payment until payment is made in full.
7.7. In the event that:
7.7.1. the Company follows instructions with or from the Customer to upgrade or amend the Services; or
7.7.2. the Company agrees to update, increase and/or change the Services in order to resolve the Customer's support issues, then the Customer shall be responsible for, and shall pay to the Company, the costs incurred by the Company as a result of updating, increasing and/or changing the Services and any associated fees to be paid in respect of such upgrade or amendment.
7.8. If the Customer disputes any invoice (including the calculation of any amounts payable) they must notify the Company within six (6) months of the date of the invoice. The Customer shall not be entitled to any credit or refund relating to disputes raised after expiry of this period.
7.9. We will give the customer as much prior notice as practicable of any alteration to the charges and in any event not less than 1 month's prior notice of such change. This notice may be included in an invoice to the Customer. If, during the Minimum Term, the Company increases the Charges by more than the Retail Price Index, the Customer may terminate the Agreement during the Minimum Term on written notice to the Company within thirty (30) days of receipt of the notice of increase, without the obligation to pay the Early Termination Fee. For the avoidance of doubt, any increase to the Charges that would not have increased the Customer's immediately previous monthly total bill for that specific Service (if the increase(s) had applied for the whole of that month) by more than the RPI annual inflation rate at the date We notify the Customer of the applicable increase in the Charges shall not entitle the Customer to terminate the Agreement under this Clause 7.9.
7.10. If the Company becomes liable to pay any additional fees, costs or charges to the Government, a regulatory authority or self- regulatory authority and such fees, costs or charges are directly attributable to the provision of Services to the Customer under the Agreement, We shall be entitled to pass through such fees, costs and charges to the Customer with immediate effect.
7.11. Where the Company agrees to do work outside a Working Day at the request of the Customer, We may charge the Customer in accordance with the Company's applicable man-hour rate.
8. SUSPENSION AND VARIATION OF THE SERVICES
8.1. The Company reserves the right (at its option) to terminate the Agreement or suspend or vary the Services:
8.1.1. if the Customer fails to comply with its obligations under the Agreement including the obligation to pay the Charges;
8.1.2. if the Company reasonably believe the Customer has provided false or misleading Customer Information; 8.1.3. the Company needs to modify, expand, improve, maintain or repair the Services; 8.1.4. the Customer's credit rating decreases at any time, and the Customer fails to supply reasonable security in response to a request from the Company; or
8.1.5. the Company considers that there is a significant credit risk;
8.1.6. the Company considers that there is a fraud risk;
8.1.7. the Company's contract with its Authorised Provider to the Services is suspended, varied or terminated.
8.2. The re-instatement of suspended Services shall be at the Company's sole discretion and the Customer shall nevertheless be responsible for payment of the Charges during any period where the Services are suspended pursuant to clause 8.1.1, clause 8.1.2 and clause 8.1.4. Planned Engineering Works
8.3. We will provide a minimum of 3 Working Days' notice of all scheduled outages which may impact availability of the Services.
9. TERM AND TERMINATION
9.1. The Agreement shall commence on the Commencement Date and shall continue for the Minimum Term and any Renewed Term or Subsequent Term or as otherwise agreed in writing by the Company.
9.2. If upon the expiry of the Minimum Term, Renewed Term or Subsequent Term (as the case may be) the Customer has not;
9.2.1. agreed a Renewed Term; or
9.2.2. given notice to the Company in accordance with Clause 9.5 We will continue to supply the Services to the Customer for the Subsequent Term unless the Customer terminates the Agreement as set out in Clause 9.5.
9.3. If a Renewed Term has been agreed We will continue to supply the Services to the Customer for the Renewed Term unless the Customer terminates the Agreement as set out in Clause 9.5.
9.4. The Customer may:
9.4.1. terminate the Agreement (without incurring any Early Termination Fee) by giving a minimum of three (3) months prior written notice to the Company such notice to expire on the expiry date of the Minimum Term, the Renewed Term or Subsequent Term (as the case may be); or
9.4.2. terminate the Agreement before the Minimum Term, the Renewed Term or Subsequent Term (as the case may be) has expired but will have to pay the Early Termination Fee to the Company.
9.5. Without prejudice to any other rights or remedies to whiich We may be entitled, We may terminate the Agreement without liability to the Customer if:
9.5.1. the Customer commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within the following periods from the date of the notice from the Company:
9.5.1.1. 7 days where there is a failure to pay a sum due under the Agreement;
9.5.1.2. 14 days, if either sub-clauses 9.2.1.1 or 9.2.1.3 do not apply; 9.5.1.3. a shorter time, reasonably specified in the notice, in the case of Emergency; . - Terms and Conditions 014 APRIL 2018 SCL 2a.docx 14 9.5.1.4. 48 hours where the Customer is repeatedly in breach of the Agreement (including without limitation repeatedly late in paying sums due under the Agreement) where notice of a previous breach for the same reason has been given;
9.5.2. the Customer commits a material breach of any of the terms of the Agreement that is not capable of being remedied; or
9.5.1. the Customer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution, or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Customer.
9.6. The Company may, without prejudice to any of its other rights under the Agreement, terminate the Agreement with immediate effect by notice in writing in the event that:
9.6.1. the Company is not, for whatever reason, permitted or authorised to provide the Services;
9.6.2. the Company reasonably considers that the breach, act, omission or default of the Customer may result in the Company's failure to comply with any applicable legislation or may place the Company in breach of its agreement with it's licensors;
9.6.3. use by the Customer of the Services is, or is likely to cause damage to, interrupt or otherwise prevent the Company from supplying the Services to other customers or complying with obligations owed to other customers;
9.6.4. such action is required to comply with a direction from Ofcom or any competent authority to suspend or cease the provision of the Service or any part of it;
9.6.5. such action is required in order to comply with any legislation;
9.6.6. the Company has reasonable grounds to suspect that the Customer is involved in fraudulent or other unlawful activity.
9.7. If the Agreement commences before the Company has completed its credit check of the Customer, We shall be permitted to terminate the Agreement immediately by written notice if the Customer fails to pass the Company's credit policy.
9.8. The rights to terminate the Agreement given by this Clause 9 shall be without prejudice to any other right or remedy of the Company in respect of the breach concerned (if any) or any other breach.
10. EFFECTS OF TERMINATION
10.1. Upon termination or expiry of the Agreement for any reason:
10.1.1. the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, We shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry;
10.1.3. clauses which expressly or by implication survive termination shall continue in full force and effect; and
10.1.4. unless otherwise agreed in writing by the Company:
10.1.4.1. all rights and licences of the Customer under the Agreement shall terminate; and
10.1.4.2. the Customer shall cease to use, and delete, all instances of the software.
11. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1. This Clause 11 sets out the Company's entire liability (including any liability for acts or omissions of the Company's employees, agents or subcontractors) in respect of any breach of the Agreement and any representation, statement or tortuous act or omission arising out of or in connection with the Agreement.
11.2. Except as set out in these Terms, the Company provides no warranties, conditions or guarantees as to the description or quality of the Services, and all warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law.
11.3. Nothing in these Terms shall exclude or limit the liability of either party to the other:
11.3.1. for death or personal injury caused as a result of its negligence or the negligence of its employees, agents or subcontractors; 11.3.2. for fraud or fraudulent misrepresentation;
11.3.3. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
11.4. Subject to Clause 11.3, the Company's aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall not exceed £1,000,000 (one million pounds sterling).
11.5. Subject to Clause 11.3, We shall not be liable to the Customer for:
11.5.1. loss of profits; or
11.5.2. loss of revenue;
11.5.3. loss of income or business;
11.5.4. depletion or loss of goodwill, reputation or similar losses;
11.5.5. loss of anticipated savings;
11.5.6. loss of or corruption of data or information;
11.5.7. loss of use;
11.5.8. loss of contract;
11.5.9. any indirect or consequential or special loss or damage or pure economic loss, costs, damages, charges or expenses whatsoever and howsoever caused. . - Terms and Conditions 014 APRIL 2018 SCL 2a.docx 16
11.6. The Services are not intended to be used for, or in relation to, any purpose which will or may affect the safety or wellbeing of any person and the Company excludes any and all liability whatsoever arising out of, or related to, any such use.
11.7. The provisions of this Clause 11 shall survive termination or expiry of the Agreement.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. During the term of this Agreement and for three (3) years after termination, the Customer shall:
12.1.1. keep all Confidential Information confidential;
12.1.2. disclose Confidential Information only to its employees that need to know it for the purposes contemplated by the Agreement; and 12.1.3. use the Confidential Information exclusively for the purposes contemplated by the Agreement. This Clause shall not apply to information that the Customer can prove:
12.1.4. is in the public domain otherwise than by the Customer's breach;
12.1.5. it already had in its possession prior to obtaining the information directly or indirectly from the Company; or
12.1.6. a third party subsequently disclosed to the Customer free of restrictions on disclosure and use.
12.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
12.3. The Company's Privacy Notice sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data (where Personal Data has the meanings as defined in the Data Protection Legislation) and the Company collects.
12.4. Without prejudice to the generality of Clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Company for the duration and purposes of the Agreement.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. Unless otherwise agreed in writing, all Intellectual Property Rights in and to the Services belong, and shall continue to belong, to the Company and/or its licensors.
13.2. All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
13.3. The Customer acknowledges that it shall have no licence, right, title or interest in or to any IPR of the Company or its licensors except as set out in the Agreement. Without prejudice to the right of the Customer or any third party to challenge the validity of any Intellectual Property Rights of the Company or its Authorised Provider, the Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Company or its Authorised Provider and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
13.4. This Clause shall survive termination or expiry of the Agreement. . - Terms and Conditions 014 APRIL 2018 SCL 2a.docx 17
14. FORCE MAJEURE
14.1. For the purposes of the Agreement, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2. We will not be liable to the Customer for any failure or delay in performing Our obligations under the Agreement or supplying the Services:
14.2.1. as a result of a Force Majeure Event;
14.2.2. if another supplier delays or refuses the supply of an electronic communications service to the Company or any of the Company's suppliers and no alternative service is available at reasonable cost; or
14.2.3. if legal or regulatory restrictions are imposed upon the Company or any of the Company's suppliers that prevent the Company or any of the Company's suppliers from supplying the Service.
14.3. If the Force Majeure Event prevents the Company from providing any of the Services for more than 12 weeks, We shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Customer.
15. NOTICES
15.1. Notices must be in writing. The address for service on the Company (subject to any change notified by the Company) is: Blowfish Communications Ltd, West Lancashire Investment Centre, White Moss Business Park, WN8 9TG. The address for service on the Customer is as set out in the most recent invoice.
15.2. Notices may be delivered by hand, sent by first-class mail, fax or e-mail. Correctly addressed notices if delivered by hand, shall be deemed to have been delivered at the time of delivery, if sent by first-class mail shall be deemed to have been delivered 72 hours after posting, correctly directed faxes shall be deemed to have been received instantaneously on transmission and in proving the service of any notice by e-mail, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
16. VARIATION
16.1. Except as set out in these Terms, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed by the Company in writing and signed by an authorised representative of the Company.
17. GENERAL
17.1. Assignment and other dealings.
17.1.1. We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of Our rights under the Agreement and may subcontract or delegate in any manner any or all of Our obligations under the Agreement to any Authorised Party, third party or agent.
17.1.2. The Customer shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement. . - Terms and Conditions 014 APRIL 2018 SCL 2a.docx 18
17.2. Severance. Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
17.3. Waiver. Any failure by either party to exercise or enforce its right under the Agreement shall not be a waiver of that right, nor prevent such party from exercising or enforcing such right at a later time.
17.4. No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.5. Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.
17.6. Governing law. The Agreement, 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. 17.7. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Blowfish Technology Limited - Hivex Business System Framework & Development
HIVEX BUSINESS FRAMEWORK & SAAS "SOFTWARE AS A SERVICE" TERMS AND CONDITIONS
This document is the Supplier's full Terms and Conditions for products or services which fall under SAAS “Software as a service” or use the Hivex Business Framework which should be read in conjunction with the Proposal. By signing the Proposal the Customer is agreeing to be bound by these full SAAS "Software As A Service" Terms and Condition.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
"Authorized Users" mean those employees (Staff), agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.4.
"Business Day" means any day which is not a Saturday, Sunday or public holiday in the UK.
"Change of Control" means the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
"Customer Data" means the data inputted by the Customer, Authorized Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
"Documentation" means the document made available to the Customer by the Supplier from time to time which sets out a description of the Services and the user instructions for the Services.
"Downtime" means a period during Service Hours during which there is total loss of the Services.
"Effective Date" means the date of this Agreement which shall be the date the Proposal was signed and accepted by the Customer.
"Initial Subscription Term" means the initial term of this Agreement as set out in Schedule 2 - Subscription Term.
"Normal Business Hours" means 08:30 am to 5.30 pm local UK time, each Business Day. "Outage" means an instance of Downtime.
"Renewal Period" means the period described in clause 14.1.
"Service Interruption" means a period during Service Hours during which there is partial loss of the Services.
"Service Levels" means the levels of performance to which the Services are to be provided to the Customer by Supplier as set out in Schedule 2.
"Services" means the subscription services provided by the Supplier to the Customer under this Agreement notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
"Software" means the online software applications provided by the Supplier as part of the Services.
"Subscription Fees" means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in paragraph 1 of Schedule 1 - Subscription Fees.
"Subscription Term" has the meaning given in clause 14.1.
"Support Services Policy" means the Supplier's policy for providing support in relation to the Services as notified to the Customer from time to time.
"User Subscriptions" means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with this Agreement.
"Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes faxes but not e-mail.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right
2.2
to permit the Authorized Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
In relation to the Authorized Users, the Customer undertakes that:
2.2.1 the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;
2.2.3 each Authorized User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than MONTHLY and that each Authorized User shall keep his password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorized Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
2.2.5 it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorized User. Such audit may be conducted no more than once per month, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 - Subscription Fees within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
2.3.6 causes damage or injury to any person or property;
and the Supplier reserves the right, without liability to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
2.4.1.1 and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
2.4.1.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.4.3 use the Services and/or Documentation to provide services to third parties; or
2.4.4 subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 - Subscription Fees and the Supplier shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request, such approval not to be unreasonably withheld.
3.3 If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 - Subscription Fees and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4. SERVICES
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 Subject to clauses 13.5 and 15, the Supplier shall use commercially reasonable endeavors to make the Services available 24 hours a day, seven days a week except for:
4.2.1 planned maintenance carried out during the maintenance window of 8.00 pm to 6.00 am UK time; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavors to give the Customer at least 4 Normal Business Hour’s notice in advance.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier's then current rates.
4.4 Outages or Service Interruptions may be made by Supplier when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. Supplier will use reasonable endeavors to minimize the Outages or Service Interruptions that may be caused by a change. If Outages or Service Interruptions are required, Supplier will endeavor to schedule them so as to minimize impact on the Services and will notify the Customer of the anticipated commencement time and estimated duration.
5. CUSTOMER DATA
5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub- contracted by the Supplier to perform services related to Customer Data maintenance and back- up).
5.3 If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
5.3.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorized Users are located in order to carry out the Services and the Supplier's other obligations under this Agreement;
5.3.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;
5.3.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
5.3.4 the Supplier shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
5.3.5 each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.THIRD PARTY SUPPLIERS
6.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7. SUPPLIER'S OBLIGATIONS
7.1 The Supplier undertakes that the Services will be performed in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorized contractors or agents. If the Services do not conform to the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error- free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. CUSTOMER'S OBLIGATIONS the Customer shall:
8.1.1 provide the Supplier with:
8.1.1.1 all necessary co-operation in relation to this Agreement; and
8.1.1.2 all necessary access to such information as may be required by the Supplier;
in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's breach of this Agreement;
8.1.5 obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Initial Set Up Subscription Fees to the Supplier via Faster Payment as per the arrangements and terms agreed with the Sales Account Manager for the User Subscriptions in accordance with this clause 9 and Schedule 1 - Subscription Fees.
9.2 The Customer shall on the Effective Date, 26th of each month, provide to the Supplier, via Bank Order, the agreed monthly subscription fees:
9.2.1. subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
9.2.2 its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
9.2.2.1 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
9.2.2.2 subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
9.3.1 the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement:
9.4.1 shall be payable in [pounds sterling];
9.4.2 are, subject to clause 13.4.2, non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to the supplier’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage fees. The Supplier's excess data storage fees current as at the Effective Date are set out in Schedule 1 - Subscription Fees.
9.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and Schedule 1 - Subscription Fees shall be deemed to have been amended accordingly.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the. terms of this Agreement.
11.CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party's lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 This clause 11 shall survive termination of this Agreement, however arising.
12.INDEMNITY
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 the Supplier provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 The Supplier shall, subject to clause 12.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 the Supplier is given prompt notice of any such claim;
12.2.2 the Customer provides reasonable co-operation to the Supplier in the defense and settlement of such claim at the Supplier's expense; and
12.2.3 the Supplier is given sole authority to defend or settle the claim.
12.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-- infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services or Documentation by anyone other than the Supplier; or
12.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Subject to the provisions of clause 12, this clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Customer in respect of:
13.1.1 any breach of this Agreement;
13.1.2 any use made by the Customer of the Services and Documentation or any part of them; and
13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such
use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
13.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
13.2.3 the Services and the Documentation are provided to the Customer on an "as is" basis. Nothing in this Agreement excludes the liability of the Supplier:
13.3
13.3.1 for death or personal injury caused by the Supplier's negligence; or
13.3.2 for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
13.4.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
13.4.2 the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be covered by the £1,000,000 limited liability insurance in place.
13.5 The Supplier shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:
13.5.1 interruptions to the flow of data to or from the internet;
13.5.2 changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to Supplier striving to minimize the interruptions/Outages that may be caused by such change;
13.5.3 the effects of the failure or interruption of services provided by third parties;
13.5.4 factors outside of Supplier's reasonable control;
13.5.5 any actions or omissions of the Customer (including, without limitation, breach of the Customer's obligations set out in this Agreement) or of any third parties;
13.5.6 problems with the Customer's equipment and/or third party equipment; or
13.5.7 interruptions to the Services requested by the Customer.
14. TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
14.1.1 either party notifies the other party of termination, in writing, at least 90 business days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
14.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute
the Subscription Term.
14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
14.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
14.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
14.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule Bl to the Insolvency Act 1986); or
14.2.4 a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
14.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
14.2.6 the other party ceases, or threatens to cease, to trade; or
14.2.7 there is a change of control of the other party within the meaning of section 840 of the
Income and Corporation Taxes Act 1988; or
14.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in
consequence of debt.
14.3 On termination of this Agreement for any reason:
14.3.1 all licenses granted under this Agreement shall immediately terminate;
14.3.2 each party shall return and make no further use of any equipment, property,
Documentation and other items (and all copies of them) belonging to the other party;
14.3.3 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
14.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock- outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub- contractors, provided that the Customer is notified of such an event and its expected duration.
16. WAIVER
16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
17. SEVERANCE
17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. ENTIRE AGREEMENT
18.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
19. ASSIGNMENT
19.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, th
making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
22. NOTICES
22.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.
22.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
23. GOVERNING LAW AND JURISDICTION
23.1 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) are governed by, and construed in accordance with, the law of England.
23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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