1.1 The definitions and rules of interpretation in this clause apply to the Agreement.
Additional Services: any services in addition to the Services provided by the Supplier to the Customer from time to time, as outlined in the Proposal and only to be amended in accordance with clause 8.
Agreement: means the contract between the Supplier and the Customer for the supply of Services in accordance with the Proposal and these Conditions.
Authorised User: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause 3.4(c)
Business Day: a day other than a Saturday, Sunday or a public holiday in England when banks in London are open for business.
Conditions: means these terms and conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchase the Services from the Supplier, as detailed in the Proposal.
Customer Data: the data inputted by the Customer, by the Supplier on the Customer’s behalf or by the End-Customer for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, including the Data Protection Act 2018.
End-Customer: the customer or client of the Customer.
Fees: the fees payable by the Customer to the Supplier under clause 10 as set out in the Proposal, as may be varied in accordance with clause 10 and subject to clause 19.
Initial Term: the initial term for the Supplier’s provision of the Services as outlined in the Proposal.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
Normal Business Hours: 9.00am to 5.00pm local UK time, each Business Day.
Order: the Customer’s order for the Services as set out in the Customer’s acceptance of the Proposal.
Payment Schedule: means the payment schedule outlined in the Proposal.
Proposal: the suggestions provided to the Customer by the Supplier for the Services and any Additional Services which the Customer may require.
Renewal Period: means each successive 12 month period following the expiry of the Initial Term.
Services: the services, including the licence for the Software provided by the Supplier to the Customer under the Agreement from time to time, as more particularly described in the Proposal and to only be amended in accordance with clause 8.
Software: the online software application provided by the Supplier as part of the Services.
Subscription Term: the term for the provision of the Services, as determined in accordance with clause 13.1.
Supplier: I-PRO SOFTWARE LIMITED a company registered in England and Wales with Customer number 06941034 whose registered office is at The Old Police House, Sandy Lane, Chippenham, Wiltshire SN15 2PZ.
Supplier’s Support Services Policy: the Supplier’s support services policy as outlined in the Proposal.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 3 which entitles the Authorised Users to use the Software in accordance with these Conditions.
1.2 Clause headings shall not affect the interpretation of the Agreement
1.3 Unless the context otherwise requires:
(a) words in the singular shall include the plural and in the plural shall include the singular;
(b) a reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement;
(c) a reference to one gender shall include a reference to the other genders; and
(d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 In the case of conflict or ambiguity between any provision contained in the body of these Conditions and any provision contained in the Proposal, the provision in the Proposal shall take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.6 References to clauses are to the clauses of these Conditions.
1.7 A reference to writing or written includes email and the use of the Supplier’s service or support desk, but not fax.
- COMMENCEMENT AND DURATION
2.1 The Proposal signed by the Customer, constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2 The date on which the Agreement shall come into existence (the “Commencement Date”) shall be the date on which the Supplier countersigns the Proposal, or if earlier, the date on which the Supplier commences provision of the Services at the Customer’s request.
2.3 These Conditions 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.
2.4 The Services and any Additional Services supplied under the Agreement shall continue to be supplied, unless the Agreement is terminated in accordance with clause 13.
2.5 The Proposal shall not constitute an offer by the Supplier and is only valid for a period of 30 days from its date of issue, provided that the Supplier does not withdraw it during the 30 day period.
- SERVICES AND USER SUBSCRIPTIONS
3.1 The Supplier undertakes that the Services and any Additional Services will be performed substantially in accordance with the Proposal and with reasonable skill and care.
3.2 Subject to the Customer paying the Fees in accordance with clause 10.1, the restrictions set out in this clause 3 and these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right (without the right to grant sublicenses), to permit the Authorised User to use the Services and the End-Customers access to the Software during the Subscription Term.
3.3 If the Supplier does not receive payment of the Fees in accordance with clause 10, the Supplier reserves the right, without any liability to the Customer, to disable the Customer’s use of the Services, the End-Customers access to the Software, suspend the licence detailed in clause 3.2, and suspend the provision of any Additional Services while the invoice(s) or payment (as the case may be) concerned remain unpaid.
3.4 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscriptions to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
(d) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User and the Supplier’s data processing facilities to audit compliance with the Agreement. Each such audit may be conducted no more than once per quarter, 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 or the End-Customer’s normal conduct of business;
(e) if any of the audits referred to in clause 3.3(d) reveal that any account details have been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall or where applicable, shall procure that the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(f) if any of the audits referred to in clause 3.3(d) reveal that the Customer has underpaid Fees to the Supplier, then without prejudice to The Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Proposal within 10 Business Days of the date of the relevant audit.
3.5 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to the Supplier’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
(c) use the Services in any manner that damages, disables, overburdens, or impairs any of the Supplier’s websites or interferes with any third party’s use of the Services;
(d) access the Services other than through the Supplier’s interface;
(e) access all or any part of the Services in order to build a product or service which competes with the Services;
(f) use the Services to provide services to third parties except the End-Customers;
(g) subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users or the End-Customer;
(h) use the Services in an unlawful manner, including but not limited to the violation of any person’s privacy rights;
(i) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 3; or
(j) falsely imply any sponsorship or association with the Supplier.
3.6 The Customer shall, and shall procure that the Authorised Users shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify the Supplier
3.7 The Customer may not use the Services if the Customer is legally prohibited from receiving or using the Services under the laws of the country in which the Customer is resident or from which the Customer accesses or uses the Services.
3.8 Except where additional access to the Services is purchased from the Supplier, the rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
- ADDITIONAL USER SUBSCRIPTIONS
4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Proposal and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of the Agreement.
4.2 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 rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 5 Business Days of its approval of the Customer’s request.
4.3 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 the Proposal and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Term or then current Renewal Period (as applicable).
5.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of the Agreement.
5.2 The Supplier shall use reasonable commercial endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance and upgrades, which the Supplier will use reasonable commercial endeavours to notify the Customer of in advance (Planned Downtime); and
(b) unscheduled maintenance due to events beyond the Supplier’s reasonable control.
5.3 The Supplier will use reasonable commercial endeavours to ensure any Planned Downtime or unscheduled maintenance is performed outside of Normal Business Hours.
5.4 The Supplier will, as part of the Services and in consideration of the support fees set out in the Proposal, provide the Customer with the Supplier’s standard customer support services (Critical Support) 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.
5.5 The Supplier reserves the right to suspend the Customer’s and the Authorised User’s access to the Services where:
(a) the Customer’s and/or the Authorised User’s use of the Services violates applicable local, state, federal, or foreign laws or regulations or these Conditions;
(b) there are repeated instances of posting or uploading material, which in the reasonable opinion of the Supplier, infringes or is alleged to infringe the Intellectual Property Right’s of a third party; or
(c) the Customer’s website is:
(i) subjected to or engaged in denial of service attacks or other disruptive activity;
(ii) is creating a security vulnerability for the Services;
(iii) is consuming excessive bandwidth; or
(iv) is causing harm to the Supplier or third parties.
- CUSTOMER DATA
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, 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 against the Supplier shall be for the Supplier to use reasonable commercial endeavours 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 for which it shall remain fully liable under clause 6.9).
6.3 The Supplier reserves the right to access the Customer Data generated by any End-Customer and to anonymise and aggregate such data, as and when the Supplier wishes to establish:
(a) the number of bookings made using the Software;
(b) the cost of the booking to the End-Customer; and
(c) the town, city or county in which the booking is made,
for the purpose of marketing the Supplier’s Services and Additional Services to potential clients and customers.
6.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
6.5 The parties acknowledge that:
(a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
(b) the personal data may be transferred or stored outside the European Economic Area (EEA) or the country where the Customer is located in order to carry out the Services and the Supplier’s obligations under the Agreement.
6.6 Without prejudice to the generality of clause 6.5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer’s behalf.
6.7 Without prejudice to the generality of clause 6.5, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) not transfer any personal data outside of the EEA and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
6.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
6.9 The Customer consents to the Supplier appointing third-party processors of personal data under the Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.
- THIRD PARTY PROVIDERS
- CHANGE CONTROL
8.1 Either party may propose changes to the scope or execution of the Services and any Additional Services but no proposed changes shall come into effect until a Change Order is agreed in writing by both parties, excluding the increase of Fees (in accordance with clause 10.5 to clause 10.8) and the purchase of Additional User Subscriptions (in accordance with clause 4). A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services and any Additional Services;
(b) the Supplier’s existing Fees;
(c) the timetable of the Services and any Additional Services (if applicable); and
(d) any of these Conditions.
8.2 If the Supplier wishes to make a change to the Services and any Additional Services it shall provide a draft Change Order to the Customer.
8.3 If the Customer wishes to make a change to the Services:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) the Supplier shall, as soon as reasonably practicable after receiving the information at clause 8.3(a), provide a draft Change Order to the Customer.
8.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the Agreement; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 15 (Dispute Resolution Procedure).
8.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 8.3 on a time and materials basis.
- CUSTOMER’S OBLIGATIONS
9.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by the Supplier,
in order to provide the Services and any Additional Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
(c) carry out all other Customer responsibilities set out in the 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;
(d) ensure that the Authorised Users use the Services in accordance with these Conditions and shall be responsible for any Authorised User’s breach of the Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing 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.
- FEES AND PAYMENTS
10.1 The Customer shall pay the Fees to the Supplier in accordance with this clause 10 and the Payment Schedule.
10.2 Should the Customer wish to make payment:
(a) via credit card, the Customer authorises the Supplier to charge their credit card or bank account for all fees payable during the Subscription Term. The Supplier shall appoint a third party to process such payments; or
(b) via direct debit, the customer authorises the supplier to charge against this; or
(b) against an invoice, the Supplier shall invoice the Customer on a monthly basis for the Fees in accordance with the Payment Schedule. The Customer shall pay each invoice submitted to it by the Supplier within thirty (30) days from the date of the invoice, unless otherwise specified in the Proposal.
10.3 If the Supplier has not received payment within 14 days after the due date, and without prejudice to any other right and remedies of the Supplier, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the current base lending rate of Barclay’s Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
10.4 All amounts and Fees stated or referred to in the Agreement:
(a) shall be payable in pounds sterling, euro’s or dollars;
(b) are, subject to clause 13.6, non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
10.5 The Supplier shall be entitled to increase the Fees on the yearly anniversary of the Commencement Date upon 60 days prior written notice to the Customer.
10.6 The Customer shall have 15 days from receipt of the written notice of the increase in the Fees to reject the increase, by written notice to the Supplier.
10.7 Should the Customer reject the increase, the Supplier shall honour the previously agreed Fees and the Agreement shall terminate, pursuant to clause 13.4.
10.8 If a notice of rejection is not received, pursuant to clause 10.6, the increase in the Fees shall be deemed accepted by the Customer and the Fees outlined in the Proposal shall be deemed to have been amended accordingly.
- INTELLECTUAL PROPERTY RIGHTS
11.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Services and any Additional Services belong and shall belong to the Supplier, and the Customer, shall have no rights in or to the Services and any Additional Services other than the right to use the Services and any Additional Services in accordance with the terms of the Agreement.
11.2 All information relating to the Authorised Users and all rights associated with such information (“Authorised Users Information”) are the exclusive property of the Customer.
11.3 The Supplier confirms that it has all the rights in relation to the Services and any Additional Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
11.4 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 unauthorised use of the Supplier’s Intellectual Property Rights by the Customer, an Authorised User or any connected parties.
11.5 This clause 11 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause
- LIMITATION OF LIABILITY
12.1 Except as expressly stated in clause 12.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstance in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of or damage to goodwill;
(vi) loss or corruption of software, date or information; or
(vii) indirect or consequential loss;
(b) 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 the Agreement;
(b) the total liability of the Supplier, whether in contract, tort (including negligence or breach of a statutory duty), misrepresentation, restitution, or otherwise and whether in connection with the Services, any Additional Services, or any collateral contract, shall in no circumstances exceed a sum equal to the lower of:
(i) the Fee for the Services and any Additional Services to which the claim relates; or
(ii) the preceding 12 months of the Fee paid by you, for the Services and any Additional Services to which the claim relates prior to the first event or occurrence giving rise to such liability; and
(c) the Customer agrees that, in entering into the Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in the Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of the Agreement.
12.2 The exclusions in clause 12.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
12.3 All dates supplied by the Supplier for the delivery and provision of the Services and any Additional Service shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
- TERM AND TERMINATION
13.1 The Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Commencement Date and shall continue for the Initial Term and, thereafter, automatically renew for the Renewal Period, unless:
(a) the Customer notifies the Supplier of termination, in writing, within 90 days of the Commencement Date, in which case the Agreement shall terminate 90 days after the Commencement Date; or
(b) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(c) otherwise terminated in accordance with the provisions of the Agreement.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(ii) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(iii) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(iv) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(v) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 The Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) there is a change of control of the Customer.
13.4 Subject to clause 10.7, should the Customer reject the increase of the Fees the Agreement shall automatically terminate on the yearly anniversary of the Commencement Date.
13.5 On termination or expiry of the Agreement for any reason:
(a) all licences granted under the agreement shall immediately terminate and the Customer and the Authorised Users shall cease all use of the Services and any Additional Services;
(b) the Customer shall procure that the End-Customer shall cease to use the Services after the expiry of the Subscription Term;
(c) all Fees due under the Agreement, become immediately due and payable;
(d) the Customer shall immediately pay to the Supplier all Fees and any sums due under the Agreement; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.6 On termination of the Agreement in accordance with clause 13.1(a), the Fees payable by the Customer shall only be for the Services and any Additional Services used up to and including the termination date.
13.7 Any provision of the Agreement which expressly or by implication is intended to come into or continue in force on or after termination of the Agreement including clause 1 (Interpretation), clause 9 (Customer obligations), clause 12 (Limitation of Liability), clause 13 (Term and Termination), and clause 14 (Confidentiality and publicity) shall remain in full force and effect.
- CONFIDENTIALITY AND PUBLICITY
14.1 Each party undertakes that it shall not at any time during the Agreement, and for a period of five years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
14.4 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), expect as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- DISPUTE RESOLUTION PROCEDURE
15.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a nominated director or manager of each party shall attempt in good faith to resolve the Dispute; and
(b) if the nominated director or manger of each party are for any reason unable to resolve the Dispute within 14 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 14 days after the date of the ADR notice.
15.2 Neither party may commence any court proceedings under clause 27 (Governing law and jurisdiction) in relation to the whole or part of the Dispute until 21 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
15.3 If the Dispute is not resolved within 30 days after service of the ADR notice, either party fails to participate or ceases to participate in the mediation before the expiry of that 30 day period, or the mediation terminates before the expiry of that 30 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 27 (Governing law and jurisdiction) in these Conditions.
16.1 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1 Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- ENTIRE AGREEMENT
18.1 The Proposal and these Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
18.4 Nothing in this clause shall limit or exclude any liability for fraud.
19.1 Except for the Fees outlined in the Proposal, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- RIGHTS AND REMEDIES
20.1 Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions.
21.2 If any provision or part-provision of the Agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- THIRD-PARTY RIGHTS
22.1 A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
23.1 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 the Agreement.
- 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 the Agreement.
- NO PARTNERSHIP OR AGENCY
24.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- FORCE MAJEURE
25.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including but not limited to, acts of God; cyber attack; terrorist attack; collapse of buildings, fire, explosion or accident; and interruption of failure of utility service). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for Four weeks, the party not affected may terminate the Agreement by giving 14 days’ written notice to the affected party.
26.1 Any notice given to a party under or in connection with these Conditions shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a Customer) or its principal place of business (in any other case); or
(b) sent by email.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
- GOVERNING LAW AND JURISDICTION
27.1 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.
27.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).