Definitions in this Agreement, the following words shall have the following meanings:
‘Business Day’ shall mean any day (other than Saturday or Sunday) which the clearing banks are open for normal banking business in the city of London.
‘Commencement Date’ means Contract Start Date
‘Confidential Information’ means any and all information in whatsoever form relating to the Provider or the Customer, or the business, prospective business, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of Provider or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
‘Feesw’ means the fees and charges as set out in Schedule Two;
‘Intellectual Property Rights’ means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
‘Operating Rules’ means any Provider rules or protocols, in whatever form recorded, that affect the Customer’s access to or use of the Services, and made available by the Provider from time to time to the Customer;
‘Services’ means the software applications services of the Provider, as specified in Schedule One, and made available to the Customer (together with any Operating Rules) and including any computer software programs and, if appropriate, Updates thereto;
‘Term’ means the period of 12 months from execution of this Agreement; and
‘Updates’ means any new or updated applications services or tools (including any computer software programs) made available by the Provider as part of the Services.
The Customer engages the Provider and the Provider agrees to provide the Services in accordance with the terms of this Agreement.
The Provider agrees to provide the Services with effect from the Commencement Date (from which date this Agreement shall be deemed to have commenced) until completion of the Term or sooner termination in accordance with the terms of this Agreement.
Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term. Such licence shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services.
All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with the Provider and/or its licensors and no interest or ownership in the Services or the Intellectual Property Rights is conveyed to the Customer under this Agreement or otherwise. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services. All data input into the system remains the property of the Customer.
Disassembly, de-compilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Provider will provide access to relevant source code or information. The Provider has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer as part of the Customer’s website and or desktop architecture.
The Customer may not (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Provider; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party.
The Customer warrants and represents that it shall maintain all reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
Payments and ordering
In consideration of the provision of the Services by the Provider, the Customer shall pay to the Provider without deduction or set off the Fees as set out in Schedule Two.
The Provider shall render invoices to the Customer in respect of the Fees and such disbursements as shall have been reasonably incurred by the Provider directly in connection with the provision of the Services on a monthly basis or at such other times or periodical basis as agreed between the parties from time to time.
Unless otherwise agreed in writing, the Fees and other disbursements payable on a monthly basis by the Customer are to be made by standing order to the bank account of the Provider as notified to the Customer from time to time on the 1st Business Day of each calendar month during the Term with effect from the 1st Business Day of the calendar month following the month in which the Commencement Date falls. Where the Services were provided for a part of a calendar month, a pro rata Fee and any disbursements incurred in that period shall be payable on presentation of the Provider’s invoice. In the case of all customers, invoices will be raised monthly to be paid within 15 days.
Where payment for the provision of the Services is late, the Provider reserves the right to suspend the provision of the Services by giving 48 hours notice to the Customer and shall be entitled to charge interest on all overdue Fees and disbursements (including disputed amounts that are withheld) in accordance with the Late Payment of Commercial Debts (Interest Act 1998).
The Provider warrants that it has the right to license the Services and that the Services will operate to provide the facilities and functions implemented by the Provider. The foregoing warranties shall not (i) cover deficiencies or damages relating to any third party components not furnished by the Provider; or (ii) any third party provided connectivity necessary for the provision or use of the Services.
The Provider warrants that by performing the Services it will not knowingly infringe the rights of any third party (including but not limited to Intellectual Property Rights) in any jurisdiction or be in breach of any obligations it may have to a third party.
Except as expressly stated in this Agreement, no warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law.
Exclusion and/or limitation of liability
The Provider does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Provider in connection with the provision of the Services.
In no event shall the Provider be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for the purposes of this clause mean (i) pure economic loss; (ii) losses incurred by any r third party; (iii) loss of profits (whether categorised as direct or indirect); (iv) losses arising from business interruption; (v) loss of business revenue, goodwill or anticipated savings; (vi) losses whether or not occurring in the normal course of business, wasted management or staff time and; (vii) loss or corruption of data.
Subject to clauses 6.1 and 6.2, the total liability of the Provider (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (200) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Provider during the twelve (12) month contract period..
In no event shall the Customer raise any claim under this Agreement more than two (2) years after (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement.
Intellectual property indemnification
The Provider shall indemnify and hold the Customer and its customer harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from any claimed infringement or violation by the Provider of any Intellectual Property Rights. The Provider, at its own expense, shall (a) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit relating to or deriving from any Customer provided item); and (b) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (i) the Customer notifies the Provider promptly of each such claim or suit; (ii) the Provider is given sole control of the defence and/or settlement; and the (iii) Customer fully co-operates and provides all reasonable assistance to the Provider in the defence or settlement.
If all or any part of the Services becomes, or in the opinion of the Provider may become, the subject of a claim or proceedings for infringement of Intellectual Property Rights, the Provider at its own expense and sole discretion may:
procure for the Customer the right to continue to use the Services or the affected part thereof; or
replace the Services or affected part with other suitable non-infringing service(s); or
modify the Services or affected part to make the same non-infringing.
The Provider shall have no obligations under this clause 7 to the extent that a claim is based on:
the combination, operation or use of the Services with other services or software not provided by the Provider, if such infringement would have been avoided in the absence of such combination, operation or use; or
use of the Services in any manner inconsistent with this Agreement; or
the negligence or wilful misconduct of the Customer.
The Customer shall indemnify and hold the Provider harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from (i) any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party permitted or allowed by any act or omission of the Customer, and (iii) use by the Provider of any Customer provided item.
Subject to clauses 6 and 7, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
The indemnity contained in clause 8.1 above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
The Provider may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement and such situation has not been rectified by the Customer within 7 days of receiving written notice.
Either party shall be entitled to terminate this Agreement at any time without notice if:
the Provider is prohibited under applicable law from providing the Services; or
the other party ceases or threatens to cease to carry on business; or
the other party is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation shall be bound by and assume the Provider’s obligations hereunder);
the other party compounds with or convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or
the other party has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 schedule B1); or
any similar event occurs under the law of any other jurisdiction in respect of that party.
Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party commits a material breach of any term of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied within 10 business days of receipt by the other party of a notice from the non-defaulting party specifying the breach and requiring it to be remedied.
On request, and in any event on termination of this Agreement for whatever reason, each party shall deliver up all Confidential Information and (to the extent not so comprised therein) all correspondence, documents and other property belonging or relating to the other party, and neither party shall, without the prior written consent of the other, make or retain copies of any such documents.
Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other.
Clauses 7, 8, 9.6 and 10 (together with any relevant definitions in clause 1) shall survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
The obligations of confidentiality under this Agreement do not extend to information that:
was rightfully in the possession of the receiving party before the negotiations leading to this Agreement;
is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
is required by law to be disclosed.
Data protectionEach party undertakes to comply with its obligations under the Data Protection Act 1998 and the later Data Protection Bill outlined under the EU GDPR regulation along with any future amendments to such regulations or orders made thereunder and any guidance issued by the Information Commissioner from time to time in relation thereto.
Lawful Basis of Processing – As an organisation we have adopted and aligned to the 3 core lawful basis for processing personal data, these are Contract, Consent and Legitimate Interest. You can refer to our usage policy under our Data Protection Policy from the website or by requesting from the organisation.
Access Requests – where possible we will abide by regulation to comply with requests made by individuals.
Data Breach – we will with all reasonable measure adopt a po9licy to track and report any high level data breaches to customers and to the ICO.
Third partiesNothing contained in this Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
In this Agreement, ‘Force Majeure’ means anything outside the reasonable control of a party, including but not limited to:
acts of God;
fire, storm, flood or earthquake;
explosion or accident;
acts of public enemy, war, rebellion, insurrection or sabotage;
epidemic or quarantine restriction;
labour dispute, labour shortage or industrial unrest;
disruption of the Provider’s access to the Internet for whatever reason;
deletion, corruption, loss or removal of data;
transportation embargo or failure or delay in transportation;
any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
If a party is wholly or partially precluded from complying with its obligations under this Agreement (other than in respect of the obligations of the Customer to pay the Fees or any other charges under this Agreement) by Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement and must take all reasonable steps to reduce its effect.
If the Force Majeure continues for a period of more than 30 consecutive Business Days either party may terminate this Agreement by written notice to the other party provided that such Force Majeure is continuing at the date of such termination.
The Provider may, but the Customer may not (except with the prior written consent of the Provider):
assign any of its rights under this Agreement; and/or
transfer any of its obligations under this Agreement; and/or
charge or deal in any other manner with this Agreement or any of its rights or obligations.
Any purported assignment, transfer, sub-contracting, delegation, charging or dealing in contravention of the preceding sub-clause shall be ineffective.
Any failure or delay by the Provider in enforcing an obligation or exercising a right, under this Agreement, does not amount to a waiver of that obligation or right.
The waiver of a breach of a term of this Agreement by the Provider does not amount to a waiver of any other term.
A waiver of a breach by the Provider of any of the terms of this Agreement shall not prevent it from subsequently requiring compliance with the waived obligation.
SeverabilityIf any provision of this Agreement is declared invalid or unenforceable by any court or authority of competent jurisdiction all other provisions of this Agreement shall remain in full force and effect and shall not in any way be impaired. The parties shall meet to agree a replacement provision which is as close as is legally permissible to the provision found invalid, or unenforceable.
This Agreement constitutes the whole agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, negotiations and discussions between the parties relating to the subject matter of this Agreement.
The Customer acknowledges that it has not entered into this Agreement in reliance on any statement or representation, whether or not made by the Provider, except in so far as the representation has been incorporated into this Agreement.
The Customer irrevocably and unconditionally waives any right it may have to claim damages and/or to rescind this Agreement by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in this Agreement.
VariationsNo amendment to this Agreement shall be effective unless made in writing and signed by the parties or their duly authorised representatives.
Any notice to be given under this Agreement must be in writing (a ‘Notice’) and delivered personally, sent by first class post, facsimile transmission or electronic mail to the address set out at the beginning of this Agreement above. A Notice sent by facsimile or electronic mail is not valid unless a copy of the Notice is also sent personally or by post.
A Notice shall be deemed to have been served:
if personally delivered, at the time of delivery;
if posted, two Business Days after posting; and
if sent by facsimile or electronic mail, when clearly received in full, if before 5pm in the receiver’s country, or otherwise on the next Business Day;
whether or not read or opened by the party receiving the Notice.
InterpretationIn this Agreement the singular shall include the plural and vice versa and one gender shall include any other gender.
Governing law and jurisdictionThis Agreement shall be governed by the laws of England and Wales. The English Courts shall have exclusive jurisdiction for the settlement of all disputes arising under or in connection with this Agreement and the Customer submits to such jurisdiction accordingly and waives all rights to object to forum.
InconsistencyIn the event of any inconsistency between the above terms and condition and the Schedules, the above terms and conditions shall prevail. In the event of any inconsistency between this Agreement and the Operating Rules, this Agreement shall prevail.
Support & Maintenance feesAs part of any download centre solution purchase and/or activation, 1 year of Support and Maintenance for the product or solution is include in the fee paid. For further support and maintenance an annual fee of 20% will be levied. Should support and maintenance not be required after the first year, then no further product updates or any support services will be made available. Any product that is under an annual or monthly subscription will not be subject to additional support and maintenance fee’s.