IT IS AGREED as follows:
- The definitions and rules of interpretation in this clause apply in this agreement.
Annual Fee: the annual fee payable for the Initial Subscription Term or each Renewal Period, as applicable, by the Customer to the Supplier by reference to the Maximum Usage Limits, as set out in Schedule 1.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.6 or clause 10.7.
Customer Data: the data inputted by the Customer, 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.
Consultancy Services: any services which the Supplier performs on behalf of the Customer in accordance with Schedule 4.
Customer Materials: the Customer’s name, trademarks, branding, logo, content and all other materials and documentation provided by the Customer (whether owned by the Customer or its licensors).
Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) (GDPR) together with 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; and then any successor legislation to the GDPR or the Data Protection Act 2018.
Documentation: the document(s) made available to the Customer by the Supplier as notified or published online via such web address notified by the Supplier to the Customer from time to time which sets out a description of the Software and the user instructions for the Services which includes as a minimum the specification at Schedule 2.
Effective Date: the earlier of a) the date first stated above, or b) the date the Customer has access to the Software.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.
Initial Subscription Term: the initial term of this agreement being [12/24/36] months from the Effective Date.
Mandatory Policies: the Supplier’s business policies as notified to the Customer from time to time.
Maximum Usage Limits: the limits set out in Schedule 1 relating to SKUs, Users, Storage and Telephone Support.
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Renewal Period: the period described in clause 13.1.
Scope of Works: each scope of works which is agreed in writing and signed by the parties from time to time in the template format set out in Schedule 4 for Consultancy Services.
Services: the services provided by the Supplier to the Customer under this agreement which may consist of:
- standard design, integration and implementation services, as determined by the Supplier;
- the Software;
- Support Services (as defined in Schedule 3 and in accordance with the Maximum Usage Limits stated in Schedule 1);
- any services which are specific in a Scope of Works.
Service Level Agreement: the service level agreement and the Support Services which are set out in Schedule 3;
SKUs: individual product records as stated in the Software and as determined by the Supplier from time to time.
Software: the online product information management and digital asset management application known as Pimberly which is provided as a service and is described in and shall perform the functionality set out in Schedule 2, subject to the Maximum Usage Limits stated in Schedule 1, and is hosted via Amazon Web Services (“AWS“) provided by the Supplier as part of the Services.
Storage: the amount of data uploaded to the Software by the Customer and as determined by the Supplier from time to time.
Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer and are accordingly provided with access to use the Services and the Documentation, as further described in clause 2.4.
Virus: 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.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- 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.
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural, shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- A reference to writing or written includes email but not faxes. Emails are deemed accepted on receipt of a confirmation from the other party.
- 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.
- Subject to the Customer paying the Annual Fee in accordance with clause 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, without the right to grant sublicences, to permit the Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
- The Customer undertakes that (on behalf of itself and Users):
- it shall not exceed the Maximum Usage Limits that relate to the Annual Fee as stated in Schedule 1;
- it will not allow or suffer any User account, from time to time, to be used by any other individual unless it has been reassigned in its entirety to another User, in which case the prior User shall no longer have any right to access or use the Services and/or Documentation;
- each User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each User shall keep his password confidential;
- it shall maintain a written, up to date list of current Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
- it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each User, the Customer’s usage by reference to the Maximum Usage Limits and the Supplier’s data processing facilities to audit compliance with this 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 normal conduct of business;
- if any of the audits referred to in clause 2.5 reveal that any password has been provided to any individual who is not a 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
- if any of the audits referred to in clause 2.5 reveal that the Customer has underpaid the Annual Fee 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 Schedule 1 (on a prorated basis in necessary) within 10 Business Days of the date of the relevant audit.
- The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
- The Customer shall not:
- 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 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
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- 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
- use the Services and/or Documentation to provide services to third parties; or
- subject to clause 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 Users; or
- interfere with or disrupt the integrity or performance of the Services or Documentation or third-party data contained therein or attempt to gain unauthorised access to the Software or indirect access to or use of the Software or any Services in a way that circumvents any Maximum Usage Limited; or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
- 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.
- 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.
- The Supplier shall use commercially reasonable endeavours to make the Services available in accordance with the Service Level Agreement at Schedule 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 Schedule 1 and Schedule 3. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
- CUSTOMER DATA
- 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.
- The Supplier shall follow its internal archiving procedures for Customer Data. 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 Supplier’s internal archiving procedures. 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 10).
- The Supplier shall, in providing the Services, comply with its internal privacy and security policy relating to the privacy and security of the Customer Data available on request, as such document may be amended from time to time by the Supplier in its sole discretion.
- The Supplier acknowledges that the Software includes the functionality to enable the Customer to download its own Customer Data in a machine-readable format and this shall be the method of returning the Customer Data.
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- The parties acknowledge that:
- if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the data controller and the Supplier is the data processor for the purposes of the Data Protection Legislation (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation).
- the personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement.
- Without prejudice to the generality of clause 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 this agreement so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer’s behalf.
- Without prejudice to the generality of clause 5, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
- process that Personal Data only on the 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 to process Personal Data (“Applicable Laws“). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall, where permitted, 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;
- not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- 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
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
this clause 4.8.2 shall not be implicated as a result of the Customer or a User accessing the Services outside of the European Economic Area and the Supplier shall have no liability to the Customer for transmission of Personal Data outside of the European Economic Area in such circumstances;
- 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;
- notify the Customer without undue delay on becoming aware of a Personal Data breach and in any event, no later than 48 hours of becoming aware;
- 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
- maintain complete and accurate records and information to demonstrate its compliance with this clause 4.
- 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
- The Customer consents to the Supplier appointing third-party processors of Personal Data under this agreement as required to perform the Services. 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 4. 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 4.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms to adopt the latest guidance provided by the UK Information Commissioners Office or changes in the Data Protection Legislation (which shall apply when replaced by attachment to this agreement).
- THIRD PARTY PROVIDERS
- SUPPLIER’S OBLIGATIONS
- The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 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 authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours 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 6.1. Notwithstanding the foregoing, the Supplier:
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
- 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.
- 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.
- The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
- CUSTOMER’S OBLIGATIONS
The Customer shall (and procures that each User shall:
- provide the Supplier with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
- 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;
- ensure that the Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any User’s breach of this agreement;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
- comply with any applicable terms and conditions as required by AWS, available online; and
- 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.
- CHARGES AND PAYMENT
- The Customer shall pay the Annual Fee for the Initial Subscription Term and each Renewal Period to the Supplier for the Services in accordance with this clause 8 and Schedule 1.
- The Annual Fee for the “Enterprise” package as referred to in Schedule 1 shall be negotiated between the parties in good faith and in the event that the parties cannot agree, the Customer shall continue to observe the applicable Maximum Usage Limits for the duration of the Subscription Term.
- Any additional or ancillary service which is not included in the Services shall be charged to the Customer on the basis of the Supplier’s then current rates and the terms and conditions of this Agreement shall apply to any such additional services which may include, but are not limited to, the following items:
- non-standard, as determined by the Supplier, design, integration and implementation services;
- enhanced support services i.e. in excess of the applicable Maximum Usage Limits; and
- transitional services to enable the Customer to transaction to another provider of the Services.
- The Supplier reserves the right to increase the Annual Fee at each anniversary from the Effective date by giving the Customer no less than 60 days written notice. Should this increase exceed 7% then the Customer shall be permitted to terminate the Agreement, provided notification of termination is sent to the Supplier, in writing, no later than 10 days following notification of the increase in the Annual Fee. Termination shall be effective at the expiry of the current Subscription Term.
- The Supplier shall invoice the Customer:
- on the Effective Date for the Annual Fee payable in respect of the Initial Subscription Term; and
- subject to clause 1, at least 60 days prior to each anniversary of the Effective Date for the Annual Fee payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
- 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:
- the Supplier may, without liability to the Customer, disable the Customer’s/Users’ 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
- interest shall accrue on a daily basis 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 from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in this agreement:
- shall be payable in pounds sterling;
- are, subject to clause 3.2, non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
- The Supplier shall notify the Customer of each occurrence where the Customer’s and/or Users’ usage of the Services exceeds the Maximum Usage Limits. The Customer shall (or the Customer procures that the Users shall), within 15 days of such a notification, either reduce its usage of the Services in compliance with the Maximum Usage Limits or agree with the Supplier to increase the Maximum Usage Limits. The Supplier shall be entitled to increase the Annual Fee, on a prorated basis if applicable, should the parties agree to increase the Maximum Usage Limits as set out in Schedule 1.
- PROPRIETARY RIGHTS
- 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, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
- 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.
- The Customer hereby grants to the Supplier a non-exclusive, royalty free licence throughout the Subscription Term to use the Customer Materials and the Customer Data which are solely necessary for the Supplier to perform its obligations under this agreement and provide the Services to the Customer.
- CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
- 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:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and 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.
- 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.
- A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
- The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- The above provisions of this clause 10 shall survive termination of this agreement, however arising.
- In performing its obligations under this agreement, the Supplier and the Customer shall comply with the Mandatory Policies.
- 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:
- the Customer is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- the Customer is given sole authority to defend or settle the claim.
- The Supplier shall 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:
- the Supplier is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
- the Supplier is given sole authority to defend or settle the claim.
- In the defence 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.
- 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:
- a modification of the Services or Documentation by anyone other than the Supplier; or
- the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and clause 3.2 state 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.
- LIMITATION OF LIABILITY
- Except as expressly and specifically provided in this agreement:
- 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;
- 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
- the Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in this agreement excludes the liability of the either party:
- for death or personal injury caused by the Supplier’s negligence;
- for fraud or fraudulent misrepresentation; or
- any other matter which cannot be legally limited by contract.
- Subject to clause 1 and clause 12.2:
- neither party shall 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
- each party’s total aggregate liability in contract (including in respect of the indemnity at clause 2), 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 limited to the latest total Annual Fee paid either in relation to the Initial Subscription Term or any Renewal Period, preceding the date on which the claim arose.
- TERM AND TERMINATION
- This agreement shall, unless otherwise terminated as provided in this clause 13, 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:
- either party notifies the other party of termination, in writing, at least 90 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
- 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“.
- Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days (or alternative period of time which the Supplier may agree at its discretion) after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2.4 to clause 13.2.10 (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- any warranty given by the Supplier in clause 4 of this agreement is found to be untrue or misleading.
- On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate and the Customer and the Users shall immediately cease all use of the Services and/or the Documentation;
- 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;
- the Supplier may permanently delete or otherwise dispose of any of the Customer Data, unless the Supplier receives, no later than 10 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 endeavours 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 (in advance) all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
- 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.
- 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 Supplier:
- gives written notice to the Customer of such an event and its expected duration and kept regularly informed as soon as reasonably practicable upon becoming aware of it;
- continues to take steps in accordance with good industry practice to resume full performance of its obligations; and
- uses reasonable endeavours to mitigate the consequences of the Force Majeure Event.
If there is an inconsistency between any of the provisions in the main body of this agreement and the schedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this 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.
- RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of this agreement 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 this agreement.
- If any provision or part-provision of this agreement is deemed deleted under clause 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.
- ENTIRE AGREEMENT
- This agreement 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.
- Each party acknowledges that in entering into this 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 this agreement.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- The Customer shall not, without the prior written consent of the Supplier (which will not be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
- The Supplier shall not, without prior written consent of the Customer (which will not be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
- NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise 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, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- 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.
- 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 email to the other party’s email address, as set out in this agreement.
- 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 email shall be deemed to have been received once the receiving party confirms receipt of said email.
- GOVERNING LAW
This 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.
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 this agreement or its subject matter or formation (including non-contractual disputes or claims).
IN WITNESS whereof this agreement has been executed and is delivered and takes effect on the Effective Date.