DATE
This agreement is dated on the date as per the specific Software License Agreement agreed with the customer.
PARTIES
Party 1. FINALYTIC VENTURES LTD a company incorporated and registered in England and Wales with company number 12306258 and whose registered office is at Kemp House, 152-160 City Road, London, EC1V 2NX, UK (the “Provider”)
Party 2. The Client as defined per the detail in the specific Software License Agreement (the “Client”)
This agreement and the Software License Agreement will then govern the relationship between the Client and the Provider and any use the Client makes of the Services (as defined below) from the Effective Date until termination or expiry in accordance with clause 13 (Term and Termination).
AGREED TERMS
1 INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Applicable Law: all applicable laws, enactments rules, regulations, orders, regulatory policies, regulatory permits and licences, and any mandatory instructions or requests of a regulator, in each case which are in force from time to time.
Authorised Users: those Guests, Vendors, employees and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation, as further described in clause 2.2.
Billing Date: the billing date specified, or as explained as part of the billing conditions, as per the specific Software License Agreement agreed with the customer.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client Data: the data inputted by the Client, Authorised Users, or the Provider on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.
Commission Revenue: means a set percentage of the value of a Service provided to an Authorised User by a Vendor payable to the Client.
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.
Controller: has the meaning set out in article 4 of the GDPR.
Data Subject: an individual who is the subject of Personal Data.
Data Protection Laws: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.
Documentation: the document made available to the Client by the Provider online via www.finalytic.io or such other web address notified by the Provider to the Client from time to time which sets out a description of the Software and the user instructions for the Software.
Effective Date: the date specified as per the specific Software License Agreement agreed with the customer.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679).
International Organisation: has the meaning given to it in article 4 of the GDPR.
Intellectual Property Rights: patents, trademarks, service marks, design rights, domain names, database rights, registrations and applications for registration for any of the foregoing, copyright and all rights in the nature of copyright, trade secrets, know-how and other industrial and intellectual property rights, wherever subsisting.
Normal Business Hours: 9 am to 6 pm local UK time, each Business Day.
Personal Data: has the meaning set out in article 4 of the GDPR and relates only to personal data, or any part of such personal data, comprising the Client Data.
Processing: has the meaning set out in article 4 of the GDPR.
Processor: has the meaning set out in article 4 of the GDPR.
Records: has the meaning given to it clause 4.4.8.
Services: the provision by the Provider to the Client of: (i) the licence to use the Software and Documentation pursuant to clause 2; and (ii) the Support Services, as more particularly described in the Documentation and the Support Policy respectively. This will be clarified in the specific Software License Agreement agreed with the customer.
Software: the FINALYTIC online software application (or such other name as the Provider may adopt for it from time to time) provided by the Provider via https://app.finalytic.io. This will be clarified in the specific Software License Agreement agreed with the customer.
Software License Agreement: the specific client contract outlining key terms and conditions that accompany and complete this set of general terms. The terms in this general document will govern the agreement with the Client, unless where specifically written and/or clarified in the specific client contract.
Subscription Fees: a fee specified in the Software License Agreement which includes VAT.
Subscription Term: has the meaning given in clause 13.1.
Support Policy: the Provider’s policy setting out the terms of the technical helpdesk support service in relation to the use of the Software as made available online via https://app.finalytic.io or such other web address notified by the Provider to the Client from time to time.
Support Services: the technical helpdesk support services to be provided by the Provider to all Authorised Users in accordance with clause 3.3 and the terms of the Support Policy.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
Vendor: any person or company offering a payable service or product via the Software platform to Authorised Users.
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.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 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.
1.9 A reference to writing or written includes and e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2 LICENCE
2.1 Subject to payment of the Subscription Fees the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Provider hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Software and the Documentation during the Subscription Term.
2.2 In relation to the Authorised Users, the Client undertakes that:
2.2.1 each Authorised User shall keep a secure password for his use of the Software and Documentation, and that each Authorised User shall keep his password confidential;
2.2.2 for each Authorised User legal age as has been verified as defined for UK (18 years + ) before individual Software is made available to use for the procurement of services;
2.2.3 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Provider within 5 Business Days of the Provider’s written request at any time or times;
2.2.4 it shall permit the Provider to audit the use of the Software in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Provider’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business; and
2.2.5 if any of the audits referred to in clause 2.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Provider’s other rights, the Client shall promptly disable such passwords and the Provider shall not issue any new passwords to any such individual.
2.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property;and the Provider reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
2.4 The Client shall not:
2.4.1 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:
2.4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
2.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.4.3 use the Services and/or Documentation to provide services to third parties; or
2.4.4 subject to clause 20, 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 Authorised Users, or
2.4.5 attempt to obtain, or assist third parties in obtaining access to the Services and/or Documentation, other than as provided under this clause 2.2.5 The Client 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 Provider.
2.6 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
3 SERVICES, TRAINING AND SUPPORT
3.1 The Provider shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.
3.2 The Provider shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Provider has used reasonable endeavours to give the Client at least 6 Normal Business Hours’ notice in advance.
4 CLIENT DATA
4.1 Both the Provider and the Client will comply with all applicable requirements of the Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, the Provider or the Client’s obligations or rights under the Data Protection Laws.
4.2 The parties acknowledge that for the purposes of the Data Protection Laws, the Client is the Controller and the Provider is the Processor. Schedule 1 sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of Personal Data and categories of Data Subject.
4.3 Without prejudice to the generality of clause 4.1, the Client shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
4.4 Without prejudice to the generality of clause 4.1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
4.4.1 process that Personal Data solely to the extent necessary to provide the Services in accordance with the terms of this agreement and shall not process the Personal Data for any other purpose other than on the documented written instructions of the Provider, unless the Provider is required by Applicable Laws to otherwise process that Personal Data. Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from notifying the Client;
4.4.2 ensure that it has in place appropriate technical and organisational measures 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);
4.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
4.4.4 not transfer any Personal Data outside of the European Economic Area unless the Provider complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred;
4.4.5 assist the Client, at the Client’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;
4.4.6 notify the Client without undue delay on becoming aware of a Personal Data breach;
4.4.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
4.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 4 (the “Records”) and allow for audits by the Client or its designated auditor of such Records, provided that such audit rights may only be exercised by the Client once during each calendar year of the Subscription Term and the Client agrees that its personnel and/or those of its designated auditor must abide by all safety and security rules in operation at the Provider’s premises from time to time or notified to them by the Provider.
4.5 The Client consents to the appointment of all third-party processors of Personal Data that the Provider has appointed as of the date of this agreement. The Provider confirms that it may only appoint additional third-party processors of Personal Data if the Client provides the Provider with its consent prior to each such appointment. The Provider has or, as the case may be, will enter into written agreements with each third-party processor of Personal Data incorporating terms which are substantially similar to those set out in this clause 4 and which the Provider confirms reflects and will continue to reflect the requirements of the Data Protection Laws. As between the Client and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.5.
5 THIRD PARTY PROVIDERS
5.1 The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from third parties via third-party websites and that it does so solely at its own risk. The Provider makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Provider. The Provider recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Provider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6 PROVIDER’S OBLIGATIONS
6.1 The Provider undertakes that the Services will be performed substantially in accordance with the Documentation and Support Policy and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by the use of the Services contrary to the Provider’s instructions, or modification or alteration of the Services by any party other than the Provider or the Provider’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, the Provider will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Provider:
6.2.1 does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements; and
6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This agreement shall not prevent the Provider 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.
6.4 The Provider warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.
7 CLIENT’S OBLIGATIONS
7.1 The Client shall:
7.1.1 provide the Provider with:
7.1.1.1 all necessary co-operation in relation to this agreement; and
7.1.1.2 all necessary access to such information as may be required by the Provider;in order to provide the Services, including but not limited to Client Data, security access information and configuration services;
7.1.2 materially comply with all Applicable Laws with respect to its activities under this agreement;
7.1.3 carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
7.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Provider, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
7.1.6 ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time; and
7.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
8 CHARGES AND PAYMENT
8.1 The Provider shall be entitled to the Subscription Fees from the Billing Date.
8.2 All Subscription Fees are payable via Direct Debit or Credit Card within 7 Business Days of the end of each month. The Client undertakes, promptly following the Effective Date, to provide its bank account provider with an executed direct debit mandate authorising the Provider to debit the Subscription Fees monthly from the Client’s bank account, or supply their Credit Card details via the Providers payment gateway.
8.3 All Commission Revenue due to the Client is payable via the Software platform by the Vendor. Payment terms are agreed upon by the Client with the Vendor on an individual basis. The Provider is merely involved in facilitating payments, but not in arranging and upholding of any Terms between the two parties.
8.4 The Subscription Fees shall be payable in pounds sterling.
8.5 If the Client fails to make any payment due under this agreement by the due date for payment:
8.5.1 the Provider may, without liability to the Client, disable all Authorised Users’ passwords, accounts and access to all or part of the Services and the Provider shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
9 PROPRIETARY RIGHTS
9.1 The Client acknowledges and agrees that the Provider and/or its licensors own all Intellectual Property Rights in the Services and the Documentation and Support Policy. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services, Support Policy or the Documentation.
9.2 The Provider confirms that it has all the rights in relation to the Services, Support Policy 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.
10 CONFIDENTIALITY
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the other party’s lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clause 10.4, 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.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information is only disclosed to such of its personnel, employees, subcontractors and agents who need to know it for the purposes of discharging its obligations under this agreement and to ensure that such third parties do not disclose or distribute such Confidential Information in violation of the terms of this agreement. Each party shall ensure that its personnel, employees, subcontractors and agents are subject to obligations of confidentiality corresponding to those which bind it under this agreement. The disclosing party shall be liable to the other party for the actions or omissions of its personnel, employees, subcontractors and agents in relation to Confidential Information as if they were the actions and omissions of the disclosing party.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 Save as expressly set out in this agreement, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.6 The Client acknowledges that all personal data inputted into the Software by the Provider constitutes the Provider’s Confidential Information.
10.7 The Provider acknowledges that the Client Data is the Confidential Information of the Client.
10.8 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.
10.9 The above provisions of this clause 10 shall survive termination of this agreement, however arising.
11 INDEMNITY
11.1 The Provider shall defend the Client, its officers, directors and employees against any claim that the Services, Support Policy or Documentation infringes any Intellectual Property Rights of a third party, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
11.1.1 the Provider is given prompt notice of any such claim;
11.1.2 the Client provides reasonable co-operation to the Provider in the defence and settlement of such claim, at the Provider’s expense; and
11.1.3 the Provider is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, the Provider may procure the right for the Client 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 5 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
11.3 In no event shall the Provider, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
11.3.1 a modification of the Services, Support Policy or Documentation by anyone other than the Provider; or
11.3.2 the Client’s use of the Services, Support Policy or Documentation in a manner contrary to the instructions given to the Client by the Provider; or
11.3.3 the Client’s use of the Services, Support Policy or Documentation after notice of the alleged or actual infringement from the Provider or any appropriate authority.
11.4 The foregoing and clause 12.3.2 state the Client’s sole and exclusive rights and remedies, and the Provider’s (including the Provider’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
12 LIMITATION OF LIABILITY
12.1 Except as expressly and specifically provided in this agreement:
12.1.1 the Client assumes sole responsibility for results obtained from the use of the Services, Support Policy and the Documentation by the Client, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Client in connection with the Services, or any actions taken by the Provider at the Client’s direction;
12.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this agreement; and
12.1.3 the Services, Support Policy and Documentation are provided to the Client on an “as is” basis.
12.2 Nothing in this agreement excludes the liability of the Provider:
12.2.1 for death or personal injury caused by the Provider’s negligence; or
12.2.2 for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1 and clause 12.2:
12.3.1 the Provider shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
12.3.2 the Provider’s total aggregate liability in contract (including in respect of the indemnity at clause 11.1), 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 total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13 TERM AND TERMINATION
13.1 This agreement shall commence on the Effective Date and shall continue for a period clarified in the specific Software License Agreement agreed with the customer or if applicable, until the date of termination or expiry of the Software License Agreement whereupon the Provider may at its sole discretion terminate this agreement with immediate effect by giving written notice to the Client (the “Subscription Term”).
13.2 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:
13.2.1 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;
13.2.2 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 after being notified in writing to do so;13.2.3 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 ;
13.2.4 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;
13.2.5 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;
13.2.6 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;
13.2.7 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;
13.2.8 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;
13.2.9 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;
13.2.10 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 13.2.3 to clause 13.2.9 (inclusive); or
13.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 On termination of this agreement for any reason:
13.3.1 the following clauses shall remain in full force and effect: clause 1, clause 8, clause 10, clause 12, clause 13.3 and clauses 15 to 25;
13.3.2 all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Services, Support Policy and/or the Documentation;
13.3.3 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;
13.3.4 in accordance with the Client’s reasonable written requirements the Provider shall either: (i) destroy or otherwise dispose of any of the Client Data in its possession (subject to the terms of applicable Data Protection Laws) or (ii) deliver to the Client (in a format and on the media reasonably stipulated by the Client) the then most recent back-up of the Client Data and following any such delivery, the Provider shall destroy or otherwise dispose of all copies of the Client Data in its possession unless any applicable Data Protection Laws require its continued storage; and
13.3.5 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.
14 FORCE MAJEURE
14.1 The Provider shall have no liability to the Client 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 Provider 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 Client is notified of such an event and its expected duration.
15 VARIATION
15.1 We reserve the right to vary this Contract from time-to-time in line with developments in our business and operation. Any such variation will be published to this updated location on our website or sent in writing to you.
16 WAIVER
16.1 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.
17 RIGHTS AND REMEDIES
17.1 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.
18 SEVERANCE
18.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19 ENTIRE AGREEMENT
19.1 Except for the specific Software License 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.
19.2 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.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20 ASSIGNMENT
20.1 The Client shall not, without the prior written consent of the Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2 The Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21 NO PARTNERSHIP OR AGENCY
21.1 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).
22 MARKETING
22.1 The Client hereby grants the Provider the nonexclusive right and license to use and display the company’s name, logo and similar indicia (“Client Marks”) (a) to the extent any customization or implementation of the Services involve the incorporation of Client Marks in furtherance of this Agreement and (b) on its website and marketing collateral identifying the Client as a customer of the Provider. The Provider obtains no rights in the Client's Marks except for the limited right described in the preceding sentence, and Client retains all right, title and interest in the Client Marks. All use of the Client's Marks by the Provider will inure to the Client.
23 THIRD PARTY RIGHTS
23.1 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.
24 NOTICES
24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
24.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company); or
24.1.2 sent by email to the email address 24.2 Any notice shall be deemed to have been received:
24.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; or
24.2.3 if sent by email, on its transmission.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25 COUNTERPARTS
25.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
25.2 No counterpart shall be effective until each party has executed and delivered at least one counterpart.
26 GOVERNING LAW
26.1 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.
27 JURISDICTION
27.1 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).
Schedule 1 – PROCESSING, PERSONAL DATA AND DATA SUBJECTS
SCOPE AND PURPOSE OF PROCESSING
The Provider will process the Personal Data in order to provide the Services to the Client.
NATURE
The Provider will store, transfer and allow the Client to access the Personal Data via the Software.
DURATION OF THE PROCESSING
The Provider will process the Personal Data for the duration of the Subscription Term.
TYPES OF PERSONAL DATA
Names, titles, postal addresses, telephone numbers and email addresses.
CATEGORIES OF DATA SUBJECT
Authorised Users, Guests, Vendors.
