TERMS OF SUBSCRIPTION
Last Updated: 1.08.2022
These Terms of Subscription, along with the Front Sheet together form a legally binding Software as a Service Subscription Agreement between us from the Commencement Date and govern the use of the Software.
The Supplier has developed the ServiceOS and the Apps which it makes available to subscribers via the internet on a monthly subscription basis for the purpose of, but not limited to, managing customer relationships, creating, managing, and tracking bookings of services and operatives’ performance.
The Customer wishes to use the Supplier’s service in its business operations.
The Supplier has agreed to make the software available to the Customer, and the Customer has agreed to receive and pay for the Supplier’s services subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Active Personnel Account: any Back-Office Account and/or any Personnel Account of an independent contractor, sub-contractor, franchisee, partner, Affiliate, on-field operative and/or any other person or entity connected or affiliated to the Customer, which provides services and which has provided such service(s) during a particular month.
Affiliate: in relation to a person or a company, any company or other entity, whether or not with legal personality, which directly or indirectly controls, is controlled by or is under joint control with that person or company, and/or any of its franchisees. For this purpose, a person or a company is deemed to control a company or entity if it (a) owns, directly or indirectly, at least 50 percent of the capital of the other company, or (b) in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such company or entity.
Apps: the mobile applications, which can exchange information with the ServiceOS and which allows consumers to make bookings for services, the mobile application, which can exchange information with ServiceOS and which allows independent contractor, sub-contractor, franchisee, partner, Affiliate, on-field operative and/or any other person or entity connected or affiliated to the Customer to manage the bookings for services and the web based application, which can exchange information with the ServiceOS and which allows consumers to make bookings for services from a web browser (the “Web Booking Form”).
Authorised Users: those employees, agents, independent contractors, sub-contractors, franchisee partners, Affiliates, operatives and/or any other person or entity connected or affiliated to the Customer, who are authorised by the Customer to use the Services as further described in clause 3. Clients and customers (recipients of the services provided by the business network of the Customer) shall be excluded from the Authorised Users.
Back-Office Account: a Personnel Account which has been assigned to any employee, representative, agent, contractor, sub-contractor or operative of the Customer, who does not himself provide services to end clients. The Back-Office Accounts shall be communicated to the Supplier. The Customer shall inform the Supplier of any changes in the assignment of Back Office Accounts without undue delay.
Business Day: a day other than a Saturday, Sunday or public holiday in England, on which ordinary banks in London are open for their full range of normal business.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: any information which would reasonably be perceived to be confidential, disclosed on or before the date of this agreement, by either party, in relation to their respective businesses or in connection with this Agreement and the subject matter herein and any information that is marked or identified as Confidential Information in clause 10.6 or clause 10.7.
Commencement Date: day of the last signature of the Front Sheet.
Customer Data: the data inputted by the Customer, Authorised Users, the Supplier on the Customer’s behalf, or the clients and customers of the Customer, for the purpose of using the Services or facilitating the Customer’s use of the Services.
Customer Materials: the designs, pictures, information and other materials provided to the Supplier by the Customer from time to time for the purposes of the development or use with during the development of the bespoke changes in ServiceOS and the Apps. For avoidance of any doubt, the bespoke features and the results from the development shall not be considered the Customer Materials under this agreement.
Initial Subscription Term: the first period of subscription, as defined in the Front Sheet.
Subscription Starting Date: the date noted in the Front Sheet.
Master Web Account: the web account used by the Customer to control the subscription package, plan and services under this Software as a Service Subscription Agreement.
Mandatory Policies: the Supplier’s business policies listed in Schedule 1, as amended by notification to the Supplier from time to time.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Personnel Account: an account used by an Authorised User.
Renewal Period: each period of subscription succeeding the Initial Subscription Term.
Services: the subscription services provided by the Supplier to the Customer under this agreement via any website notified to the Customer by the Supplier from time to time.
ServiceOS: the software applications and platforms (Extended Relationship Management System) developed by the Supplier
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the Basic Subscription Fees and Additional Subscription Fees, as described in the Front Sheet, payable by the Customer to the Supplier for the User Subscriptions, as set out in Front Sheet.
Subscription Term: the subscription term of this agreement shall commence on the Subscription Starting Date and shall end upon expiry or termination of this Agreement.
Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available at such website address as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
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 faxes 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.
- USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 8.1 and paying the Subscription Fee(s), 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 royalty-free, non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the ServiceOS and the Apps (incl. the Web Booking Form) during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users and the Subscription Fees, the Customer undertakes that:
(a) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(b) each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than every 30 days and that each Authorised User shall keep his password confidential;
(c) it shall maintain a written, up to date list of current Authorised Users and provide such lists and records to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
(d) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User and the accuracy of the record of booked services. Such audit may be conducted no more than once per six months, 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;
(e) if any of the audits referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised 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
(f) if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Front Sheet within 20 Business Days of being notified by the Supplier that such an underpayment has been identified.
2.3 The Parties, in the performance of the terms of this Agreement, shall not access, store, distribute or transmit any Viruses, or any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) 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, unless urgent, following a discussion in good faith with the Customer and reasonable notice, to disable the Customer’s access to any material that breaches the provisions of this clause. For avoidance of any doubt, the Customer acknowledges that certain potentially harmful events might reasonably require immediate disable of access and in such an occasion immediate notice will be given to the Customer of same.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide similar or identical Services to third parties; or
(d) subject to the terms and conditions of this agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted under this agreement.; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The Customer may in its absolute discretion purchase a non-exclusive, non-transferable, without the right to grant sublicences, licence to use the current version of the ServiceOS for indefinite amount of time, by paying to the Supplier the Fee for indefinite use of the current ServiceOS version. For avoidance of any doubt, if the Customer purchases a licence subject to this clause the Supplier shall not be obligated to provide to the Customer, any further support or any other services related to the ServiceOS. A purchase subject to this clause shall be subject to additional terms and conditions of a separate agreement.
2.7 Subject to clause 15 of this Agreement, the Customer may in its absolute discretion purchase additional software, services and enhanced support from the Supplier. Any purchase shall be subject to terms and conditions agreed by both parties in writing.
2.8 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during a maintenance window notified to the Customer from time to time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 1 Normal Business Hour’s notice in advance.
3.3 The Supplier will, as part of the Services and in consideration of the support fees set out in in the Front Sheet and/or the current price list of the Supplier, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
- CUSTOMER DATA
4.1 Unless expressly stated otherwise in the Front Sheet, The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 The Supplier shall comply with applicable data protection laws and shall follow its archiving procedures for and handling or use of Customer Data as set out in its Back-Up Policy available at such website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data caused by the Supplier, the Supplier shall hold harmless and fully indemnify the Customer against any loss or damage directly caused by the Supplier’s loss or damage to Customer Data, or caused by any unauthorised use of Customer Data, the Supplier shall immediately notify the Customer (including reasonable detail) of the loss or damage to Customer Data. The Customer’s indemnity shall be limited to the direct and attributable loss or damage which has been caused by the Supplier. The Supplier shall use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy and the terms of this agreement. 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).
4.3 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at such website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
4.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.5 The Customer hereby authorises the Supplier to use (including, not limited to accessing, storing, processing, analysing and referring to), of the Customer Data, any other data input made by the Customer, its Authorised Users or clients through the usage of the Software, ServiceOS and/or the Services, and/or any other information input or created through the usage of the Software, ServiceOS and/or the Services, solely for the purposes of:
(a) Developing further and introducing improvements to the Software, ServiceOS and/or the Services;
(b) Ascertaining the exact usage of the Services and the exact amount of Subscription Fees due to the Supplier;
(c) Properly configuring and ensuring efficient performance and usage of the Software, ServiceOS and/or the Services;
(d) Allowing the Supplier to provide feedback, analysis or advice related to the performance of the Customer’s business. For avoidance of any doubt, nothing in this agreement shall be interpreted as an obligation on the Supplier to provide and/or agree to provide feedback, analysis or advice related to the performance of the Customer’s business; and
(e) Ensuring the Customer’s compliance with the terms of this agreement.
- THIRD PARTY PROVIDERS
- SUPPLIER’S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Agreement and with reasonable skill and care.
6.2 The undertaking in clause 6.1 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:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) 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 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 Supplier from entering into similar agreements with third parties, using, products and/or services which are similar to those provided under this agreement.
6.4 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.
6.5 The Supplier, subject to its own absolute discretion, may at any time introduce improvements to the Services, provided that the existing flow is not affected substantially.
- CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) 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;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) 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;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
(f) 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;
(g) immediately notify the Supplier if it receives an offer that may lead to change of control of the Customer;
(h) commence paying any and all Subscription Fees as of the Subscription Starting Date;
(i) provide any and all information and/or reasonable assistance in order to allow the Supplier to begin providing the Services; and
(j) not cause any delay in the commencement of provision of the Services and/or shall not postpone the agreed Subscription Starting Date. For avoidance of any doubt, in any such event, the Customer shall commence paying any and all Subscription Fees as of the Subscription Starting Date, irrespective of any delay in the commencement of the provision of the Services, which has been caused by or can be attributed to the Customer or a postponement of the Subscription Starting Date.
- CHARGES AND PAYMENT
8.1 The Customer shall pay the Initial Fee, Subscription Fees and/or any other fees as specified in the Front Sheet to the Supplier for the User Subscriptions in accordance with this clause 8, the Front Sheet and/or the current Price List (if applicable) and the support fees (if any) in accordance the terms of this Agreement, the Front Sheet and/or the current Price List (if applicable) of the Supplier.
8.2 The Customer shall within 3 Business days as of the Commencement Date provide to the Supplier valid, up-to-date and complete Bank card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, beginning on the Subscription Starting Date, the Customer hereby authorises the Supplier to bill such credit card on the 1st day of each month for the Subscription Fees payable in respect of the same month; and
(b) its approved purchase order information to the Supplier, beginning on the Subscription Starting Date, the Supplier shall invoice the Customer:
(i) by the 5th day of each month for the Subscription Fees payable in respect of the preceding month; and
(ii) the Customer shall pay each invoice within 5 days after the date of such invoice.
8.3 If the Supplier has not received payment within 5 Business days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current interest rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 Unless explicitly stated otherwise, all amounts and fees stated or referred to in this agreement:
(a) shall be payable in the currency stated in the Front Sheet;
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.5 The monthly Subscription Fee due shall be dependent on the amount of Active Personnel Accounts for each particular month.
8.6 The amount of Active Personnel Accounts for any one month shall be the total aggregate amount of any and all Back-Office Accounts which have been listed as assigned for any period of the relevant month and any and all the Personnel Accounts of any one independent contractor, sub-contractor, franchisee, partner, Affiliate, on-field operative and/or any other person or entity connected or affiliated to the Customer, which provides services and which has provided at least one such service during the relevant calendar month.
8.7 The Customer acknowledges and agrees that for the term of this Agreement it shall purchase a minimum package of Active Personnel Accounts for the Subscription Fee in accordance with the Front Sheet.
8.8 An increase of the amount of Active Personnel Accounts above the minimum package shall be subject to purchasing of additional Active Personnel packages, payable in arrears, in accordance with the Front Sheet and clause 8 of this agreement.
8.9 The Supplier may, in its absolute discretion, increase or decrease the current prices of the fees payable for the Services, without reason or cause by submitting a one month’s notice to the Customer. In case the Customer does not agree with the change of the prices pursuant to clause 8.9, the Customer has the right to terminate this Agreement unilaterally, after the expiration of the notice for change of the current prices.
- PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. 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, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 The Supplier confirms and warrants that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
- CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
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:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) 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 to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
10.7 The Supplier acknowledges that the Confidential Information of the Customer includes but is not limited to the Customer Data.
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.
10.10 In performing its obligations under this agreement, the Customer shall comply with the Mandatory Policies.
- LIABILITY AND INDEMNITY
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services.
11.2 The Supplier shall defend, indemnify and hold harmless the Customer 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 obligations of the Supplier under this Agreement.
11.3 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.
11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 The foregoing and clause 12.3(b) 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
12.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services 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;
(b) all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an “as is” basis.
12.2 Nothing in this agreement excludes or limits the liability of either party:
(a) for death or personal injury caused by negligence; or
(b) for fraud or fraudulent misrepresentation;
(c) for unauthorised granting of right to use or licensing of software.
12.3 Subject to clause 12.1 and clause 12.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11), 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 3 /three/ months immediately preceding the date on which the claim arose.
- TERM AND TERMINATION
13.1 This agreement shall be in force as of the Commencement Date, unless otherwise terminated as provided in this clause 13., the Subscription Term shall begin on the Subscription Starting Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of duration equal to the Initial Subscription Term (each a Renewal Period), unless otherwise terminated in accordance with the provisions of this agreement. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute 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:
(a) 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 15 days after being notified in writing of its default and requested to make such payment;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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;
(j) 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;
(k) 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(d) to clause 13.2(j) (inclusive); or
(l) 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:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial 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 all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.4 Without affecting any other right or remedy available to it, either party may terminate this agreement by submitting a written notice to the other party at least three months before the expiration of the Initial Subscription Term or the current Renewal Period. In such event the Agreement shall terminate at the end of the Initial Subscription Term or at the end of the Renewal Period during which the notice of termination has been submitted. For avoidance of any doubt, a notice of termination served less than three months before expiration of the Initial Subscription Term or the current Renewal Period shall be considered served during the next Renewal Period.
13.5 In an event of termination, any and all fees, including, not limited to the Subscription Fee paid under this Agreement shall not be refundable.
- FORCE MAJEURE
14.1 Neither party shall have liability to the other party 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 control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the suffering party 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, epidemic, pandemic and any measures and/or order related to epidemics or pandemics, provided that the other party is notified of such an event and its expected duration.
15.1 In the event of any conflict, contradiction or inconsistency between the terms and conditions hereof and the terms and conditions set forth in the Front Sheet and/or any purchase order relating to the subscription contemplated by this Agreement, the terms and conditions set forth in the Front Sheet and/or the purchase order shall prevail.
16.1 The Supplier may at any time amend or vary these Terms of Subscription at any time by amending this page. The Supplier shall notify the Customer of any changes. If the Customer continues to use the Software, ServiceOS and/or the Services after the Supplier has given such notice of change, the Customer shall be deemed to have acknowledged the notification, to have accepted and agreed to such changes without reservation, and to have agreed to be bound by the current version of the Terms of Subscription.
17.1 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.
- RIGHTS AND REMEDIES
18.1 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.
19.1 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.
19.2 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.
- ENTIRE AGREEMENT
20.1 This agreement (the Front Sheet along with these Terms of Subscription) 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.
20.2 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.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21.1 The Supplier may assign, transfer, charge, sub-contract or deal in any other manner with all of its rights or obligations under this agreement, without acquiring the prior written consent of the Customer.
- NO PARTNERSHIP OR AGENCY
22.1 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).
- 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.
24.1 Any notice required to be given under this agreement shall be: (i) through the Master Web Account; or (ii) in writing and shall be: (a) 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 the Front Sheet, or such other address as may have been notified by that party for such purposes; or (b) sent by email to the other party’s email address as set out in the Front Sheet.
24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre- paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent through the Master Web Account or by email shall be deemed to have been received at the time of transmission.
- GOVERNING LAW AND JURISDICTION
25.1 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.
25.2 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).
This has been entered into on the date stated at the beginning of the Front Sheet.
Schedule 1 MANDATORY POLICIES
The Mandatory Policies are:
• Ethics and Anti-Bribery Policy