Software as a Service (SaaS) subscription agreement between Lawgistics Limited and Customers of HR Manager
Background
The supplier is Lawgistics Limited incorporated and registered in England and Wales with company number 04091280 whose registered office is at Vinpenta House, High Causeway, Whittlesey, Peterborough, England, PE7 1AE.
The Supplier has created and developed HR Manager which it makes available to its Members and Associated Members via the internet for the purposes of the Customer’s internal business management.
The Customer wishes to use the Supplier’s service in its business operations.
The Supplier has agreed to provide, and the Customer has agreed to take and use the Supplier’s service subject to the terms and conditions of this agreement and as part of their Lawgistics membership or Associate membership package.
Agreed Terms
INTERPRETATION
The definitions and rules of interpretation in this clause apply in this agreement.
Associate Member
a member of an association or club to whom the Supplier provides an entry level legal advice service.
Authorised Administrator
the person given access to HR Manager by the Supplier at the Customer’s request.
Authorised Users
those employees, agents and independent contractors of the Customer who are authorised by the Authorised Administrator to use the Service.
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 11.6 or Clause 11.7.
Customer
A Member or Associate Members of Lawgistics Limited who utilise HR Manager.
Customer Data
the data input by the Authorised Administrator and the Authorised Users, or the Supplier or his agent on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation
General Data Protection Regulations (GDPR) and the Data Protection Act 2018 and any successor legislation.
Documentation
the document made available to the Customer by the Supplier online via www.app.hrmanager.co.uk or such other web address notified by the Supplier to the Customer from time to time.
Effective Date
the date on which the Customer first visits and logs on to HR Manager.
Initial Subscription Term
the remaining term of the Customer’s current Membership or Associate Membership year with Lawgistics.
Member
an individual, corporate or unincorporated body (whether or not having separate legal personality) who has paid their yearly subscription fees to the Supplier.
Membership Fees
the fees payable by the Member or the Associate Member’s lead association or club.
Normal Business Hours
9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period
the period described in Clause 14.1.
Services
the subscription services provided by the Supplier to the Customer under this agreement via www.app.hrmanager.co.uk or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software
the online software applications provided by the Supplier as part of the Services.
Membership Term
has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy
the Supplier’s policy for providing support in relation to the Services as made available at https://app.hrmanager.co.uk/ or such other website address as may be notified to the Customer from time to time.
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 faxes but not e-mail.
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.
AUTHORISED USERS
Subject to the Customer’s continuing Membership or Associated Membership of Lawgistics, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Membership Term solely for the Customer’s internal business operations.
In relation to the Authorised Administrator and the Authorised Users, the Customer undertakes that:
it will keep within their allowance in regard to the number of employees and locations to be set up;
the Authorised Administrator and each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
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 Authorised User 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 2.2(c) reveal that any password has been provided to any individual who is not an employee, agent or contractor directly working for the Customer, 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 2.2(c) reveal that the Customer has set up Authorised Users outside the terms of this agreement, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated against the current yearly Membership Fee within 10 Business Days of the date of the relevant audit or face immediate suspension of service.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services, other than as legally required as evidence in a disciplinary matter, that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images and words;
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;
is political in nature.
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, replicate, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation 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 22.1, 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 Authorised Users, 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; and
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.
ADDITIONAL MEMBERSHIPS
Should the Customer wish to use the Service for the internal business affairs of another business entity, other than the entity signed up as a Lawgistics Member or Associate Member, subject to Clause 3.2, the Customer will be required to pay for an additional Membership before being granted access to the Services and the Documentation of this agreement.
If the Customer wishes to purchase an additional Membership, the Customer shall notify the Supplier and pay the appropriate fee.
SERVICES
The Supplier shall, during the Membership 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 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 8.00 pm to 4.00 am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 2 Normal Business Hours’ notice in advance.
The Supplier will, as part of the Services 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
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 archiving procedures for Customer Data as set out in its Back-Up Policy. Such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the most recent back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under Clause 5.9).
The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data. Such document may be amended from time to time by the Supplier in its sole discretion.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations under any relevant 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 Authorised 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 5.4, 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 5.4, 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 as intended by the software unless the Supplier is required by any applicable laws.
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;
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;
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;
maintain complete and accurate records and information to demonstrate its compliance with this Clause 5.
Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party where requried, 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 their selected agents as third-party processors of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 5. 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 5.
Either party may, at any time on not less than 30 days’ notice and subject the clause 17, seek to revise this Clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
THIRD PARTY PROVIDERSThe Customer acknowledges that the Services may enable or assist it to access the website content of (gov.uk for holiday entitlement for example), 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 Supplier 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 third-party website, or any transactions completed, and any contract entered into by the Customer, with any third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
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 7.1 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 7.1. 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 create a relationship of exclusivity and 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
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 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;
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; and
be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
CHARGES AND PAYMENT
Payment of this Service and its value shall be included within the Lawgistics Membership package and a Member remains entitled to use the Service while their Lawgistics subscription is paid up to date and an Associate Member while their lead association or club remains in partnership with Lawgistics.
If the Supplier has not received a Membership Fee from the Customer or the partnership with the Associated Member’s association or club is terminated, then after 30 days, and without prejudice to any other rights and remedies of the Supplier:
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
the Supplier may delete the Customer’s data in accordance with their Data Protection duty to minimise data storage and shall incur no liability for the consequences thereof.
Any data storage considered excessive by the Supplier may be subject to reasonable excess data storage fees.
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, trade marks (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.
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 11.4, 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 11.4, 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 11 shall survive termination of this agreement, however arising.
INDEMNITY
The Customer shall defend, indemnify and hold harmless the Supplier against all 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 at their entire discretion.
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 Supplier:
for death or personal injury caused by the Supplier’s proven negligence; or
for fraud or fraudulent misrepresentation.
Subject to Clause 13.1 and Clause 13.2:
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
the Supplier’s total aggregate liability in contract 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 Membership Fee Subscription paid during the 12 months immediately preceding the date on which the claim arose.
TERM AND TERMINATION
This agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the remainder of the Initial Membership Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months as part of the Customer’s Membership or Associated Membership with the Supplier (each a Renewal Period), unless:
the Supplier terminates the Customer’s Membership or Associated Membership;
The Customer terminates their Membership with the Supplier;
The Associate Member’s lead organisation terminates its membership with the Supplier. The Associate Member will be given 30 days to join as a Member of the Supplier in its own right. Should the Associate Member not sign up as a Member, their Customer Data will be deleted after 60 days.
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 or under their Lawgistics Membership, on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
The Customer’s lead Association or Club ceases its partnership with the Supplier and the Customer does not sign up as a Member in their own right within 14 days.
the other party commits a material breach of any other term of this agreement which breach is irremediable;
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 14.2(d) to Clause 14.2(j) (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
there is a change of control of the other party; or
any warranty given by the Supplier in Clause 7.4 of this agreement is found to be untrue or misleading.
On termination of this agreement for any reason:
all access granted under this agreement shall immediately terminate and the Customer 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 destroy or otherwise dispose of any of the Customer Data in its possession in accordance with Clause 5.7(c), 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
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 MAJEUREThe 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, or act of negligence or omission by the Customer, provided that the Customer is notified of such an event and its expected duration.
CONFLICTIf 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.
VARIATIONNo variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
WAIVERNo 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 REMEDIESExcept 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.
SEVERANCE
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 20.1 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.
ASSIGNMENT
The Customer shall not, without the prior written express consent of the Supplier, assign, transfer, charge, sub-contract, subsume or deal in any other manner with all or any of its rights or obligations under this agreement whether by sale, transfer, take-over, rebrand, absorption, amalgamation or any other mechanism which affects the contracting parties.
The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
NO PARTNERSHIP OR AGENCYNothing 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 RIGHTSThis 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.
NOTICES
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 fax to the other party’s fax number 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 fax shall be deemed to have been received at the time of transmission (if evidenced by the timed printout obtained by the sender).
GOVERNING LAWThis 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.
JURISDICTIONEach 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).The Effective Date on which this agreement commences is the date the Customer first uploads any data.