Terms & Conditions

BACKGROUND 

(A) The Supplier has developed software for the purposes of Property management and provides installation, configuration, support, updating, development, training and maintenance services for the software. 

(B) The Customer wishes to take a software licence and to use the Supplier’s services in its business operations. 

(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the software licence and Supplier’s services subject to the terms and conditions of this agreement. 

AGREED TERMS 

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement. 

Acceptance: as defined in clause ‎2.3 

Additional Configuration Services: Configuration Services other than Initial Configuration Services. 

Authorised Users:  those employees and independent contractors of the Customer who are entitled to use the Software Services under this agreement. 

Annual Maintenance Contract:  An annual maintenance contract for the Software, which may be purchased by Customer from Supplier. 

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK. 

Change of Control:  the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions. 

Completion Certification: as defined in clause ‎2.2 

Confidential Information:  information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information. 

Configuration Services:  the configuration and related work referred to in clause ‎2, , to be performed by the Supplier remotely to configure the Software so that the Software conforms with the Software Specification, together with future configuration work undertaken by Supplier at Customer’s request. 

Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998. 

Customer Data:  the data inputted into Software by the Customer or by Supplier on Customer’s behalf.  

Customer’s Project Manager:  the member of the Customer Account Team appointed in accordance with clause ‎6(c).  The Customer’s Project Manager at the Effective Date is __________. 

Customer Support: remote Software technical support provided by Supplier at the request of Customer.  

Development Services: changes to the Software functionality provided by Supplier at the request of Customer 

Document Template Library: A collection of document templates used by Customer to create new documents whose content is mail merged with claims information. 

Effective date:  the date of this agreement. 

Fees:  the fees payable to the Supplier, as described in ‎Schedule 1. 

GDPR: the General Data Protection Regulation (EU2016/679) and any national implementing laws, regulations and secondary legislation. 

Help File: An electronic instruction manual for the Software. 

Initial Configuration Services: The Configuration Services provided to Customer on first installation of the Software, as specified in Schedule 2 

Maintenance:  any error corrections and maintenance releases that the Supplier may provide or perform with respect to the Software. 

Non-conformance: as defined in clause ‎2.2. 

Notice of Non-conformance: as defined in clause ‎2.2. 

Normal Business Hours: 8.00 am to 7.00 pm local UK time Monday to Thursday, 8.00 am to 12 noon Friday, excluding UK bank holidays and Jewish holidays. 

Services: the Configuration Services, Update Services, Maintenance, Training and Customer Support as applicable, given the context in which the term Services is used.  

Software: the Supplier’s proprietary software in machine-readable object code form only as described in ‎Schedule 5 and including any error corrections, amendments made at the request of the Customer and associated updates provided to the Customer under this agreement.  

Software Licence: the licence to use the Software, as set out in Clause ‎3.10. 

Software Specification:  the functionality of the Software, as set out in ‎Schedule 5.  

System: the Customer’s IT system on which the Software is to be installed.  This shall include Customer PCs. Microsoft Office Software, File Email, SQL Server, networking and Scanner Devices. 

Task Library:  A collection of tasks that can be configured to schedule further tasks, delete outstanding tasks and create and print documents. 

Training: Remote training services provided to the Customer by Supplier under this agreement.  

Update Services: remote updates (including upgrades) to the Software as provided by Supplier  

Warranty: as defined clause ‎5.1.  

Warranty Period: as defined in clause ‎5.1. 

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). 

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 

1.5 Words in the singular shall include the plural and vice versa. 

1.6 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 for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. 

1.8 A reference to writing or written includes faxes but not e-mail. 

1.9 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. CONFIGURATION SERVICES

2.1 The Supplier shall use reasonable endeavours to perform the Configuration Services as soon as reasonably practicable, Any projected dates for the provision of the Configuration Services (and any of the other Services) shall be estimates only and shall depend on the co-operation of the Customer and adequate access to the System being given to Supplier in accordance with the terms of this Agreement. Time shall not be of the essence in this agreement. The Supplier shall not be liable for any loss or damage arising from any delay in delivery beyond projected dates. 

2.2 Once Supplier has completed the Configuration Services, it shall notify the Customer in writing of such completion (“Completion Certification”).  Within 20 days of Completion Certification, the Customer shall review the Software to confirm that it functions in material conformance with the Software Specification. If the Software fails in any material respect to conform with the  Software Specification, the Customer shall give the Supplier a detailed description of any such non-conformance (“Non-conformance”), in writing (“Notice of Non-conformance”), within the 20-day review period.  Customer shall at all times exercise the right to issues a Notice of Non-conformance reasonably and, for the avoidance of doubt, shall not use a Notice of Non-conformance for the purpose of delaying final payment. 

2.3 With respect to any Non-Conformance specified in the Notice of Non-conformance, the Supplier shall use reasonable endeavours to correct any such Non-Conformance within a reasonable time. If (a) the Customer does not provide any written comments in the 20-day period described above; (b) if the Software is found to conform with the Software Specification; or (c) if the Customer commences commercial use of the Software, the Software shall be deemed accepted (“Acceptance”).   

3. CUSTOMER SUPPORT, MAINTENANCE, UPDATE SERVICES DEVELOPMENT AND TRAINING:

3.1 The Supplier shall perform the Customer Support, Maintenance, Update Services, Development and Training in accordance with the following provisions.   

3.2 Customer Support:  Supplier shall provide the Customer Support to Customer at the rate specified in Schedule 1 (as may be revised from time to time on written notice to Customer) on the two most current releases of the Software. 

3.3 Maintenance:  Supplier shall undertake Maintenance of the Software covered by the Warranty free of charge for the Warranty Period and for the duration of an Annual Maintenance Contract.  Any Maintenance required by Customer not covered by the Warranty shall be provided to Customer at the rates specified in Schedule 1 (as may be revised from time to time on written notice to Customer).   Maintenance of Software that may require interruption of the Services (“Maintenance Events”) shall not be performed during Normal Business Hours, save as requested by Customer.  The Supplier shall at all times endeavour to keep any service interruptions to a minimum. The Supplier shall use all reasonable endeavours to avoid unscheduled downtime for Software maintenance. 

3.4 Update Services Update Services provided by the Supplier shall be included within the Software Licence Fee. 

3.5 Development: Supplier shall provide Development services as agreed in writing with Customer from time to time at the rates specified in Schedule 1 

3.6 Training:  After Completion Certification, Supplier shall provide initial Training to Customer as specified in the Schedule 4.  If Customer requires additional Training shall be provided at the rates specified in Schedule 1 (as may be revised from time to time on written notice to Customer). 

3.7 Help File:  Supplier shall provide Customer with a Help File on Completion Certification or, if appropriate, a training video or online documentation. 

3.8 Nothing shall oblige the Supplier to provide any of the Services to Customer indefinitely. 

3.9 In relation to Authorised Users: 

(a) the Customer’s access to the Software at any given time shall be limited to the number of individual Authorised Users specified in Schedule 1, being employees or independent contractors of the Customer.  Customer shall procure that only the specified number of Authorised Users may use the Software at any one time and shall notify the Supplier as soon as it becomes aware of any excess users.  Supplier shall monitor Customer usage of the Software and reserves the right to charge Customer, additional licence fees should the number of Authorised Users be exceeded. Customer shall not use the Software on more than one copy of the Customer’s database (excluding databases used solely for testing purposes). 

3.10 In relation to the Software:  

(a) the Supplier hereby grants to the Customer on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow the number of Authorised Users specified in Schedule 1 to access the Software and to use the Software solely for the Customer’s business purposes for the full period of the copyright in the Software commencing on and including the Effective Date; 

(b) the Customer shall not store, distribute or transmit any Viruses, or any material through the Software that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;  

(c) the rights provided under this clause ‎3.10 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer; 

(d) the Customer shall not:   

(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or 

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or 

(iii) access all or any part of the Software or in order to build a product or service which competes with the Software and/or the Services 

(iv) subject to clause ‎19.1, transfer, temporarily or permanently, any of its rights under this agreement, or 

(v) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause ‎3.10(d); and 

(e) the Customer shall use reasonable endeavours to prevent any authorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use. 

4. CUSTOMER DATA

4.1 The Customer shall own all rights, 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.  Customer shall be responsible for storing all Customer Data on its own servers. 

4.1 If the Supplier processes any personal data (as defined in the Data Protection Legislation, “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 “controller” and the Supplier shall be the “processor”, as defined in the Data Protection Legislation) and in any such case: 

(a) both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4.2(a) is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation; 

(b) clause 4.2(f) sets out the subject matter, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data  and categories of Data Subject (as defined in the Data Protection Legislation); 

(c) without prejudice to the generality of clause 4.2(a), 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 the processing; 

(d) without prejudice to the generality of clause 4.2(a), the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement: 

(i) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (“Applicable Laws”). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer; 

(ii) 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); 

(iii) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;  

(iv) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (i)  the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; (ii)  the Data Subject has enforceable rights and effective legal remedies; (iii)  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 (iv)  the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; 

(v) 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; 

(vi) notify the Customer without undue delay (within 48 hours) on becoming aware of a Personal Data breach; 

(vii) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of this agreement unless required by Applicable Law to store the Personal Data; and 

(viii) maintain complete and accurate records and information to demonstrate its compliance with this clause 4.2 and allow for audits by the Customer or the Customer’s designated auditor, at the Customer’s cost; 

(e) the Customer consents to the Supplier appointing a third party or third parties as a third-party processor of Personal Data under this agreement as necessary in order to provide the Services, provided that the Supplier shall inform the Customer of any intended changes concerning the addition or replacement of third party processors, thereby giving the Customer the opportunity to object to such changes. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 4.2. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.2(e);  

(f) the following table sets out the subject matter, nature and purpose of processing of personal data by the Supplier under this agreement, the duration of the processing and the types of Personal Data and categories of Data Subject: 

Subject matter: Maintenance. 

Nature: Storage of data. 

Purpose: Provision of services. 

Duration: term of this agreement and any transitional services period. 

Types of Personal Data: contact data including name, address, email and phone numbers.  No special categories of personal data are held by the Supplier. 

Categories of Data Subject: employees and customers of the Customer; 

5. WARRANTY

5.1 The Supplier warrants that the Software will conform in all material respects to the Specification (the “Warranty”) for a period under which the software license is maintained (the “Warranty Period”). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following: 

(a) repair the Software; 

(b) replace the Software; or 

(c) terminate this licence immediately by notice in writing to the Customer and refund any of the fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.  

5.2 The remedy set out in clause 5.2 constitutes the Customer’s sole and exclusive remedy for any breach of the Warranty. 

5.3 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free. 

5.4 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer. 

5.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract in respect of the Software or the Services, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. 

5.6 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement. 

6. CUSTOMER’S OBLIGATIONS

The Customer shall comply with the requirements listed in Schedule 4 and shall further:  

(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 render the Services, including but not limited to remote access to System via TeamViewer version 4 and remote access to the SQL server on which the software database is hosted ;  

(b) provide such personnel assistance, , as may be reasonably requested by the Supplier from time to time. 

(c) appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer’s Project Manager; 

(d) comply with all applicable laws and regulations with respect to its activities under this Agreement; and 

(e) carry out all other Customer responsibilities set out in this agreement or in any of the Schedules 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 timetable or delivery schedule set out in this agreement as reasonably necessary. 

7. FEES AND PAYMENT 

7.1 7.1 The Customer shall pay the amounts set out in ‎Schedule 1 for the Software Licence and the Services. Time shall be of the essence in respect of all payments due under this agreement 

7.2 The Customer shall pay to the Supplier the Software Licence fee specified in Schedule 1 on the 1st March each year ”” 

7.3 The Supplier shall invoice the Customer monthly as of the last day of each month for all Services performed by the Supplier during that month. Each invoice is due and payable within 30 days of the invoice date. If the Supplier has not received payment within five days after the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. 

7.4 If Customer fails to pay any sums due under clause 7.2 when due or by the method specified in clause 7.2, Supplier reserves the right to withdraw access to the Software from the Customer. 

7.5 The Customer shall reimburse the Supplier for all actual, reasonable travel expenses including, but not limited to, car mileage, train fares, hotel and meals incurred by the Supplier if Supplier is required to visit Customer Site to perform the Services.   

7.6 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.   

8. CHANGE CONTROL 

8.1 If either party wishes to change the scope of the Services (including Customer requests for additional Services), it shall submit details of the requested change to the other in writing. 

8.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of: 

(a) the likely time required to implement the change;  

(b) any variations to the Fees arising from the change;  

(c) the likely effect of the change on the Software.  

8.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.    

8.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, any other relevant terms of this agreement to take account of the change. 

9. PROPRIETARY RIGHTS 

9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.  

9.2 The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement. 

9.3 The Customer shall comply with any third-party licences provided by Supplier in connection with the Software and shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of such licence terms. 

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:  

(a) is or becomes publicly known other than through any act or omission of the receiving party; or 

(b) was in the other party’s lawful possession before the disclosure; or  

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or  

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or  

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 

10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.   

10.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information.  

10.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.  

10.7 This clause ‎10 shall survive termination of this agreement, however arising. 

11. 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 Software or Services, provided that:  

(a) the Customer is given prompt notice of any such claim;   

(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and   

(c) the Customer is given sole authority to defend or settle the claim. 

11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:   

(a) the Supplier is given prompt notice of any such claim;   

(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and  

(c) the Supplier is given sole authority to defend or settle the claim.  

11.3 In the defence or settlement of the claim, the Supplier may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the Customer.  The Supplier shall have no liability if the alleged infringement is based on:   

(a) a modification of the Software by anyone other than the Supplier; or  

(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or  

(c) the Customer’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.  

11.4 If any infringement claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense: 

(a) procure for the Customer the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this licence; 

(b) modify the Software so that it ceases to be infringing; 

(c) replace the Software with non-infringing software; or 

(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, 

11.5 provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the Software Specification The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.  

12. LIMITATION OF LIABILITY

12.1 This clause ‎12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:  

(a) any breach of this agreement;  

(b) any use made by the Customer of the Services, the Software, the Deliverables or any part of them; and  

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement. 

12.2 Except as expressly and specifically provided in this agreement:  

(a) the Customer assumes sole responsibility for the use of the Software and 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; and  

(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. 

12.3 Nothing in this agreement excludes the liability of the Supplier for:  

(a) death or personal injury caused by the Supplier’s negligence;  

(b) fraud or fraudulent misrepresentation; 

(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or 

(d) any other liability which may not be excluded by law. 

12.4 Subject to Clause 12.3: 

(a) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: 

(i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise; 

(ii) loss of profits; 

(iii) loss of anticipated savings; 

(iv) loss of business opportunity; 

(v) loss of goodwill; 

(vi) loss or corruption of data, 

(b) 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 price paid for the Services during the 12 months preceding the date on which the claim arose. 

(c) the Customer agrees that, in entering into this Software Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than in accordance with the express terms of this licence 

13. TERM AND TERMINATION

13.1 This agreement shall commence on the Effective Date and shall continue until terminated in accordance with this clause ‎13. 

13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other 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 14 days after being notified in writing to make such payment 

(b) the other party commits a material breach of any of the terms of this agreement (other than failure to pay any amounts due under this agreement) and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or  

(c) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or    

(d) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or 

(e) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or 

(f) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or 

(g) the other party ceases, or threatens to cease, to trade; or 

(h) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010 ; or  

(i) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt. 

13.3 On termination of this agreement for any reason:  

(a) all licences granted under this agreement shall immediately terminate and the Customer shall cease all activities authorised by the Software Licence and this agreement; 

(b) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this agreement 

(c) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them), including in the case of the Customer the Software, belonging to the other party; 

(d) 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; the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and  

(e) each party (the “Receiving Party”) shall return to the other party (the “Disclosing Party”) all Confidential Information disclosed by Disclosing Party to Disclosing Party or, at Disclosing Party’s written request, destroy all copies (including electronic copies) of the Disclosing Party’s Confidential Information, SAVE THAT Receiving Party may retain one copy of the Confidential Information in secure archive if required to do so by applicable law or regulation.  

14. THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE DATE AND SHALL CONTINUE UNTIL TERMINATED IN ACCORDANCE WITH THIS CLAUSE 13.

14.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other 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 14 days after being notified in writing to make such payment 

(b) the other party commits a material breach of any of the terms of this agreement (other than failure to pay any amounts due under this agreement) and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or  

(c) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or    

(d) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or 

(e) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or 

(f) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or 

(g) the other party ceases, or threatens to cease, to trade; or 

(h) there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or  

(i) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt. 

14.2 On termination of this agreement for any reason:  

(a) all licences granted under this agreement shall immediately terminate and the Customer shall cease all activities authorised by the Software Licence and this agreement; 

(b) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this agreement 

(c) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them), including in the case of the Customer the Software, belonging to the other party; 

(d) 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; the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and  

(e) each party (the “Receiving Party”) shall return to the other party (the “Disclosing Party”) all Confidential Information disclosed by Disclosing Party to Disclosing Party or, at Disclosing Party’s written request, destroy all copies (including electronic copies) of the Disclosing Party’s Confidential Information, SAVE THAT Receiving Party may retain one copy of the Confidential Information in secure archive if required to do so by applicable law or regulation.  

15. FORCE MAJEURE 

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. 

16. WAIVER

16.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.   

16.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law. 

17. SEVERANCE 

17.1 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.  

17.2 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. 

18. ENTIRE AGREEMENT, VARIATION

18.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover 

18.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement. 

18.3 Customer’s signature of this agreement shall be deemed acceptance of the terms and conditions of this agreement to the exclusion of any other terms and conditions appearing in or referenced in any Customer purchase order or other instrument, notwithstanding anything contained to the contrary in such purchase order or elsewhere. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

19. ASSIGNMENT

19.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.   

19.2 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.  

20. NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). 

21. COUNTERPARTS

This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement.  The execution of this agreement may be evidenced by facsimile or email PDF attachment transmission of signatures, in which case the parties agree to exchange originally executed versions of this agreement promptly thereafter. 

22. THIRD PARTY RIGHTS 

This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.   

23. NOTICES

23.1 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 follows: 

Customer fax: :  

Supplier fax:  0161 740 0104 

23.2 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 by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). 

24. GOVERNING LAW AND JURISDICTION

24.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England. 

24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims