General Terms and Conditions

These general terms and conditions (“Terms”) apply to the provision and receipt of the Services and should be read in conjunction with the Order Form, the Service Specific Terms and the DPA.

Capitalised terms used in these Terms which are not defined in Clause 2 or in the relevant Clause itself shall have the meaning given in the Order Form, Service Specific Terms or DPA (as applicable).

The following terms shall have the following meanings unless the context requires otherwise:

In this Agreement:

references to “Clauses” are to clauses of these Terms;

the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;

a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

a reference to a Party includes its personal representatives, successors or permitted assigns;

words imparting the singular shall include the plural and vice versa; words imparting a gender shall include the other gender and the neutral;

a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise; and

a reference to “writing” or “written” includes in electronic form and similar means of communication and, for notices under Clause 20, includes email where the relevant email address is set out in the Order Form.

The Customer has appointed the Supplier on a non-exclusive basis to provide the Services.

The Supplier shall use reasonable endeavours to provide the Services and perform the Supplier’s obligations under this Agreement.

The Supplier shall use reasonable endeavours to meet any timescales set out in this Agreement, but, unless specifically stated otherwise in this Agreement, time shall not be of the essence.

The Supplier shall not be responsible for, and its performance of this Agreement shall be excused to the extent of, any failure, delay, defect or issue arising from or caused by the Customer’s acts or omissions (or those acting on the Customer’s behalf) including any modification or alteration to the Services not authorised by the Supplier or any failure by the Customer to comply with its obligations under this Agreement.

The Customer warrants that the Customer has:

all necessary rights, consents and permissions to enter into this Agreement;

the required skill and judgment to use the Services, and the Customer undertakes at all times to exercise the same in the Customer’s use of the Services and the Customer accepts that the Customer shall be exclusively responsible for all opinions, recommendations, advice or comments the Customer makes or actions the Customer takes arising out of such use; and

obtained and shall maintain all necessary consents and permissions required for the Customer’s use of the Services.

The Customer shall, and shall procure that the Customer’s employees, agents and Associates shall:

comply with all Applicable Laws with respect to the Customer’s activities under this Agreement;

co-operate with the Supplier as reasonably required in connection with the Services and comply with the Supplier’s reasonable instructions relating to the Services;

provide the Supplier with all necessary information as may be required by the Supplier in order to provide the Services;

carry out all of the Customer’s responsibilities set out in this Agreement in a timely and efficient manner;

not use the Software or Services or allow the Software or Services to be accessed by or disclosed to any persons other than the Users, and such Users shall only use such Software and Services in accordance with this Agreement;

not use or make use of the Services in any way which may be detrimental to the Supplier’s reputation or interests; and

promptly notify the Supplier of any errors, defaults, issues or inaccuracies the Customer becomes aware of in the Services or of any other circumstances which might materially affect the operation of the Services.

The Customer shall not (and shall procure that the Users and the Customer’s Associates shall not) access, store, distribute or transmit any Viruses or any Prohibited Material during the Customer’s use of the Services. The Supplier reserves the right, without liability or prejudice to the Supplier’s other rights and remedies, to disable the Customer’s access to and suspend all or part of the Services if the Customer breaches the provisions of this Clause. The Supplier reserves the right, without liability (subject to Clause 13.1) or prejudice to the Supplier’s other rights and remedies, to disable the Customer’s access to any material that breaches the provisions of this Clause.

The Fees, invoicing cadence and payment dates shall be as set out in the Order Form. Payment of the Fees shall be made in the currency set out in the Order Form (or, if no currency is specified, in pounds sterling).

All sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.

The Customer shall pay the Fees by any payment method that the Supplier may stipulate from time to time. No payment shall be considered paid until the Supplier has received it in cleared funds in full.

The Supplier may increase the Fees payable for the Services once in every 12 month period following the Subscription Start Date. If the Supplier exercises this right, the Supplier shall give the Customer written notice of the relevant increase in accordance with the notice period set out in the Order Form, and such increase will take effect on and from the date specified in the Supplier’s notice. This Clause 5.4 applies only to the Fees for the Services provided as at the Subscription Start Date; the pricing of any new product, service or feature subsequently made available by the Supplier (whether or not taken up by the Customer) shall be determined separately by the Supplier and shall not be subject to, or limited by, this Clause 5.4.

If the Customer is late in paying any part of any monies due to the Supplier under this Agreement and such payment remains outstanding for 14 days following the Supplier providing notice to the Customer of such outstanding payment, the Supplier may (without prejudice to any of the Supplier’s other rights or remedies) charge interest on the overdue amount due but unpaid at the rate specified by the Late Payment of Commercial Debts (Interest) Act 1998 (from time to time) or, where such Act does not apply, a rate of 4% per annum above the base rate of Barclays Bank Plc (as varied from time to time). Such interest shall accrue daily from the original due date until payment in full (whether before or after judgment).

The Supplier may recover the Supplier’s costs, expenses and charges (including legal and debt collection fees and costs) in collecting any late payment.

Where any Fees are overdue, the Supplier may suspend access to all or part of the Services in accordance with Clause 11.

If the Customer disputes, in good faith, an invoice:

the Customer shall notify the Supplier in writing immediately, specifying the reasons for disputing the invoice;

the Customer shall provide all evidence as may be reasonably necessary to verify the disputed invoice;

the Customer shall pay to the Supplier all amounts not disputed by the Customer on the due date; and

the Customer and the Supplier shall negotiate in good faith to attempt to resolve the dispute promptly.

The Customer acknowledges and agrees that the Supplier and the Supplier’s licensors own all Intellectual Property Rights in and to the Software, Updates, New Modules and Services.

This Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights (whether registered or unregistered) or any other rights or licences in respect of the Software, Updates, New Modules or the Services, unless expressly set out in this Agreement.

If the Customer becomes aware of any infringement, or improper or wrongful use, of the Software, Updates, New Modules and/or Services, or any Intellectual Property Rights in them or any part of them, the Customer shall promptly inform the Supplier of such use and at the Supplier’s request and cost the Customer shall assist the Supplier in taking any steps in connection with the protection or defence of the same.

The Customer grants to the Supplier a non-exclusive licence during the term of this Agreement to use the Customer’s Intellectual Property Rights to allow the Supplier to provide the Software, Updates, New Modules and Services to the Customer in accordance with this Agreement.

The Customer may, from time to time, provide suggestions, comments, feedback, ideas, requests for enhancements or other input relating to the Services (“Feedback”). The Customer hereby grants to the Supplier a non-exclusive, worldwide, irrevocable, perpetual, royalty-free licence (with the right to sub-license) to use, copy, modify, adapt, and incorporate any Feedback into the Services or any of the Supplier’s products or services.

The Customer shall indemnify the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software and the Services which is not expressly permitted by this Agreement, 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.

Subject to Clause 7.3, the Supplier shall defend the Customer against any claim that the Customer’s use of the Services in accordance with this Agreement infringes any Intellectual Property Rights of a third party (“IPR Claim”), and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such IPR Claim, provided that:

as soon as reasonably practicable, the Customer gives written notice of the IPR Claim to the Supplier, specifying the nature of the IPR Claim in reasonable detail;

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

the Supplier is given sole authority to defend or settle the claim, and the Customer does not make any admission of liability, agreement or compromise in relation to the IPR Claim without the Supplier’s prior written consent; and

the Customer gives the Supplier and the Supplier’s professional advisers access at reasonable times (on reasonable prior notice) to the Customer’s premises and the Customer’s officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the Customer’s power or control, so as to enable the Supplier and the Supplier’s professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the IPR Claim.

Clause 7.2 shall not apply where the IPR Claim is attributable to:

the Customer’s use of the Services in combination with data, software, hardware, equipment, or technology not provided by the Supplier or authorised by the Supplier in writing;

the Customer’s use of the Software or the Services in a manner contrary to the instructions given to the Customer by the Supplier or this Agreement;

modifications to the Software or Services by anyone other than the Supplier; and/or

the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

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

procure for the Customer the right to continue to use the Software and/or Services (or any part thereof) in accordance with the terms of this Agreement;

modify the Software and/or Services so that they cease to be infringing;

replace the Software and/or Services with non-infringing software; or

terminate this Agreement immediately by giving 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 and Services to the date of termination).

Nothing in this Clause 7 shall relieve the Customer from any obligations to mitigate the Customer’s loss.

This Clause 7 constitutes the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for infringement of any Intellectual Property Rights.

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 without restriction on 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 Clauses 8.3 and 8.4, each Party shall hold the other Party’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 use adequate procedures and security measures to ensure the other Party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of this Agreement.

A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:

it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and

it does so subject to obligations equivalent to those set out in this Clause 8.

A Party may disclose the Confidential Information of the other Party 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, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.

Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.

The Supplier may publicly identify the Customer as the Supplier’s customer and describe the Software and Services the Supplier provides to the Customer, including using the Customer’s name and logo in the Supplier’s marketing and communications with the Supplier’s partners, customers, prospects and investors, provided that the Supplier does not disclose any of the Customer’s Confidential Information without the Customer’s prior written consent.

Each Party shall, in the performance of this Agreement, comply with Data Protection Laws and, where applicable, the DPA.

To the extent that the Supplier Processes Personal Data on behalf of the Customer in connection with the Services, the Parties shall comply with the data processing terms set out in the DPA, which the Customer acknowledges it has had the opportunity to review before entering into this Agreement and which forms part of this Agreement. In the event of any conflict or inconsistency between these Terms and the DPA in relation to the Processing of Personal Data, the DPA shall prevail.

Notwithstanding Clause 16, the Supplier shall not be entitled to vary the version of the DPA applicable to the Customer unilaterally; any change to the DPA shall require agreement in writing or shall be notified to the Customer in advance with the Customer having the right to object and, where the change cannot be avoided, to terminate this Agreement.

Without prejudice to the Supplier’s other rights and remedies, the Supplier may suspend access to all or part of the Services (including any User’s access) with immediate effect where the Supplier reasonably considers such suspension to be necessary:

to prevent or mitigate any material risk to the security, integrity or availability of the Services or any part of them;

to address any actual or suspected unauthorised access to or use of the Services;

where the Customer or any User is in breach of this Agreement (including any restrictions on use or Prohibited Materials);

where any Fees are overdue and remain outstanding for 14 days or more following the Supplier providing notice to the Customer of such outstanding payment;

to comply with Applicable Law or any order, direction or requirement of a regulatory authority;

to carry out emergency maintenance; or

where the Customer’s use of the Services poses a risk to other customers, third parties or the Supplier’s systems.

Where reasonably practicable, the Supplier shall provide the Customer with notice of any suspension and shall use reasonable endeavours to minimise the scope and duration of any such suspension.

The Supplier shall restore access to the Services as soon as reasonably practicable once the grounds for suspension have been resolved, including, where the suspension arises from non-payment, once payment in full has been made.

Unless the suspension arises solely from the Supplier’s breach of this Agreement, Fees shall remain payable during any period of suspension.

This Agreement shall commence on the date the Order Form is signed by both Parties and, unless terminated earlier in accordance with this Agreement, shall continue for the Subscription Term set out in the Order Form.

Without prejudice to any of the Supplier’s other rights or remedies, the Supplier may terminate this Agreement, with immediate effect (or such other notice period as the Supplier sees fit in the Supplier’s absolute discretion) by giving notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and such amount remains in default for not less than 14 days after such due date.

Either Party may (without prejudice to its other rights) terminate this Agreement at any time immediately by notice in writing to the other Party if:

the other Party is in material breach of any of its obligations under this Agreement, and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 30 days of being notified of such breach by the terminating Party;

the other Party is subject to an Insolvency Event; and/or

the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

On termination of this Agreement:

except as provided in Clause 12.4.3, the Customer’s rights in respect of, and access to, the Services shall cease and the Customer shall immediately cease all use of the Software and Services;

the Supplier shall return, export and/or delete Personal Data in accordance with the DPA;

subject to Clause 12.4.2 and to the Customer having paid all amounts due under this Agreement, for a period of 30 days following the date of termination, the Supplier shall allow the Customer to retrieve any Customer Data. Following expiry of such 30 day period, the Supplier shall delete the Customer Data, except to the extent otherwise required by Applicable Law;

all outstanding Fees and any other sums due to the Supplier shall become immediately payable, whether invoiced or not;

the Customer and the Supplier shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other; and

the Customer and the Supplier shall:

return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;

erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and

certify in writing to the other Party that it has complied with the requirements of this Clause 12.4.6,

Termination of this Agreement, for any reason, shall be without prejudice to the rights and liabilities of either Party which may have accrued on or at any time up to the date of termination, and shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination including Clauses 5, 6, 7, 8, 9, 10, 12.4, 12.5, 13, 18, 20 and 24 and the DPA.

Nothing in this Agreement shall exclude or limit:

the defaulting Party’s liability for death or personal injury caused by its (or its agent’s or sub-contractor’s) negligence;

the defaulting Party’s liability for fraud;

the Customer’s liability for payment of the Fees due and payable; or

any other liability which cannot be excluded or limited by Applicable Law.

Subject to Clause 13.1, neither Party shall have any liability in respect of any:

loss of actual or anticipated profits (whether direct or indirect);

loss of anticipated savings (whether direct or indirect);

loss of goodwill (whether direct or indirect);

loss of business opportunity (whether direct or indirect);

wasted expenditure (whether direct or indirect);

loss of, damage to, or corruption of, data (including Customer Data) (except to the extent that that Party specifically has a responsibility to prevent loss of, damage to or corruption of, data under this Agreement) (whether direct or indirect); and/or

indirect or consequential losses, damages, costs or expenses,

Subject to Clauses 13.1 and 13.2, the Supplier’s total aggregate liability arising out of or in connection with this Agreement, whether in respect of one claim or a series of related or unrelated claims, shall not exceed 100% of the Fees paid and payable by the Customer under this Agreement in the 12 months preceding the date of the first event giving rise to the liability, provided that where that event occurs during the first 12 months of the Subscription Term, or after the expiry or termination of this Agreement, the Fees paid and payable in respect of the first 12 months of the Subscription Term shall be used instead.

Subject to Clause 13.1, no claim may be brought by either Party under this Agreement unless written notice of the claim, giving reasonable particulars of the claim, is given to the other Party within 12 months of the claimant becoming aware, or having reason to be aware, of the matter giving rise to the claim.

Except as expressly and specifically provided in this Agreement:

the Customer assumes sole responsibility for results obtained from 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 Software and the Services or any actions taken by the Supplier at the Customer’s direction; and

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.

All references to “Supplier” in this Clause 13 shall, for the purposes of this Clause, be treated as including the Supplier and the members of the Supplier’s Group and the Supplier’s employees, subcontractors and suppliers, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Clause 13.

The Supplier shall have no liability to the Customer under this Agreement if the Supplier is prevented from or delayed in performing the Supplier’s obligations under this Agreement, or from carrying on the Supplier’s business, by acts, events, omissions or accidents beyond the Supplier’s reasonable control, including, 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 (“Force Majeure Event”).

The performance of the Supplier’s obligations shall be suspended during the period that the Force Majeure Event persists, and the Supplier shall be granted an extension of time for performance equal to the period of the delay.

If the Supplier has contracted to provide identical or similar services to more than one licensee and the Supplier is prevented from fully meeting the Supplier’s obligations to the Customer due to a Force Majeure Event, the Supplier may decide at the Supplier’s absolute discretion which contracts the Supplier shall perform and to what extent.

The Customer may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of the Customer’s rights or obligations under this Agreement without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).

The rights provided under this Agreement are granted to the Customer only and shall not be considered granted to any of the Customer’s Group without the Supplier's prior written consent. Where the Supplier grants such consent, the relevant member of the Customer's Group shall be an “Approved Affiliate”. The Customer shall ensure that each Approved Affiliate complies with the terms of this Agreement and shall be liable to the Supplier for all acts and omissions of each Approved Affiliate as if they were the acts and omissions of the Customer. The Customer shall procure that no Approved Affiliate brings any claim, action or proceeding against the Supplier arising out of or in connection with this Agreement, save to the extent prohibited by Applicable Law.

The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of the Supplier’s rights or obligations under this Agreement.

If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

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.

Any notice required to be given under this Agreement shall be in writing in the English language and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post, sent by commercial courier, or sent by email to the other Party at the relevant address or email address set out in the Order Form, or such other address or email address as may have been notified by that Party for such purposes.

A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9.00 am (UK time) 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 9.00 am on the second Business Day after posting. A notice delivered by commercial courier shall be deemed to have been received on the date and at the time that the commercial courier’s delivery receipt is signed. A notice sent by email, shall be deemed to have been received at the time that email was sent unless the email was not sent in Business Hours, in which case delivery shall be at 9.00 am (UK time) on the first Business Day following delivery (where the confirmation of sending shall be conclusive evidence of proof that a notice was sent by email).

The provisions of this Clause 20 shall not apply to the service of any proceedings or other documents in any legal action.

Except as provided in Clause 21.2, a person who is not a party to this Agreement shall have no right under or in connection with this Agreement.

The Supplier may enforce any term of this Agreement on behalf of a member of the Supplier’s Group. Without prejudice to the foregoing, any member of the Supplier’s Group (other than the Supplier) may enforce any term of this Agreement which is expressly or implicitly intended to benefit it.

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 laws of England.

The Parties irrevocably agree that the courts of England and Wales shall 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).