Odyssey Interactive Limited
- (1) X Limited a company registered in [ ] with registered number [ ]whose registered office is [ ] (the “Customer”)
- (2) Odyssey Interactive Limited a company registered in England and Wales with registered number  whose registered office is at 5th Floor, 24 Mount St, Manchester M2 3NN, United Kingdom (the “Supplier” or “Interact”)
Together the “Parties” and each individually a “Party”
(A) The Supplier has developed Interact Intranet version 7 (“Software”).
(B) The Customer wishes to use the Supplier’s solutions (the “Service”) in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Service subject to the terms and conditions of this Agreement.
This licence agreement (“Licence”) is a legal agreement between the Customer and Supplier for access to and use of Interact Intranet as a service, which includes support and hosting (together the “Service” or “Services”).
The Supplier licences use of the Service to the Customer on the basis of this Agreement. This Agreement does not transfer any ownership in the Service or related software and documentation to the Customer.
The Supplier maintains the right to amend or update these terms in its sole and absolute discretion from time to time.
- UNDER THIS AGREEMENT CUSTOMER MAY ORDER FROM SUPPLIER LICENCES TO ACCESS INTERACT INTRANET AS A SERVICE. THE SPECIFICS OF EACH CUSTOMER ORDER WILL BE SET-OUT IN A SALES AGREEMENT THAT REFERENCES THIS AGREEMENT AND IS EXECUTED BY BOTH PARTIES. THE EXECUTED SALES AGREEMENT IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
- BY ACCESSING THE SERVICE THE CUSTOMER ALSO AGREES TO THE SUPPLIER’S ACCEPTABLE USAGE POLICY WHICH CAN BE FOUND AT www.interact-intranet.com/terms.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“Affiliate”: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity. Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
“Authorised Users”: those users of the Customer who are registered by the Customer to use the Services.
“Authorised User Subscriptions”: the Authorised User subscriptions purchased by the Customer at the Effective Date which entitle Authorised Users to access the Services in accordance with this Agreement.
“Business Day”: any day which is not a Saturday, Sunday, public holidays in the UK including New Year’s Day, Good Friday, Easter Monday, May bank holiday, Spring bank holiday, Summer bank holiday, Boxing Day, Christmas Day.
“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information.
“Customer Data”: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Data Protection Laws”: means all statutes, laws, secondary legislation and regulations pertaining to privacy, confidentiality and/or data protection of Personal Data or corporate data, including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI2003/2426), the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and any relevant national laws implementing Directives 95/46/EC, 2002/58/EC 7 97/66/EC, as from time to time modified or consolidated, superseded, re-enacted or replaced.
“Documentation” means any documents in electronic format or in paper copy, including specifications, provided by the Supplier in connection with this Agreement.
“Effective Date”: the date of entry into this Agreement by the parties.
“GDPR”: the EC General Data Protection Regulation (EU) 2016/679).
“Initial Subscription Term”: the initial term of thirty six months from the Effective Date.
“Normal Business Hours”: 9.00am to 6.00pm local UK time each Business Day.
“Renewal Period”: the period described in clause 14.1.
“Sales Agreement”: the sales agreement, including Subscription pricing and Professional Services to be delivered signed by the Parties.
“Services”: the provision of access to the Software provided by the Supplier to the Customer under this Agreement including support and hosting.
“Subscription Fees”: the subscription fees payable by the Customer to the Supplier for the Authorised User Subscriptions, as set out in the Sales Agreement.
“Subscription Term”: has the meaning given in clause 14 (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 which can be found at www.interact-intranet.com/terms.
“Browser Requirements” means all of the requirements set out in the Interact Intranet Browser Requirements document www.interact-intranet.com/Browser_Requirements.pdf.
“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 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. Authorised User subscriptions
2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to access the Services during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
- a. the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of Authorised User Subscriptions it has purchased from time to time;
- b. it will not allow or suffer any Authorised User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
- c. each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential;
- d. it acknowledges that the Supplier can verify the number of Authorised Users. Any such verification will be to ensure that the number of actual users are less than or equal to the total number of Authorised Users;
- e. if any of the verifications referred to in clause 2.2.d reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
- f. if any of the verifications referred to in clause 2.2.d reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall either pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the provision of an invoice or remove the excess user accounts within 30 days.
2.3 The Customer shall not knowingly access, store, distribute or transmit any Viruses, or any material as part of its use of the Services that:
- a. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- b. facilitates illegal activity;
- c. depicts sexually explicit images;
- d. promotes unlawful violence;
- e. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- f. in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 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:
- a attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- b attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- c. access all or any part of the Services in order to build a product or service which competes with the Services; or
- d. use the Services to provide services to third parties; or
- e. subject to clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
- f. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.4; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer and any of its Affiliates.
2.7 The Customer is responsible for all activity occurring under its Customer account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. The Customer shall: (i) notify Supplier immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Supplier immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by the Customer to violate this Agreement or the intellectual property rights of third parties.
3. Additional Authorised User subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional Authorised User Subscriptions in excess of the number purchased on the Effective Date and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional Authorised User Subscriptions, the Customer shall notify the Supplier in writing.
3.3 The Customer shall pay to the Supplier the relevant fees for such additional Authorised User Subscriptions, as set forth in the Sales Agreement, on registration of such Additional User Subscriptions and, if such additional Authorised User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.
4.2 The Supplier shall use best endeavours to make the Services available 24 hours a day, seven days a week, except for:
- a planned maintenance, where notice will be given by e-mail seven days in advance ; and
- b unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice by email in advance.
4.3 The Supplier will provide the Customer with the Supplier’s [Silver/Gold/Platinum] customer support services during Normal Business Hours in accordance with the Support Services Policy.
4.4 Supplier will at all times use all reasonable efforts to achieve the highest possible availability of the Service, but no warranties of any kind, regarding any specific availability or time of access are granted other than those in clause 7.1. All data stored as part of the Service will be backed up hourly. If a Customer experiences loss of data, Supplier will restore data from the most recent working backup; provided, however, Supplier gives no warranties with respect to recovering or restoring any lost Customer Data uploaded since the last working backup.
4.5 Access to the Service is only available to the Customer and Authorised Users, subject to compliance with this Agreement and, in the case of Customer, making the applicable payments for the Service under this Agreement.
4.6 Usernames and passwords are personal, and are to be considered part of Confidential Information. The Authorised User or Customer is at all times fully liable for all acts and omissions by Authorised Users whom the Authorised User or Customer has granted access,
5. Customer data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 Not Used.
5.3 The Supplier does not own any data, information or material that the Customer or others submit to the Service in the course of using the Service. The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any and all Customer Data that the Customer submits.
5.4 The Supplier has no responsibility to extract or audit Customer Data on their behalf. At the point of termination of this Agreement and provided all fees have been paid, the Supplier will extract all data and provide the data to the Customer. At any other time the Supplier may make a charge at its then current daily rates to provide a raw extract of Customer Data upon request. Supplier will provide all data in human readable format. All uploaded content (including PDFs and images) will be returned in a simple folder structure along with a CSV export of data contained with the Service (including profiles, HTML pages and category structures). In addition Supplier will provide a SQL backup (unencrypted) of the customer database. Customer Data will be returned by secure transfer via an AWS S3 bucket.
5.5 The Customer and/or Authorised User are fully liable for the legality of all data stored by the Customer and/or Authorised User on the Service. Furthermore the Customer and/or Authorised User is fully liable, if such Customer Data infringes any third party rights (including intellectual property rights), and accordingly agrees to indemnify and hold harmless the Supplier for all claims and losses related to such infringement and/or illegality.
5.6 If the Supplier on its own or through any third party has notice that Customer Data stored by the Customer and/or Authorised User is in violation of any law or infringes third party rights, the Supplier shall have the unfettered right to – without liability to the Customer or Authorised User – immediately suspend access to such data without prior notice to the Authorised User or Customer. The Customer and/or Authorised User may be notified by the Supplier of any such action under this section, when reasonable and possible.
5a Data Protection
5a.1. The terms ‘controller’, ‘processor’, ‘personal data’ and ‘processing’ shall have the meanings given to them in the GDPR.
5a.2. To the extent that the Supplier processes personal data as part of the services the parties agree that Customer is the controller and the Supplier is the processor.
5a.3. In respect of any personal data held or processed by the Supplier as a result of or pursuant to this Agreement:
(a) The Supplier represents and warrants to the Customer that it has made all necessary registrations and notifications of its particulars in accordance with applicable Data Protection Laws and any regulations made thereunder and will ensure that such registrations and notifications are kept accurate and up to date and supply on request to the Customer a copy of such registrations and notifications, together with any amended particulars that may be filed from time to time; and
(b) The Supplier shall at all times comply with the Data Protection Laws and any regulations made thereunder as are applicable to the Supplier and its obligations pursuant to this Agreement.
5a.4. The parties acknowledge that the GDPR entered into force on 25 May 2018 (“GDPR Date”). The Supplier shall ensure that the Services provided under this Agreement, comply with the Data Protection Legislation and, from the GDPR Date, GDPR and thereafter. Such co-operation may include, without limitation, the implementation of technical and organisational measures, and the variation of this Agreement.
5a.5. In addition to and notwithstanding any other right or obligation arising under this Agreement, the Supplier shall (and shall ensure that its staff and contractors shall):
(a) take all technical and organisational measures necessary or desirable to ensure that personal data is protected against loss, destruction and damage, and against unauthorised access, use, modification, disclosure or other misuse;
(b) take all reasonable steps to ensure the reliability and trustworthiness of staff which will have access to any personal data;
(c) process the personal data obtained as a result of this Agreement strictly only for the purposes of fulfilling its obligations under this Agreement;
(d) comply with the express instructions or directions of the Customer from time to time in connection with the processing of such personal data and the requirements of any Data Protection Laws and specifically not otherwise modify, amend, combine with other personal data or alter the contents of the personal data or disclose or permit the disclosure of any of the personal data to any third party (including the data subject) unless specifically authorised in writing by Customer;
(e) promptly comply with any request from the Customer requiring the Supplier to amend, transfer or delete the personal data; and without prejudice to the above, the Supplier shall delete all personal data immediately upon termination of the Agreement;
(f) consider all suggestions made by the Customer to ensure that the level of protection provided for personal data is in accordance with this Agreement and to make the changes suggested unless the Supplier can prove to Customer’s reasonable satisfaction that they are not necessary or desirable to ensure ongoing compliance with this clause;
(g) not disclose personal data without the Customer’s prior written authority;
(h) not do or omit to do anything which causes the Customer to breach any Data Protection Laws or contravene the terms of any registration, notification or authorisation under any Data Protection Laws;
(i) take all reasonable steps to ensure the reliability of any of the Supplier’s personnel who have access to the personal data;
(j) ensure that only those of the Supplier’s personnel who need to have access to the personal data are granted access to it and only for the purposes of the performance of this Agreement and to inform all such personnel of the confidential nature of the personal data;
(k) not transfer personal data which has been obtained by or made available to the Supplier to any country outside the European Economic Area without the prior written consent of the Customer, such consent may be subject to and given on such terms as the Customer may in its absolute discretion prescribe. In the event that the Customer consents to the transfer of Personal Data outside the European Economic Area, the Company shall enter into a Model Clause Agreement with the Customer in order to ensure that the personal data is processed in accordance with the Data Protection Laws.
5a.6. The Supplier will (and will ensure that staff will) without undue delay notify the Customer if it:
(a) becomes aware that a disclosure of personal data may be required by law;
(b) receives a request from an individual to access their personal data or to cease or not begin processing, or to rectify, block, erase or destroy personal data. The parties will cooperate in promptly investigating and dealing with such request in order to ensure that the individual’s rights under the Data Protection Laws are satisfied;
(c) receives any request, correspondence, notice or other communication whether orally or in writing from the Office of the Information Commissioner, or any other person, relating to the personal data;
(d) becomes aware of a breach of this clause and provide the Customer with such assistance as reasonably requested to enable the Customer to fully investigate the breach and prevent any reoccurrence; and
(e) becomes aware of a breach of Data Protection Laws by or in connection with delivery or receipt of the Services and provide the Customer with such assistance as reasonably requested to enable the Customer to fully investigate the breach and prevent any reoccurrence.
5a.7. The Supplier will indemnify, defend and hold harmless the Customer and their respective directors, officers, agents, successors and assigns from any and all direct losses, liabilities, fines, damages, costs and expenses including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment and penalties arising from or in connection with any breach by the Supplier, its contractors and/or staff of the obligations set out in this clause.
6. Third party providers
7 Supplier’s obligations
7.1 The Supplier undertakes that the Services will be performed to the standard that could reasonably be expected from a leading provider of similar services in the UK and US. The Supplier agrees to provide uptime for the Services of no less than 99.7% availability in any month, excluding scheduled maintenance time.
7.2 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 without the Supplier’s consent.
7.3 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.
7.4 Notwithstanding the foregoing, the Supplier:
- a. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and
- b. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
7.5 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under this Agreement.
7.6 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.
7.7 Where the Supplier fails to comply with its obligations set out at clause 7.1 it shall issue a service credit to the Customer of an amount equivalent to X% of the annual Subscription Fees. The Credit shall be applied to the account and set-off against a future invoice. For these purposes for any given month
X= [(Number of complete hours Service is unavailable in excess of 0.3%)/(8,760)]x100
8. Customer’s obligations
8.1 The Customer shall:
- a. provide the Supplier with:
- all necessary co-operation in relation to this Agreement; and
- ii. all necessary access to relevant information as may be required by the Supplier in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- b. comply with all applicable laws and regulations with respect to its activities under this Agreement;
- c. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- d. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
- e. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the 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.
- f. satisfy the Browser Requirements, where relevant, for the duration of this Agreement.
9. Charges and payment
9.1 The Customer shall pay the Subscription Fees and the fees for the Professional Services to the Supplier on concluding this Agreement, as indicated in the Sales Agreement.
9.2 All amounts and fees stated or referred to in this Agreement:
- a. are, subject to clause 14.3, non-cancellable and non-refundable;
- b. are exclusive of value added tax or sales tax if applicable.
9.3 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Authorised User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 30 days’ prior notice to the Customer and all fees shall be deemed to have been amended accordingly. The rate of the annual increase will not exceed the current rate of inflation at the start of the relevant Renewal Period in accordance with the Retail Price Index for the United Kingdom.
9.4 Payment shall be made within thirty days of the date of the invoice.
9.5 If the Customer does not pay any undisputed invoice or materially breaches the terms of this Agreement, the Supplier shall be entitled without liability, upon 30 days written notice to the Customer, to suspend Customer’s access to the Service. If the amounts invoiced remain unpaid at the expiration of such period the Supplier may terminate this Agreement. In the case of termination or suspension of account, the Supplier reserves the right to impose a reasonable reconnection charge if the Customer wishes to resume the Agreement.
9.6 If the Customer requests the return or recovery of Customer Data, the Supplier will agree to return or (if it can) recover such data but only upon the Customer paying the Supplier the then current daily rate charges for undertaking such work. At the date of this contract the daily rate, exclusive of VAT, is GBP1,000.
9.7 Any reasonable expenses necessarily incurred by the Supplier during the course of providing the Services shall be reimbursed by the Customer. Where possible the expenses will be agreed in advance in writing.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, 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.
10.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
- a is or becomes publicly known other than through any act or omission of the receiving party;
- b was in the other party’s lawful possession before the disclosure;
- c is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- d is independently developed by the receiving party, which independent development can be shown by written evidence
11.2 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.
11.3 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.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 This clause 11 shall survive termination of this Agreement, however arising.
12. Liability and Indemnities
12.1 The Customer shall be liable to the Supplier against genuine claims, actions, proceedings, reasonable 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, 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.
12.2 The Supplier shall defend, indemnify and hold harmless the Customer, its officers, directors and employees against any claim, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) that the Services infringe any patent effective as of the Effective Date, copyright, trade mark, 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.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 20 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In the event of termination clause 5.4 will apply. In the event of termination any fees pre-paid that relate to any period post termination will be re-funded within seven business days.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a a modification of the Services by anyone other than the Supplier (or a third party authorised by the Supplier); or
- b the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier in writing; or
- c the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 13.4.b states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13 Limitation of liability
13.1 This clause 13 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:
- a arising under or in connection with this Agreement;
- b in respect of any use made by the Customer of the Services or any part of them; and
- c in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
- a the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; 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.
13.3 Nothing in this Agreement excludes the liability of the Supplier:
- a for death or personal injury caused by the Supplier’s negligence; or
- b for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
- a Neither party shall 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 pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
- b the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees and fees for Professional Services paid during the 12 months immediately preceding the date on which the claim arose.
- c the Customer’s total annual 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 Subscription Fees due during the 12 months immediately preceding the date on which the claim arose.
14. Term and termination
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14 commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of twelve months (each a “Renewal Period”), unless:
- a Customer notifies the Supplier of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- b Supplier notifies Customer of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- c otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
If the Renewal Period is shorter than the Initial Subscription Term, the commitment discounts reflected in the Sales Agreement will not apply.
14.2 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 commits a material breach of any of the terms of 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
- b 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
- c 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
- d 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
- e 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
- f the other party ceases, or threatens to cease, to trade; or
- g the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt; or
- h a Force majeure event continues, or is anticipated to continue for more than twenty Business Days.
14.3 On termination of this Agreement for any reason:
- a all licences granted under this Agreement shall immediately terminate;
- b each party shall make no further use of any documentation and other items (and all copies of them) belonging to the other party;
- c the Supplier may destroy any of the Customer Data in its possession after giving reasonable notice of its intention to the Customer;
- d the Supplier will return all data in accordance with clause 5.4; and
- e 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.
- f any fees pre-paid that relate to any period post termination will be re-funded within seven business days.
15. Force majeure
Neither party shall have any liability to the other 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, industry wide strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), 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 other party is notified of such an event and its expected duration. In the event of a force majeure for the period affected the Customer will have no further liabilities and will be entitled to a refund on a pro-rata basis of Subscription Fees paid.
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.
17.1 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
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. In the event of any conflict between this Agreement and the terms of a Sales Agreement, this Agreement shall prevail.
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.
19.1 Neither Party shall, without the prior written consent of the Other Party, 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 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.
22.1 Any notice required to be given under this Agreement shall be in writing (including by e-mail to the address below) 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,
Email address of Supplier: firstname.lastname@example.org
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.
23 Governing law and jurisdiction
23.1 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.
23.2 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).