1.1 In this agreement:
Administrator User means an Authorised User with administrative privileges in respect of the Customer’s account (as designated by the Supplier).
Authorised Users means those clients of the Customer only, who are authorised by the Customer under subscription, in accordance with clause 2, to use the Software, the Products and their ancillary documentation, in respect of whom the Customer has purchased a User Subscription, and who have agreed to the terms of the EULA.
Business Day means 08.00 to 22.00 GMT on any day which is not a Saturday, Sunday, bank or public holiday in the United Kingdom.
Commencement Date means the date for commencement of the Customer’s licence to use the Software and Services, as specified on the Purchase Order provided by the Customer OR Docusign Purchase Agreement signed by the Customer.
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information of commercial value known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Software, Products and their ancillary documentation) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party.
Customer means the organisation which has purchased User Subscriptions from the Supplier from time to time, as specified in the Purchase Order or signed Purchase Agreement.
Customer Data means the data, content and images inputted using the Software by the Customer, the Authorised Users, or (if applicable) the Supplier (or its sub-contractors) on the Customer’s behalf for the purpose of facilitating the Customer’s or the Authorised Users’ use of the Software.
Customer Equipment means a functioning hardware system and software facilitating access to a modern internet browser, namely, Google Chrome, Mozilla Firefox, Safari or Microsoft Internet Explorer in version 9 or above, but preferably version 10 and above, as well as anything else specified by the Supplier from time to time.
EULA means the end-user licence agreement and privacy and cookies policy which all Authorised Users are required to sign up to before beginning to use the Services.
Initial Subscription Term means the initial subscription term, beginning at the Commencement Date, set out in the Purchase Order or signed Purchase Agreement provided by the Supplier, which period shall be 12 months unless otherwise specified or agreed.
Licence Restrictions means any licence restrictions set out in the Purchase Order or signed Purchase Agreement or elsewhere in the Agreement.
Purchase Order or signed Purchase Agreement means the Purchase Order or signed Purchase Agreement signed between the Customer and the Supplier setting out, among other things, the specific Software licensed, the Service Charges and Subscription Fees, the Initial Subscription Term, and any specific Licence Restrictions.
Payment Terms means the payment terms set out in the Purchase Order or signed Purchase Agreement.
Purpose means the Authorised Users accessing and using the Services for their functionally contemplated purposes (as contemplated within the Documents) and for their benefit and the benefit of the Customer only.
Renewal Period means rolling terms of 12 months (or such other period as the Supplier may agree in writing with the Customer either in the the Purchase Order or signed Purchase Agreement or otherwise).
Services means hosting of the Software and making it available for access to Authorised Users via the Supplier’s Software platform available at the addresses notified by the Supplier using the Customer Equipment, or to Users (in the case of the App) using the Customer Equipment.
Service Charges means the service charges that the Supplier confirms to the Customer from time to time, or as set out in the Purchase Order or signed Purchase Agreement, in respect of any customised services requested by the Customer.
Software means the Metacompliance® software applications purchased by the Customer, as set out in the Purchase Order or signed Purchase Agreement, and which includes any upgrades either: (a) developed on a customised basis and purchased by the Customer from time to time in return for payment of the Supplier’s then prevailing charges; or (b) to which the Customer is otherwise entitled under the terms of this agreement.
Subscription Fees means the total amounts set out in the Purchase Order or signed Purchase Agreement or otherwise specified to the Customer by the Supplier (which shall apply pro rata over any applicable Renewal Period) or otherwise payable in accordance with the terms of this agreement, to be paid in accordance with the timeframes and other stipulations set out in this agreement.
Subscription Term means, in respect of each User Subscription, the term beginning on the Commencement Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clause 14.3), unless and until this agreement is terminated in accordance with its terms.
Supplier means Metacompliance Limited (company number NI049166) whose principal office is at The City Arc, 89 Worship Street, London EC2A 2BF.
Support means the support services to be provided by the Supplier in relation to each Administrator User, for the relevant Subscription Term, and made available, unless otherwise specified, during the Supplier’s standard business hours (08.00 to 22.00 GMT on Business Days) either via telephone consultation (+44 28 71359 777) or email contact support@Metacompliance.com. Remote access must be provided by the Customer to allow the Supplier access to the Customer Equipment for emergency fixes. Support queries may only be raised by Administrator Users. The Supplier may also provide online support resources for Authorised Users.
Term means the term of this agreement as defined in clause 14.1; and
User Subscriptions means the subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and its ancillary documentation in accordance with this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. References to clauses and schedules are to the clauses and schedules of this agreement.
1.3 Words in the singular shall include the plural and vice versa.
1.4 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.
1.5 Any reference to this agreement includes these terms and conditions, the Purchase Order or signed Purchase Agreement and any other terms agreed in writing between the Supplier and the Customer from time to time. Any Purchase Order or signed Purchase Agreement takes precedence over these terms and conditions in the event of any inconsistency or conflict, and this agreement shall take precedence over any other documents not expressly incorporated herein (including any terms and conditions produced or referred to by the Customer from time to time).
1.6 These terms and conditions were most recently updated on 21st August 2018 and the Supplier shall be free to amend them from time to time during the Term, giving notice to the Customer. If a new Purchase Order or signed Purchase Agreement is signed by the Customer, the version of these terms and conditions in force at the time the new Purchase Order or signed Purchase Agreement is signed shall apply.
2. USER SUBSCRIPTIONS
2.1 Subject to payment and the other restrictions set out in this agreement, the Supplier hereby grants to the Customer, with effect from the Commencement Date, subject to the Licence Restrictions, and subject to the EULA applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and their ancillary documentation during the Subscription Term of the User Subscriptions for such Authorised Users, solely for the Purpose.
2.2 In relation to the Authorised Users, the Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users with the terms of this agreement and the EULA, and that the restrictions on the Customer set out within this agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users shall not exceed the number of User Subscriptions the Customer has purchased from time to time; (c) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or its documentation; (d) each Authorised User shall keep a secure password for his use of the Services and its documentation, and that each Authorised User shall keep his password confidential; (e) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 10 Business Days of the Supplier’s written request at any time or times; (f) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, and with reasonable prior notice; (g) if any of the audits referred to in clause 2.2(f) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to any other right to which it may be entitled, the Customer shall pay to the Supplier an amount equal to such underpayment (as calculated by reference to the Subscription Fees for additional Authorised Users) within 5 Business Days of the date of the relevant audit; and (h) if any of the audits referred to in clause 2.2(f) 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.
2.3 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of their 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 any other illegal activity; or (f) causes damage or injury to any person or property; and the Supplier reserves the right, without liability 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: (a) other than as permitted by law, 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 its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services in order to build a product or service which competes with the Services; or (c) use the Services to provide services to third parties other than Authorised Users; or (d) subject to clause 15.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or (f) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Services or their related systems or networks.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or its documentation 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 only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.7 The Customer must ensure that its use of the Services and all Customer Data is at all times compliant with the terms of this agreement, all applicable laws and regulations (nationally and internationally) and the Customer represents and warrants that: (i) it has obtained all necessary rights, releases and permissions to provide all the Customer Data to the Supplier and to grant the rights granted to the Supplier in this agreement and (ii) the Customer Data and its transfer to and use by the Supplier as authorized by the Customer under this agreement, and the use of the Services and their ancillary documentation by the Customer and the End User, do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under clause 9.3, the Supplier assumes no responsibility or liability for Customer Data, and the Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to clause 3.2, the Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions.
3.2 The Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional 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 deliver the Support and the Services to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall procure hosting of the Software from its hosting sub-contractor and make the Services available to the Customer in accordance with the terms imposed upon it by its hosting sub-contractor from time to time, a copy of which will be provided to the Customer upon request. The Supplier shall use reasonable endeavours to inform the Customer in advance of any planned service interruption.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer other than the Subscription Fees, provide the Customer with the Support in accordance with the Supplier’s support services policy in effect at the time that the Services are provided, subject to fair usage of the Support by the Customer. The Supplier may, from time to time at its discretion, generally upgrade and improve the Software as it sees fit and the Customer acknowledges that such upgrades and improvements may affect its use of the Services. Any specific upgrades requested by the Customer are chargeable by the Supplier.
4.4 As part of the Services accessible through the ‘MetaCompliance Cloud’ software platform, the Customer entitled to up to 5 gigabytes of cloud storage in respect of all content uploaded by you personally by the Customer (including all Authorised Users). There may be storage limits associated with particular Services, which are generally subject to fair usage limits. The Supplier reserves the right to charge for additional storage or overage fees at the rates specified by the Supplier to the Customer from time to time, either on the Supplier’s website or otherwise. The Supplier may impose new, or may modify existing, storage limits for the hosted Services at any time in the Supplier’s discretion, giving notice to the Customer, either on the Supplier’s website or otherwise.
5. SUPPLIER’S OBLIGATIONS
5.1 The Supplier undertakes that the Services will be performed with reasonable skill and care and that the Software, as hosted via the Services, will operate substantially as described in the applicable documentation for a period of 90 days from the Effective Date (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 to this warranty, and such defect or fault does not result from the Customer, or anyone acting within its authority, having amended the Software or used it outside the terms of this agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with other software not provided by the Supplier, or it has not been used with or loaded onto equipment not specified by the Supplier or not suitably configured, the Supplier shall, at its option, do one of the following: (a) rectify the Services; (b) replace the Software with alternative software to be hosted via the Services; or (c) terminate this agreement 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) provided that 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 undertaking at clause 5.1 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 the terms of the documentation (where applicable), or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, the Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Services and/or documentation will meet the Customer’s requirements.
5.3 The Customer acknowledges that it has assessed the suitability of the Services for its requirements. The Supplier does not warrant that the Software, the Services and/or its documentation will be suitable for such requirements or that any use will be uninterrupted or error free. The undertaking in this clause 5 shall not apply if the Customer makes or causes to be made any modifications to the Software or Services without the Supplier’s consent or the Software is used in combination with any software, hardware or materials not supplied by the Supplier or approved in writing by the Supplier or the Software or Services are used in an application for which they were not intended or the Software or Services are used otherwise than as permitted by this agreement.
5.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. CUSTOMER’S OBLIGATIONS
The Customer shall: (a) at its cost, provide the Supplier with all necessary co-operation in relation to this agreement, and all necessary data and access to information as may be required by the Supplier, its agents or contractors, in order to render the Services, including but not limited to applicable specifications, data management decisions, approvals, 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, 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 breach of this agreement by either; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment; (h) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; and (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the services and uploading all such content and data to the site provided to the Customer using the Services. In the event that the Customer requires any assistance from the Supplier in this regard, the Supplier may provide such assistance as it deems appropriate at its then prevailing charges.
7. THIRD PARTY LICENCE TERMS
The Software and Services also utilise third party software which is subject to certain third party licence terms. Accordingly the following terms and conditions shall apply to the Customer’s and the Authorised Users’ use of the Software and Services in addition to the provisions set out elsewhere in this agreement, as well as any other relevant third party licence terms which may apply from time to time: These can be reviewed at https://azure.microsoft.com/en-us/support/legal/subscription-agreement-nov-2014/
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees (and any Service Charges, or other charges specified or agreed) to the Supplier in accordance with the Payment Terms. The Customer shall be required to pay the Subscription Fees annually in advance before any User Subscriptions are renewed. Any customised Service Charges will be invoiced as and when the services are performed, and such invoices are payable within 30 days, unless otherwise agreed in writing by the Supplier.
8.2 If the Supplier has not received payment for any Subscription Fees in advance, and any Services Charges within 10 days after the due date, without prejudice to any other rights and remedies of the Supplier: (a) the Supplier may, without liability to the Customer, disable the Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at a monthly rate equal to 1.5% over the then current base lending rate of HSBC plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in this agreement: (a) shall be payable in pounds sterling unless stated otherwise on the Pricing Proposal or Purchase Agreement; (b) are non-cancellable and non-refundable; (c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate where applicable.
8.4 If, at any time whilst using the Services, the Customer exceeds the Licence Restrictions, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then prevailing charges for such excessive use.
8.5 Any on-site support required by the Customer and agreed by the Supplier will be chargeable at the Supplier’s then prevailing standard daily rates.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that the Supplier and/or third parties own the intellectual property rights in the Services, Software and its documentation. 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 Services, Software and its documentation.
9.2 The Customer shall own all rights, title and interest in all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and the means by which it acquired such Customer Data.
9.3 The Supplier shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. However, the Customer understands and acknowledges that use of the hosted Services necessarily involves transmission of the Customer Data over networks that are not owned, operated or controlled by the Supplier, and that the Supplier cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. The Supplier does not guarantee that its security procedures will be error-free, that transmissions of the Customer Data will always be secure or that unauthorized third parties will never be able to defeat the Supplier’s security measures or those of the Supplier’s third party service providers.
9.4 The Supplier shall not modify Customer Data, disclose Customer Data or access Customer Data except: (a) as required by law; (b) as expressly permitted by the Customer; (c) to contact the Customer or Authorised Users; (d) to provide the Services; (e) to address technical problems or issues with the Services; or (f) at the Customer’s request when providing Support.
9.5 In the event of any loss of or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier (or its hosting provider, as appropriate according to the nature of the Customer Data which has been lost or damaged).
9.6 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case: (a) the Customer acknowledges and agrees that the personal data may be transferred or stored within the EEA, in an Adequate Country as deemed by the European Commission or the country where the Customer and the Authorised Users are located, in order to carry out the Services and the Supplier’s other obligations under this agreement; (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf; (c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and (e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit any third party to do so) other than as strictly necessary for the performance of its rights and obligations under this agreement. The provisions of this clause shall not apply to any information which: (a) is or comes into the public domain without breach of this agreement; or (b) was in the possession of the receiving party prior to receipt from the disclosing party without an obligation of confidence; or (c) was obtained from a third party free to divulge such information; or (d) is required to be disclosed by law or by any legal, regulatory or administrative body.
11. EXPORT CONTROLS
11.1 The Customer acknowledges that the Software and Services may be subject to export controls promulgated by the Government of the United States of America, or other governments, and/or local export controls. The Supplier cannot be held responsible for the delivery of any software or services (including if supplied via any physical medium) for which an export licence is refused or delayed by the Government of the United States, other governments, and/or local authorities.
11.2 If required by the Supplier, the Customer agrees to certify by signing the necessary export documents that the products supplied will not be sold or made available directly or indirectly to any country, person or organisation that has an export restriction placed on it by the United States or any other government.
12.1 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 its and/or the Authorised Users’ use of the Services including, without limitation, for any liability, damages, costs or claims incurred by the Supplier due to the Customer’s use of the Services for any purpose outside of the Purpose or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or the Customer’s use of the Services is in breach of this agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law.
12.2 The Supplier shall, subject to clause 12.5 and the limitations in clause 13, defend the Customer against any claim that the Software itself infringes any UK or EU patent effective as of the Commencement Date 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 without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
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 (b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or (c) the Customer’s use of the Services or any appropriate authority; or (d) the use of any trademark or copyright was referred to within the Software as being at the Customer’s own risk of use.
12.5 The foregoing 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, database right, right of confidentiality or other intellectual property right. The Customer agrees that it shall otherwise use the Services and Software at its own risk, and hold the Supplier harmless from any claim in respect of a third party trade mark or intellectual property infringement that may be brought against the Customer.
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 in respect of: (a) any breach of this agreement (including without limitation, any claim under clause 12.2); (b) any use made by the Customer of the Software, Support 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.
13.2 Except as expressly and specifically provided in this agreement: (a) 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; (b) the Services and all other services provided, procured and/or sub-contracted by the Supplier under this agreement, are provided to the Customer on an “as is” basis; and (c) the Customer assumes sole responsibility for results obtained from the use of the Services and its associated documentation by the Customer and Authorised Users, 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 data provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction.
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; or (c) for any other liability that cannot be limited or excluded by relevant law.
3.4 Subject to clauses 13.2 and clause 13.3, (a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and (b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14. TERM AND TERMINATION
14.1 This agreement shall commence on the date the Purchase Order or signed Purchase Agreement is signed by both parties and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term.
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 if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt in the jurisdiction in which it is registered, based or incorporated; or (c) the other party ceases, or threatens to cease, to trade.
14.3 The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish this agreement to continue beyond the then current Renewal Period. Such notice to expire no earlier than the end of the Initial Subscription Term. Three months notice of termination for convenience must be provided in advance of the anniversary of the commencement date in writing (including by email) to firstname.lastname@example.org or the registered address detailed above under Supplier in order to prevent the automatic renewal of the Services.
14.4 On expiry or termination of this agreement for any reason: (a) all licences granted under this agreement shall immediately terminate, even if the Initial Subscription Term or Subscription Term is defined as “perpetual” in, or if no expiration date is specified in, the Purchase Order or signed Purchase Agreement; (b) each party shall return and make no further use of any Confidential Information belonging to the other party; and (c) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 9, 10, 12.1, 13, 14.4 and 15) or implicitly surviving termination, shall not be affected or prejudiced; and (d) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession upon written receipt of notice of termination.
15.1 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, cyber attack, 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.
15.2 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.
15.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
15.4 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. 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.
15.5 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.
15.6 Neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.”
15.7 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).
15.8 Notwithstanding any other provisions of this Agreement, nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it.
15.9 Any notice required or permitted to be given under this agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in this agreement or such other address as either party may notify in writing to the other from time to time for this purpose. Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post, and on completion of transmission if sent by facsimile (subject to receipt of acknowledgement of successful transmission).
15.10 The construction, validity and performance of this agreement shall be governed by the laws of England, and the parties submit to the exclusive jurisdiction of the courts of England.
15.11 The Purchase Order or signed Purchase Agreement may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be sufficient to bind the parties to the terms and conditions of this agreement.
15.12 No variation of this agreement shall be effective unless it is in writing and signed by authorised representatives of each of the parties.