This Agreement is a legal agreement between you (You or Your) and Measure Well Limited (Company No. 13121169) whose registered office is at 2 Adventure Place, Hanley, Stoke on Trent ST1 3AF (Us, We or Our) for:
We licence use of the Services, Software and the Documentation to You on the basis of this Agreement. We do not sell the Services, Software or the Documentation to You. We, or our licensors, remain the owners of the Services, Software and the Documentation at all times.
You should print a copy of this Agreement for future reference.
| 1.1 | Clause and paragraph headings shall not affect the interpretation of this Agreement. | ||
| 1.2 | A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). | ||
| 1.3 | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. | ||
| 1.4 | A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement. | ||
| 1.5 | A reference to writing or written excludes fax but not email. | ||
2 |
Licence |
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| 2.1 | Subject to You: | ||
| 2.1.1 | paying the Registration Fee in accordance with clause 7.3; | ||
| 2.1.2 | purchasing the User Subscriptions in accordance with clause 7.2 and clause 7.3; | ||
| 2.1.3 | complying with the restrictions set out in this clause; and | ||
| 2.1.4 | abiding by the other terms and conditions of this Agreement, | ||
| 2.2 | We hereby grant You a limited, non-exclusive, non-transferable, revocable right and licence, without the right to grant sublicences, to permit the Authorised Users to access and use the Services (and the Software and the Documentation (except the WHHQ) in connection with the Services) during the Subscription Period on the terms of this Agreement, solely for Your internal business operations. Subject to You purchasing Top-Up Credits or a Top-Up Credits Subscription in accordance with clause 7.4 and clause 7.5 and subject to You purchasing a valid licence in accordance with clause 2.1, We shall grant You a limited, non-exclusive, non-transferable, revocable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the WHHQ during the Subscription Period on the terms of this Agreement, solely for Your internal business operations. | ||
| 2.3 | In relation to the Authorised Users, You undertake that: | ||
| 2.3.1 | the maximum number of Authorised Users that You authorise to access and use the Services, the Software and the Documentation shall not exceed the number of User Subscriptions You have purchased from time to time; | ||
| 2.3.2 | You will not allow or suffer any User Subscription to be used by more than one individual Authorised User; | ||
| 2.3.3 | each Authorised User shall keep a secure password for their use of the Services, the Software and the Documentation and that each Authorised User shall keep their password confidential; | ||
| 2.3.4 | You shall permit Us or Our designated auditor to audit the Services to establish Your data processing facilities to verify that Your use of the Services, the Software and the Documentation does not exceed the total number of User Subscriptions and Top-Up Credits purchased. Each such audit may be conducted no more than once per quarter, at Our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Your normal conduct of business. These audits may take place physically on Your premises, or remotely, at Our option. You acknowledge and agree that We will observe all layers of Your systems to assess and provide You with support and assistance; and | ||
| 2.3.5 | if any of the audits referred to in clause 2.3.4 reveal that You have underpaid Subscription Fees or the fees for Top-Up Credits to Us, then without prejudice to Our other rights, You shall pay to Us an amount equal to such underpayment as calculated in accordance with the prices set out on the Website within 10 Business Days of the date of the relevant audit. | ||
| 2.4 | You shall not use the Services to: | ||
| 2.4.1 | distribute or transmit to Us any Viruses or Vulnerability and shall implement procedures in line with Good Industry Practice to prevent such distribution or transmission; | ||
| 2.4.2 | store, access, publish, disseminate, distribute or transmit any material which: | ||
| (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) | is otherwise illegal or causes damage or injury to any person or property; | ||
| and We reserve the right, without liability or prejudice to Our other rights to You, on no less than thirty (30) days’ prior written notice to You, such notice specifying the breach of this condition and requiring it to be remedied within the thirty (30) day period, to disable Your access to the Services, the Software and the Documentation for the duration of time that the breach remains unremedied. | |||
| 2.5 | You shall not: | ||
| 2.5.1 | 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, the Services and/or Documentation (as applicable) in any form or media or by any means, including academic publications or media or by any means including academic publications; or | ||
| (b) | attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, the Services or the Documentation; or | ||
| 2.5.2 | access all or any part of the Services, the Software or Documentation in order to build a product or service which competes with the Services and/or the Software and/or the Documentation; or | ||
| 2.5.3 | subject to clause 15.10, licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or Documentation available to any third party except the Authorised Users, or | ||
| 2.5.4 | attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or Documentation, other than as provided under Agreement; or | ||
| 2.5.5 | introduce or permit the introduction of, any Virus or Vulnerability into Our network and information systems. | ||
| 2.6 | You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Us. | ||
| 2.7 | You shall supervise and control use of the Services, the Software and the Documentation and ensure that they are used by Your employees only in accordance with the terms of this Agreement. | ||
| 2.8 | The rights provided under this clause are granted to You only and shall not be considered granted to any other company associated with You. | ||
3 |
Services |
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| 3.1 | We shall, during the Subscription Period, provide the Services and make available the Software and the Documentation to You on and subject to the terms of this Agreement. | ||
| 3.2 | We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: | ||
| 3.2.1 | planned maintenance which We shall inform You of, and shall complete, as soon as possible; and | ||
| 3.2.2 | unscheduled maintenance performed outside Normal Business Hours, provided that We have used reasonable endeavours to give You at least 3 Normal Business Hours’ notice in advance. | ||
| 3.3 | We will: | ||
| 3.3.1 | as part of the Services and at no additional cost to You, provide you with a help desk service which shall be available 24 hours a day, seven days a week for general system use issues. During Normal Business Hours, We shall man the help desk and respond to Your general system use issues; | ||
| 3.3.2 | provide You with Our customer technical support services during Normal Business Hours in accordance with Our Support Services Policy in effect at the time that the Services are provided. We may amend the Support Services Policy in Our sole and absolute discretion from time to time. You acknowledge and agree that consultancy services and training packages (podcasts and educational products) are not included in Our Support Services Policy and You may purchase these consultancy services and training packages (podcasts and educational products) separately in addition to the Fees at Our then current rates. | ||
4 |
Data Protection |
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| 4.1 | For the purposes of this clause, the terms controller, processor, personal data and processing shall have the meaning given to them in the UK GDPR. | ||
| 4.2 | Both parties will comply, and are responsible for their own compliance, with all applicable requirements of Applicable Data Protection Laws. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws. | ||
| 4.3 | We and You have determined that, for the purposes of Applicable Data Protection Laws, You are the controller of Your Data and We shall process Your Data as a processor on Your behalf in respect of the agreed processing activities, including but not being limited to the storing of Your data, and providing support and assistance to You. | ||
| 4.4 | Should the determination in clause 4.3 change, then each party shall work together in good faith to make any changes which are necessary to this clause. | ||
| 4.5 | By entering into this Agreement, You consent to (and shall procure all required consents, from Your personnel, representatives, agents and customers, in respect of) all actions taken by Us in connection with the processing of Our Data, provided these are in compliance with the then current version of Our Privacy Policy. In the event of any inconsistency or conflict between the terms of the Privacy Policy and this Agreement, the Privacy Policy will take precedence. | ||
| 4.6 | Without prejudice to the generality of clause 4.2, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of Our Data and Your Data to Us and lawful collection of the same by Us for the duration and purposes of this Agreement. | ||
| 4.7 | Without prejudice to the generality of clause 4.2, We shall, in relation to Your Data process Your Data only on Your documented instructions unless We are required by Applicable Laws to otherwise process Your Data. Where We are relying on Applicable Laws as the basis for processing Your Data, We shall notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You on important grounds of public interest. We shall inform You if, in Our opinion, Your instructions infringe Applicable Data Protection Laws. | ||
| 4.8 | We shall, at Your written direction, delete or return Your Data and copies thereof to You within 6 months of the termination of this Agreement unless We are required by Applicable Data Protection Laws to continue to process Your Data. | ||
| 4.9 | Subject to clause 11.1 and clause 11.2, Our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract insofar as it relates to the obligations set out in this clause 4, or Applicable Data Protection Laws shall be limited to the total Fees paid by You during the 12 months immediately preceding the date on which the claim arose. | ||
| 4.10 | You acknowledge and agree that the results and information contained in all the WHHQs completed by Your patients are anonymised and therefore are not deemed to be personal data (Anonymised Data). You consent to share the Anonymised Data with Us, and for Us to retain, analyse, and use that Anonymised Data to report, promote and provide market insight, marketing collateral and statistics to third parties across different modalities within the wellness sector during, and after the termination of, this Agreement. | ||
5 |
Our Obligations |
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| 5.1 | We undertake that the Services will be performed with reasonable skill and care. | ||
| 5.2 | We: | ||
| 5.2.1 | do not warrant that: | ||
| (a) | Your use of the Services will be uninterrupted or error-free; or | ||
| (b) | the Services, Documentation and/or the information obtained by You through the Services will meet Your requirements; or | ||
| (c) | the Software or the Services will be free from Vulnerabilities or Viruses; or | ||
| (d) | the Software, Documentation Cybersecurity Requirements. | ||
| 5.2.2 | are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. | ||
| 5.3 | This Agreement shall not prevent Us 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. | ||
| 5.4 | We warrant that We have and will maintain all necessary licences, consents, and permissions necessary for the performance of Our obligations under this Agreement. | ||
| 5.5 | We shall follow Our archiving procedures for Your Data as set out in Our Back-Up Policy available at the Website, as such document may be amended by Us in Our sole discretion from time to time. In the event of any loss or damage to Your Data, Your sole and exclusive remedy against Us shall be for Us to use reasonable commercial endeavours to restore the lost or damaged Your Data from the latest back-up of such Your Data maintained by Us in accordance with the archiving procedure described in Our Back-Up Policy. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by Us to perform services related to Your Data maintenance and back-up for which it shall remain fully liable. | ||
6 |
Your Obligations |
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| 6.1 | You shall: | ||
| 6.1.1 | provide Us with: | ||
| (a) | all necessary co-operation in relation to this Agreement; and | ||
| (b) | all necessary access to such information as may be required by Us; | ||
| in order to provide the Services, including but not limited to Your Data, security access information and configuration services; | |||
| 6.1.2 | without affecting Your other obligations under this Agreement, comply with all applicable laws and regulations with respect to Your activities under this Agreement; | ||
| 6.1.3 | carry out all of Your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the parties, We may adjust any agreed timetable or delivery schedule as reasonably necessary; | ||
| 6.1.4 | ensure that the Authorised Users use the Services, the Software and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; | ||
| 6.1.5 | obtain and shall maintain all necessary licences, consents, and permissions necessary for Us, Our contractors and agents to perform Our obligations under this Agreement, including without limitation the Services; | ||
| 6.1.6 | ensure that Your network and systems comply with the relevant specifications provided by Us from time to time; and | ||
| 6.1.7 | be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing Your network connections and telecommunications links from Your systems to Our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet. | ||
| 6.2 | You shall own all right, title and interest in and to all of Your Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all of Your Data. You hereby licence Us to use Your Data: | ||
| 6.2.1 | for the proper performance of the Services, including the provision of the Software and the Documentation; | ||
| 6.2.2 | for the purposes set out in Our Privacy Policy; and | ||
| 6.2.3 | to allow us to report, promote and provide market insight, marketing collateral and statistics to third parties across different modalities within the wellness sector; and | ||
| 6.3 | for all other purposes relevant to the proper exercise of Our rights and obligations under this Agreement. | ||
7 |
Charges and Payment |
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| 7.1 | You shall pay Us: | ||
| 7.1.1 | the Fees in accordance with this clause 7 and the Order; | ||
| 7.1.2 | the relevant fees payable for any consultancy services purchased in accordance with clause 3.3.2, within 14 days of the date of Our invoice; | ||
| 7.1.3 | the relevant fees for any training packages (podcasts and educational products) purchased in accordance with clause 3.3.2 shall be payable using our payment provider at the time of ordering. | ||
| 7.2 | If You agree in the Order to pay the Subscription Fees for the User Subscriptions in one payment, you shall pay the Subscription Fees to Us in full using our payment provider on the Subscription Date; | ||
| 7.3 | If You agree in the Order to pay the Subscription Fees for the User Subscriptions in 12 equal monthly instalments, you shall: | ||
| 7.3.1 | pay the Registration Fee using our payment provider on the Subscription Date; and | ||
| 7.3.2 | create a Subscription Payment using our payment provider to pay Us the Subscription Fees in 12 equal monthly instalments in advance commencing on the Subscription Date for the Subscription Period; and | ||
| 7.4 | If you agree in the Order to purchase a single user package, You may order Top-Up Credits from Our website and shall pay Us for these using our payment provider at the time of ordering, subject to clause 7.6. | ||
| 7.5 | If you agree in the Order to purchase a multi-user package or a multi-site package, You may, subject to clause 7.6: | ||
| 7.5.1 | order Top-Up Credits from Our website and shall pay Us for these using our payment provider at the time of ordering; or | ||
| 7.5.2 | purchase a Top-Up Credits Subscription, the fees of which shall be payable by You creating a Subscription Payment using our payment provider to pay Us in 12 equal monthly instalments in advance commencing on the date of ordering. | ||
| 7.6 | You acknowledge and agree that you are required to have a valid User Subscription to be entitled to purchase Top-Up Credits or a Top-Up Credits Subscription. | ||
| 7.7 | All amounts and fees stated or referred to in this Agreement: | ||
| 7.7.1 | shall be payable in pounds sterling unless otherwise agreed; | ||
| 7.7.2 | are, subject to clause 11.3.2, non-cancellable and non-refundable. | ||
| 7.8 | If We have not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of Us: | ||
| 7.8.1 | We may, without liability to You, disable Your password, account and access to and use of all or part of the Services, the Software and the Documentation and We shall be under no obligation to provide any or all of the Services, the Software and the Documentation while the invoice(s) concerned remain unpaid; and | ||
| 7.8.2 | interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement. | ||
| 7.9 | We shall be entitled to increase the Subscription Fees, the fees for Top-Up Credits, the consultancy fees payable pursuant to clause 3.3.2 and/or the fees for the training packages payable pursuant to clause 3.3.2 at the start of each Renewal Period upon 30 days’ prior notice to You and the Order shall be deemed to have been amended accordingly. | ||
8 |
Proprietary Rights |
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| 8.1 | You acknowledge and agree that: | ||
| 8.1.1 | We and/or Our licensors own all intellectual property rights in the Services, the Software and the Documentation anywhere in the world; | ||
| 8.1.2 | the rights in the Services, the Software or the Documentation are licenced (not sold) to You; and | ||
| 8.1.3 | except as expressly stated in this Agreement, this Agreement does not grant You any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software or the Documentation. | ||
| 8.2 | We confirm that We have all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights We purport to grant under, and in accordance with, the terms of this Agreement. | ||
| 8.3 | You acknowledge that You have no right to have access to any Software in source code form. | ||
9 |
Confidentiality |
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| 9.1 | Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this Agreement in connection with this Agreement, including but not limited to: | ||
| 9.1.1 | the terms of this Agreement or any agreement entered into in connection with this Agreement; | ||
| 9.1.2 | any information that would be regarded as confidential by a reasonable business person relating to: | ||
| (a) | the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and | ||
| (b) | the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; | ||
| 9.1.3 | any information developed by the parties in the course of carrying out this Agreement and the parties agree that: | ||
| (a) | details of the Services, the Documentation, the WHHQ and the results of any performance tests of the Services, shall constitute Our Confidential Information; and | ||
| (b) | Your Data shall constitute Your Confidential Information; | ||
| Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers. | |||
| 9.2 | The provisions of this clause shall not apply to any Confidential Information that: | ||
| 9.2.1 | is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); | ||
| 9.2.2 | was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; | ||
| 9.2.3 | was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or | ||
| 9.2.4 | the parties agree in writing is not confidential or may be disclosed; or | ||
| 9.2.5 | is developed by or for the receiving party independently of the information disclosed by the disclosing party. | ||
| 9.3 | You shall keep Our Confidential Information secret and confidential and shall not: | ||
| 9.3.1 | use such Confidential Information except for the purpose of exercising or performing Your rights and obligations under or in connection with this Agreement (Permitted Purpose); or | ||
| 9.3.2 | disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 9. | ||
| 9.4 | You may disclose Our Confidential Information to those of Your Representatives who need to know such Confidential Information for the Permitted Purpose, provided that: | ||
| 9.4.1 | You inform such Representatives of the confidential nature of the Confidential Information before disclosure; and | ||
| 9.4.2 | at all times, You are responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause. | ||
| 9.5 | You may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, You give Us as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.5, You take into account Our reasonable requests in relation to the content of such disclosure. | ||
| 9.6 | You may, provided that You have reasonable grounds to believe that We are involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing Us of such disclosure. | ||
| 9.7 | We reserve all rights in Our Confidential Information. No rights or obligations in respect of Our Confidential Information other than those expressly stated in this clause are granted to You, or to be implied from this Agreement. | ||
| 9.8 | On termination or expiry of this Agreement, You shall: | ||
| 9.8.1 | destroy or return to Us all documents and materials (and any copies) containing, reflecting, incorporating or based on Our Confidential Information; | ||
| 9.8.2 | erase all of Our Confidential Information from computer and communications systems and devices used by You, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and | ||
| 9.8.3 | certify in writing to Us that You have complied with the requirements of this clause, provided that You may retain documents and materials containing, reflecting, incorporating or based on Our Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by You, subject to clause 12 (Termination). | ||
| 9.9 | You acknowledge and agree that: | ||
| 9.9.1 | You shall disclose, and We shall be entitled to use, the Anonymised Data in accordance with clause 4.6 and clause 6.2; and | ||
| 9.9.2 | We are entitled to disclose the Anonymised Data to any third party in accordance with clause 4.6 and clause 6.2. | ||
| 9.10 | No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. | ||
| 9.11 | Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information. | ||
| 9.12 | The above provisions of this clause 9 shall survive for a period of five years from termination or expiry of this Agreement. | ||
| 9.13 | In performing Your obligations under this Agreement You shall comply with Our Privacy Policy. | ||
10 |
Indemnity |
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| 10.1 | You shall defend, indemnify and hold harmless Us 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 Your use of the Services, the Software and/or Documentation, provided that: | ||
| 10.1.1 | You are given prompt notice of any such claim; | ||
| 10.1.2 | We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and | ||
| 10.1.3 | You are given sole authority to defend or settle the claim. | ||
| 10.2 | We shall defend You, Your officers, directors and employees against any claim that Your use of the Services, Software or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Subscription Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that: | ||
| 10.2.1 | We are given prompt notice of any such claim; | ||
| 10.2.2 | You do not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Us in the defence and settlement of such claim, at Our expense; and | ||
| 10.2.3 | We are given sole authority to defend or settle the claim. | ||
| 10.3 | In the defence or settlement of any claim, We may procure the right for You 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 2 Business Days’ notice to You without any additional liability or obligation to pay liquidated damages or other additional costs to You. | ||
| 10.4 | In no event shall We, Our employees, agents and sub-contractors be liable to You to the extent that the alleged infringement is based on: | ||
| 10.4.1 | a modification of the Services, the Software or the Documentation by anyone other than Us; or | ||
| 10.4.2 | Your use of the Services, the Software or the Documentation in a manner contrary to the instructions given to You by Us; or | ||
| 10.4.3 | Your use of the Services, the Software or the Documentation after notice of the alleged or actual infringement from Us or any appropriate authority. | ||
| 10.5 | The foregoing and clause 11.3.2 state Your sole and exclusive rights and remedies, and Our (including Our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality. | ||
11 |
Limitation of Liability |
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| 11.1 | Except as expressly and specifically provided in this Agreement: | ||
| 11.1.1 | You assume sole responsibility for results obtained from the use of the Services, the Software and the Documentation by You, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Us by You in connection with the Services, or any actions taken by Us at Your direction; | ||
| 11.1.2 | You accept responsibility for the selection of the Services to achieve Your intended results and acknowledge that the Services, the Software and the Documentation have not been developed or designed to meet or support any individual requirements you have; | ||
| 11.1.3 | all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and | ||
| 11.1.4 | the Services, the Software and the Documentation are provided to You on an “as is” basis. | ||
| 11.2 | Nothing in this Agreement limits or excludes Our liability for: | ||
| 11.2.1 | death or personal injury caused by Our negligence; or | ||
| 11.2.2 | fraud or fraudulent misrepresentation; or | ||
| 11.2.3 | any other liability that cannot be excluded or limited by English law. | ||
| 11.3 | Subject to clause 11.1 and clause 11.2: | ||
| 11.3.1 | We 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 sales, loss of business, loss of revenue, 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 | ||
| 11.3.2 | Our 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 Fees paid by You during the 12 months immediately preceding the date on which the claim arose. | ||
| 11.4 | Nothing in this Agreement excludes Your liability for any breach, infringement or misappropriation of Our Intellectual Property Rights”. | ||
| 11.5 | We only supply the Services, the Software and the Documentation for internal use by Your business, and You agree not to use the Services, the Software or the Documentation for any resale purposes. | ||
12 |
Term and Termination |
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| 12.1 | This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Subscription Date and shall continue for the Initial Subscription Period and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless: | ||
| 12.1.1 | You notify Us of termination, in writing, at least 60 days before the end of the Initial Subscription Period or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Period or Renewal Period; or | ||
| 12.1.2 | otherwise terminated in accordance with the provisions of this Agreement; | ||
| and the Initial Subscription Period together with any subsequent Renewal Periods shall constitute the Subscription Period. | |||
| 12.2 | We may terminate this Agreement at any time on giving not less than 30 days’ written notice to You. | ||
| 12.3 | On termination of this Agreement for any reason: | ||
| 12.3.1 | all licences and rights granted to You under this Agreement shall immediately terminate and You shall immediately cease all use of the Services and/or the Software and/or the Documentation; | ||
| 12.3.2 | You must immediately cease all activities authorised by this Agreement; | ||
| 12.3.3 | You must immediately and permanently delete or disable interfaces to the Services from all computer equipment in Your possession, and immediately destroy, delete or return to Us (at Our option) all copies of the Documentation and Software then in Your possession, custody or control and, in the case of destruction or deletion, certify to Us that You have done so. | ||
| 12.3.4 | We may destroy or otherwise dispose of any of Your Data in Our possession unless We receive, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to You of the then most recent back-up of Your Data. We shall use reasonable commercial endeavours to deliver the back-up to You within 30 days of Our receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Us in returning or disposing of Your Data; and | ||
| 12.3.5 | any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced. | ||
13 |
Force Majeure |
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| 13.1 | We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by an Event Outside Our Control. An Event Outside Our Control is defined in clause 13.2. | ||
| 13.2 | An Event Outside Our Control means an act or event beyond Our reasonable control. | ||
| 13.3 | If an Event Outside Our Control takes place that affects the performance of Our obligations under this Agreement: | ||
| 13.3.1 | Our obligations under this Agreement will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control; and | ||
| 13.3.2 | We will use Our reasonable endeavours to find a solution by which Our obligations under this Agreement may be performed despite the Event Outside Our Control. | ||
14 |
Communications Between Us |
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| 14.1 | We may update this Agreement at any time on notice to You in accordance with this clause. Your continued use of the Services, the Software and the Documentation following the deemed receipt and service of the notice under clause 14.3 shall constitute your acceptance to the terms of this Agreement, as varied. If You do not wish to accept the terms of the Agreement (as varied) You must immediately stop using and accessing the Services, the Software and the Documentation on the deemed receipt and service of the notice. | ||
| 14.2 | If we have to contact You, We will do so by email or by pre-paid post to the address You provided in the Order. | ||
| 14.3 | Any notice: | ||
| 14.3.1 | given by Us to You will be deemed received and properly served 24 hours after it is first posted on Our Website, 24 hours after an email is sent, or three days after the date of posting of any letter; and | ||
| 14.3.2 | given by You to Us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter. | ||
| 14.4 | In proving the service of any notice, it will be sufficient to prove, in the case of posting on Our Website, that the Website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes. | ||
15 |
Other Important Terms |
||
| 15.1 | A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. | ||
| 15.2 | A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. | ||
| 15.3 | 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. | ||
| 15.4 | If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. | ||
| 15.5 | If any provision or part-provision of this Agreement is deemed deleted under clause 15.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. | ||
| 15.6 | This Agreement, the Order, any agreed record identifying Authorised Users and any document expressly referred to in the Agreement, constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between us, whether written or oral, relating to its subject matter. | ||
| 15.7 | You acknowledge that in entering into this Agreement You do not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement, the Order, any agreed record identifying Authorised Users or any document expressly referred to in the Agreement. | ||
| 15.8 | You agree that You shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement, the Order, any agreed record identifying Authorised Users or any document expressly referred to in it. | ||
| 15.9 | Nothing in this clause shall limit or exclude any liability for fraud. | ||
| 15.10 | You shall not, without Our prior written consent, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement. | ||
| 15.11 | We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under this Agreement. | ||
| 15.12 | 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). | ||
| 15.13 | 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. | ||
| 15.14 | Under data protection legislation, We are required to provide You with certain information about you We are, how We process the personal data of those individuals who use the Services, the Software and the Documentation and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in Our Privacy Policy on Our Website and it is important that You read that information. | ||
| 15.15 | 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 interpreted in accordance with the law of England and Wales. | ||
| 15.16 | Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). | ||
Latest version: 7 September 2023
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