Subscription Terms And Conditions For Contracts Signed On and After 1 May 2024
The Client wishes to be provided with certain Services by the Company and the Company agrees to provide the Services to the Client subject to the terms and conditions of this Agreement.
1 DEFINITIONS
1.1 In this Agreement, words shall have the following meanings allocated to them:
· “Agreement” means the terms and conditions of this agreement.
· “Client” means the party indicated in the Order Form as the “Account”.
· “Commencement Date” means the date on which the Services are to start as set out in the Order Form.
· “Company” means Dods Group Limited, registered in England and Wales (no. 01262354), at 5th Floor, 150 Borough High Street, London, SE1 1LB, England (VAT no. GB 792 067900), its subsidiaries and/or associated companies.
· “Confidential Information” means all information (however it is conveyed or on whatever media it is stored), whether or not such information is confidential or proprietary in nature which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of the disclosing party (including or the avoidance of doubt any information relating to the Services), business processes or procedures, technical information (including log-in details and passwords), log-in credentials of the Permitted Users, training manuals or financial information which (in the case of each of the foregoing) may reasonably be regarded as confidential information by the disclosing party or which is specifically marked as such. This shall also include any information the disclosure of which would, or would be likely to prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either Party and all personal data and sensitive personal data within the meaning of EU General Data Protection Regulation 2016/679 (GDPR) or of the UK Data Protection Act 2018. Confidential Information shall not include information which (i) was public knowledge at the time of disclosure (otherwise than by breach of clause 9); (ii) was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party; (iii) is received from a third party (who lawfully acquired it) without restriction as to its disclosure; or (iv) is independently developed without access to the Confidential Information;
· “Data Protection Legislation” means the United Kingdom Data Protection Act 2018 (DPA), United Kingdom General Data Protection Regulation(UK GDPR), the Privacy and Electronic Communications Regulations 2003 (SI2003/2426) as amended and any other applicable legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications). In case of Clients in the European Union, “Data Protection Legislation” means the General Data Protection Regulation, 2018, Directive (EU) 2016/680 of the European Parliament and the Council of 27 April 2016, Regulation (EU) 2018/1725 of the European Parliament and the Council of 23 October 2018 and any other applicable legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
· “Fee” means the sum indicated in the Order Form payable by the Client for the Services or the sum payable as varied in accordance with clause 7.2 of this Agreement.
· “Force Majeure” means any event or occurrence which is outside the reasonable control of the Party concerned and which is not attributable to any act or failure to take preventative action by that Party, including any accidents, fire, flood, storm, explosion, casualty, epidemic, act of God, unavailability of materials or transportation or power or other commodity delay, civil disturbance, terrorism, riot, armed conflict, war, military action, the enactment of any law, the issuance of any executive or judicial order or decree) which causes an interruption of or materially hampers or interferes with the performance by either Party to this Agreement.
· “Intellectual Property Rights / IPRs” means all vested and future copyright and moral rights (in each case for the full period thereof and all extensions, revivals and renewals thereof), database rights, patents, registered and unregistered trademarks and service marks(including any good will attributable thereto), logos, domain names, registered designs and design rights, trade or business names and other similar rights or obligations including applications for the foregoing and the right to apply for any of the foregoing anywhere in the world, and similar rights anywhere in the world together with all information, know-how and techniques relating thereto.
· “IP Materials” means any documentation, guidance, reports, research documents, bulletins, alerts, briefings, agendas, newsletters, specifications, instructions, toolkits, plans, data, drawings, databases (or information contained in databases presented in any format), patents, patterns, models, designs or other material containing IPRs.
· “Order Form” means the form generated by the Company (in the format specified by the Company from time to time) incorporating the description of the Services to be performed, the Parties, and the Fee payable.
· “Party or Parties” means the Company and the Client collectively or the Company or the Client individually, as the context implies. References to Parties include references to their respective successors in title, permitted assigns and novates.
· “Permitted Users” means employees of or authorized individuals who are directly associated with the Client, who are nominated in writing by the Client and granted access to the Services, after obtaining the written consent of the Company.
· “Services” means the Services indicated on the Order Form.
· “Term” means the term of this Agreement, as indicated in the Order Form (“Initial Term”) or as extended pursuant to Clause 2 (“Renewal Term).
· “UK Data Protection Legislation” means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
· “VAT” means value added tax as provided for in the Value Added Tax Act 1994.
· “Working Days” means09:00 to 17:00 BST, Monday to Friday, excluding bank and public holidays in England.
1.2 The headings and titles in this Agreement are intended to make it easier to read but do not form part of this Agreement and do not affect its or their interpretation.
1.3 Reference to any statute or statutory provision shall mean a reference to a United Kingdom statute or statutory provision, except where expressly stated otherwise. Such reference includes any consolidation or re-enactment, modification, regulation or replacement of the same, any statute or statutory provision of which it is a consolidation, re-enactment, modification, regulation or replacement and any subordinate legislation in force under any of the same from time to time.
1.4 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party’s other rights and remedies.
1.5 Words denoting “persons” shall include a natural person, incorporated or unincorporated entity, firm, government, state, partnership, company, incorporation, association, organisation, institution, foundation, trust or agency (in each case whether or not having separate legal personality).
1.6 Where the context requires, words importing the singular shall include the plural and vice versa.
1.7 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.8 Any phrase introduced by the words including, includes, in particular or for example or similar shall be construed as illustrative and shall not limit the generality of the related general words.
1.9 If there is any conflict or ambiguity between any part of this Agreement and an Order Form, the Order Form shall prevail, unless expressly stated otherwise.
2 TERM
This Agreement shall commence on the Commencement Date and shall, subject to termination in accordance with Clause 12, continue in force thereafter for the initial term (“Initial Term”). Initial Term shall be as defined in the Order Form. At the end of the Initial Term, this Agreement shall automatically renew for successive 12-month periods (each 12-month period a “Renewal Term”), unless terminated by either party as per the terms of Clause 12.
3 SERVICES
3.1 Subject to the Client’s payment of the Fee, the Client is granted the right to use the Service in accordance with the terms of this Agreement.
3.2 The Company shall provide the Services with reasonable skill and care in accordance with the terms of this Agreement.
3.3 The Services will not be varied unless such variation is agreed to in writing by duly authorised representatives of both Parties.
3.4 The Company reserves the right to substitute any personnel who are assigned to provide the Services to the Client.
3.5 The Company shall be entitled to:
3.5.1 sub-contract any of its obligations hereunder to any affiliated entity;
3.5.2 assign the benefit of this Agreement to any third party who acquires all or substantially all of the business of Company;PROVIDED THAT, in each case the Company shall remain responsible for the performance of its obligations under this Agreement.
3.6 The Company shall have no liability for any failure to provide or delay in providing the Services in accordance with this Agreement to the extent that such failure or delay results from any act, omission, failure, error, negligence or conduct, wilful or otherwise of the Client.
3.7 The Client is responsible for cooperating with the Company and giving the Company such information, materials and access as may be reasonably necessary for the proper performance of the Services.
3.8 In the event of a disruption to the provision of Services by the Company under this Agreement, the Company shall notify the Client as soon as it is reasonably practicable.
3.9 Nothing in this Agreement shall prevent the Company from providing any similar services or products, as are set out in this Agreement to, or entering into similar agreements with any other persons or third parties either during or after completion of the Term.
4 ACCESS TO AND USE OF SERVICES
4.1 Access to IP Materials, including online platforms and databases used to deliver certain Services (as maybe applicable subject to the kind of Services being provided as per the Order Form) or any other elements or materials supplied as part of the Services, will be provided to the Client by the Company on or after the Commencement Date. Such access will be granted to an individual designated by the Client as the user of the Services (“Permitted User”). An individual shall be assigned as a Permitted User only after obtaining the written consent of the Company and the Company reserves the right to object to any individual being designated as a Permitted User, in which case the Client will ensure no information is shared with such individuals under this Agreement and/or Order Form. Unless otherwise agreed in writing between the Parties and amended in the Order Form, only one Permitted User shall be allowed per Client. Any increase to the number of Permitted Users shall be subject to the written consent of the Company. The Client shall ensure access to relevant information, database, platforms, login credentials, IP Materials etc. is provided only to the Permitted User(s) at all times and no other unauthorized individual has access to such information through such Permitted User (by using their login credentials or otherwise).
4.2 The details of the Permitted User(s) must be provided to the Company for approval prior to the Commencement Date and the Client shall keep the Company updated of any changes to the same (which shall include but not be limited to the Permitted User’s name, contact number, physical and email address) during the term of the Agreement. The Company accepts no liability for any errors or inaccuracies relating to the Permitted User’s details provided by the Client in line with this clause 4.2.
4.3 Any amendment, addition or substitution of Permitted Users must be in writing and agreed to by both Parties prior to the provision of any Services. The Company, using its reasonable discretion, reserves its right to accept or reject any persons submitted by the Client as potential Permitted Users.
4.4 If required, the Client shall be provided with access details, codes, credentials, passwords and/or other information required for the Permitted User to access and/or use the Services (“Log-In Details”).
4.5 The Client and the Permitted User must treat the Log-In Details as confidential and may not disclose such information to any other person or third party. The Client shall notify the Company immediately if it believes that there has been any unauthorised use of its Log-In details or any unauthorised access to any part of the Services using its Log-In details.The Company may disable any Permitted User’s Log-In details, at any time, if in its opinion, the Client or the Permitted User has failed to comply with any of the provisions in this Agreement. Notwithstanding anything else contained in this clause, the Client shall remain responsible for the actions of the Permitted Users at all times and any breach of this clause or other obligations of this Agreement and/or Order Form committed by them.
4.6 The Client is responsible for ensuring Permitted Users are aware of and comply with this Agreement. Furthermore, the Client warrants that it has all necessary firewall, anti-virus, data backup and other security software installed, which are up to date and operational on its devices and hardware used to access and/or make use of the Services and it shall keep such software up to date at all times. The Client acknowledges and warrants that each of the following terms shall apply to its access and use of the IP Materials and/or Services:
4.6.1 The Company shall continue to own the Intellectual Property Rights in the Services, the IP Materials, database, platforms and any copies, modifications and alterations thereof, and the Client is only provided with a limited, non-exclusive, non-transferable right to use it as per the terms of this Agreement.
4.6.2 Unless expressly varied in the Agreement, the Client may retain one copy, in either digital or print format, of any IP Materials supplied to it during the performance of the Services by the Company and may maintain one archive or back-up copy of the IP Materials in either format.
4.6.3 Upon termination or expiry of this Agreement, howsoever caused, all copies of any IP Materials in the Client’s possession must be returned, deleted or destroyed in accordance with clause 8.6 below.
4.6.4 IP Materials or any materials provided as part of the Services may not be modified or altered in any way without the Company’s consent and the provision of a clear notice indicating that the Company owns and reserves all rights to the IPRs contained in such materials, and any modifications or alterations of the same.
4.6.5 The Client may not copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, reproduce or re-sell or in any other way make available, in any format, any IP Materials, databases or any materials provided by the Company as part of the provision of Services, in full or in part, to any person who is not a Permitted User without receiving the Company’s prior written consent.
4.6.6 The Client shall not reverse compile or engineer, disseminate, modify, alter, or in any way use any portion of the IP Materials, databases or materials provided by the Company as part of the Services to create, distribute or in any way make available to any persons a service or product which competes, directly or indirectly, with any product or service offered by the Company.
4.7 A breach of any of the provisions in clauses 4.6.4, 4.6.5 and 4.6.6 by the Client shall constitute a material breach of this Agreement.
5 DODS PEOPLE AND CIVIL SERVICE PEOPLESERVICES
5.1 Where applicable, as part of the Services, the provision of the Dods People and Civil Service People Services by the Company is subject to the following terms:
5.1.1 The Client upon request may receive online training on the use of the Dods People and Civil Service People Services. The Company reserves the right to charge an added fee for any such training required by the Client.
5.1.2 The Client warrants that in accessing or using the Services or the Company’s websites, the Client, its affiliates and the Permitted User, shall not, in any way:
a) Transmit or send any communications relating to sales promotion or for any other commercial purposes in breach of the provisions of any Data Protection Legislation or any other applicable laws(including but not limited to relevant data, ePrivacy or online marketing rules and legislation);
b) Transmit or send any communications containing material, in any format, which may be regarded as defamatory, obscene, offensive, hateful or inflammatory;
c) Promote sexually explicit material or violence;
d) Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
e) Infringe any copyright, database right, trademark, confidentiality or any IPRs of any person;
f) Breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
g) Advocate, promote, incite or assist in any unlawful, fraudulent or any illegal activity;
h) Threaten, abuse or invade the privacy of any person, or cause annoyance, inconvenience or needless anxiety to any person;
i) Knowingly introduce, transmit, send or upload any material or data containing viruses, trojan horses, worms, time-bombs, logic-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code or material which are malicious or technologically harmful or designed to adversely affect the operation of any computer software or hardware used to administer the Services;
j) Reproduce, duplicate, copy or re-sell any part, or extract information contained in the database;
k) Access, or cause any other person to access, interfere with, damage or disrupt the:
i. information contained in the database
ii. any equipment or network on which the database is stored; or
iii. any software used in the provision of the database;
l) Give the impression that any communication emanates from the Company (or any of its affiliates); or
m) Use the data contained in the database in anyway which contravenes the provisions of the Data Protection Legislation.
5.1.3 A breach of any of the provisions in clause 5.1.2 above (the “Usage Standards”) will be considered a material breach of the terms of this Agreement.
5.1.4 The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the Client’s breach of the Usage Standards.
5.1.5 The Company shall use reasonable endeavours to maintain but shall accept no liability for the accuracy of the information contained in the database. The Client agrees to fully indemnifies and hold harmless the Company against any loss, damage, cost or expense (including, without limitation, reasonable professional fees and expenses) arising directly or indirectly out of its reliance on any information contained in the database.
5.1.6 Subject to clause 4.6 above, the Client shall not download, copy, save, transmit, send, amend, or modify any information contained in, or extract of any portion of the database, unless such action constitutes a part of the use of the Service by the Client as described in clause 4.6 above. The Client shall not disseminate, reproduce, duplicate, re-sell or publish any information contained in or extracted from the database or platform for any reason whatsoever without obtaining the prior written consent of the Company. When in doubt, the Client shall reach out to the Company’s account manager for obtaining further clarity.
6 DODS MONITORING SERVICES
6.1 The Company reserves the right, acting in its sole and reasonable discretion, to record the time it spends on any research agreed with the Client from time to time, in addition to the research provided as part of the Service, and to charge an additional fee for any additional use of any research services by the Client.
6.2 Unless otherwise specified in the Order Form, the following items are not included in the scope of the Monitoring Services to be provided to the Client as per the terms of this Agreement and the Company reserves the right to charge an additional fee for any such item:
a) Any publications bought by the Company for the specific purpose of servicing the Client’s account (such as legislation, white/green papers, marshalled lists of amendments, select committee reports etc.);
b) Any items ordered by the Company expressly on the Client’s behalf and passed on to the Client by the Company;
c) Any request by the Client for information that is above and beyond the normal terms of the Monitoring Services, including but not limited to requests for committee attendance (in the case of Dods Monitoring Services only), personal profiles, obtaining non parliamentary or stationery office publications or any other general research.
7 FEE, PAYMENT AND TAX
7.1 In consideration of the Company carrying out its obligations under this Agreement, the Fee shall be payable by the Client within 14 days of receipt of a valid invoice, to be issued annually in advance.
7.2 The Company shall be entitled to increase the Fee upon completion of twelve (12) months from the Commencement Date and upon every subsequent anniversary from such date.
7.3 In the event the increase of the Fee is equal to the percentage increase in the Retail Prices Index as published on the month(or relevant period) preceding the implementation of the increase by the relevant national authority for statistics, the Company may automatically implement such increase in the Fee with effect from the first anniversary of the Commencement Date or any subsequent anniversary from such date, as the case maybe, without serving any notice to the Client.
7.4 If the increase of the Fee is higher than the percentage increase in the Retail Prices Index as published on the month (or relevant period) preceding the implementation of the increase by the relevant national authority for statistics, the Company shall provide a notice of at least thirty (30) days prior to the expiry of twelve (12) months from the Commencement date or any subsequent anniversary from such date as the case maybe, with details of the increase in Fee. The Client shall have the right to terminate the Agreement in such cases by providing a written notice of termination to the Company not less than fifteen (15) days from the date of receipt of notice of the Fee increase over and above the relevant Retail Price Index. In the event that no termination notice is served by the Client within the said time period, the increased Fee shall be implemented by the Company with effect from the first anniversary of the Commencement Date or any subsequent anniversary from such date, as the case maybe, and any subsequent termination of the Agreement shall take place in accordance with clause 12.
7.5 The Fee, and any additional charges, if applicable, will be stated exclusive of VAT and other applicable taxes, if any, which will be added in the invoice at the prevailing rates as applicable and shall be payable by the Client.
7.6 The Client shall pay the Fee without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Company to the Client.
7.7 If the Client disputes any invoice or any portion thereof or any other request for payment, the Client shall immediately notify the Company in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Company shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the Parties have not resolved the dispute within 20(twenty) Working Days of the Client giving notice to the Company, the dispute shall be resolved in accordance with clause 10 of this Agreement. Where only part of an invoice is disputed, the undisputed amount shall be paid by the Client within the payment term indicated in clause 7.1 above.
7.8 If the Client does not dispute an invoice or any part thereof within 14 days from the date of receipt, it shall be deemed to be accepted and due and payable as per the terms of this Agreement.
7.9 All payments payable to the respective Parties under this Agreement shall become due immediately on its termination. This clause 7.9 is without prejudice to any right to claim interest under the law or under this Agreement.
7.10 Without prejudice to any other rights available to the Company under this Agreement or under law, if the Client fails to pay any Fee when due, the Company shall be entitled to charge interest on the amount due at the statutory interest rate and/or suspend operation of any part of the Services until payment is received in full.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights shall remain the exclusive property of the Party owning them (or, where applicable, the third party from whom its right to use the IPRs has derived).
8.2 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Company. In case any materials are provided by the Client, this shall be mentioned in the relevant Order Form and any material outside its ambit shall continue to be owned by the Company.
8.3 All Intellectual Property Rights in the database, platforms, information, IP materials, and any derivatives, improvements and modifications thereof, to which the Client gains access to or obtains from the Company during the course of receiving or using the Services under this Agreement shall be owned by the Company.
8.4 The Company grants to the Client a worldwide, non-exclusive, non-transferable, revocable, royalty-free licence during the term of the Agreement only make use of its Intellectual Property Rights for the limited purpose of receiving and using the Services.
8.5 In the event any material is provided by the Client to enable the Company to provide Services, the Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify such materials for the term of the Agreement for the purpose of providing the Services to the Client. The Client also warrants that the use of such materials, by the Company for the performance of the Services, shall not infringe the rights, including any Intellectual Property Rights, of any third party.
8.6 Upon termination or expiration of this Agreement, however caused, the Client’s rights of access and use of the Services will cease, and it must immediately return, delete or destroy all IP Materials and/or information supplied to it by the Company during the provision of the Services and must certify, on request by the Company, that it has complied with this clause.
8.7 The Client shall fully indemnify and hold harmless the Company against any loss, damage, cost or expense (including, without limitation, reasonable professional fees and expenses) arising directly or indirectly out of any breach by the Client or the Permitted Users, of the Company’s Intellectual Property Rights.
8.8 This clause 8 shall survive the termination of this Agreement.
9 CONFIDENTIALITY
9.1 Client acknowledges and agrees to maintain the confidentiality of Confidential Information provided by the Company hereunder. The Client shall not disclose or disseminate Confidential Information to any person other than those employees of the Client who have a need to know it under this Agreement.Client shall ensure that all such persons having access to Confidential Information comply with the provisions of this Clause and shall execute, or shall already be bound by, a non-disclosure agreement containing terms and conditions consistent with the terms and conditions of this Agreement. In any event, Client shall be responsible for any breach of the terms and conditions of this Agreement by any of its employees.
9.2 In relation to any personal information (i.e., information that relates to a natural person) that forms a part of the Confidential Information that is disclosed, Client agrees that it shall comply with the provisions of the data protection and privacy laws as may be applicable to it. If requested by the Company, Client agrees to enter into further agreements as may be reasonably necessary to enable the Company to comply with applicable data protection or privacy laws from time to time.
9.3 Client shall, as an express term of its employment or engagement of all its personnel, require all resources to maintain the confidentiality of the Company’s Confidential Information.
9.4 In addition, Client:
9.4.1 shall take all reasonable steps to prevent unauthorized access to Confidential Information;
9.4.2 shall not use Confidential Information or authorize other persons or entities to use Confidential Information, for any purposes other than in connection with performing its obligations or exercising its rights here under;
9.4.3 shall not use or allow Confidential Information to be used for its own benefit or the benefit of any third party other than for any purpose authorized under this Agreement;
9.4.4 shall not disclose or reveal or allow to be disclosed or revealed any Confidential Information to any third party;
9.4.5 shall not share the log-in credentials with any individual other than the Permitted User (s)and make sure the Permitted User (s) complies with all the confidentiality obligations under Agreement.
9.5 Disclosure of Confidential Information to the Client hereunder shall not constitute any option, grant or license to the Client under any patent or other rights now or hereinafter held by the Company, its subsidiaries, or any of its affiliated companies.
9.6 Return or Destruction of Confidential Information: Upon Company’s written request following the completion or termination of this Agreement or at any time during the term of this Agreement, the Client shall promptly return to the Company, or destroy, as instructed by the Company, all Confidential Information of the Company provided under or in connection with this Agreement, including all copies, portions and summaries thereof. 9.7 This clause 9 shall survive the termination of this Agreement.
10 DISPUTE RESOLUTION
10.1 The Parties will attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with this Agreement or the Order Form.
10.2 If the dispute cannot be resolved by the Parties pursuant to clause 10.1 the dispute may, by agreement between the Parties, be referred to mediation. The Parties shall mutually appoint a mediator of their choice and the dispute will be resolved as per the laws of England and Wales.
10.3 The performance of the obligations imposed by this Agreement by the Parties will not cease or be delayed by the reference of a dispute to mediation pursuant to clause 10.2 above.
11 DATA PROTECTION
11.1 Each party shall comply with its respective obligations under the provisions of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.2 The Client acknowledges that as part of its use of the Service, it will receive personal data from the Company and agrees not to process personal data other than for the purposes agreed to with the Company or in a manner that may breach (or result in the Company breaching) the Data Protection Legislation.
11.3 With respect to any personal data it provides to the Company, the Client will ensure that it has all necessary consents and notices in place to enable lawful processing of such personal data by the Company for the duration and purposes of this Agreement.
11.4 The Client acknowledges and agrees that any personal data obtained from the Client, or provided by the Client to the Company, will be processed by the Company for its own purposes, including those described in the Company’s Privacy Policy. By providing such personal data, the Client warrants it has legal authority to do so and that all data provided by it is accurate.
11.5 The Client agrees to indemnify the Company for any loss or damage suffered by the Company on account of any breach of the Data Protection Legislation or obligations related to data processing, committed by the Client and/or any Permitted User during the course of this Agreement.
11.6 The Client agrees to comply and ensure all the Permitted Users comply, with any Privacy Policy or Information Security Policies or such other relevant policies the Company may choose to implement during the term of this Agreement.
12 TERMINATION
12.1 Either party may terminate this Agreement by giving a notice to terminate, at least 90 days prior to the expiry of the Initial term or subsequent Renewal Term(s), as may be applicable.
12.2 The Company shall be entitled to terminate this Agreement within 30 days of the Commencement Date of the Agreement by providing a written notice if there is a miscommunication between the parties regarding the substance of the Services to be provided or the Company is unable to provide the Services as per the requirements of the Client on account of the same, in which case the Company shall reimburse the Fees paid by the Client on a pro rata basis.
12.3 The Company shall be entitled to terminate this Agreement at any point with immediate effect if the Client fails to pay the Fee on time as per the agreed payment terms in this Agreement and/or Order Form.
12.4 Without prejudice to its other rights and remedies, with immediate effect by either party upon written notice to the other if the other party:
12.4.1 is in material breach of any of its obligations under this Agreement (“Breaching Party”) and either that breach is incapable of remedy, or the Breaching Party has failed to remedy that breach within ten (10) Working Days after receiving written notice requiring it to remedy that breach; or
12.4.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other Party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction.
12.5 The Company may terminate this Agreement (or at its discretion temporarily suspend the Client’s access to the Services) if the Client breaches the provisions included in clause 4.6 or the Usage Standards contained in clause 5.
12.6 Notwithstanding the termination of this Agreement, the Client shall remain liable to pay to the Company all sums accrued due on or prior to the date of termination.
12.7 Within 60 days of termination of this Agreement, howsoever occurring, the Client must return to the Company (or destroy if the Company so chooses) all documents and materials belonging to the Company together with all copies thereof (including but not limited to Company’s Confidential Information, Intellectual Property Rights and any data/information provided as part of the Services) and will certify in writing to the Company that all actions required under this clause have been duly carried out.
12.8 Termination of this Agreement howsoever arising will be without prejudice to the rights and duties of the Parties arising in any way out of this Agreement prior to termination and, without limitation, all of the clauses in this Agreement which, expressly or by implication, have effect after termination, will continue to be enforceable notwithstanding such termination.
13 INDEMNITY AND LIMITATION OF LIABILITY
13.1 Client agrees to defend, release, indemnify and hold the Company and its directors, officers, employees, agents, successors and permitted assigns harmless from and against, any claim, loss, damage, settlement, cost, taxes, interest, penalty, expense or other liability (including, without limitation, reasonable attorneys’ and legal fees) arising from or related to:
(i) breach of any of the terms and conditions of this Agreement or the Work Order; or
(ii) any breach of the applicable laws, with specific reference to the relevant data protection laws; or
(iii) any breach of the Company or any third parties’ Intellectual Property Rights; or
(iv) any breach of the confidentiality related obligations under this Agreement.
13.2 Nothing in this Agreement shall limit or exclude the liability of either Party for:
13.2.1 death or personal injury resulting from negligence;
13.2.2 fraud or fraudulent misrepresentation.
13.3 Without prejudice to clause 13.2 above:
13.3.1 the Company’s total liability to the Client arising under or in connection with this Agreement, whether arising in contract (including indemnity), tort (including negligence),under statute or otherwise, or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the sum of the Fee, payable by the Client for the 12 months preceding the event giving rise to such liability;
13.3.2 the Company shall under no circumstances be liable to the Client, whether in contract (including indemnity), tort (including negligence), under statute or otherwise, or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated savings; or
(f) loss or corruption of data or information; or
(g) special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with this Agreement.
13.4 The provisions of this clause 13 will not limit the Company’s right to recover for:
13.4.1 additional operational, administrative costs and/or expenses resulting from the direct default or delay of the Client; and/or
13.4.2 wasted expenditure or charges rendered unnecessary and incurred by the Company arising from a default or delay by the Client.
14 ENTIRE AGREEMENT
14.1 This Agreement and the corresponding Order Form constitute the entire agreement between the Parties, and supersedes any previous agreement, arrangement or understanding (whether oral or written) between the parties relating to its subject matter. The express terms of this Agreement are in lieu of all warranties, terms, conditions, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing otherwise, all of which are hereby excluded to the fullest extent permitted by law.
14.2 The parties acknowledge that in entering into this Agreement, neither party has relied on,and shall have no remedy in respect of, any statement, representation, warranty or other provision (whether oral, written, express or implied and whether negligently or innocently made) of any person (whether a party to this Agreement or not) which is not expressly set out in this Agreement (other than any fraudulent or dishonest statement, act or omission).
14.3 This Agreement supersedes any prior or subsequent reference to any previous version of such Terms and Conditions appearing on the Client’s (or any persons) purchase order or any related documentation.
15 GENERAL TERMS
15.1 Any person, entity or party who is not a Party to these terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement. This term does not affect a right or remedy of a third party which exists or is available apart from that Act.
15.2 The Parties agree that time shall not be of the essence in relation to this Agreement.
16 VARIATION
The Company reserves its rights to vary or amend the terms and conditions of this Agreement at any point in time by updating its official website.
17 WAIVERS
A failure to exercise or delay in exercising any right, remedy or power provided under this Agreement or by law does not constitute a waiver of the right, remedy or power or a waiver of any other right, remedy or power. No single or partial exercise of any right, remedy or power prevents any further exercise of it or the exercise of any other right, remedy or power.
18 SEVERABILITY
If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect the legality, validity and enforceability of the remaining provisions shall be unaffected.
19 FORCE MAJEURE
19.1 Neither Party shall be responsible for any delay or failure to perform its obligations under this Agreement or for any loss or damage caused as a result of such delay or failure if such delay or failure is due to Force Majeure.
19.2 In the event ofay such delay or failure as aforesaid, the affected Party shall as soon as is reasonably practicable (and in any event, if possible, within 5 (five) Working Days from the time of the affected Party’s delay or failure to perform its obligations) send notice in writing of the same and the reasons for it to the other Party and the affected Party shall use all reasonable endeavours to mitigate the effect of the Force Majeure.
19.3 The performance of the Services by the Company shall be deemed suspended so long as and to the extent that any such Force Majeure continues. Should the period of suspension contemplated in this clause 19.3 exceed a period of 30 days, the Term shall be extended for a period equal to the time during which the performance of the Services was suspended.
19.4 Either Party may, by written notice to the other, terminate this Agreement, or require the partial termination of any part of the Services on the occurrence in relation to that part, if a Force Majeure event endures for a continuous period of more than 60 (sixty) days.
19.5 For avoidance of doubt, it is clarified that this clause shall not apply to any payment obligations.
20 NO PARTNERSHIP
The Company is an independent service provider with respect to the Client, and nothing in this Agreement contemplates the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking or allows either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever. Nothing herein contained or to be done under this Agreement shall be deemed to constitute a partnership between the Company and the Client or the relationship of employer and employee and neither of them shall do or permit anything to be done whereby it shall or may be represented that it is the partner of the other.
21 NOTICES
Notices to be given by one Party to the other under this Agreement must be in writing and sent by first class mail or by email or delivered personally to the address given in this Agreement or otherwise notified during the term of this Agreement. Notices will be deemed to have been received on the same day if delivered personally or by fax (provided faxes are followed by a hard copy sent by first class post), or the second following Working Day if sent by post. If a notice is served by email, email is deemed to be received when it is sent. If it is sent outside business hours (or any day which is not a Working Day), the email is not deemed received until business resumes.
22 GOVERNING LAW AND JURISDICTION
22.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2 Subject to the provisions of clause 10, The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).