Effective Date: 31 August 2021
References to “you” and “your” in these Terms refers to any potential customer, customer and/or user of the Supplier’s goods and/or services. The Supplier may also be referred to herein as “we”, “us” and “our”. Please read these Terms carefully and make sure that you understand them before ordering any goods and/or services via the website, order form or otherwise. Please note that before placing an order for any goods and/or services you will be asked to agree to the Terms.
If you place an order to buy any of the Supplier’s goods and/or services, your order will constitute an offer to buy from the Supplier the goods and/or services stated in your order. The Supplier will send you an e-mail confirming that your order has been received by them (the Order Confirmation). The Order Confirmation does not in any way confirm acceptance of your offer to buy the goods and/or services ordered. Your offer will only be accepted, and a contract made (with the Supplier) for the sale to you of the goods and/or services ordered, when those goods and/or services are actually provided to you by the Supplier. The Supplier will send you an email that the goods and/or services have been provided to you (the Dispatch Confirmation). If your order is provided in more than one instalment, you may receive a separate Dispatch Confirmation e-mail for each instalment, and each Dispatch Confirmation e-mail and corresponding dispatch will conclude a separate contract of sale upon and subject to the Terms between you and the Supplier of the goods and/or services specified in that Dispatch Confirmation e-mail.
You can cancel your order for goods and/or services at no cost any time prior to the time that the Supplier sends you the Dispatch Confirmation. This does not affect your rights to cancel this agreement under clause 16 of these terms and conditions. If you buy any goods and/or services via the Site, you will first have to click on the button marked “Order” on the Site in order to confirm that you have read and that you accept all of the Terms. If you do not accept the Terms, or do not click on the “Order” button, you will not be able to order any goods and/or services through the Site. You should print a copy of the Terms, or save them to your computer, for future reference.
We may amend these terms and conditions from time to time including as set out in clause 28. Every time you wish to order goods and/or services, please check these terms and conditions to ensure you understand the terms which will apply at that time. The Terms were most recently updated on the date stated as the effective date at the top of this page. Whenever these Terms are changed, the Supplier will update the “effective date” at the top of this page. Be sure you check the effective date to see if the Terms have been revised since your last visit. The Terms and any agreement between you and the Supplier are only in the English language.
- 1.1: The definitions and rules of interpretation in this clause apply in this agreement.
- Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.2(d).
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.5 or 13.6.
- Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
- Customer: the corporate customer organisation or entity listed on the Order Form.
- Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
- Data Protection Legislation: the UK Data Protection Legislation and any other European Union 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).
- Documentation: the document made available to the Customer by the Supplier online via www.opinsta.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and/or prices for the Services and/or the user instructions for the Services.
- Effective Date: the date of this agreement as set out in the Order Form.
- Heightened Cybersecurity Requirements: any and/or all laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes] and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
- Initial Subscription Term: the initial term of this agreement which shall be 12 months from and including the Effective Date unless otherwise specified in writing in the Order Form, and the specific term outlined on the Order Form will be the term that applies if that term is specified in the Order Form.
- Normal Business Hours: 8.30 am to 5.30 pm local UK time, each Business Day.
- Order Form: the order form that is set out on the Supplier’s website and/or is entered into via an agreement between the Customer and the Supplier and as set out in more detail in clause 2.1.
- Renewal Period: the period described in clause 16.1.
- Services or Subscription Services: means all and/or any part of the software services provided by the Supplier to the Customer under and subject to the terms and conditions of this agreement via www.opinsta.com or any other website notified to the Customer by the Supplier from time to time, and as more particularly described in the Order Form and/or Documentation.
- Software: all and/or any part of the online software applications provided by the Supplier as part of the Services.
- Subscription: means the Customer’s subscription for use of the Software and Services as per the Order Form and its use of the Software and Services in accordance with and subject to the terms and conditions of this Agreement.
- Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order Form.
- Subscription Term: has the meaning given in clause 16.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
- Supplier: means Opinsta Limited whose address is at Wework, 55 Colmore Row, Birmingham, England, B3 2AA.
- Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available at www.opinsta.com or such other website address as may be notified to the Customer from time to time and this is available from Opinsta upon request by emailing firstname.lastname@example.org.
- UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 3.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
- Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Vulnerability: any and/or all weaknesses in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
- 1.2: Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- 1.3: A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
- 1.4: A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- 1.5: Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- 1.6: Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- 1.7: A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- 1.8: A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- 1.9: A reference to writing or written includes faxes but not e-mail.
- 1.10: References to clauses are to the clauses of this agreement.
2. User orders and requirements
- 2.1: To use the Services you (the Customer) must complete an order by either of the following methods depending upon aggregate annual fees:
- For orders with aggregate annual fees of less than £4,000 excluding VAT.Complete the online order page (located on the Supplier’s website and/or app) which contains details of:
- the package and Services being ordered;
- the applicable fees;
- the number of paid end user accounts that will form part of the Customer’s order in respect of Subscription Services (if applicable);
- the Subscription Term applicable to any Subscription Services;
- the applicable billing details, and the currency in which the Customer will be billed; and
- if applicable, details of any Supplier goods and/or services or other products made available by the Supplier now and/or in the future that the Customer wishes to order;
- For orders with aggregate annual fees of greater than £4,001 excluding VAT.Contact the Supplier and execute a paper-based quote or order form provided by the Supplier which sets out the relevant information in section 2.1(a) and has substantially similar terms to these terms and conditions.
- 2.2: Legal Status. If you are an individual, you may only use the Service if you have the power to form a contract with the Supplier for and on behalf of the Customer for the Customer’s use of the Services where the Customer is a corporate entity. The Customer as a corporate entity hereby warrants that it is validly formed and existing under the laws of its jurisdiction of formation and that the Customer has duly authorized its agent to bind it to these terms and conditions.
- 2.3: The Customer may specify one or more administrators who may elect to have password protected rights to access administrative account(s) to administer the Subscription Services and individual user accounts.
- 2.4: “Minors” are for the purposes of this agreement individuals under the age of 18, None of the Services are intended for use by Minors. If the Customer is a Minor, the Customer must not use the Services. By using the Services, the Customer represents and warrants that it is not a Minor.
- 2.5: The Supplier acknowledges that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If the Customer is such a consumer, nothing in these terms and conditions limits any of those consumer rights. The Customer agrees that it is a company or corporate entity regarding its use of the Services and that it is not acting as a consumer.
- 2.6: Embargoes. The Customer may only use the Services if it is not barred under any applicable laws from doing so. If the Customer is located in a country embargoed by the United Kingdom or other applicable law from receiving the Services then the Customer is not permitted to purchase any of the Services from the Supplier.
- 2.7: If the Customer’s use of the Services requires the Customer to comply with any national and/or industry-specific laws, regulations and/or codes applicable to such use, the Customer will be solely and entirely responsible for such compliance. The Customer may not use the Services in any way that would subject the Supplier to those industry-specific regulations.
- 2.8: Any obligation on the Customer not to do or to refrain from doing something under these terms and conditions shall include an obligation on the Customer not to allow or permit that thing to be done by any of its Authorised Users.
3. User subscriptions
- 3.1: Subject to the Customer purchasing the User Subscriptions in accordance with clause 3 and this agreement and subject to the restrictions set out in this clause 3 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s own internal business operations and for no other purposes.
- 3.2: In relation to the Authorised Users, the Customer warrants, represents and undertakes that at all times:
- the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time and that the Customer will only use the Software and Services for the Customer’s own legitimate internal business requirements using the Customer’s own business information;
- 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 Documentation;
- each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than once every calendar month and that each Authorised User shall keep his password confidential;
- it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 2 Business Days of the Supplier’s written request at any time or times;
- it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business provided that the Supplier shall be under no obligation to conduct or carry out any audits;
- if any of the audits referred to in clause 3.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 3.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within 5 Business Days of the date of the relevant audit; and
- it has the appropriate and relevant network capability and information technology infrastructure in place in order to access, receive and use the Software and Services;
- it has all of the appropriate and relevant security and systems in place regarding the Customer’s networks, operating systems and data; and
- it shall supervise and control use of the Services and Documentation such that the Services and Documentation are at all times used in accordance with the Terms by the Customer and Authorised Users.
- 3.3: The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is or are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without any liability or prejudice to its other rights to the Customer, to at any time disable the Customer’s access to any material, content and/or the Customer’s account that breaches the provisions of this clause.
- 3.4: The Customer shall not at any time 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:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- attempt to change or modify the Services in any way and/or take the Services apart in anyway for whatever reason without notifying the Supplier in writing and without the prior written consent of the Supplier.
- access all or any part of the Services and Documentation in order to gain knowledge to build a competitive product and/or build a product or service which competes with the Services and/or the Documentation and/or use the Services for any purposes that are not set out in the Documentation and/or which were or are not intended by the Supplier;
- use the Services and/or Documentation to provide services to third parties;
- subject to 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users;
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; and/or
- introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems;
- engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. The Supplier will endeavor to notify the Customer of any abusive or excessive usage to provide the Customer with an opportunity to reduce such usage to a level acceptable to the Supplier;
- use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity;
- use shared user accounts. A shared user account is defined as more than one individual using a single user login to access the Services. Each individual logging into the application and administration tools must use a unique and separate user account. The Services will restrict shared usage and the Supplier reserves the right to terminate an account if it is determined that there was an effort to circumvent shared usage restrictions;
- use “bots” or other automated methods to interact with the Software and Services;
- abuse any trial process by starting multiple trials for the purpose of avoiding payment of a subscription fee for our Services; and/or
- use the Services for any of the following:
- Phishing scams and/or collecting credit card numbers, passwords or other highly sensitive data.
- To distribute links or content tied to malicious software such as viruses or malware.
- To spam individuals in any way, whether the individuals are users of our Customer’s account or not.-To perform any criminal activity.
- To promote or incite violence of any kind.
- To infringe any intellectual property rights.
- To impersonate or mislead individuals in any way.
- 3.5: The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier in writing.
- 3.6: The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any associated, subsidiary and/or holding company of the Customer.
- 3.7: For the avoidance of doubt, the Authorised Users shall have no rights (direct or otherwise) against the Supplier under these Terms and access to the Software and Services by the Authorised Users is permitted simply by virtue of the relationship between Supplier and Customer in these Terms and accordingly the Supplier shall not incur any liability whatsoever to an Authorised User, but without prejudice to any liability which cannot be lawfully excluded or limited under law.
4. Account management
- 4.1: When the Customer sets up a password in connection with the Customer’s use of the Services, the Customer is responsible for safeguarding the Customer’s passwords and any other credentials used to access that account. The Customer, and not the Supplier, is responsible for any activity occurring in the Customer’s account, whether or not the Customer authorized that activity. If the Customer becomes aware of any unauthorized access to the Customer’s account, the Customer should notify the Supplier immediately. Accounts may not be shared by the Customer and may only be used by one individual per individual user account at the Customer’s company.
- 4.2: The Supplier sometimes sends notices to the email address registered with the Customer’s account. The Customer must keep its email address and, where applicable, its contact details and payment details associated with the Customer account current and accurate and complete. Accounts are controlled by the Customer entity whose email address is registered with the account.
- 4.3: The Customer is the data controller (as defined in Data Protection Legislation) of the data that the Customer owns or inputs as part of the Customer’s use of the Services. The Customer is responsible for the definition and maintenance of the Customer’s own data. It is the Customer’s responsibility to review the setup and configuration of its own data and accounts including but not limited to any workflow and account settings so that the Customer safeguards any important and sensitive data that the Customer is collecting and processing through the Services. It is the Customer’s decision and responsibility to ensure that the Customer protects the data the Customer collects and processes and avoids using features that may distribute the Customer’s data inadvertently to the wrong recipient or through less secure delivery channels.
- 4.4: The Customer is entirely responsible for maintaining, protecting, and making backups of the Customer’s data, content and/or information. To the extent permitted by applicable law, The Supplier will not be liable for any failure to store and host Customer’s data, content and/or information and/or for any loss, damage or corruption of or to the Customer’s data, content and/or information.
- 4.5: Inactive Accounts. The Supplier may terminate the Customer’s account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 6 months. However, the Supplier will attempt to contact the Customer before terminating the relevant Customer’s account to provide the Customer with an opportunity to log in to its account so that it remains active.
5. Additional user subscriptions
- 5.1: Subject to clauses 5.2 and 5.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
- 5.2: If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing via the online ordering system or via an amendment to a paper order form (as the case may be) or via email. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 7 days of its approval of the Customer’s request.
- 5.3: If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, as and when required by the Supplier, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Order Form or as agreed with the Supplier 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 from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
6. Services and liability
- 6.1: The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement. The Supplier can provide the Services from any location and in any way that the Supplier deems necessary or desirable.
- 6.2: The Supplier shall be entitled to at any times to carry out any maintenance on the Services and/or goods and/or services provided by the Supplier to the Customer. However, the Supplier shall not be obliged to carry out any maintenance on the Services and/or goods and/or services provided to the Customer unless and until the nature and cost of those maintenance services has been specifically and expressly agreed in writing between the Customer and the Supplier.
- 6.3: The Supplier will, as part of the Services and at the relevant cost to the Customer via the relevant support fees provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided and the current support services policy is available upon request by emailing: hello @opinsta.com. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates. Support will be given at the Supplier’s discretion by way of telephone, email, web chat, remote assistance and self-help online support or other method but support or services will not be provided by any onsite support or services via individual attendance at the Customer’s site (unless explicitly agreed in writing). Unless the Supplier expressly and specifically agrees otherwise in writing, support does not in any circumstances include support or other assistance for any hardware, third party software or other equipment used by the Customer in relation to receiving or using the Software and Services.
- 6.4: The Supplier gives no warranty, representations and/or assurances to the Customer in connection with the Software and Services and their use. If the Customer notifies the Licensor in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, the Supplier will, at the Supplier’s sole discretion and option, either repair or replace the Software, provided that the Customer makes available all the information, and provides the Licensor with such access, that may be necessary or desirable to help it to remedy the defect or fault, including sufficient information to enable the Supplier to recreate the defect or fault.
- 6.5: The remedy in clause 6.4 represents the Customer’s sole remedy with respect to defects and/or faults in the Software. Clause 6.4 does not apply: (a) if the defect or fault in the Software results from the Customer having altered or modified the Software; or (b) if the defect or fault is caused or contributed to by something other than the Software; or (c) if the defect or fault in the Software results from the Customer or any of its Authorised Users having used the Software in breach of the Terms.
7. Customer data
- 7.1: The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
- 7.2: The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available on request from the Supplier or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
- 7.3: The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available on request from the Supplier or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
- 7.4: Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- 7.5: The parties hereby agree and acknowledge that:
- if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
- the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject shall be as specified in the Supplier’s data protection policy. This is available at the following link.
- the personal data may be transferred or stored outside the EEA 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.
- 7.6: Without prejudice to the generality of clause 7.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
- 7.7: Without prejudice to the generality of clause 7.4, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
- process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
- not transfer any personal data outside of the European Economic Area and/or the United Kingdom unless the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
- 7.8: Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it) provided that the Supplier does not in any circumstances guarantee, warrant, represent or provide any other assurances that information and/or data (including any personal data) will not at any time be subject to any loss, destruction and/or damage including where this is due to the actions or inactions of any third parties.
- 7.9: The Customer hereby consents to the Supplier appointing third party processors of personal data under this agreement which include (without limitation) Amazon AWS.
- 7.10: The Supplier may, at any time on not less than 48 hours’ notice this is ok, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to or updating of this agreement).
8. Third party providers
9. Supplier’s obligations
- 9.1: The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- 9.2: The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. 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 9.1.
- 9.3: The Supplier:
- does not at any time warrant, represent and/or provide any assurances of any nature and/or howsoever arising that:
- the Customer’s use of the Services will be uninterrupted or error-free;
- that the Services, Documentation and/or the information obtained by the Customer through the Services will meet any of the Customer’s requirements;
- the Software or the Services will be free from Vulnerabilities; and/or
- the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements; and/or
- the Software and Services will operate and/or function upon any computer systems and/or networks that are operated and/or used by the Customer; and
- is not at any time and in any circumstances 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 the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- 9.4: This agreement shall not in any way 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.
- 9.5: The Software and Services may include technology that enables the Supplier to:
- ensure no more than the specified number of Authorised Users can use the Software and Services at any one time.
- check specific information directly relevant to the Customer’s use of the Software and Services contained in the Customer’s computer system against the Supplier’s records to make sure the Services are being used in accordance with this Agreement and to troubleshoot any problems;
- collect information about how Authorised Users use the functions of the features of the Software and Services; and
- gather statistical information about the operating system and environment on which the Software used or is installed.
By entering into this Agreement the Customer is giving the Supplier informed and express consent to use this information and data for the Supplier’s own business purposes.
10. Customer’s obligations
The Customer shall promptly and all times:
- provide the Supplier with:
- all co-operation and assistance and information in relation to this agreement that the Supplier may reasonably require in relation to or in connection with this agreement; and
- all necessary access to such information as may be required by the Supplier from time to time; and
- in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
- carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as the Supplier believes is reasonably necessary;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall at all times be fully responsible and liable for any Authorised User’s breach of this agreement;
- 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;
- ensure that its network and systems comply with the relevant Heightened Security Requirements and/or any relevant specifications that may be provided to the Customer by the Supplier from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
- follow all of the Supplier’s instructions and directions from time to time in relation to the use and operation of the Services (including but not limited to installing all updates and new versions).
11. Charges and payment
- 11.1: The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 11 and the Order Form and the support fees in accordance with clause 6.3 and the Order Form.
- 11.2: The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
- its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
- on the Effective Date (and/or upon any other date that the Supplier is entitled to charge for the Services) for the Subscription Fees payable in respect of the Initial Subscription Term; and
- subject to clause 16.1, on each anniversary of the Effective Date (and/or upon any other date that the Supplier is entitled to charge for the Services) for the Subscription Fees payable in respect of the next Renewal Period;
- its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
- 11.3: If the Supplier has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
- the Supplier may, without any liability of whatever nature and howsoever arising to the Customer, disable and/or suspend the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any and/or all of the Services while the invoice(s) concerned remain unpaid; and
- 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 Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- 11.4: All amounts and fees stated or referred to in this agreement:
- shall be payable in pounds sterling;
- are subject to clause 11.3(b), non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate; and
- shall be paid in full without any set-off, counterclaim, deduction and/or withholding (other than any deduction or withholding of tax as required by law).
- 11.5: If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space and/or any other storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in the Order Form and/or are available upon request.
- 11.6: The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 5.3, the support fees payable pursuant to clause 6.3 and/or the excess storage fees payable pursuant to clause 11.5 upon prior written notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
- 11.7: The Customer may decrease its Authorised Users at any time but this will not change the Subscription Fees such that the Subscription Fees for the number of Authorised Users prior to any such decrease shall still continue to be payable by the Customer to the Supplier.
- 11.8: If the Customer disputes any invoice or charge that the Supplier has billed to the Customer the Customer (acting reasonably and in good faith) must notify the Supplier in writing of the dispute as soon as possible upon becoming aware of the issue or problem and without unreasonable delay.
- 11.9: The Customer may incur additional charges or fees from third parties in relation to the use of these services including but not limited to internet usage charges.
- 11.10: The Supplier may offer certain Services to the Customer at no charge, including free accounts, trial use, and access to pre-release and beta products (No-Charge Services). The Customer’s use of No-Charge Services is subject to any additional terms that the Supplier specifies and is only permitted for the period designated by the Supplier or if no such period is designated, 30 days. The Supplier may terminate the Customer’s right to use No-Charge Services at any time and for any reason in the Customer’s sole and absolute discretion, without any liability (of whatever nature and howsoever arising) to the Customer.
- 11.11: The Customer is responsible for any duties, customs fees, or taxes (other than the Supplier’s own income tax) associated with the supply of the Services or any other goods and/or services provided by the Supplier to the Customer ( including any VAT) and/or other applicable sales tax, and any related penalties or interest (Taxes), and the Customer will pay the Supplier for the Services without any withholding for Taxes. If the Supplier is required to collect or pay Taxes, the Taxes will be invoiced to the Customer. The Customer must promptly provide the Supplier with any information that the Supplier reasonably requests to determine whether or not the Supplier is obliged to collect Taxes from the Customer.
12. Proprietary rights
- 12.1: The Customer acknowledges and expressly agrees that the Supplier and/or the Supplier’s licensors own all rights, title and interest (including all intellectual property rights of whatever nature and howsoever arising) in, in relation to and in connection with the Services and the Documentation and all modifications, updates and changes thereto.
- 12.2: Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any intellectual property rights, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights and/or licences in respect of the Services or the Documentation The Supplier hereby reserves all of it rights (including but not limited to intellectual property rights) that are not expressly granted to the Customer in this agreement.
- 12.3: The Customer hereby grants to the Supplier, or must procure the grant to the Supplier prior to the Customer using the Services of a non-exclusive, worldwide, irrevocable, royalty-free licence (including the right to sublicense) to use and develop the rights (including intellectual property rights) in the Customer Data and information to the extent required by the Supplier including to:
- enable the Supplier to exercise its rights and discharge its obligations under this Agreement, including to provide or support the Services, and to offer to provide the Customer with any other goods or services (including other products); and
- generate aggregated data sets, reports and analysis relating to technical data about the Customer’s use of the Services in a form that is anonymised and does not identify the Customer or any individual (Aggregated Data). The Customer hereby agrees that the Supplier will own all rights (including all intellectual property rights) in Aggregated Data.
- 12.4: The Supplier may use Aggregated Data at any time to analyse, improve, support and operate the Services and for the Supplier’s related internal business purposes. The Customer expressly agrees and acknowledges that it does not have any right at any time to have access to the Software in source code form.
13. Confidentiality and compliance with policies
- 13.1: Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- 13.2: Subject to clause 13.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
- 13.3: Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
- 13.4: A party 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, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- 13.5: The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
- 13.6: The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- 13.7: No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (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.
- 13.8: The above provisions of this clause 13 shall survive termination of this agreement, however arising.
- 13.9: In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
- 14.1: 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 the Customer’s use of the Services and/or Documentation and/or breach of any of these terms and conditions, provided that:
- the Customer is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s cost and expense; and
- the Customer is given sole authority to defend or settle the claim provided always that any such defence or settlement does not and will not at any time prejudice and/or lead to and/or give rise to any losses and/or liability for the Supplier.
15. Limitation of liability
- 15.1: The supplier has certain things that it cannot promise. The supplier will try to keep its online services up and available, but they may be unavailable from time to time for various reasons including but not limited to maintenance and implementation of fixes. Except as expressly provided in these terms and to the extent permitted by applicable law, the services are provided “as is” and the supplier does not at any time and in any circumstances make and/or give any warranties, representations and/or assurances of any kind in relation to or in connection with the software and services, whether express, implied, and/or statutory, including those of merchantability, fitness for a particular purpose, non-infringement, availability, reliability, suitability and/or accuracy of the software and services.
- 15.2: Except as expressly and specifically provided in this agreement:
- 15.3: Subject to clauses 15.1 and 15.2:
- 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 (whether direct and/or indirect), loss of business and/or contracts, loss of opportunity or anticipated savings, depletion of goodwill and/or similar losses and/or loss or corruption of data and/or information and/or software, or pure economic loss, and/or for any punitive, special, indirect and/or consequential loss, costs, damages, charges or expenses however arising under or in connection with this agreement; and
- the Supplier’s total maximum 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 greater of: (i) the total Subscription Fees paid or payable for the User Subscriptions during the first 12 months of this agreement; or (ii) GBP£10,000 (ten thousand pounds).
- 15.4: Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- 15.5: The parties hereby agree that they have entered into this agreement in their own respective commercial interests and have had the opportunity to negotiate and seek professional advice on this agreement and that the terms and conditions in this agreement (including but not limited to this clause 15) are fair and reasonable. Reasons why these terms and conditions are fair and reasonable include without limitation that:
- The Software and Services have not been developed specifically and exclusively for the Customer;
- The Supplier cannot control all of the purposes for which the Customer may wish to use the Software and Services; and
- The nature of the provision of Software and Services on a software as a service model means that the Supplier will not be testing and investigating the Customer’s software and systems to ensure that the Software and Services meet the Customer’s specific requirements.
16. Term and termination
- 16.1: This agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months following the Initial Subscription Term (each a Renewal Period) unless either party terminates this agreement by serving written notice on the other party during the 30 days prior to the end of the Initial Subscription Term or 30 days prior to the end of any Renewal Period and any such notice of termination shall terminate this agreement at the end of the relevant Initial Subscription Term or Renewal Period respectively. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
- 16.2: Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 16.2(c) to 16.2(i) (inclusive); and/or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- 16.3: If the Customer terminates a Subscription in the middle of a billing cycle and/or does not fully use all of the Subscription during a billing cycle, the Customer will not receive a refund for any period of time that the Customer did not use in that billing cycle unless the Customer is terminating the Agreement for the Supplier’s material breach of this agreement and have so notified the Supplier in writing, or unless a refund is required and mandatory under law.
- 16.4: On termination or expiry of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
- each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession and/or in accordance with this agreement unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall prior to any work pursuant to this clause being commenced by the Supplier pursuant to this clause pay all reasonable costs and expenses anticipated or incurred or suffered by the Supplier in dealing with and/or returning or disposing of Customer Data; and
- 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.
- 16.5: The Supplier may limit, suspend, or stop providing the Services to the Customer if the Customer fails to comply with any of the terms and conditions of this agreement (such as a failure to pay fees when due), or if the Customer uses the Services in a way that causes legal liability to the Supplier or disrupts others’ use of the Services.
- 16.6: The Supplier may also (and without any liability) suspend providing the Services to the Customer if the Supplier is investigating suspected misconduct by the Customer. If the Supplier suspends or terminates the Services that the Customer receives, the Supplier will endeavor to give the Customer advance notice and an opportunity to export a copy of the Customer’s content from that Service. However, there may be time sensitive situations where the Supplier may decide that it needs to take immediate action without notice. The Supplier has no obligation to retain the Customer content, data and/or information upon suspension and/or termination of the Service.
- 16.7: If the Supplier stops providing the Services to the Customer because the Customer repeatedly or flagrantly breaches these any of the terms and conditions of this agreement, the Supplier may take other measures to limit or prevent the further use of the Services by the Customer, including blocking the Customer and/or all and/or any of the Customer’s users’ IP addresses.
17. Force majeure
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, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemics or pandemics (including Covid 19), default of suppliers or sub-contractors and/or any issues relating to or connected with Brexit provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Order Form , the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and remedies
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.
- 22.1: 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.
- 22.2: If any provision or part-provision of this agreement is deemed deleted under 20.1 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.
23. Entire agreement
- 23.1: This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 23.2: Each party acknowledges that in entering into this agreement it does 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 writing in this agreement.
- 23.3: Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- 23.4: Nothing in this clause shall limit or exclude any liability for fraud.
- 24.1: The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
- 24.2: The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
25. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
26. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- 27.1: Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Order Form.
- 27.2: A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
- 27.3: The Supplier’s contact details are as follows: Wework, 55 Colmore Row, Birmingham, England, B3 2AA. Email: email@example.com.
- 28.1: The Supplier may change any of the terms and conditions in this agreement at any time for a variety of reasons, such as by way of example only, to reflect changes in applicable law or updates to Services, so as to apply to and to account for new Services or features or functionality. Any changes will be posted to the location or website at which these terms and conditions appear. The Supplier may also provide notification of changes on its social media channels, via email, the Supplier’s app and/or via the Supplier’s website. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require the Supplier to obtain the Customer’s consent to such changes, or to provide the Customer with sufficient advance notice of them. If the Customer does not want to agree to any changes made to the terms and conditions in this agreement for the Service, the Customer should stop using the Service, because by continuing to use the Services the Customer unconditionally and irrevocably indicates and signifies the Customer’s agreement to be bound by the updated terms and conditions.
- 28.2: The Supplier continually works upon, modifies and/or improves the Services. The Supplier may add, alter and/or remove features and functionality from a Service at any time without prior notice. The Supplier may also limit, suspend, or discontinue a Service at its discretion. If the Supplier discontinues a Service, the Supplier will give the Customer reasonable advance notice to provide the Customer with an opportunity to export a copy of the Customer’s content, data and/or information from that Service. The Supplier may remove content from the Services at any time in the Supplier’s discretion, although the Supplier will endeavor to notify the Customer before it does so if it materially impacts the Customer and only if practicable for the Supplier in the circumstances.
29. Governing law
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.
- 30.1: Subject to clause 30.2, 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).
- 30.2: The Supplier shall be entitled to and/or may enforce all and/or any of its rights (including intellectual property rights) and/or remedies against the Customer and/or any third parties in any jurisdiction or territory.
These terms and conditions have been entered into on the date stated in the Order Form.