Terms & Conditions

BACKGROUND
  
The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis.

The Supplier is the entire legal and beneficial owner and licensor of certain software products listed in Order (as defined below) and is willing to license the Customer (as defined below) to use these products.

The Customer wishes to use the Supplier’s service in its business operations.

AGREED TERMS

1.   INTERPRETATION  
 

1.1   The definitions and rules of interpretation in this clause apply in this licence.
Acceptance Date:  the date on which the Customer is deemed to have accepted the Software under Clause 2.7.
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.
Commencement Date:  the start date specified in the Order.
Conditions:  the terms and conditions set out in this document as amended from time to time.
Contract:  the contract between the Supplier and the Customer for the licence of the Software in accordance with these Conditions.
Customer: the person or firm who purchases the Software from the Supplier.
Customer Data:  the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of and whilst using the Services or facilitating the Customer’s use of the Services.
Fee:  the licence fee payable by the Customer to the Supplier under Clause 5.
Intellectual Property Rights:  patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Maintenance Release:  release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Order:  the Customer’s order for the Software, as set out in the Customer’s purchase order form that includes among other terms, the permitted scope and number of Users and the licensee fee that corresponds to the use.
Renewal Period:  the period described in clause 10.1.
Services:  the subscription services provided by the Supplier to the Customer under this agreement via any website notified to the Customer by the Supplier from time to time.
Site:  the premises from which the Customer carries out its business as notified to the Supplier in writing from time to time.
Software:   the computer programs listed in the Order and any Maintenance Release which is acquired by the Customer during the subsistence of this licence as part of the Services.
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Supplier: Aztec Glass Ltd incorporated and registered in England and Wales with company number 09982096 whose registered office is at 1 Craftsman Square, Temple Farm Ind Estate, Southend On Sea, Essex, SS2 5RH
User Subscriptions:  the user subscriptions purchased by the Customer pursuant to clause 3 which entitle Authorised Users to access and use the Services and 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.

1.2   Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

1.3   Clause, Schedule and paragraph headings shall not affect the interpretation of these Conditions.

1.4   Unless the context otherwise requires:

(a)   words in the singular shall include the plural and in the plural shall include the singular;

(b)   A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Conditions;
 
(c)   a reference to one gender shall include a reference to the other genders; and
 
(d)   any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
 
1.5   In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.

1.6   A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.7   References to clauses and Schedules are to the clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.

1.8   The Schedules and Annexes form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules and Annexes.

2.   BASIS OF CONTRACT, DELIVERY, ACCEPTANCE AND INSTALLATION

2.1   These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2   The Order constitutes an offer by the Customer to purchase the Software in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

2.3   The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.  

2.4   The Supplier will make the Software available for download as soon as the Supplier accepts the Order. Delivery is completed on the completion of making the Software available for download Risk in any tangible media on which the Software is delivered shall pass on delivery.

 

3.  USER SUBSCRIPTIONS  
 
3.1   Subject to the Customer purchasing the User Subscriptions in accordance with these Conditions, 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 sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

3.2   In relation to the Authorised Users, the Customer undertakes that:

(a)  the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
 
(b)  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;
 
(c)  it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
 
(d)  it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
 
(e)  if any of the audits referred to in Clause 3.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
 
(g)  if any of the audits referred to in Clause 3.2(d) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Order within 10 Business Days of the date of the relevant audit.
 
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:

(a)  is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
 
(b)  facilitates illegal activity;
 
(c)  depicts sexually explicit images;
 
(d)  promotes unlawful violence;
 
(e)  is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
 
(f)  is otherwise illegal or causes damage or injury to any person or property;
 
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

4.  ADDITIONAL USER SUBSCRIPTIONS  
 
4.1   Subject to Clause 4.2 and Clause 4.3, 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 and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.

4.2   If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. 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 5 days of its approval of the Customer’s request.

4.3   If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, pay to the Supplier the relevant fees for such additional User Subscriptions as set out the Order.

5.   LICENCE  
 
5.1   In consideration of the Fee paid by the Customer to the Supplier the Supplier shall, during the Subscription Term, provide the Services.:


5.2   In relation to scope of use:

(a)   for the purposes of Clause 5.1, use of the Services shall be restricted to use of the Services for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
 
(b)   for the purposes of Clause 5.1, “use of the Services” means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not “use” if the Software is licensed under this licence for use on each computer to which the Software is distributed.

(c)   the Customer may not use the Services or Software other than as specified in Clause 5.1 and Clause 5.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
 
5.
 
(d)   except as expressly stated in this Clause 5, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
 
5.4   The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under Clause 3.2(e) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

5.5   The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a)  planned maintenance carried; and

(b)  unscheduled maintenance performed outside normal business hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 normal business hours’ notice in advance.

5.6   The Customer shall not:

(a)   sub-license, assign or novate the benefit or burden of this licence in whole or in part;
 
(b)   allow the Software to become the subject of any charge, lien or encumbrance; and

(c)   deal in any other manner with any or all of its rights and obligations under these Conditions,
 
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
 
5.7   The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

5.8   Each party confirms it is acting on its own behalf and not for the benefit of any other person.

5.9   Notwithstanding Clause 6, a party assigning any or all of its rights under these Conditions may disclose to a proposed assignee any information in its possession that relates to these Conditions or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 3.7 shall be made until notice of the identity of the proposed assignee has been given to the other party.

5.10   The Customer shall:

(a)   ensure that the number of persons using the Software does not exceed one, unless an additional Fee is paid to the Supplier in accordance with clause 5 and this licence;

(b)   ensure that the Software is installed on designated equipment only;

(c)   keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
 
(d)   notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
 
(e)   pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in Clause 5.3, from such date to the date of payment.
 
5.11   The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

4.   MAINTENANCE RELEASES  
The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
5.   FEES  
 
5.1  The price of the Software shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s price list in force as at the date of delivery. 

5.2   The Customer shall on the Commencement 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:
 
(a)  its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
 
(i)  on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
 
(ii)  subject to termination in accordance with these Conditions, on each anniversary of the Commencement Date for the price payable in respect of the next Renewal Period;
 
and the Customer shall pay each invoice in accordance with and as set out in the Order.
 
5.3   If the Supplier has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of the Supplier may, without liability to the Customer, disable 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 or all of the Services while the invoice(s) concerned remain unpaid.
5.4  The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Services to reflect any increase in the cost of the Images that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), number of Users ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.


5.5   All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

5.6  The Supplier will invoice the Customer for the Services monthly on the last business day of the month.

5.7  The Customer shall pay the invoice in full and in cleared funds as set out in the Order by direct debit or standing order. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

5.8   If the Customer fails to make any payment due to the Supplier under these Conditions by the due date for payment, then, without limiting the Supplier’s remedies under Clause 10 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. 

5.9   The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

6.   CONFIDENTIALITY AND PUBLICITY  
 
6.1   Subject to clause 21, each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

6.2   No party shall make, or permit any person to make, any public announcement concerning these Conditions 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.  

7.   SUPPLIER’S WARRANTIES  
 
7.1   The Supplier undertakes that the Services will be performed substantially in accordance with the Order and with reasonable skill and care. If, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the specification in the Order, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:

(a)   repair the Software;
 
(b)   replace the Software; or
 
(c)   terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
 
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

7.2   The Supplier does not warrant that the use of the Services/Software will be uninterrupted or error-free and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. 

7.3   The Customer accepts responsibility for the selection of the Services/Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

7.4   This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement

7.5   All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. 

8.   LIMITS OF LIABILITY  
 
8.1   Except as expressly stated in Clause 8.2:

(a)   the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
 
(i)   special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
 
(ii)   loss of profits;
 
(iii)   loss of anticipated savings;
 
(iv)   loss of business opportunity;
 
(v)   loss of goodwill;
 
(vi)   loss or corruption of data,
 
provided that this Clause 8.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 8.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this Clause 8.1(a);

(b)   the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
 
(c)   the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
 
8.2   The exclusions in Clause 7.4 and Clause 8.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

(a)  death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
 
(b)   fraud or fraudulent misrepresentation;
 
(c)   breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
 
(d)   any other liability which may not be excluded by law.
 
8.3   All dates supplied by the Supplier for the delivery of the Software [or the provision of Services] shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

8.4   
All references to “the Supplier” in this Clause 8 shall, for the purposes of this clause and Clause 17 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 17.
9.   INTELLECTUAL PROPERTY RIGHTS  
 
9.1   The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

9.2   The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, Clause 9.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

9.3   If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under Clause 9.2 are conditional on the Customer:

(a)   as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
 
(b)   not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
 
(c)   giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
 
(d)  subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
 
9.4   If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

(a)   procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;
 
(b)   modify the Software so that it ceases to be infringing;
 
(c)   replace the Software with non-infringing software; or
 
(d)   terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
 
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in Clause 7.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.
 
9.5   This Clause 9 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 8.1.

10.   DURATION AND TERMINATION  
10.1   This agreement shall, unless otherwise terminated as provided in this Clause 10, commence on Commencement Date and shall continue for a period of 30 days (the Initial Subscription Term) and, thereafter, this agreement shall be automatically renewed for successive periods of 30 days (each a Renewal Period), unless:
(a)  either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
 
(b)  otherwise terminated in accordance with the provisions of this agreement;
 
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

10.2   Without affecting any other right or remedy available to it, either party may terminate these Conditions with immediate effect by giving written notice to the other party if: 

(a)   the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b)   the other party commits a material breach of any other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
 
(c)   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 ;
 
(d)   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;
 
(e)   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;
 
(f)   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;

(g)  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;
 
(h)   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;
 
(i)   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;
 
(j)   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 Clause 10.1(c) to Clause 10.1(i) (inclusive);
 
(k)   the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
 
(l)   there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

10.3   Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Conditions shall remain in full force and effect.

10.4   Termination or expiry of these Conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
10.5   On termination for any reason:
(a)   all rights granted to the Customer under this licence shall cease;
 
(b)   the Customer shall cease all activities authorised by this licence;
 
(c)   the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
 
(d)   the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
 
10.6   Any provision of these Conditions which expressly or by implication is intended to come into or continue in force on or after termination of these Conditions including Clause 1, Clause 6, Clause 7 (except Clause 7.1), Clause 8, Clause 10, and Schedules 1 shall remain in full force and effect.

11.   WAIVER  

No failure or delay by a party to exercise any right or remedy provided under these Conditions 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.
 
12.   REMEDIES  
 
Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
 
13.   ENTIRE AGREEMENT  
 
13.1   This licence, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

13.2   Each party acknowledges that, in entering into this licence and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence or those documents.
13.3   Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this licence.
13.4   Nothing in this clause shall limit or exclude any liability for fraud.
 
14.   VARIATION  
 
No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
 
15.   SEVERANCE  
 
15.1   If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
 
15.2   If any provision or part-provision of these Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
 
16.   COUNTERPARTS  
 
These Conditions may be executed in any number of counterparts, each of which when executed [and delivered] shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
 
17.   THIRD-PARTY RIGHTS  
 
A person who is not a party to these Conditions shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
 
18.   NO PARTNERSHIP OR AGENCY  
 
18.1   Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

18.2   Each party confirms it is acting on its own behalf and not for the benefit of any other person.

19.   FORCE MAJEURE  
 
Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate these Conditions by giving 14 days’ written notice to the affected party.
20.   NOTICES  
 
20.1   Any notice given to a party under or in connection with this contract shall be in writing and shall be:

(a)   delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
 
(b)   sent by fax to its main fax number.
 
20.2   Any notice shall be deemed to have been received: 

(a)   if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
 
(b)   if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
 
(c)   if sent by fax, at 9.00 am on the next Business Day after transmission.
 
20.3   This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.

21.  CUSTOMER DATA, DATA COLLECTION AND PROCESSING  
 
21.1  The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

21.2  By proceeding to use the Services the Customer consents that the Supplier may process the Customer Data that it collects from the Customer through the use of the Software. In particular, the Supplier will use information it holds about the Customer for the purposes of [BRIEF DESCRIPTION OF PURPOSES].

22.3   With regard to your use of the Software we will automatically collect the following information:
• [description of the exact information you will be collecting].
21.4  The Supplier shall follow its then archiving procedures for Customer Data 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 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 its then archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
 
21.5  If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a)  the Customer acknowledges and agrees that the personal data may be transferred or stored 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;
 
(b)  the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
 
(c)  the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
 
(d)  [the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and]

• (e)  each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
22.   GOVERNING LAW AND JURISDICTION  
 
22.1   These Conditions 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   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).

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