Standard terms and conditions
Published November 2017
Your attention is particularly drawn to the provisions of clause 1.4
"You" refers to the legal entity which is using the Services, or, if you are an individual then this is just you personally. If you are using, or commissioning the use of the Services on behalf of a business entity then "You" refers to that entity. If You are utilising the Services on behalf of Your employer (or your business if you are self-employed), you represent and warrant that You have the authority to agree to these Terms on its behalf. By using the Services, You signify Your irrevocable acceptance of these Terms and Conditions.
“We” refers to Connect IB Limited (trading as RedstoneConnect Labs) with company number 09336000 and registered company address at 40 Holborn Viaduct, London, EC1N 2PB, United Kingdom. “Us” and “Our” shall be construed accordingly.
1 Definitions and interpretation
1.1 In these Conditions, unless the context otherwise requires, the following words have the following meanings:
"Acceptance Tests" means the tests conducted for the purposes of determining that the Services are in accordance with the required specifications;
"Account Manager" has the meaning given to it in clause 9.1 of these Conditions;
"Act" means the Data Protection Act 1998;
“Agreement” means the agreement between the Us and You for the supply of the Services in accordance with the Client Proposal and these Conditions;
"Background Works" means all Intellectual Property Rights, Confidential Information, systems and business processes belonging to or under the control of You, Us or Our licensors prior to the Commencement Date;
"Business Day" means a day (other than a Saturday or Sunday) on which clearing banks are open for business in the City of London;
"Business Purpose" means the purpose(s) for which the Services will be used by You in the delivery of Your normal business practises;
“Client Proposal” means any document provided by Us to You that specifies the Services to be provided and the Fees payable;
"Commencement Date" has the meaning given to it in clause 2.2 of these Conditions;
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 18.5;
"Confidential Information" means any information relating to the subject matter of the Services or the technical information (including but not limited to all specifications, drawings, designs and inventions), commercial information, business information, statistical information, financial information and personnel matters disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between us, where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure;
"Deliverables" means the Software, Services and Recurring Services to be provided by Us to You as detailed in the Client Proposal;
“Employment Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246);
“Fees” means the fees in respect of the Services as detailed in the Client Proposal, together with any other fees payable for additional services or products;
“Group” in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group;
“Group Company” in relation to a company, any member of its Group and “Group Companies” shall be construed accordingly;
“Inside Information” means any information provided under this Agreement that;
(a) has not been made public
(b) relates, directly or indirectly, to one or more issuers or financial instruments, and
(c) if it were made public, would be likely to have a significant effect on the price of those financial instruments or related derivative financial instruments (that is, it is information that a reasonable investor would be likely to use as part of the basis of their investment decisions)
"Intellectual Property Rights" means any patents, registered designs, trademarks and service marks (whether registered or otherwise), moral rights, database rights, design rights, copyright and other intellectual property rights, including those rights subsisting in inventions, drawings, performances, software, improvements, discussions, business names, goodwill and the style of presentation of goods or services, and in any application for the protection thereof, throughout the world;
“Order” means Your confirmation that You wish to benefit from the Services as set out in the Client Proposal;
"Personal Data" as set out in section 1(1) of the Act;
"Pricing Schedule" means the list of Fees as set out in the Client Proposal;
“Recurring Services” means any services provided on an ongoing basis, including but not limited to Software licensing, hosting, Software maintenance and Software support;
“Replacement Supplier” means a replacement supplier who provides You with replacement and/or substitution services that are the same or similar to the Services provided by Us
“Representative(s)” in relation to each party:
(a) its officers and employees and those of any of its Group Companies that need to know the Confidential Information for the Business Purpose;
(b) its professional advisers or consultants who are engaged to advise that party in connection with the Business Purpose;
(c) its contractors and sub-contractors engaged by that party in connection with the Business Purpose; and
(d) any other person to whom the other party agrees in writing that Confidential Information may be disclosed in connection with the Business Purpose.
"Services" means the services as described in the Client Proposal including but not limited to consultancy, design, creation, configuration, deployment and testing of Our Software;
"Services Specification" means any specification for the Services set out in the Client Proposal;
"Software" means the Connect digital platform and any various enhancements, modules, applications, features or functionality as may be provided as well as any other software owned and utilised by Us to provide the Services; and
"Third-Party Products" means those third-party software products used in the provision of the Services, as notified to You by Us.
"Your Information and Materials" means any information or materials supplied by You to Us for the purposes of the Agreement;
"Your IPR" means all Intellectual Property Rights in Your Background Works and Your Information and Materials;
1.2 In these Conditions, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation (as defined in Section 21(1), Interpretation Act 1978) made under it;
(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and
(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
(c) a reference to:
(i) any party includes its successors in title and permitted assigns;
(ii) a "person" includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);
(iii) clauses and schedules are to clauses and schedules of these Conditions and references to sub-clauses and paragraphs are references to sub-clauses and paragraphs of the clause or schedule in which they appear
(d) headings are for convenience only and shall not affect the interpretation of these Conditions.
1.3 If there is an inconsistency between any of the provisions of these Conditions and the Client Proposal, the provisions of the Client Proposal shall prevail, provided that the Client Proposal has been signed by, or on behalf of You. For the avoidance of doubt, if the Client Proposal has not been signed by, or on behalf of You, these Conditions shall prevail if there is any inconsistency between them and the Client Proposal.
1.4 The Terms of this Agreement shall supersede any conflicting provision contained in any purchase order You may provide to Us at any time.
2.1 The Order constitutes an offer by You to purchase Services in accordance with the Agreement.
2.2 The Order shall only be deemed to be accepted when We issue written acceptance of the Order at which point and on which date the Agreement shall come into existence (the “Commencement Date”).
2.3 Any samples, drawings, descriptive matter or advertising issued by Us, and any descriptions or illustrations contained in Our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 Any quotation given by Us shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3 Our obligations and warranty
3.1 We shall provide the Services to You from the Commencement Date.
3.2 We will provide the Services in accordance with the Client Proposal.
3.3 We shall perform the Services with reasonable care, skill and diligence.
3.4 We shall provide all personnel We reasonably consider necessary to perform the Services.
3.5 We warrant to You that all personnel providing the Services possess such skill and experience as is reasonably necessary for the performance of the Services.
3.6 We reserve the right to change any Service Specifications at any time which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and We shall notify You in any such event.
3.7 We do not warrant that Your use of the Services or Recurring Services will be uninterrupted or error-free or that the Services, Recurring Services and/or the information obtained by You through use of such, will meet Your requirements.
4 Your obligations
4.1 Software and Services:
(a) You may only access and/or use the Software and Services for the Business Purpose and shall not access nor use the Software or the Services for or on behalf of a third party, nor allow any other person to access the Software or Services, nor disclose the Software or Services to any person in any way whatsoever. You are not entitled to modify or enhance the Software or Services or use the source code of the Software.
(b) Save to the extent set out in the Agreement or as may otherwise be permitted by law, You are strictly forbidden from using (and shall not use) the Software or Services in any other circumstances, and without limitation, shall not sub-contract, sub-licence or resell the Software or the Services.
(c) You shall not, without Our prior written consent, use the Software or Services in any country other than the United Kingdom.
(d) You hereby acknowledge that You are licensed to use the Software and Services only in accordance with the express terms of these Terms and not further or otherwise.
4.2 Specific undertakings
(a) You shall:
(i) provide Us with Your Information and Materials as reasonably requested by Us in a format agreed between the parties;
(ii) not obtain or attempt to obtain access to or interfere with any programs or data of Ours or of any other client of the Service Provider;
(iii) perform Your obligations under the Agreement with reasonable care and skill;
(iv) make available appropriate personnel to liaise with Us and provide Us all reasonable assistance in providing the Services and if appropriate, promptly provide any relevant material or information requested by Us;
(v) observe all consumer or other legislation, instructions or guidelines issued by regulatory authorities, relevant licences and any other codes of practice which apply to You in relation to Your use of the Software and/or the Services;
(vi) not use the Software and/or the Services in a way that does not comply with legislation or the terms of the Agreement;
(vii) not use the Software and/or the Services in any way that is unlawful;
(viii) not use the Software and/or the Services to send, receive, upload, download or display any information or material which is or which may be considered to be offensive, abusive, indecent, libellous, defamatory, obscene or menacing, or in breach of confidence, privacy, intellectual property rights or any other third-party rights;
(ix) not use the Software and/or the Services for sending unsolicited advertising or promotional material (spam);
(x) ensure that any products or services sold via the Software and/or the Services are consistent with their description, of satisfactory quality and reasonably fit for purpose; and
(xi) be solely responsible for transactions for the sale of goods and services to Your customers via the Software and/or the Services.
4.3 Security Requirements:
(a) You are solely responsible for the security and proper use of any usernames or identification, passwords or other security devices used in connection with the Software and/or the Services, in accordance with Our instructions.
(b) You must immediately inform Us if there is, or You suspect that there is a security breach. In such a circumstance, We reserve the right to change passwords or take any other precautions We reasonably consider necessary, and shall have the right to temporarily suspend the Services.
4.4 Loss of data:
(a) You are responsible for all risks of loss of or damage to Your data except for loss or damage caused exclusively by Our negligence, Our agents or subcontractors or as a direct failure by Us to materially provide the Services in accordance with the terms contained in these Conditions.
(a) You warrant that Your Information and Materials are accurate and complete.
(b) You warrant to Us that You have full power and authority to enter into and perform the Agreement.
(a) You shall indemnify Us against all damages, losses and expenses incurred by Us as a result of Your breach of clauses 4.2(a)(vii), 4.2(a)(viii) or 4.2(a)(ix). This clause 4.6 shall survive termination of this Agreement.
(a) You agree to comply with the operating, management and control processes agreed from time to time between us in respect of the Services.
(b) You agree that We may use Your name and/or logo in advertising and promotional materials, and in conjunction therewith, We may disclose information related to the Services being provided.
5.1 If necessary, We shall devise Acceptance Tests, which will be recorded in writing and communicated to You.
5.2 Acceptance Tests will be carried out by Us in Your presence and You shall co-operate fully with Us in conducting the Acceptance Tests.
5.3 Successful completion of the Acceptance Tests will constitute acceptance by You of the Services and that fact will be recorded in an acceptance notice.
5.4 Following each Acceptance Test session, You will provide Us with a list of defects, if any, to be rectified. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of You, or by one of Your sub-contractors or agents for whom We have no responsibility (“Non-Service Provider Defect”), such tests shall be deemed to have been passed notwithstanding the Non-Service Provider Defect. We shall provide assistance reasonably requested by You in remedying such defect by supplying additional services or products. If so requested, You shall pay Us in full for all such additional services and/or products at Our current fees and prices.
5.5 We will use Our reasonable endeavours to rectify any defects with the Services (except for Non-Service Provider Defects) and will advise You of when the Acceptance Tests may be re-conducted. Such re-conducted Acceptance Tests shall be carried out in accordance with this clause 5.
5.6 This Acceptance Tests procedure will be repeated until the Acceptance Tests are successfully completed.
5.7 Acceptance of the Services shall be deemed to have taken place on the earlier of;
(a) You commencing operational use of the Software, or
(b) The Acceptance Tests are certified by You as being successful
6 Software Faults
6.1 If We become aware of any fault in the Software that might affect the performance of the Services or Recurring Services then We shall notify You within a reasonable period. Upon becoming aware of any fault, We shall use Our reasonable endeavours to procure that such fault is corrected as required by the Services Specification.
6.2 Where such fault was caused by the actions of You then We shall be entitled to charge for any necessary work carried out in remedying such faults at the standard daily rates.
6.3 We may suspend the Services for repair, maintenance or improvement. In the case of Planned Maintenance (as defined in the Services Specification) We shall give as much notice of possible of suspension and in any event no less than 24 hours’ notice. We are is not obliged to give notice in the event of Emergency Maintenance (as defined in the Services Specification) but will do so if it is reasonably practicable to do so.
7 Data Protection
7.1 You warrant to the Us that You have registered under the Act and will maintain such registration for the duration of the Agreement.
7.2 You must protect such of Your Information and Materials as constitutes Personal Data in accordance with the provisions and principles of the Act and You warrant that You will collect such Personal Data in accordance with the Act and that You have obtained all consents necessary for Us to process such Personal Data in accordance with the Agreement.
7.3 You shall fully indemnify Us against all claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith made or brought by any person in respect of any loss damage or distress caused to that person by breach of the provisions of this clause or the Act by You, Your staff or agents or by Us. The obligations of this clause shall not be affected by the expiry or termination of this Agreement.
7.4 We warrant that, to the extent We process any Personal Data on behalf of You:
(a) We shall act only on Your instructions; and
(b) We have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
8 Third Party Products
8.1 Any Third-Party Products shall be supplied in accordance with the relevant licensor’s standard terms. Any fees associated in the provision of such Third-Party Products is included in the Fees payable under clause 10.
9 Project & Account Management
9.1 Both of us shall appoint an account manager who shall provide professional and prompt liaison with the other and shall have the necessary expertise and authority to commit either of us (the “Account Managers”).
9.2 The Account Managers shall meet for regular reviews, at least once per month.
10 Fees and payment
10.1 In consideration of the provision of the Services, You shall pay to Us the Fees in accordance with the Pricing Schedule.
10.2 Invoices shall be submitted in accordance with Our invoicing procedure. The invoices shall be payable by You, in full and cleared funds, within 30 days of receipt to a bank account nominated in writing by Us.
10.3 Where under the Agreement any party agrees to pay to any other party any sum or to furnish to any other party consideration which (in either case) is consideration for a taxable supply, that sum or consideration shall be exclusive of Value Added Tax payable on it and the recipient of the supply shall pay Value Added Tax or any other relevant tax in addition to any sum or consideration on receipt of a valid invoice from the relevant party.
10.4 You shall pay to Us all expenses incurred in addition to the Fees without any requirement for Us to obtain Your prior written in approval, subject to Us providing You with suitable documentary evidence.
10.5 We reserve the right to increase Our Fees, provided that such charges cannot be increased more than once in any 6 (six) month period. We will give You written notice of any such increase at least 1 (one) month before the proposed date of the increase. If such increase is not acceptable to You, You shall notify Us in writing within 2 (two) weeks of the date of Our notice and We shall have the right without limiting Our other rights or remedies to terminate the Agreement by giving You 1 (one) weeks' written notice.
10.6 Without prejudice to any other right or remedy We may have, if You default in the payment when due, of any sum payable under the Agreement (whether payable by agreement or an order of a court or otherwise), Your liability shall be increased to include interest on that sum from the date when such payment was due until the date of actual payment at a rate of 8% above the base rate from time to time of National Westminster Bank PLC. Such interest shall accrue from day to day.
10.7 You shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting Our other rights or remedies, set off any amount owing to Us by You against any amount payable by Us to You.
10.8 All sums payable to Us under the Agreement shall become due immediately on its termination, despite any other provision. This clause 10.8 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
11.1 In return for Us making Confidential Information available to You, You undertake that You:
(a) shall keep the Confidential Information secret and confidential;
(b) will not use the Confidential Information in any way except in accordance with the terms of this Agreement;
(c) confirm, represent and warrant that You and Your Representatives have consented to receive Inside Information (as defined in the Criminal Justice Act 1993 and the Market Abuse Regulation), and agree not to deal in any securities of RedstoneConnect Plc (trading on the London Stock Exchange’s AIM market [REDS]) until such time as such Inside Information has been made public.
(d) will not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this agreement;
(e) will not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary under this Agreement. Any such copies, reductions to writing and records shall be Our property; and
(f) shall not publish or disseminate any Confidential Information in any medium.
11.2 You shall establish and maintain adequate security measures (including any reasonable security measures proposed by Us from time to time) to safeguard the Confidential Information from unauthorised access or use.
11.3 You shall afford the Confidential Information no less protection than You afford Your own Confidential Information and without prejudice to the generality of this obligation shall keep the Confidential Information and any copies of it separate from Your own documents so far as is practicable.
12 Intellectual Property Rights
12.1 All rights, interest and legal and beneficial title in and to all Intellectual Property Rights created, developed, subsisting or used in or in connection with the Services will be the absolute property of and will vest and remain vested in Us (or the relevant third-party licensors) and You shall have no right in or to such Intellectual Property Rights.
12.2 You grant to Us, free of charge, a limited, non-exclusive, non-transferable, royalty-free, worldwide licence to use any of Your IPR solely for the purposes of providing the Services. Such licence shall automatically terminate upon the termination or expiry of the Agreement. Your IPR shall be treated as Confidential Information and shall be returned to You on termination or expiry of the Agreement. You warrant that Our use of Your IPR in relation to the Agreement shall not infringe any third party Intellectual Property Rights or any law (whether or not English) or third party right relating to defamation, fraud, malice, blasphemy, obscenity or misrepresentation.
12.3 We grant to You for the term of the Agreement a limited, non-exclusive, non-transferable royalty-free licence to use the Intellectual Property Rights in the Software and/or the Deliverables as may be required to benefit from the Services in the United Kingdom. Such licence shall automatically terminate upon the termination or expiry of the Agreement. All Intellectual Property Rights in the Software and/or the Deliverables shall be treated as Confidential Information and shall be returned to Us immediately on termination or expiry of the Agreement.
12.4 You shall notify Us if You become aware of any unauthorised use of the whole or any part of the Software by any person as soon as practicable, (and in any event within three Business Days of You becoming aware).
12.5 Your Information and Materials remain Your property at all times and You grant to Us a worldwide non-exclusive licence to use Your Information and Materials for the purposes of delivering the Services.
12.6 If any claim is brought against Us that Your Information and Materials and/or Your IPR, or their use by Us, infringes the Intellectual Property Rights of a third party, You will at Your own expense:
(a) settle or defend the claim; and
(b) pay any damages or costs finally awarded against Us as the result of the claim; and
(c) fully indemnify Us in respect of all costs, losses, damages and expenses incurred by Us in respect of such infringement.
12.7 If any claim is brought against You that the Software, or its use by You under the terms of the Agreement, infringes Intellectual Property Rights of a third party effective in the United Kingdom, We will at Our own expense:
(a) settle or defend the claim; and
(b) pay any damages or costs finally awarded against You as a direct result of the claim; and
(c) indemnify You in respect of all reasonable damages incurred by You in respect of such infringement.
12.8 Our obligations under clause 12.7 above are conditional on You:
(a) promptly notifying Us in writing of the claim; and
(b) permitting Us to control the defence and all settlement negotiations.
12.9 In the event that such a claim as contemplated in clause 12.7 is made, or appears likely to be made, We will use reasonable endeavours, and at Your expense, so far as is reasonably practicable, to:
(a) procure the right for You to continue using the affected Software and/or the Deliverables (as the case may be); or
(b) modify or replace it so as to avoid the infringement, in either case without a material deterioration in the levels of performance of the Services.
12.10 Notwithstanding the above provisions, We shall have no obligation under this clause 12 in respect of any claim which arises from Your misuse of the Software and/or the Deliverables or any alteration of the Software and/or the Deliverables, unless the alteration was made by or on behalf of Us.
12.11 We may include the statement “Designed by RedstoneConnect Labs” on any user interface provided as part of the Services.
12.12 The obligations in this clause 12 shall not be affected by the expiry or termination of the Agreement.
13 Employment Regulations
13.1 We acknowledge and agree that You do not require Us to assign any employee of Ours or, if applicable, procure the assignment of any employee of any permitted sub-contractor of Ours, wholly or mainly to the provision of the Services.
13.2 We agree to use reasonable endeavours to arrange Our staff, and, if applicable, procure that any permitted sub-contractor of Ours arranges their staff, in relation to the provision of the Services in such a way that no individual is at any time wholly or mainly assigned to the provision of the Services and consequently that no contract of employment of any individual will transfer from Us (or any sub-contractor of Ours) to You or to any Replacement Supplier by virtue of the Employment Regulations, on the cessation or partial cessation of the provision of the Services by Us, or otherwise.
13.3 You hereby indemnify and hold Us harmless, from and against any and all payments, losses, fines, penalties, awards, liabilities, costs, damages and expenses (including all legal expenses on an indemnity basis) that We may suffer or incur directly or indirectly arising from or in connection with:
(a) any failure by You or by any Replacement Supplier to comply with Your or their obligations under the Employment Regulations; or
(b) the transfer of the employment to or engagement by You or by any Replacement Supplier of any personnel of Ours or the termination of any such employment or engagement by You or by any Replacement Supplier; or
(c) the transfer of the employment to Us of any personnel of Yours or personnel of the Replacement Supplier or the termination of any such employment by Us.
14 Term and termination
14.1 The Agreement shall take effect upon the Commencement Date and except as provided below in this clause 14, shall remain in effect for an initial period of time as defined in the Client Proposal. Thereafter, the Agreement shall continue until terminated by either party on 12 months’ written notice.
14.2 Without affecting any other right or remedy available to it, either party may by notice in writing immediately terminate the Agreement if the other party shall:
(a) commit a material breach of the Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt of a notice from the other party identifying the breach and requiring its remedy; or
(b) be unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the entity resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations created by the Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed; or
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3 Without affecting any other right or remedy available to Us, We may either suspend the Services or terminate the Agreement with immediate effect by giving written notice to You if You fail to pay any amount due under the Agreement on the due date for payment and such amount remains in default not less than 7 days after You have been notified in writing to make payment.
14.4 On expiry or termination of the Agreement, all provisions of the Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
14.5 On termination or expiry of the Agreement:
(a) You shall immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of the Services supplied or due to be supplied but for which no invoice has been submitted, We may submit an invoice, which shall be payable immediately on receipt;
(b) the licences granted pursuant to clause 12.2 and clause 12.3 will terminate;
(c) You shall return all of Our equipment, materials, Software and Deliverables. If You fail to do so, then We may enter Your premises and take possession of them. Until they have been returned or repossessed, You shall be solely responsible for their safe keeping; and
(d) You shall remove and erase Our Software and/or the Deliverables (as the case may be) from Your computer system. We shall be entitled to enter Your premises and shall be entitled to access to Your equipment, materials, computer hardware and/or computer software to satisfy Ourselves that any Intellectual Property of Ours, the Software and/or the Deliverables (as the case may be) has been deleted and removed.
14.6 You shall indemnify Us against all damages, losses and expenses incurred by Us arising as a result of Your failure to comply fully with clause 14.5(c) and/or clause 14.5(d). The obligations of this clause shall not be affected by the expiry or termination of this Agreement.
14.7 Termination or expiry of the Agreement 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.
15 Dispute Resolution
15.1 In the event of any dispute arising out of or relating to the Agreement, each party agrees not to commence legal proceedings without first attempting in good faith to resolve the dispute amicably and speedily, in accordance with the dispute resolution procedure set out in this clause 15.
15.2 Any such dispute shall be referred in the first instance to the Account Managers for resolution.
15.3 If the dispute is not resolved by negotiation between the Account Managers, it shall be referred by written notice of to the respective Chief Executive/Managing Director of the parties. The Chief Executives/Managing Directors may each nominate a deputy to deal with the matter on his/her behalf.
15.4 If the dispute is not resolved at this stage within 14 (fourteen) days of being referred in accordance with clause 15.3 (or such longer period as the parties may agree), the parties shall meet to consider whether, and on what terms, they wish to refer the matters in dispute to external mediation, arbitration, or assessment by an independent expert.
15.5 If the parties do not agree on such referrals within 7 (seven) days after the end of the period allotted for resolution of the dispute by the Chief Executives/Managing Directors, this dispute resolution procedure shall be considered at an end as regards the dispute in question.
15.6 This dispute resolution procedure shall also be considered at an end as regards the dispute in question if the parties agree to refer the matters in dispute to a non-binding arbitration, expert's assessment or mediation and the resulting findings or recommendations are not acceptable to both parties.
15.7 This dispute resolution procedure shall not prevent a party to the Agreement from taking injunctive action.
16.1 You shall always inform Us if You become aware of any default of the Agreement by Us and afford Us a reasonable opportunity to correct such default in accordance with the Agreement.
16.2 You shall indemnify Us and keep Us fully and effectively indemnified on demand against any loss of, or damage to, any property or injury to, or death of, any person caused by any negligent act or omission, wilful misconduct or breach of the Agreement by You, Your employees, agents or sub-contractors.
16.3 Nothing in the Agreement shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms 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) or any other liability which cannot be limited or excluded by applicable law.
16.4 Subject to clause 16.3, Our aggregate liability in respect of claims based on events in any calendar year arising under, or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the total Fees paid by You under the Agreement in that calendar year.
16.5 Subject to clause 16.3, We shall not be liable to You, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Agreement for loss of profits, loss of business, loss of opportunity, loss of contracts, loss of management time, loss of or damage to goodwill, damage to, loss of use, or corruption to software, information, data, loss of anticipated savings, or any indirect or consequential loss, in all cases, howsoever caused.
16.6 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
16.7 If the performance of Our obligations under the Agreement is prevented or delayed by any act or omission of Yours, Your agents, subcontractors, consultants or employees, then We shall not be liable for any costs, charges or losses sustained or incurred by You that arise directly or indirectly from such prevention or delay.
16.8 Subject to clause 16.3, We shall not be liable to You for any loss arising out of any failure by You:
(a) to input and upload to the Services accurate and complete data;
(b) to perform Your obligations under the Agreement; or
(c) to keep full and up-to-date security copies of the computer programs and data You use in accordance with best computing practice.
17 Force Majeure
17.1 Subject to clause 17.2 We shall not be deemed to be in breach of the Agreement, or otherwise be liable to You, by reason of any delay in performance or non-performance of any of Our obligations under the Agreement to the extent that such delay or non-performance is due to any cause beyond Our reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action; acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; and interruption or failure of utility service (“Event of Force Majeure”). For the avoidance of doubt, an Event of Force Majeure shall not preclude You from paying any charges due to Us.
17.2 If We are affected by any Event of Force Majeure (the “Affected Party”) We shall provide You with written notification of the nature and extent of the Event of Force Majeure and shall enter into bona fide discussions with You to agree an approach to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
17.3 If We are affected by any Event of Force Majeure and the written notice in relation to the Event of Force Majeure has not been withdrawn within 90 days, You shall be at liberty to terminate the Agreement with immediate effect by serving a written notice on Us. The service of such notice shall be without prejudice to any rights or obligations which have accrued prior to termination of the Agreement.
17.4 Provided We have complied with clause 17.2, We shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.1 Compliance with laws
Each party shall comply with all applicable statutory and regulatory requirements in relation to the performance of the Agreement.
18.2 Entire agreement and conflicts
(a) The Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of the Agreement.
(b) You acknowledge that You have entered into the Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in the Client Proposal and save as expressly set out in the Client Proposal, We shall have no liability in respect of any other representation, statement, warranty or promise made (whether innocently or negligently) that is not set out in the Client Proposal unless it was made fraudulently. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
You may not assign or transfer any of Your rights or obligations under this Agreement, and any attempt at such assignment will be void without Our prior written consent. For the purposes of this Agreement, assignment shall include use of the Services for the benefit of any third party to a merger, acquisition and/or other consolidation by, with, or of You, including any new or surviving entity that results from such merger, acquisition and/or other consolidation.
(a) If any provision or part-provision of the Agreement 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 the Agreement.
(b) If any provision or part-provision of the Agreement 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.
We reserve the right to update or modify this Agreement at any time without prior notice.
It is your responsibility to check the terms contained herein periodically for changes. Your continued use of the Services following the updating of this Agreement constitutes acceptance of those changes.
18.6 Releases and waivers
(a) The rights, powers and remedies conferred on any party by the Agreement and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.
(b) A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach of default.
(c) No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under the Agreement or otherwise.
19.1 Any notice to a party under the Agreement shall be in writing and signed by, or on behalf of the relevant party by a person with suitable authority for that party and shall, unless delivered to a party personally, be left at, or sent by prepaid first-class post or prepaid recorded delivery to the registered address of the party or as otherwise notified in writing from time to time.
Any Notices sent to Us should be marked for the attention of the Commercial Department.
19.2 Except as referred to in clause 19.3, a notice shall be deemed to have been served:
(a) at the time of delivery if delivered personally; or
(b) 2 Business Days after posting in the case of an address in mainland United Kingdom and 5 Business Days after posting for any other address.
19.3 If the deemed time of service is not during normal business hours in the country of receipt, the notice shall be deemed served at opening of business on the next business day of the country.
19.4 In proving service, it will be sufficient to prove:
(a) in the case of personal service, that it was handed to the party or delivered to, or left in, an appropriate place for receipt of letters at its address; and
(b) in the case of a letter sent by post, that the letter was properly addressed, stamped and posted.
19.5 A party shall not attempt to prevent or delay the service on it of a notice connected with the Agreement.
19.6 Clauses 19.1 to 19.5 (inclusive) do not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20 No partnership or agency
20.1 Nothing in the Agreement 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.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21 Governing law and jurisdiction
21.1 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English Law.
21.2 Each of the parties irrevocably submits to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement to the exclusive jurisdiction of the courts of England.
22 Exclusion of third party rights
Unless expressly provided in the Agreement, no term of these Conditions is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.