1.
DEFINITIONS AND INTERPRETATION
1.1
The definitions and rules of interpretation
in clause 1 apply to these terms:
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Aggregated
Statistics
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data and information relating to Customer's use of
the Services that is used by Supplier in an aggregate and anonymised manner,
including compilation of statistical and performance information and reports
relating to the provision, operation and content of the Services (including
anonymised Customer Data).
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Authorised
Users
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those employees, agents and independent contractors
of Customer who are authorised by Customer to use the Services and the
Documentation, and for whom access to the Services has been purchased by Customer.
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Confidential
Information
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information that is proprietary or confidential and
is either clearly labelled as such or identified as Confidential Information
in clause
11.5 or clause 11.6.
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Controller, processor,
data subject, personal data, personal data breach, processing and appropriate
technical and organisational measures
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as defined in the Data Protection Legislation.
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Customer
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the person or organisation registering on the Website
to use the Services.
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Customer Data
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other than Aggregated Statistics, the data inputted
by Customer, Authorised Users, or Supplier on Customer's behalf for the
purpose of using the Services or facilitating Customer's use of the Services.
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Data Protection
Legislation
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the UK Data Protection Legislation and any other
European Union legislation relating to personal data and all other
legislation and regulatory requirements in force from time to time which
apply to a party relating to the use of personal data (including, without
limitation, the privacy of electronic communications).
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Documentation
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the document(s) made available to Customer by Supplier
online via the Website or such other web address notified by Supplier to Customer
from time to time which sets out a description of the Services and the user
instructions for the Services.
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Effective Date
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the date notified by Supplier to Customer by email or
electronically as the start date for the Subscription Term following acceptance
of Customer's request to access the Services and the Customer's successful
payment of the Subscription Fees.
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Initial
Subscription Term
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the initial term of access to the Services as
selected by Customer when registering on the Website.
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Normal
Business Hours
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9.00 am to 5.00 pm local UK time, each Monday to
Friday (excluding public or bank holidays within the UK).
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Policies
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Supplier's business policies (if any) applicable to
the use of the Services available to registered users of the Services, as
amended by notification to Customer from time to time.
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Renewal
Period
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the period described in clause 14.1.
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Services
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the subscription services provided by Supplier to Customer
under these terms via the Website, as more particularly described in the
Documentation.
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Software
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the online software applications provided by Supplier
as part of the Services.
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Subscription
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the subscription purchased by Customer pursuant to
clause
9.1
which entitles Authorised Users to access and use
the Services and the Documentation in accordance with these terms.
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Subscription Fees
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the subscription fees payable by Customer to Supplier
for the Subscription, as set out on the Website.
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Subscription
Term
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has the meaning given in clause 14.1
(being the
Initial Subscription Term together with any subsequent Renewal Periods).
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Supplier
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means JVCStringer at info@stationit.com.
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Support Services Policy
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the provision of such remote support in relation to
the Services as may be agreed by Supplier upon request by Customer from time
to time or as may be set out for registered users of the Website from time to
time.
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UK Data Protection
Legislation
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all applicable data protection and privacy
legislation in force from time to time in the UK including the General Data
Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the
Privacy and Electronic Communications Directive 2002/58/EC (as updated by
Directive 2009/136/EC) and the Privacy and Electronic Communications
Regulations 2003 (SI 2003/2426) as amended.
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Virus
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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.
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Vulnerability
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a weakness in the computational logic (for example,
code) found in software and hardware components that when exploited, results
in a negative impact to the confidentiality, integrity, or availability, and
the term Vulnerabilities shall be construed
accordingly.
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Website
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https://www.jvcstringer.com
or such other website address as may be notified to
Customer from time to time.
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1.2
A person includes an
individual, corporate or unincorporated body (whether or not havi
ng separate legal personality) and that person's legal
and personal representatives, successors or permitted assigns.
1.3
A reference to a company shall
include any company, corporation or other body corporate, wherever and however
incorporated or established.
1.4
A reference to a statute or
statutory provision is a reference to it as it is in force as at the date of these
terms.
A reference to
a statute or statutory provision shall include all subordinate legislation made
as at the date of these terms under that statute or statutory provision.
1.5
A reference to writing or written
includes faxes but not e-mail. However, day-to-day communications relating to
the Services and Website may be conducted by e-mail or electronically.
2.
subscription
2.1
S
ubject to Customer
purchasing the Subscription in accordance with clause
3.3 and clause 9.1, the restrictions set out in this clause 2
and the other terms, Supplier hereby grants to Customer a
non-exclusive, non-transferable right, without the right to grant sub-licences,
to permit the Authorised Users to use the Services and the Documentation during
the Subscription Term solely for Customer's internal business operations and
for the scope of use granted as part of its Subscription.
2.2
In relation to the use of the
Services, Customer undertakes that:
2.2.1
it shall not use the Services for any
purposes beyond the scope of use granted as part of its Subscription or
otherwise than for its internal business operations;
2.2.2
all and any use of the Services is
subject to these terms, which Customer shall make known to Authorised Users;
2.2.3
the maximum number of Authorised
Users that it authorises to access and use the Services and the Documentation
shall not exceed the number of permitted under the Subscription it has
purchased;
2.2.4
each Authorised User shall keep a
secure password for their use of the Services and Documentation, that such
password shall be changed regularly and that each Authorised User shall keep their
password confidential;
2.2.5
it shall permit Supplier or Supplier's
designated auditor to audit the Services and Supplier's data processing
facilities to audit compliance with these terms. Each such audit may be
conducted no more than once per quarter, at Supplier's expense, and this right
shall be exercised with reasonable prior notice, in such a manner as not to
substantially interfere with Customer's normal conduct of business;
2.2.6
if any of the audits referred to in
clause
2.2.5
reveal that any password has been provided to any
individual who is not an Authorised User, then without prejudice to Supplier's
other rights, Customer shall promptly disable such passwords and Supplier shall
not issue any new passwords to any such individual; and
2.2.7
if any of the audits referred to in
clause
2.2.5
reveal that Customer has underpaid Subscription Fees
to Supplier or is using the Services beyond the scope of its Subscription, then
without prejudice to Supplier's other rights, Customer shall pay to Supplier an
amount equal to such underpayment as calculated in accordance with the prices
set out on the Website within 14 days of the date of the relevant audit.
2.3
Customer shall not access, store,
distribute or transmit any Viruses, or any material during the course of its
use of the Services that
(i)
is unlawful, harmful, threatening, defamatory, obscene,
infringing, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity; (iii)
depicts
sexually explicit images;
(iv) promotes unlawful violence;
(v)
is discriminatory based on race, gender, colour, religious
belief, sexual orientation, disability; or
(vi)
is
otherwise illegal or causes damage or injury to any person or property;
and
Supplier reserves the right, without liability or prejudice to its other rights
to Customer, to disable Customer's access to any material that breaches the
provisions of this clause.
2.4
Customer shall not:
2.4.1
except as may be allowed by any
applicable law which is incapable of exclusion by agreement between the parties
and except to the extent expressly permitted under these terms:
(a)
attempt to copy, modify, duplicate, create derivative
works from, frame, mirror, republish, download, display, transmit, or
distribute all or any portion of the Software and/or Documentation (as
applicable) in any form or media or by any means; or
(b)
attempt to de-compile, reverse compile, disassemble,
reverse engineer or otherwise reduce to human-perceivable form all or any part
of the Software; or
2.4.2
access all or any part of the
Services and Documentation in order to build a product or service which
competes with the Services and/or the Documentation; or
2.4.3
use the Services and/or
Documentation to provide services to third parties otherwise than as permitted
in the Documentation; or
2.4.4
subject to clause
15.7
, license, sell, rent, lease, transfer, assign, distribute, display,
disclose, or otherwise commercially exploit, or otherwise make the Services
and/or Documentation available to any third party except the Authorised Users,
or
2.4.5
attempt to obtain, or assist third
parties in obtaining, access to the Services and/or Documentation, other than
as provided under this clause
2; or
2.4.6
introduce or permit the
introduction of, any Virus or Vulnerability into Supplier's network and
information systems.
2.5
Customer shall use all reasonable
endeavours to prevent any unauthorised access to, or use of, the Services
and/or the Documentation and, in the event of any such unauthorised access or
use, promptly notify Supplier.
2.6
The rights provided under this
clause
2
are granted to Customer only, and shall not be considered granted to
any subsidiary or holding company of Customer.
3.
CHANGE TO subscription
3.1
Subject to clause 3.2 and clause 3.3
, Customer may, from time to time during any Subscription Term, purchase
an upgraded Subscription and Supplier shall grant access to the Services and
the Documentation for such upgraded Subscription in accordance with these terms.
3.2
If Customer wishes to purchase an
upgraded Subscription, Customer shall notify Supplier in writing or by email. Supplier
shall evaluate such request for an upgraded Subscription and respond to Customer
with approval or rejection of the request (such approval not to be unreasonably
withheld). Where Supplier approves the request, Supplier shall activate the upgraded
Subscription within 24 hours of its approval of Customer's request and
Customer's successful payment of the relevant fees in accordance with clause
3.2.
3.3
If Supplier approves Customer's
request to purchase an upgraded Subscription, Customer shall, pay to Supplier
the relevant fees for such an upgraded Subscription as set out on the Website and,
if such upgraded Subscription is purchased by Customer part way through the
Initial Subscription Term or any Renewal Period (as applicable), such fees
shall be pro-rated from the date of activation by Supplier for the remainder of
the Initial Subscription Term or then current Renewal Period (as applicable).
4.
S
ervices
4.1
Supplier shall, during the
Subscription Term, provide the Services and make available the Documentation to
Customer on and subject to the terms of these terms.
4.2
Supplier shall use commercially
reasonable endeavours to make the Services available 24 hours a day, seven days
a week, except for:
4.2.1
planned maintenance carried out
during the maintenance window of 10.00 pm to 2.00 am UK time; and
4.2.2
unscheduled maintenance performed
outside Normal Business Hours, provided that Supplier has used reasonable
endeavours to give Customer at least 6 Normal Business Hours' notice in
advance.
4.3
Supplier will, as part of the
Services and in consideration of the Subscription Fees, provide Customer with Supplier's
standard customer support services during Normal Business Hours in accordance
with Supplier's Support Services Policy in effect at the time that the Services
are provided. Supplier may amend the Support Services Policy in its sole and
absolute discretion from time to time.
5.
Customer data
5.1
Customer shall own all right, title
and interest in and to all of Customer Data that is not personal data and shall
have sole responsibility for the legality, reliability, integrity, accuracy and
quality of all such Customer Data.
5.2
Supplier shall provide daily
backups for Customer Data and hold the same on a separate server from that
hosting the Services, or provide such other comparable procedures as Supplier
may implement in its sole discretion from time to time. In the event of any
loss or damage to Customer Data, Customer's sole and exclusive remedy against Supplier
shall be for 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 Supplier in accordance with its then current backup procedure. 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 Supplier to perform services related to Customer Data
maintenance and back-up for which it shall remain fully liable under clause
5.9).
5.3
Supplier shall, in providing the
Services, implement reasonable and appropriate measures designed to help Customer
secure Customer Data against accidental or unlawful loss, access or disclosure.
5.4
Both parties will comply with all
applicable requirements of the Data Protection Legislation. This clause
5
is in addition to, and does not relieve, remove or replace, a party's
obligations or rights under the Data Protection Legislation.
5.5
The parties acknowledge that:
5.5.1
if Supplier processes any personal
data on Customer's behalf when performing its obligations under these terms, Customer
is the controller and Supplier is the processor for the purposes of the Data
Protection Legislation
;
5.5.2
the Services shall enable
processing of personal data obtained by Customer from its customers in order to
for Customer to provide racket stringing services to those customers and manage
their requirements for such services. Data held may include contact details,
stringing preferences, racket types and such other data as the Services may be
configured to hold from time to time about Customer's customers. Such personal
data shall be held by Supplier for the Subscription Term and thereafter in
accordance with clause
14.2.4;
5.5.3
the personal data may be
transferred or stored outside the country where Customer and the Authorised
Users are located in order to carry out the Services and Supplier's other
obligations under these terms but only in accordance with clause
5.7.2.
5.6
Without prejudice to the generality
of clause
5.4
, Customer will ensure that it has all necessary appropriate consents
and notices in place to enable lawful transfer of the personal data to Supplier
for the duration and purposes of these terms so that Supplier may lawfully use,
process and transfer the personal data in accordance with these terms on Customer's
behalf.
5.7
Without prejudice to the generality
of clause
5.4
, Supplier shall, in relation to any personal data processed in
connection with the performance by Supplier of its obligations under these
terms:
5.7.1
process that personal data only on
the documented written instructions of Customer (which shall be taken to mean
processing as may be reasonably required to provide the Services) unless Supplier
is required by the laws of any member of the European Union or by the laws of
the European Union applicable to Supplier and/or Domestic UK Law (where
Domestic
UK Law
means the UK Data Protection Legislation and any other law that
applies in the UK) to process personal data (Applicable Laws). Where Supplier
is relying on Applicable Laws as the basis for processing personal data, Supplier
shall promptly notify Customer of this before performing the processing
required by the Applicable Laws unless those Applicable Laws prohibit Supplier
from so notifying Customer;
5.7.2
not transfer any personal data
outside of the European Economic Area and the United Kingdom unless the
following conditions are fulfilled:
(a)
Customer or Supplier has provided appropriate
safeguards in relation to the transfer;
(b)
the data subject has enforceable rights and effective
legal remedies;
(c)
Supplier complies with its obligations under the Data
Protection Legislation by providing an adequate level of protection to any
personal data that is transferred; and
(d)
Supplier complies with reasonable instructions notified
to it in advance by Customer with respect to the processing of the personal
data;
5.7.3
assist Customer, at Customer's
cost, in responding to any request from a data subject and in ensuring
compliance with its obligations under the Data Protection Legislation with
respect to security, breach notifications, impact assessments and consultations
with supervisory authorities or regulators;
5.7.4
notify Customer without undue delay
on becoming aware of a personal data breach;
5.7.5
at the written direction of Customer,
delete or return personal data and copies thereof to Customer on termination of
these terms unless required by Applicable Law to store the personal data (and
for these purposes the term "delete" shall mean to put such data
beyond use); and
5.7.6
maintain complete and accurate
records and information to demonstrate its compliance with this clause
5
and promptly inform Customer if, in the opinion of Supplier, an instruction
infringes the Data Protection Legislation.
5.8
Each party shall ensure that it has
in place appropriate technical and organisational measures, reviewed by the
other party, to protect against unauthorised or unlawful processing of personal
data and against accidental loss or destruction of, or damage to, personal
data, appropriate to the harm that might result from the unauthorised or
unlawful processing or accidental loss, destruction or damage and the nature of
the data to be protected, having regard to the state of technological
development and the cost of implementing any measures (those measures may
include, where appropriate, pseudonymising and encrypting personal data,
ensuring confidentiality, integrity, availability and resilience of its systems
and services, ensuring that availability of and access to personal data can be
restored in a timely manner after an incident, and regularly assessing and
evaluating the effectiveness of the technical and organisational measures
adopted by it).
5.9
Customer consents to Supplier
appointing third-party processors of personal data under these terms as may be
required from time to time to provide the Services. Supplier confirms that it
has entered or (as the case may be) will enter with the third-party processor
into a written agreement substantially on that third party's standard terms of
business and in either case which Supplier undertakes reflect and will continue
to reflect the requirements of the Data Protection Legislation. As between Customer
and Supplier, Supplier shall remain fully liable for all acts or omissions of
any third-party processor appointed by it pursuant to this clause
5.
5.10
Either party may, at any time on not less than 30 days'
notice, revise this clause
5
by replacing it with any applicable controller to processor standard
clauses or similar terms forming part of an applicable certification scheme
(which shall apply when replaced by attachment to these terms).
6.
Third party providers
Customer acknowledges that the Services may require, enable
or assist it to access the website content of, correspond with, and purchase
products and services from, third parties via third-party websites and that it
does so solely at its own risk. Supplier makes no representation, warranty or
commitment and shall have no liability or obligation whatsoever in relation to
the content or use of, or correspondence with, any such third-party website, or
any transactions completed, and any contract entered into by Customer, with any
such third party. Any contract entered into and any transaction completed via
any third-party website is between Customer and the relevant third party, and
not Supplier. Supplier recommends that Customer refers to the third party's
website terms and conditions and privacy policy prior to using the relevant
third-party website. Supplier does not endorse or approve any third-party
website nor the content of any of the third-party website made available via
the Services.
7.
S
upplier's obligations
7.1
Supplier undertakes that the
Services will be performed substantially in accordance with the Documentation
and with reasonable skill and care.
7.2
The undertaking at clause
7.1
shall not apply to the extent of any non-conformance which is caused by
use of the Services contrary to Supplier's instructions, or modification or
alteration of the Services by any party other than Supplier or Supplier's duly
authorised contractors or agents. If the Services do not conform with the
foregoing undertaking, Supplier will, at its expense, use all reasonable
commercial endeavours to correct any such non-conformance promptly, or provide Customer
with an alternative means of accomplishing the desired performance. Such
correction or substitution constitutes Customer's sole and exclusive remedy for
any breach of the undertaking set out in clause
7.1.
7.3
Supplier:
7.3.1
does not warrant that:
(a)
Customer's use of the Services will be uninterrupted or
error-free; or
(b)
that the Services, Documentation and/or the information
obtained by Customer through the Services will meet Customer's requirements; or
(c)
the Software or the Services will be free from
Vulnerabilities;
7.3.2
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 Customer
acknowledges that the Services and Documentation may be subject to limitations,
delays and other problems inherent in the use of such communications
facilities.
7.4
These terms shall not prevent 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 these terms.
7.5
Supplier warrants that it has and
will maintain all necessary licences, consents, and permissions necessary for
the performance of its obligations under these terms.
8.
Customer's obligations
Customer shall:
8.1
provide Supplier with:
8.1.1
all necessary co-operation in
relation to these terms; and
8.1.2
all necessary access to such
information as may be required by Supplier;
in
order to provide the Services, including but not limited to Customer Data,
security access information and configuration services;
8.2
shall comply with the Policies
;
8.3
without affecting its other
obligations under these terms, comply with all applicable laws and regulations
with respect to its activities under these terms;
8.4
carry out all other Customer
responsibilities set out in these terms in a timely and efficient manner. In
the event of any delays in Customer's provision of such assistance as agreed by
the parties, Supplier may adjust any agreed timetable or delivery schedule as
reasonably necessary;
8.5
ensure that the Authorised Users
use the Services and the Documentation in accordance with these terms and shall
be responsible for any Authorised User's breach of these terms;
8.6
obtain and shall maintain all
necessary licences, consents, and permissions necessary for Supplier, its
contractors and agents to perform their obligations under these terms,
including without limitation the Services;
8.7
ensure that its network and systems
comply with the relevant specifications provided by Supplier from time to time;
and
8.8
be, to the extent permitted by law
and except as otherwise expressly provided in these terms, solely responsible
for procuring, maintaining and securing its network connections and
telecommunications links from its systems to Supplier's data centres, and all
problems, conditions, delays, delivery failures and all other loss or damage
arising from or relating to Customer's network connections or
telecommunications links or caused by the internet.
9.
Charges and payment
9.1
Customer shall pay the Subscription
Fees to Supplier for the Subscription in accordance with this clause
9.
9.2
Customer shall on the Effective
Date provide to Supplier's selected payment services provider valid, up-to-date
and complete debit or credit card details and any other relevant valid,
up-to-date and complete contact and billing details and
Customer hereby authorises Supplier's
selected payment services provider to bill such card
:
9.2.1
on the Effective Date for the
Subscription Fees payable in respect of the Initial Subscription Term; and
9.2.2
subject to clause
14.1
, on each anniversary of the Effective Date for the Subscription Fees
payable in respect of the next Renewal Period.
9.3
If Supplier has not received
payment on the due date, and without prejudice to any other rights and remedies
of Supplier:
9.3.1
Supplier may, without liability to Customer,
disable Customer's password, account and access to all or part of the Services
and Supplier shall be under no obligation to provide any or all of the Services
while the Subscription Fees concerned remain unpaid; and
9.3.2
interest shall accrue on a daily
basis on such due amounts at an annual rate equal to 3% over the then current
base lending rate of Lloyds Bank plc from time to time, commencing on the due
date and continuing until fully paid, whether before or after judgment.
9.4
All amounts and fees stated or
referred to in these terms:
9.4.1
shall be payable in pounds
sterling;
9.4.2
are, subject to clause
13.3.2, non-cancellable and non-refundable;
9.4.3
are exclusive of value added tax,
which shall be added to Supplier's invoice(s) at the appropriate rate.
9.5
If, at any time whilst using the
Services, Customer exceeds the amount of disk storage space specified in the
Documentation, Supplier shall notify Customer by email or electronically
whether such excess storage shall be permitted without additional charge or
whether Customer shall be required to purchase an upgraded Subscription in
accordance with clause
3.
9.6
Supplier shall be entitled to
increase the Subscription Fees, the fees payable in respect of any additional Subscription
purchased pursuant to clause
3.3, the support fees payable pursuant to clause 4.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days' prior notice to Customer.
10.
Proprietary rights
10.1
Customer acknowledges and agrees that Supplier and/or
its licensors own all intellectual property rights in the Services and the
Documentation. Except as expressly stated herein, these terms do not grant Customer
any rights to, under or in, any patents, copyright, database right, trade
secrets, trade names, trade marks (whether registered or unregistered), or any
other rights or licences in respect of the Services or the Documentation.
10.2
Supplier confirms that it has all the rights in
relation to the Services and the Documentation that are necessary to grant all
the rights it purports to grant under, and in accordance with, the terms of these
terms.
10.3
Notwithstanding
anything to the contrary in these terms, Supplier may monitor Customer's use of
the Services and collect and compile Aggregated Statistics. As between Supplier
and Customer, all right, title, and interest in Aggregated Statistics, and all
intellectual property rights therein, belong to and are retained solely by Supplier.
Customer acknowledges that Supplier may compile Aggregated Statistics based on
Customer Data input into the Services. Customer agrees that Supplier may (i) use
Aggregated Statistics to improve and develop the Services: (ii) make Aggregated
Statistics commercially available to purchase and use by third parties; and
(ii) use and/or make publically available Aggregated Statistics to the extent
and in any manner permitted under applicable law; provided that such Aggregated
Statistics do not identify Customer or Customer's Confidential Information or any
customers of Customer.
11.
Confidentiality
11.1
Each party may be given access to Confidential
Information from the other party in order to perform its obligations under these
terms. A party's Confidential Information shall not be deemed to include
information that:
11.1.1
is or becomes publicly known other
than through any act or omission of the receiving party;
11.1.2
was in the other party's lawful
possession before the disclosure;
11.1.3
is lawfully disclosed to the
receiving party by a third party without restriction on disclosure; or
11.1.4
is independently developed by the
receiving party, which independent development can be shown by written
evidence.
11.2
Subject to clause 11.4
, each party shall hold the other's Confidential Information in
confidence and not make the other's Confidential Information available to any
third party, or use the other's Confidential Information for any purpose other
than the implementation of these terms.
11.3
Each party shall take all reasonable steps to ensure
that the other's Confidential Information to which it has access is not
disclosed or distributed by its employees or agents in violation of the terms
of these terms.
11.4
A party may disclose Confidential Information to the
extent such Confidential Information is required to be disclosed by law, by any
governmental or other regulatory authority or by a court or other authority of
competent jurisdiction, provided that, to the extent it is legally permitted to
do so, it gives the other party as much notice of such disclosure as possible
and, where notice of disclosure is not prohibited and is given in accordance
with this clause
11.4
, it takes into account the reasonable requests of the other party in
relation to the content of such disclosure.
11.5
Customer acknowledges that details of the Services,
Aggregated Statistics and the results of any performance tests of the Services
constitute Supplier's Confidential Information.
11.6
Supplier acknowledges that Customer Data is the
Confidential Information of Customer.
11.7
No party shall make, or permit any person to make, any
public announcement concerning these terms 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.
11.8
The above provisions of this clause
11 shall survive termination of these terms, however arising.
12.
CUSTOMER Indemnity
12.1
Customer shall defend, indemnify and hold harmless Supplier
against claims, actions, proceedings, losses, damages, expenses and costs
(including without limitation court costs and reasonable legal fees) arising
out of or in connection with Customer's use of the Services and/or
Documentation, provided that:
12.1.1
Customer is given prompt notice of
any such claim;
12.1.2
Supplier provides reasonable
co-operation to Customer in the defence and settlement of such claim, at Customer's
expense; and
12.1.3
Customer is given sole authority to
defend or settle the claim.
13.
Limitation of liability
13.1
Except as expressly and specifically provided in these
terms:
13.1.1
Customer assumes sole
responsibility for results obtained from the use of the Services and the
Documentation by Customer, and for conclusions drawn from such use. Supplier
shall have no liability for any damage caused by errors or omissions in any
information, instructions or scripts provided to Supplier by Customer in
connection with the Services, or any actions taken by Supplier at Customer's
direction;
13.1.2
all warranties, representations,
conditions and all other terms of any kind whatsoever implied by statute or
common law are, to the fullest extent permitted by applicable law, excluded
from these terms; and
13.1.3
the Services and the Documentation
are provided to Customer on an "as is" basis.
13.2
Nothing in these terms excludes the liability of Supplier:
13.2.1
for death or personal injury caused
by Supplier's negligence; or
13.2.2
for fraud or fraudulent
misrepresentation.
13.3
Subject to clause 13.1 and clause 13.2:
13.3.1
Supplier shall not be liable
whether in tort (including for negligence or breach of statutory duty),
contract, misrepresentation, restitution or otherwise for any loss of profits,
loss of business, depletion of goodwill and/or similar losses or loss or
corruption of data or information, or pure economic loss, or for any special,
indirect or consequential loss, costs, damages, charges or expenses however
arising under these terms; and
13.3.2
Supplier's total aggregate
liability in contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in connection with the
performance or contemplated performance of these terms and any alleged
infringement of any patent, copyright, trade mark, database right or right of
confidentiality shall be limited to the total Subscription Fees paid for the
Subscription during the 12 months immediately preceding the date on which the
claim arose.
14.
Term and termination
14.1
These terms shall, unless otherwise terminated as
provided in this clause
14
, commence on the Effective Date and shall continue for the Initial
Subscription Term and, thereafter, these terms shall be automatically renewed
for successive periods equal to the Initial Subscription Period (that is a
monthly Subscription shall renew on a monthly basis and a yearly Subscription
shall renew for a further year) (each a
Renewal
Period
), unless:
14.1.1
either Customer effects a
cancellation of its Subscription Fees with Supplier's selected payment services
provider or requests Supplier to do so before the end of the Initial
Subscription Term or any Renewal Period, in which case these terms and access
to the Services shall terminate at the end of the month in which cancellation
was effected without any refunds of pre-paid Subscription Fees being due to
Customer; or
14.1.2
otherwise terminated in accordance
with the provisions of these terms;
and
the Initial Subscription Term together with any subsequent Renewal Periods
shall constitute the
Subscription Term.
14.2
Without affecting any other right or remedy available
to it, either party may terminate these terms with immediate effect by giving
written notice to the other party if:
14.2.1
the other party
fails to pay any amount due under these terms on the due date for payment and
remains in default not less than 28 days after being notified in writing to
make such payment;
14.2.2
the other party commits a material
breach of any other term of these terms which breach is irremediable or (if
such breach is remediable) fails to remedy that breach within a period of 30
days after being notified in writing to do so;
14.2.3
the other party
repeatedly breaches any of the terms of these terms in such a manner as to
reasonably justify the opinion that its conduct is inconsistent with it having
the intention or ability to give effect to the terms of these terms;
14.2.4
the other party takes any step or
action in connection with its entering administration, provisional liquidation
or any composition or arrangement with its creditors (other than in relation to
a solvent restructuring), being wound up (whether voluntarily or by order of
the court, unless for the purpose of a solvent restructuring), having a
receiver appointed to any of its assets or ceasing to carry on business or, if
the step or action is taken in another jurisdiction, in connection with any
analogous procedure in the relevant jurisdiction;
14.2.5
the other party suspends, or
threatens to suspend, or ceases or threatens to cease to carry on all or a
substantial part of its business; or
14.2.6
the other party's financial
position deteriorates to such an extent that in the terminating party's opinion
the other party's capability to adequately fulfil its obligations under these
terms has been placed in jeopardy.
14.3
On termination of these terms for
any reason:
14.3.1
all licences granted under these
terms shall immediately terminate and Customer shall immediately cease all use
of the Services and/or the Documentation;
14.3.2
each party shall return and make no
further use of any equipment, property, Documentation and other items (and all
copies of them) belonging to the other party;
14.3.3
Supplier may destroy or otherwise
dispose of any of Customer Data in its possession in accordance with clause
5.7.5
, unless Supplier
receives, no later than 14 days after the effective date of the termination of these
terms, a written request for the delivery to Customer of the then most recent
back-up of Customer Data. Supplier shall use reasonable commercial endeavours
to deliver the back-up to Customer within 30 days of its receipt of such a
written request, provided that Customer has, at that time, paid all fees and
charges outstanding at and resulting from termination (whether or not due at
the date of termination). Customer shall pay all reasonable expenses incurred
by Supplier in returning or disposing of Customer Data; and
14.3.4
any rights, remedies, obligations
or liabilities of the parties that have accrued up to the date of termination,
including the right to claim damages in respect of any breach of these terms
which existed at or before the date of termination shall not be affected or
prejudiced.
15.
GENERAL
15.1
Supplier shall have no liability to Customer under these
terms if it is prevented from or delayed in performing its obligations under these
terms, or from carrying on its business, by acts, events, omissions or accidents
beyond its reasonable control, including, without limitation, strikes,
lock-outs or other industrial disputes (whether involving the workforce of Supplier
or any other party), failure of a utility service or transport or
telecommunications network, act of God, war, riot, civil commotion, malicious
damage, compliance with any law or governmental order, rule, regulation or
direction, accident, breakdown of plant or machinery, fire, flood, storm or
default of suppliers or sub-contractors, provided that Customer is notified of
such an event and its expected duration.
15.2
If there is an inconsistency between any of the
provisions in the main body of these terms and any documents referred to in it,
the provisions in these terms shall prevail.
15.3
These terms may be varied by
Supplier from time to time at its discretion but any varied terms shall only become
effective for Customer on the first day of the next Renewal Period (unless
otherwise required by applicable law or regulation or order of a body of
competent jurisdiction).
15.4
No failure or delay by a party to exercise any right or
remedy provided under these terms 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.
15.5
Except as expressly provided in these terms, the rights
and remedies provided under these terms are in addition to, and not exclusive
of, any rights or remedies provided by law.
15.6
If any provision or part-provision of these terms is or
becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that
shall not affect the validity and enforceability of the rest of these terms.
If any provision or part-provision of
these terms is deemed deleted under clause
15.6
the parties shall negotiate in good faith to agree a replacement
provision that, to the greatest extent possible, achieves the intended
commercial result of the original provision.
15.7
Customer shall not, without the prior written consent
of Supplier, assign, transfer, charge, sub-contract or deal in any other manner
with all or any of its rights or obligations under these terms.
Supplier may at any time assign,
transfer, charge, sub-contract or deal in any other manner with all or any of
its rights or obligations under these terms.
15.8
Nothing in these terms is intended to or shall operate
to create a partnership between the parties, or authorise either party to act
as agent for the other, and neither party shall have the authority to act in
the name or on behalf of or otherwise to bind the other in any way (including,
but not limited to, the making of any representation or warranty, the
assumption of any obligation or liability and the exercise of any right or
power).
15.9
These terms does not confer any rights on any person or
party (other than the parties to these terms and, where applicable, their
successors and permitted assigns) pursuant to the Contracts (Rights of Third
Parties) Act 1999.
16.
Entire agreement
16.1
These terms constitute the entire
agreement between the parties and supersedes and extinguishes all previous
agreements, promises, assurances, warranties, representations and
understandings between them, whether written or oral, relating to its subject
matter.
16.2
Each party agrees that it shall
have no remedies in respect of any statement, representation, assurance or
warranty (whether made innocently or negligently) that is not set out in these
terms. Each party agrees that it shall have no claim for innocent or negligent
misrepresentation or negligent misstatement based on any statement in these
terms.
17.
Notices
17.1
Any notice required to be given under these terms shall
be in writing and shall be delivered by hand or sent by pre-paid first-class
post or recorded delivery post to the other party at its address, in the case
of Supplier as set out on the Website or in the case of Customer as provided
upon registration for the Website, or such other address as may have been
notified by that party for such purposes, or sent by fax to the other party's
fax number.
17.2
A notice delivered by hand shall be deemed to have been
received when delivered (or if delivery is not in business hours, at 9 am on
the first business day following delivery). A correctly addressed notice sent
by pre-paid first-class post or recorded delivery post shall be deemed to have
been received at 9am on the second business day after posting. A notice sent by
fax or email shall be deemed to have been received at the time of transmission
(or if delivery is not in business hours, at 9 am on the first business day
following transmission).
18.
Governing law
AND JURISDICTION
These terms and any dispute or claim arising out of or
in connection with them or their 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.
Each party irrevocably agrees that the courts of
England and Wales shall have exclusive jurisdiction to settle any dispute or
claim arising out of or in connection with these terms or its subject matter or
formation (including non-contractual disputes or claims).