1. Definitions

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Anonymised Aggregated Data: anonymised statistical data (excluding any personal data as defined by UK data protection laws) which the Supplier extracts from the Customer Data or from the data of other third party users of the Software or the Supplier’s services or which the Supplier extrapolates from the use of its software and services by its customers.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 4.2.

Billing Period: the period over which the Supplier will invoice for the Services subscribed for as set out in each Order, which in the absence of anything stated in the Order will be monthly.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Commencement Date: as defined in clause 3.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.6 or clause 13.7.
Customer: the person identified in the Order who has entered into this contract.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services. 

Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”)  and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

Documentation: the documentation and information as amended from time to time made available to the Customer by the Supplier online via https://www.prospectsoft.com/products  and https://docs.prospect365.com/ or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and tutorials for the Services.

Elastic Subscriptions: per-use or consumption based fees for the Services purchased by the Customer pursuant to an Order and as further described in clause 11.

Fair Use Policy: the Supplier's policy for fair use by users in relation to the Services as made available at www.prospectsoft.com or such other website address as may be notified to the Customer from time to time.

Initial Subscription Term: the initial term of this agreement as set out in the initial Order or any subsequent Order, or in the absence of anything set out in the Order, 12 months from the Commencement Date. Where the Customer changes their subscription type during an Initial Subscription Term then a new Initial Subscription Term shall commence for the updated subscription.

Normal Business Hours:  8.30 am to 5.00 pm local UK time, Monday to Thursday, 8:30 am to 4.30 pm Friday.

Marketplace Subscriptions: the market place subscription in respect of a product extensions, created by the Supplier or third parties, purchased by the Customer pursuant to an Order and as further described in clause 11 which entitle the Customer to use the product extensions in a certain market place using the Services and the Documentation in accordance with this agreement.

Order: the order for Services made by the Customer pursuant to clause 3 of these Terms. 

Product Level Subscription: means the minimum and maximum number of Authorised Users or Sites that the Customer is allowed as set out in the applicable Order or published on our website for the product type that the Customer has purchased. 

Renewal Period: the period described in clause 16.1.

Services: the subscription services provided by the Supplier to the Customer under this agreement via the https://www.prospectsoft.com and prospect365.com domains or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by the Supplier as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for each Subscription, as set out on your Order.

Subscription: a subscription for Services including a User Subscription, Site Subscription, Elastic Subscription or Marketplace Subscription.

Subscription Term: has the meaning given in clause 16.1  (being the Initial Subscription Term together with any subsequent Renewal Periods).

Supplier: ProspectSoft Limited (Company No: 02867271) whose registered address is at The Old School, School Lane, Stratford St. Mary, Colchester, Essex, United Kingdom, CO7 6LZ.

Support Policy: the Supplier's policy for providing support in relation to the Services as made available at www.prospectsoft.com or such other website address as may be notified to the Customer from time to time.

User Subscription(s): the  per user subscriptions purchased by the Customer pursuant to an Order and as further described in clause 11 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Site Subscriptions: the per site (website or portal) subscriptions purchased by the Customer pursuant to an Order and as further described in clause 11 which entitle the Customer to build and publish websites and customer portals using the Services and the Documentation in accordance with this agreement.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.3 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

2. Agreement

2.1 These terms and conditions (Terms) apply to each Order and supply of Services by the Supplier to the Customer (Agreement). They apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Agreement is the entire agreement between the Supplier and the Customer in relation to its subject matter. The Customer acknowledges that it has not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.

3. Placing an order and its acceptance

3.1 The Customer may only submit an Order using the method set out on our website. Each Order is an acceptance by the Customer of the Supplier’s offer to sell the Services specified in the Order subject to these Terms, at which point and on which date (Commencement Date) the Agreement between the parties will come into existence. The Agreement will relate only to those Services confirmed in the Order.

3.2 If the Supplier is unable to supply the Customer with the Services for any reason, the Supplier will inform the Customer of this by email and the Supplier will not process the Customer’s order. If the Customer has already paid for the Services, the Supplier will refund the full amount.

4. Subscriptions

4.1 Subject to the Customer purchasing a Subscription in accordance with this Agreement, the  restrictions set out in this clause 4 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term in accordance with the Subscription which they have paid for solely for the Customer's internal business operations.

4.2 In relation to User Subscriptions, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(c) it will not allow or suffer the setting up of any “shared”, “departmental” or “general” user logins such as “admin” or “marketing” or similar.
(d) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than once per month and that each Authorised User shall keep his password confidential;
(e) it shall permit the Supplier to audit the Services in order to establish the name and identity of each Authorised User.  Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
(f) if any of the audits referred to in clause 4.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 4.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices published on the Supplier’s website from time to time within 10 Business Days of the date of the relevant audit.
(h) it acknowledges and agrees to abide by the Fair Use Policy. The Supplier may amend the Fair Use Policy in its sole and absolute discretion from time to time.The Customer may purchase help and assistance with abiding by this Fair Use Policy via consultancy services separately at the Supplier's then current rates as published on the Supplier’s website. Beyond the limits set out in the Fair Use Policy, the Customer may purchase additional resources such as storage, bandwidth, email volumes and compute services at the Supplier’s sold discretion.

4.3 In relation to any Marketplace Subscription, the Customer undertakes to use the Services and Documentation in the marketplace set out in the applicable Order only.

4.4 In relation to any Site Subscription, the Customer undertakes to use the Services and Documentation in connection with the website or portal set out in the applicable Order only.

4.5 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

4.6 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) 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
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) 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
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause; and

4.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

5. Additional or reductions in Subscriptions

5.1 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions, Site Subscriptions or Marketplace Subscriptions in excess of the number set out the Order and the Supplier shall grant access to the Services and the Documentation to such additional Subscriptions in accordance with the provisions of this agreement.

5.2 Subject to clause and 5.4 and clause 5.5, the Customer may, from time to time during the Subscription Term, reduce their User Subscriptions, Site Subscriptions or Marketplace Subscriptions below the number set out the Order and the Supplier shall remove access to the Services and the Documentation to match the reduced Subscriptions in accordance with the provisions of this agreement.

5.3 If the Customer wishes to purchase additional User Subscriptions, the Customer shall order such additional User Subscriptions using the Supplier’s website to add new users and/or assign user licenses to those users. 

5.4 User Subscriptions and Site Subscriptions are subject to a minimum and maximum number of Authorised Users or Sites permitted by the Product Level Subscription.

5.5 Customer may upgrade a Product Level Subscription, but may not downgrade a Product Level Subscription, during the Initial Subscription Term or then current Renewal Period (as applicable). 

6. Services

6.1 Subject to clause 6.2, the Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.

6.2 The Customer acknowledges and accepts that the Services will evolve and change over time.

6.3 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
(c) emergency maintenance for security or performance reasons which the Supplier may conduct, at its absolute discretion, without any notice. 

6.4 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Policy in effect at the time that the Services are provided.  The Supplier may amend the Support Policy in its sole and absolute discretion from time to time.  The Customer may purchase enhanced support via consultancy services separately at the Supplier's then current rates as published on the Supplier’s website.

7. Customer data

7.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

7.2 The Supplier shall follow its backup procedures for Customer Data as set out in its Back-Up Policy available at www.prospectsoft.com or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time.  In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

7.3 The Supplier shall, in providing the Services, comply with its Privacy Policy and Security Policy relating to the privacy and security of the Customer Data available at www.prospectsoft.com  (as applicable the “Privacy Policy” and “Security Policy”) or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

7.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

7.5 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.

7.6 Without prejudice to the generality of clause 7.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.

7.7 Without prejudice to the generality of clause 7.4, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only in performing the Services in accordance with this Agreement and any subsequent written instructions from the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). The Customer accepts that the technical and organisational measures set out in the Security Policy are sufficient to enable the Supplier to comply with this sub-clause; 
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
  (i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
  (ii) the data subject has enforceable rights and effective legal remedies;
  (iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred.

(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, at the Customer’s cost, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 7.

7.8 The Customer consents to the Supplier appointing suitable third parties as a third-party processor of Personal Data under this agreement. The 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. The Supplier will give the Customer prior written notice of the appointment of any new third party processor, and provide the Customer with details of the processing to be undertaken by the third party processor. If the Customer objects (on reasonable grounds) to the proposed appointment either party may terminate the Agreement by providing the other with 30 days’ advance written notice.

7.9 The Customer grants the Supplier a perpetual, irrevocable, world-wide, royalty-free right to use Anonymised Aggregated Data to market and improve the quality of the Supplier’s Software and Services and to provide additional value added services to its customers. The Supplier warrants that:
(a) the Anonymised Aggregated Data shall not include any personal data as defined by UK data protection laws;
(b) it will not sell or sub-licence Anonymised Aggregated Data to third parties save in connection with software and services supplied by the Supplier or its Affiliates to its customers from time to time.

8. Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites, or via the extensions marketplace in which the Customer may purchase extensions to the Services created by third parties (the “Marketplace”) and that it does so solely at its own risk. The 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 with any third-party extensions, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website, or via the Marketplace is between the Customer and the relevant third party, and not the Supplier.  The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website or extension.  The Supplier does not endorse or approve any third-party website or extension nor the content of any of the third-party website or extension made available via the Services.

9. Supplier's obligations

9.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

9.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.  Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

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

9.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

9.5 The Customer acknowledges that the Supplier may apply rate-limiting or other mechanisms it deems necessary from time-to-time to maintain overall performance and up-time. The Customer also specifically acknowledges that the Supplier may, at its sole discretion, disable to the Customer’s use of the Services and access to the data if use of those Services or Data is causing a degradation in performance for other customers, howsoever caused.

10. Customer's obligations

The Customer shall:
(a) provide the Supplier with:
  (i) all necessary co-operation in relation to this agreement; and
  (ii) all necessary access to such information as may be required by the Supplier;
 in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
(h) not perform any security penetration tests or security assessment activities or performance testing without the express advance written consent of the Supplier.

11. Charges and payment

11.1 The Customer shall pay the Subscription Fees to the Supplier for the Subscriptions in accordance with this clause 11 and each applicable Order. The Subscription Fees shall be charged in full in arrears for each applicable Billing Period in respect of any Subscriptions in the prior Billing Period including for any new Subscriptions ordered part way through the prior Billing Period.  

11.2 The Customer shall on the Commencement Date provide to the Supplier a valid, up-to-date and complete Direct Debit Authority, or credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to debit such credit card at the start of each Billing Period in respect of the charges due for the prior Billing Period’s Subscriptions and usage.
(b) its Direct Debit Authority to the Supplier, the Customer hereby authorises the Supplier to collect appropriate fees at the start of each Billing Period in respect of the charges due for the prior Billing Period’s Subscriptions and usage.

11.3 If the Supplier has not received payment within 14 days after the due date or if any payment via credit card or direct debit is declined, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) 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 the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling, or in any other currency as agreed in advance;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

11.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space, or uses certain services above the free threshold specified in the Documentation or the Order, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage fees, or Subscription Fees published on the Supplier’s website. 

11.6 The Supplier shall be entitled to increase all Subscription Fees at the start of each Renewal Period upon 90 days' prior notice to the Customer.

11.7 If the Customer ceases to use the Services it shall be obliged to continue to pay the Subscription Fees at the minimum Product Subscription Level for the Subscription Term.

12. Proprietary rights

12.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the 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.

12.2 The 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 this agreement.

13. Confidentiality 

13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

13.2 Subject to clause 13.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

13.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

13.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

13.8 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

13.9 The above provisions of this clause 13 shall survive termination of this agreement, however arising.

14. Indemnity

14.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.

14.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.

14.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

14.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

14.5 The foregoing and clause 15.3(b) state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

15. Limitation of liability

15.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
(b) 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 this agreement; and
(c) the Services and the Documentation are provided to the Customer on an "as is" basis.

15.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation. 

15.3 Subject to clause 15.1 and clause 15.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, indemnity, 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 this agreement; and
(b) the Supplier's total aggregate liability in contract including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, indemnity, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 10 times the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

16. Term and termination

16.1 This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Commencement Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period) for the same users, modules and features, unless: 
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

16.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(c) to clause 16.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation 
(b) the Supplier may, at any time after the expiry of 30 days from the date the Agreement terminates, destroy or otherwise dispose of any of the Customer Data in its possession. It shall be the Customer’s sole responsibility to export or download any Customer Data held via the Services to the Customer’s own system prior to the termination or expiry of this Agreement; and
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

17. Force majeure

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

18. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

19. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. Severance

22.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

23. Assignment

23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

24. No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

25. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

26. Notices

26.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.

26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

26.3 The Customer acknowledges that the Supplier may notify the Customer of changes to the Documentation, Services, its Security Policy, Privacy Policy, Back-Up Policy, Fair Use Policy and Support Policy by providing a notice on its website or by email to the Customer.  

27. Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

28. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

 29. Disputes. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause:

(a)         either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, our Customer Services Manager (or equivalent) and your Project Manager (or equivalent) shall attempt in good faith to resolve the Dispute;

(b)         if our Customer Services Manager (or equivalent) and your Project Manager (or equivalent) are for any reason unable to resolve the Dispute within 60 days of service of the Dispute Notice, the Dispute shall be referred to our CEO and your CEO (or equivalent), who shall attempt in good faith to resolve it; and

(c)         if our CEO and your CEO (or equivalent) are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 90 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 14 days after the date of the ADR notice

(d)         No party may commence any court proceedings in relation to the whole or part of the Dispute until 28 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.

(e)         If the Dispute is not resolved within 28 days after service of the ADR notice or either party fails to participate or ceases to participate in the mediation before the expiry of that 28 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 28 (Jurisdiction) in this Agreement.

Schedule 1 Processing, Personal Data and Data Subjects

1. Processing by the Supplier
 
1.1 Nature - processing is limited to holding and storing any personal data that the Customer or any Authorised User inputs into data fields when using the Services, but we may also use the data to provide the Service, in particular for support, fair use analytics, performance analytics, testing functionality, usage and billing of per user, per site, elastic or usage-based subscriptions.

1.2 Duration of the processing – for the duration of this Agreement and then as provided in clause 16.3 (c).

1.3 Types of personal data – as input by the Customer or Authorised Users into the data fields of the Services.

1.4 Categories of data subject – as input by the Customer or Authorised Users into the data fields of the Services.

V2.23.04.18