1.1 In this Agreement, the following expressions have the following meanings:
Agreement means this software as a service agreement, including the Contract Details and any Schedules attached to it.
Commencement Date is the date on which the Supplier will start to provide the Services to the Customer, as set out at the top of this Agreement.
Confidential Information all data or information (whether technical, commercial, financial or of any other type) in any form acquired under, pursuant to or in connection with, this Agreement and any information used in or relating to the business of the parties (including information relating to the parties’ products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs), and which are for the time being confidential to the disclosing party.
Contract Details the core terms of this Agreement as listed on the front pages of this Agreement, which includes the sections titled "Parties" and "Core Terms".
Customer Data the data inputted by the Customer (including its affiliates, employees, directors) into the Software or otherwise provided to the Supplier as part of the Customer's use of the Services.
Data Protection Laws: all applicable data protection and privacy legislation in force in the United Kingdom, including but not limited to:
(a) the UK GDPR as defined in section 3(10) of the Data Protection Act 2018, and supplemented by section 205(4) (“UK GDPR”);
(b) the Data Protection Act 2018; and
(c) the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426),
in each case as amended, updated or replaced from time to time, and the term Personal Data shall have the meaning set out in the UK GDPR.
Fees the fees payable by the Customer for receipt of the Services, as set out in the Contract Details at the front of this Agreement.
Intellectual Property Rights copyright, patents, rights in confidential information, know-how, trade secrets, trademarks, trade names, design rights, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and wherever existing.
Incident any Vulnerability, Virus or security incident which:
(a) may affect the Software or the Services;
(b) may affect the Supplier's network and information systems, such that it could potentially affect the Customer or the Software or the Services; or
(c) is reported to the Supplier by the Customer.
Services the services provided by the Supplier to the Customer including providing the Software.
Software means the online Software and applications provided by the Supplier to the Customer as described in the Contract Details.
User Subscriptions the individual user subscriptions purchased by the Customer from time to time to enable the Customer's employees, directors, contractors or consultants to access and use the Services in accordance with this Agreement (as confirmed by the Supplier in writing).
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.
Vulnerability a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 The words include, includes and including are deemed to be followed by the words without limitation.
1.4 Reference to writing or written includes e-mail.
2.1 In consideration of payment of the Fees and subject to the terms of this Agreement, the Supplier grants the Customer a non-exclusive to use the Services during the term of this Agreement.
2.2 The Supplier will provide the Services to the Customer to satisfy the number of User Subscriptions purchased by the Customer.
2.3 The Customer may request to purchase additional User Subscriptions from time to time by notifying the Supplier in writing of its request. Where the Customer does so, and the Supplier approves this request in writing, the Customer will pay the invoice for the Supplier's Fees including the costs of the additional User Subscriptions in accordance with the payment terms in this Agreement.
2.4 Except for the Customer’s right to use the Services as expressly granted in this Agreement, this Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services and all Intellectual Property Rights in the Services shall vest in, and remain vested in, the Supplier (or its licensors, if applicable).
2.5 The Supplier that it has all the rights in relation to the Services that are necessary to provide them in accordance with this Agreement.
2.6 The Customer owns all rights (including any Intellectual Property Rights) in the Customer Data.
3.1 From the Commencement Date, the Supplier will provide the Services.
3.2 The Supplier shall provide the Services with reasonable skill and care.
4.1 The Customer will:
4.1.1 co-operate with the Supplier and provide all information to allow the Supplier to provide the Services;
4.1.2 ensure that any users who have access to the Software comply with the terms of this Agreement;
4.1.3 use the Services in accordance with the terms and conditions of this Agreement.
4.2 The Customer will:
4.2.1 keep secure all log in information for the use of the Services;
4.2.2 ensure that the Customer's network and systems comply with all relevant specifications provided by the Supplier in relation to use of the Services; and
4.2.3 be responsible for obtaining, maintaining and securing its own internet connection.
4.3 The Customer will not:
4.3.1 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 Documents (as applicable) in any form or media or by any means;
4.3.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form for all or any part of the Software;
4.3.3 access all or any part of the Services in order to build a product or service which competes with the Services;
4.3.4 grant any sublicences to any other party to use the Services;
4.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services;
4.3.6 access, store, distribute or transmit Viruses or any harmful or illegal material during the course of its use of the Services; or
4.3.7 introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
4.4 The Customer shall use reasonable efforts to prevent any unauthorised access to the Services. Upon discovering any unauthorised access, the Customer must immediately notify the Supplier.
4.5 The Customer shall notify the Supplier of any Incidents.
4.6 The Customer acknowledges that any delay caused by the Customer failing to fulfil any of its obligations under this Agreement may mean that the Supplier needs to adjust any agreed timescales.
5.1 The Customer will pay the Fees to the Supplier for the Services in accordance with this Clause 5.
5.2 On the Commencement Date, the Customer will provide to the Supplier valid, up-to-date and complete credit card details or confirm its alternative payment method.
5.3 The Supplier shall be entitled to increase the Fees payable at any time during the term of this Agreement upon no less than 30 days prior written notice to the Customer.
6.1 The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing Personal Data in connection with this Agreement.
6.2 Where required by Data Protection Laws, the parties will enter into a separate agreement covering their processing activities under Data Protection Laws.
7.1 A Party receiving Confidential Information under this Agreement (the "Receiving Party") shall maintain the confidentiality of the Confidential Information of the other Party (the "Disclosing Party") and shall not without the prior written consent of the Disclosing Party or in accordance with this Agreement, disclose or copy the Disclosing Party’s Confidential Information other than to the extent necessary in connection with its express rights and obligations under this Agreement.
7.2 The Receiving Party:
7.2.1 undertakes to disclose the Disclosing Party’s Confidential Information only to those of its permitted recipients to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement or as otherwise reasonably necessary in connection with the Receiving Party’s express rights and/or obligations under this Agreement; and
7.2.2 shall be responsible to the Disclosing Party for any acts or omissions of any of the persons referred to in Clause 7.2.1 in respect of the confidentiality and security of the Disclosing Party’s Confidential Information as if it were the Receiving Party’s own.
7.3 The provisions of this Clause 7 shall not apply to information which:
7.3.1 is or comes into the public domain through no fault of the Receiving Party, its officers, employees, agents or contractors;
7.3.2 is lawfully received by the Receiving Party from a third party free of any obligation of confidence at the time of its disclosure;
7.3.3 is independently developed by the Receiving Party (or any of its affiliates or any person acting on its or their behalf), without access to or use of such Confidential Information; or
7.3.4 is required by law, by court or governmental or regulatory order to be disclosed.
7.4 The obligations in this Clause 7 shall survive the termination or expiry of this Agreement and last for a period of 3 years.
8.1 The Supplier shall use reasonable efforts to make the Software available to the Customer 24 hours a day, seven days a week, except for:
8.1.1 planned maintenance carried out during the maintenance window of 2100-0300 Europe/London; and
8.1.2 unscheduled maintenance performed outside Business Hours, provided that the Supplier use reasonable endeavours to give the Customer at least 1 business days’ notice in advance.
These service levels are not applicable during any trial periods, or when using any pre-release versions.
9.1 Neither party excludes nor limits any liability for:
9.1.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 any other liability to the extent it cannot be excluded or limited by law.
9.2 In addition to Clause 9.1, the Supplier shall not be liable for: negligence, breach of statutory duty, contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
9.3 The Supplier shall not be liable for any losses for which it does not assume responsibility, which include:
9.3.1 wasted expenditure;
9.3.2 additional costs of procuring and implementing replacements for, or alternatives to, the Services, including consultancy costs, additional costs of management time and other personnel costs and costs of equipment and materials;
9.3.3 losses incurred by the Customer arising out of or in connection with any claim, demand, fine, penalty, action, investigation or proceeding by any third party against the Customer caused by the Supplier's act or omission;
9.3.4 anticipated savings; and
9.3.5 loss of, corruption or damage to, data.
9.4 The Supplier's total aggregate liability shall be limited to 100% of the total Fees paid for during the 12 months immediately preceding the date on which the claim arose (or where a claim arose within the first 12 months, the Fees that would be payable by the Customer to the Supplier).
No liability is assumed for customers engaged in testing or using pre-release versions.
10.1 Either party may terminate this Agreement at any time with 30 days' prior written notice to the other party. Where the Supplier provides notice to terminate under this Clause 10.1, the Supplier shall refund to the Customer any amounts paid in advance as at the date of termination of this Agreement.
10.2 Either party may, without affecting its other rights under this Agreement, by notice in writing to the other party immediately terminate this Agreement if the other:
10.2.1 fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
10.2.2 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach;
10.2.3 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction; or
10.2.4 ceases or suspends, or threatens to cease or suspend, the carrying on of any part of its business.
10.3 In the event of termination of this Agreement for any reason:
10.3.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services; and
10.3.2 each party will within 28 days of such termination return (or, at the other party’s option, destroy) all the other party's Confidential Information in its possession or under its control and all copies of such information.
11.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from any Uncontrollable Events.
11.2 In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 45 days, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.
11.3 In this Clause 11, "Uncontrollable Events" means an event outside the party's reasonable control including, without limitation: natural disaster, terrorist attack, civil war, civil commotion or riots, war or armed conflict; nuclear, chemical or sonic boom, collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this Clause, or companies in the same group as that party).
12.1 Third party rights: For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
12.2 Costs: Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
12.3 Survival of terms: The parties intend the following terms to survive termination of this Agreement:
- Clause 1
- Clause 6
- Clause 7
- Clause 9
- Clause 10
- Clause 12
12.4 Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
12.5 Assignment and other dealings: No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other party’s prior written consent or except as expressly permitted in this Agreement.
12.6 Entire agreement: This Agreement, and any document referred to in it, contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly referred to in this Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not covered in this Agreement. Nothing in this Clause limits or excludes any liability for fraud or fraudulent misrepresentation.
12.7 Variation: No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
12.8 Severability: If any clause in this Agreement (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this agreement as soon as possible.
12.9 Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.10 Notices: Notices under this Agreement must be in writing and sent to the other party's address or email address, as set out in the Contract Details. Letters sent in the United Kingdom will be deemed delivered 3 business days (excluding English Bank Holidays), after sending. Emails will be deemed delivered the same day (or the next business day, if sent on a non-business day or after 5pm on any business day at the recipient's location).
12.11 Counterparts: This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same agreement. This Agreement will not be effective until each party has signed one counterpart.
12.12 Governing law and jurisdiction: This Agreement is governed by the laws of England and Wales. All disputes under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.
