Guestflow

Software as a Service Agreement

PARTIES

  1. BUSINESS AUTOPILOT LTD a private limited company incorporated and registered in England and Wales with company number 11462552 whose registered office is at Kemp House, 152-160 City Road, London, EC1V 2NX (the Service Provider); and
  2. The company, partnership or sole trader named on the Subscription Registration Form (as defined below) (the Client).

BACKGROUND 

  1. The Service Provider has developed the Services (as defined below) which it makes available on a subscription basis.
  1. The Client wishes to use the Service (as defined below) in its business operations.
  1. The Service Provider has agreed to provide and the Client has agreed to take and pay for the Services (as defined below) subject to the terms and conditions of this agreement.

AGREED TERMS

  1. INTERPRETATION  
    1. 1.1.The definitions and rules of interpretation in this clause apply in this agreement.

Access Information: a username and password used by the Client to access the Services;

Authorised Users:  those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services.

Billing Period: a recurring period of one (1) month.

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

Change of Control:  shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential Information: all information that is not in the public domain relating to either party’s business activities, past present and future including, all discussions, arrangements, aims, intentions, ideas, proposals, concepts,  research, targets, objectives, forecasts and predictions, whether documented or not; pricing, discounts, costs or other financial information, documents, agreements (including this agreement in its entirety), contracts, deeds, plans, data, databases, specifications, manuals, business plans, policies, procedures, processes, methods , techniques, materials, commercial knowledge and know-how, codes, scripts, programs, algorithms, software, the names and details of contacts, customers, agents, consultants, partners, sponsors, employees and volunteers; intellectual property; information produced, created or compiled by the Services; support, assistance, guidance or advice and information not specifically listed but is identified or marked as being confidential and shall include existing, prospective and presently unknown.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

 

Client Data:  the data inputted by the Client, Authorised Users, or the Service Provider on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.

Data Protection Legislation:  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).

Documentation: any materials provided by the Service Provider to the Client with respect to the Software including any support videos and guides made available via the online learning platform via the Website.

Effective Date:  as set out in clause 12.1.

Force Majeure Event: as defined in clause 14.

Initial Subscription Term: the period between the Effective Date and the end of the calendar month in which the Services are first provided to the Client.

Intellectual Property: any other privilege, right or protection provided by or in by UK Law, European directives and worldwide treaties; including copyright (with particular regard to computer software, applications, source code, databases), trademarks, patents and service marks, moral rights, goodwill, business names and domain names, inventions, ideas, trade secrets, discovery, development, improvement or innovation, in each case whether registered or unregistered; and the right to sue for a breach of those rights.

Month: a calendar month. 

Normal Business Hours:  9.00 am to 5.00 pm local UK time, each Business Day.

Services:  the Software and the Documentation.

Software:  the web and mobile application-based business management system (including Invoice Autopilot and Slack SMS) which the Service Provider makes available on a subscription basis to the Client as detailed on the Website and in the Subscription Registration Form.

Subscription Fees:  the subscription fees payable by the Client to the Service Provider for the Services as detailed in the Subscription Registration Form.

Subscription Registration Form: the form completed by the Client via the Website to request a subscription for the Services which includes the Client’s name, company name, address, telephone number, email address and the  applicable Subscription Fees.

Subscription Term:  rolling periods of one (1) month.

Support Services:  the Service Provider’s support services provided in relation to the Software as set out in clause 3.7.

UK Data Protection Legislation: 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.

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.

Website: www.guestflow.co or such other web address notified by the Service Provider to the Client from time to time.

    1. 1.2.Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
    1. 1.3.A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
    1. 1.4.A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    1. 1.5.Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
    1. 1.6.Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
    1. 1.7.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 and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
    1. 1.8.References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
  1. THE SERVICES AND AUTHORISED USERS
    1. 2.1.The Service Provider shall, during the Subscription Term, provide the Services to the Client on a non-exclusive basis and subject to the terms of this agreement.
    1. 2.2.The Software utilises and integrates with third party software.  Unless the Service Provider expressly states in writing that it will provide such third-party software, it is the Client’s responsibility to arrange for and pay any relevant fees including subscriptions to enable the Client to make use of such third-party software.
    1. 2.3.Once the Subscription Registration Form has been submitted and the Client has paid the Subscription Fees, the Services will be activated and the Service Provider hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Client’s internal business operations.
    1. 2.4.The Client’s Authorised Users can access the Services by entering the relevant Access Information via the Website.
    1. 2.5.In relation to the Authorised Users, the Client undertakes that each Authorised User shall keep its Access Information confidential. If any Access Information is disclosed to, or suspected of being disclosed to, or discovered by a third party who does not have the Client’s express consent and authority (including workers who leave the Client’s employment) the Client shall immediately change the Access Information;
    1. 2.6.The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Service Provider.
    1. 2.7.The Clients acknowledges that the Service Provider may, but is not obliged to, develop and integrate additional features or amend or add to the features, functions and capabilities of the Services or remove features and functions and capabilities that become outdated, obsolete, redundant or incompatible.
    1. 2.8.The Client acknowledges and accepts that:
      1. it may be necessary for the Service Provider to carry out repairs, maintenance and updates to the Services which may result in access being interrupted, restricted or denied;
      2. any updates, modifications, advances or standards to systems, platforms, hardware, browsers, software,  technical or code languages may affect the functionality of Services;
      3. that the intended look, layout and functionality of the Services may be changed, limited or distorted by the end users’ devices or individual settings; and
      4. some elements of the Services may be encrypted or password protected to prevent instability, loss of security or functionality through unauthorised editing, modification, reverse engineering or disassembly.
    1. 2.9.The Service Provider shall, where reasonably practical, provide advance notice on the Website or within the Software of any scheduled maintenance or updates where the Services are expected to be unavailable or disrupted for periods of more than 15 minutes. Notwithstanding the foregoing, the Service Provider accepts no responsibility for any loss or damage caused as a result of any of the events in this clause 2.14 occurring.
    1. 2.10.The rights provided under this clause 2 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client.
    1. 2.11.The Service Provider may offer serviced accommodation services via the Website such as bookkeeping, technical set up and support, marketing, revenue management and guest management services.  Descriptions of these services and their functionality shall be set out on the Website and such services will be governed by separate terms and conditions.
  1. SERVICE PROVIDER’S OBLIGATIONS  
    1. 3.1.The Service Provider shall use reasonable endeavours to provide continuous access to the Services for 99% of time during the course of a calendar year excluding repairs, maintenance or updates; emergencies as a result of technological failure, error or breakdown; network or supply issues over which the Service Provider has no control; unauthorised access or attacks by malicious software; however the Client acknowledges and accepts that due to the inherent nature of the internet access to the Services cannot be guaranteed.
    1. 3.2.The provision of the Services in accordance with clause 3.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Service Provider’s instructions, or modification or alteration of the Services by any party other than the Service Provider or the Service Provider’s duly authorised contractors or agents. If the Services do not conform with clause 3.1, the Service Provider will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of this clause 3.
    1. 3.3.The Service Provider:
      1.  does not warrant that:
        1. the Client’s use of the Services will be uninterrupted or error-free; or
        2. that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements;
      1. shall use reasonable endeavours to protect the Services from third party’s using any kind of malicious software, routines or technology, including maintaining up to date security software and the carrying out or regular penetration tests. However, due to inherent nature of the internet the Service Provider cannot guarantee that the Services will not be attacked, compromised or subjected to unauthorised access; and
      2. shall use reasonable endeavours to protect the Client’s data from disruption, interference, corruption, damage or deletion, however it shall not be 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 Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    1. 3.4.This agreement shall not prevent the Service Provider 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.
    1. 3.5.The Service Provider warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
    1. 3.6.The Service Provider shall, as far as technically or reasonably possible, delete and destroy any temporary username and password provided by the Client to enable the Service Provider to access the Client’s third-party software during the set-up process.
    1. 3.7.The Service Provider will, as part of the Services and at no additional cost to the Client provide the Client with Support Services during Normal Business Hours by way of a ticket-based system.  Where the Client requires support, it will notify the Service Provider who will log the service request and allocate the Client with a ticket.  The Service Provider will use reasonable endeavours to resolve support issues as soon as possible.
  1. CLIENT’S OBLIGATIONS  
    1. 4.1.    The Client shall:
      1. in order for the Service Provider to provide the Services, provide the Service Provider with:
        1. all necessary co-operation in relation to this agreement;
        2. all necessary access to such equipment, device or information as may be required by the Service Provider;
        3. access to the third party software required for the Services to deliver data which may include accounting software  (including Xero or quickbooks); channel manager software (including Tokeet, VReasy, Kigo);  Google with particular regard to Google Sheets; team collaboration tools (Slack, Trello, Asana); and payment processing merchant (Stripe));
        4. where necessary, a temporary password and username to access the third party accounts during the setting up of the Services and upon being informed by the Service Provider that the set-up is complete the Client shall remove or deny future access to the software by the temporary password or username; except where the Service Provider requires regular or repeated access to the third party software;
      2. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
      3. carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Service Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
      4. ensure that the Authorised Users use the Services only for the intended purpose and in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Service Provider, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
      6. ensure that its network and systems comply with the relevant specifications provided by the Service Provider from time to time; and
      7. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Service Provider’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
    1. 4.2.The Client shall not use the Services in any way:
      1. that would be inconsistent with any manual, instruction, guidance or advice from the Service Provider;
      2. that would be inconsistent with any terms and conditions for using a third-party software which is provided by the Client and used in the delivery of the Services;
      3. to breach any third party’s Intellectual Property rights or privileges;
      4. to distribute any unsolicited communications or SPAM;
      5. to host, store, process, distribute, send, link to or otherwise make available any material in any format that is illegal, unlawful or otherwise objectionable including but not limited to threatening, harmful, harassing, abusive, malicious, tortious, defamatory, discriminatory, libellous, fraudulent,  obscene, vulgar, racist, or related to child pornography, terrorism or criminal activity;
      6. which may introduce or permit the introduction of, any Virus into the Service Provider’s network and information systems or to spoof the URL, DNS or IP addresses of websites;
      7. to impersonate any person or entity;
      8. to promote or link to warez, peer to peer and file sharing of copyright protected or illegal material.
    1. 4.3.The Client shall not:
      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 this agreement:
  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 Documentation (as applicable) in any form or media or by any means; or
  2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      1. access all or any part of the Services in order to build a product or service which competes with the Services; or
      2. use the Services to provide services to third parties; or
      3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
      4. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 4.
    1. 2.4.The Service Provider reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to the Services if it has reasonable grounds to suspect any breach of this clause 4.
  1. CLIENT DATA  
    1. 5.1.The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
    2. 5.2.The Service Provider shall use reasonable efforts to backup Client Data. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against the Service Provider shall be for the Service Provider to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Service Provider. The Service Provider shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Service Provider to perform services related to Client Data maintenance and back-up for which it shall remain fully liable).
    1. 5.3.The Service Provider shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Client Data available at www.guestflow.co or such other website address as may be notified to the Client from time to time, as such document may be amended from time to time by the Service Provider in its sole discretion.
    1. 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.
    1. 5.5.The parties acknowledge that:
      1. if the Service Provider processes any personal data on the Client’s behalf when performing its obligations under this agreement, the Client is the controller and the Service Provider is the processor for the purposes of the Data Protection Legislation.
      2. the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the Services and the Service Provider’s other obligations under this agreement.
    1. 5.6.Without prejudice to the generality of clause 5.4, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Service Provider for the duration and purposes of this agreement so that the Service Provider may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf.
    1. 5.7.Without prejudice to the generality of clause 5.4, the Service Provider shall, in relation to any personal data processed in connection with the performance by the Service Provider of its obligations under this agreement:
      1. process that personal data only on the documented written instructions of the Client unless the Service Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Service Provider 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 the Service Provider is relying on Applicable Laws as the basis for processing personal data, the Service Provider shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Service Provider from so notifying the Client;
      2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
        1. the Client or the Service Provider has provided appropriate safeguards in relation to the transfer;
        2. the data subject has enforceable rights and effective legal remedies;
        3. the Service Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        4. the Service Provider complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
      1. assist the Client, at the Client’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;
      2. notify the Client without undue delay on becoming aware of a personal data breach;
      3. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement 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
      4. maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Company if, in the opinion of the Service Provider, an instruction infringes the Data Protection Legislation.
    1. 5.8.Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved 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).
    1. 5.9.The Client consents to the Service Provider using Cognito forms and Guestflow Bookkeeping or Guest management Services as a third-party processor of personal data under this agreement. The Service Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which the Service Provider confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Client and the Service Provider, the Service Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
    1. 5.10.Either party may, at any time on not less than thirty (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 this agreement).
  1. THIRD PARTY PROVIDERS  

The Client 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 and that it does so solely at its own risk. The Service Provider 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 the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Service Provider. The Service Provider recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Service Provider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

  1. SUBSCRIPTION FEES AND PAYMENT  
    1. 7.1.The Client shall pay the Subscription Fees to the Service Provider in accordance with this clause 7 and the Subscription Registration Form.
    1. 7.2.All amounts and fees stated or referred to in this agreement:
      1. shall be payable in pounds sterling;
      2. non-cancellable and non-refundable;
      3. are exclusive of value added tax, which shall be added at the appropriate rate.
    1. 7.3.The Client shall on the Effective Date provide to the Service Provider valid, up-to-date and complete debit or credit card details acceptable to the Service Provider and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
      1. its debit or credit card details to the Service Provider, the Client hereby authorises the Service Provider to bill such debit or credit card:
        1. on the Effective Date for the pro rata Subscription Fees payable in respect of the Initial Subscription Term; and
        2. on the 1st of each calendar month for the Subscription Fees payable in respect of the next Billing Period.
    1. 7.4.In the event that the Services begin on any day other than the first day of a month then the first Subscription Fee shall be calculated at the pro-rata daily rate based on the Initial Subscription Term.  
    2. 7.5.The Client shall immediately inform the Service Provider in the event the Client’s debit or credit card expires, is lost or stolen, or is cancelled and a new card issued.
    3. 7.6.The Service Provider does not retain or store any payment card details; such details are retained and stored by a third-party payment service provider for the purposes of processing a payment.
    4. 7.7.The Client may cancel the payment authority by giving instructions to the issuing bank or the Service Provider in writing; the Client must make alternative arrangements for agreed payments to retain access to the Services and avoid breaching the obligations under this agreement.
    5. 7.8.In the event that the payment of any Subscription Fees due under this agreement is not received by the Service Provider on or before the due date, the Service Provider may, without liability to the Client:
      1. disable the Client’s Access Information and access to all or part of the Services and the Service Provider shall be under no obligation to provide any or all of the Services while the Subscription Fees concerned remain unpaid
      2. terminate the Agreement;
    6. 7.9.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 Service Provider’s bank in the UK] from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    7. 7.10.The Client shall be responsible for any transaction, processing, transfer or exchange fees imposed by their bank or payment processor and cannot be set off against the amount due.
    8. 7.11.In the event that the Client has a dispute with any Subscription Fees or other charges, the Client shall provide notice of the dispute to the Service Provider. All undisputed amounts shall be payable by the due date. The Service Provider shall consider the dispute and endeavour to issue a response within five (5) Business Days, but it is acknowledged that complex issues or a matter which needs investigation may take longer. Where a dispute is rejected the disputed amount shall become immediately due.
    9. 7.12.The Service Provider may use any method available, including the use of third parties, to recover any amount due under this Agreement and add any costs (including administration and third party), legal fees and court costs that are incurred.
  1. PROPRIETARY RIGHTS  
    1. 8.1.The Client acknowledges and agrees that the Service Provider and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Services.
    2. 8.2.The Service Provider confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
    1. 8.3.The Service Provider reserves the right to incorporate into the Services, by any means technically possible, a device, code, script, method or process designed to protect and manage the Intellectual Property against unauthorised use, reproduction, copying, plagiarism, distribution, transmission, broadcast or access; and where used the Client is prohibited from removing, disabling, editing, decompiling, disassembling or otherwise interfering with the Services or any protective device, code, script, method or process.
    1. 8.4.The Parties accept that the damage resulting from a breach of a Party’s Intellectual Property rights, benefits or privileges shall always cause damage beyond pure economic loss and a Party may seek any restrictive or injunctive relief considered necessary.
  1. CONFIDENTIALITY
    1. 9.1.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:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    1. 9.2.Subject to clause 9.4, 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.
    1. 9.3.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.
    1. 9.4.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 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    1. 9.5.The Service Provider acknowledges that the Client Data is the Confidential Information of the Client.
    1. 9.6.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.
    1. 9.7.The provisions of this clause 9 shall survive termination of this agreement, however arising.
  1. INDEMNITY  
    1. 10.1.The Client shall defend, indemnify and hold harmless the Service Provider 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 Client’s use of the Services, provided that:
      1. 10.1.1.the Client is given prompt notice of any such claim;
      2. 10.1.2.the Service Provider provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
      3. 10.1.3.the Client is given sole authority to defend or settle the claim.
    1. 10.2.The Service Provider shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
      1. 10.2.1.the Service Provider is given prompt notice of any such claim;
      2. 10.2.2.the Client provides reasonable co-operation to the Service Provider in the defence and settlement of such claim, at the Service Provider’s expense; and
      3. 10.2.3.the Service Provider is given sole authority to defend or settle the claim.
    1. 10.3.In the defence or settlement of any claim, the Service Provider may procure the right for the Client 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 two (2) Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
    1. 10.4.In no event shall the Service Provider, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
      1. 10.4.1.any errors, mistakes or incorrect information the Client inputs into the Services;
      2. 10.4.2.a modification of the Services by anyone other than the Service Provider;
      3. 10.4.3.the Client’s use of the Services in a manner contrary to the instructions given to the Client by the Service Provider;
      4. 10.4.4.a breach of any Intellectual Property rights and privileges of a third party by the Client or the Client’s use of the Services after notice of the alleged or actual infringement from the Service Provider or any appropriate authority;
      5. 10.4.5.any claim or dispute made by or on behalf of the Client’s customers or suppliers;
      6. 10.4.6.a failure of the Client to hold or maintain suitable and adequate insurance cover for events which are required to be covered by regulation;
      7. 10.4.7.loss or damage to the Client Data stored within the Services caused by unauthorised access using the Client’s Access Information;
      8. 10.4.8.a malfunction or failure of the Services which
  1. could not have been reasonably predicted, expected, foreseen or prevented; or
  2. is a result of the security being breached by a third party which could not have been reasonably prevented;
    1. 2.5.The foregoing and clause 11.3.2 states the Client’s sole and exclusive rights and remedies, and the Service Provider’s (including the Service Provider’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
  1. LIMITATION OF LIABILITY  
    1. 11.1.Except as expressly and specifically provided in this agreement:
      1. 11.1.1.the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use. The Service Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Service Provider by the Client in connection with the Services, or any actions taken by the Service Provider at the Client’s direction;
      2. 11.1.2.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 this agreement; and
      3. 11.1.3.the Services are provided to the Client on an “as is” basis.
    1. 11.2.Nothing in this agreement excludes the liability of either party:
      1. 11.2.1.for death or personal injury caused by negligence; or
      2. 11.2.2.for fraud or fraudulent misrepresentation; or
      3. 11.2.3.any liability to the extent that it cannot be excluded by Law.
    1. 11.3.Subject to clause 11.1 and clause 11.2:
      1. 11.3.1.the Service Provider 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 this agreement; and
      2. 11.3.2.the Service Provider’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the Billing Period in which the loss or damage arose.
      3. 11.3.3.All limitations on liability shall survive termination of this Agreement.
  1. TERM AND TERMINATION  
    1. 12.1.The Agreement shall commence upon the Client:
      1. 12.1.1.completing a Subscription Registration Form on the Website;
      2. 12.1.2.accepting these terms and conditions which shall be done by the Client ticking the relevant acceptance of terms box on the Website;
      3. 12.1.3.submitting payment of the Subscription Fees; and
      4. 12.1.4.the Service Provider sending to the Client’s email address a confirmation of subscription

(the Effective Date).

    1. 12.2.This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue on a rolling monthly basis, unless:
      1. 12.2.1.either party notifies the other party of termination, in writing, at prior to the end of the calendar month that it wishes the Agreement and provision of the Services to end at the end of the following calendar month; or
      2. 12.2.2.otherwise terminated in accordance with the provisions of this agreement.
    1. 12.3.The Service Provider may terminate this agreement in accordance with clause 7.9.
    1. 12.4.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:
      1. 12.4.1.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 seven (7) days after being notified in writing to do so;
      2. 12.4.2.the other party repeatedly breaches any of the terms of this agreement 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 this agreement;
      3. 12.4.3.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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
      4. 12.4.4.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;
      5. 12.4.5.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;
      6. 12.4.6.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;
      7. 12.4.7.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;
      8. 12.4.8.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;
      9. 12.4.9.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 fourteen (14) days;
      10. 12.4.10.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 12.4.3 to clauses 12.4.9 (inclusive);
      11. 12.4.11.the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
      12. 12.4.12.there is a change of control of the other party; or
      13. 12.4.13.there is a Force Majeure Event which exceeds a period of three (3) Months.
    1. 12.5.The date of termination shall be the end of the Billing Period after the termination notice expires; or where termination is for a reason where immediate termination is available, the date on which the Termination notice is received by the non-terminating Party.
    2. 12.6.On termination of this agreement for any reason:
      1. 12.6.1.all outstanding Subscription Fees and any other charges shall become due immediately;
      2. 12.6.2.all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Services;
      3. 12.6.3.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;
      4. 12.6.4.the Service Provider may destroy or otherwise dispose of any of the Client Data in its possession, unless the Service Provider receives, no later than ten (10) days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Service Provider shall use reasonable commercial endeavours to deliver the back-up to the Client within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Service Provider in returning or disposing of Client Data; and
      5. 12.6.5.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.
  1. INSURANCE

During the Subscription Term and for a period of one (1) year afterwards the Service Provider shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessman in connection with the risks associated with this agreement, and produce to the Client on demand full particulars of that insurance and the receipt for the then current premium.

  1. FORCE MAJEURE  

Subject to clause 12.4.13, the Service Provider shall have no liability to the Client 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 Service Provider 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 (a Force Majeure Event), provided that the Client is notified of such an event and its expected duration.

  1. NON-SOLICITATION

The Client must not attempt to procure services that are competitive with the Services from any of the Service Providers directors, employees or consultants, whether as an employee or on a freelance basis, during the Subscription Term and for a period of six (6) months following termination of the agreement.

  1. 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.

  1. VARIATION  

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

  1. 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.

  1. 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.

  1. SEVERANCE  
    1. 20.1.If any provision or part-provision of this agreement 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 this agreement.
    2. 20.2.If any provision or part-provision of this agreement is deemed deleted under clause 20.1 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.
  1. ENTIRE AGREEMENT  
    1. 21.1.This agreement constitutes 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.
    2. 21.2.Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    1. 21.3.Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
  1. ASSIGNMENT  
    1. 22.1.The Client shall not, without the prior written consent of the Service Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    2. 22.2.The Service Provider 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.
  1. 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).

  1. 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.

  1. NOTICES  
    1. 25.1.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:
      1. 25.1.1.in the case of the Service Provider, the address set out on page 1; and
      2. 25.1.2.in the case of the Client, the address specified in the Subscription Registration Form,

or such other address as may have been notified by either party for such purposes.

    1. 25.2.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.
  1. DISPUTE RESOLUTION

In the event of a dispute arising from this agreement or any of its terms which cannot be solved amicably between the parties, the dispute may be referred to an independent arbitrator, mediator or Court of Law for a determination.

  1. 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.

  1. 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).