Our Service Agreement

1.         INTERPRETATION

1.1       The following definitions and rules of interpretation apply to these Conditions.

1.2      Definitions used in the Services Confirmation will have the same meaning when used in these Conditions.

Applicable Laws: has the meaning given in condition ‎4.11‎(a).

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Subscription Services and the KB Documentation, as further described in condition ‎2.8(b).

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

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as Confidential Information in condition ‎10.1.

Configuration Services: the configuration and related work referred to in the Service Confirmation, to be performed by the Supplier.

Contract: the contract for the supply of the Software and the Services to be provided by the Supplier to the Customer incorporating these Conditions and the Services Confirmation.

Controller: has the meaning given in the Data Protection Legislation.

Customer: the customer for the Software and the Services whose details are set out on the Services Confirmation.

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 excluding Customer Personal Data.

Customer Materials: any materials provided by the Customer to the Supplier in connection with the provision of the Customisation Services by the Supplier.

Customer Personal Data: means any Personal Data relating to an identified or identifiable natural person which will be processed (subject to the Data Protection Legislation) by the Supplier on behalf of the Customer in connection with the Services.

Customisation Services: the customisation and related work referred to in the Services Confirmation, to be performed by the Supplier to customise the Software.

Data Breach: shall have the meaning given to it in the Data Protection Legislation, including without limitation any unauthorised loss, disclosure, corruption, damage, destruction, alteration, disclosure or access to any Customer Personal Data, any unauthorised or unlawful processing of Customer Personal Data or any other breach of the security and integrity requirements of the Data Protection Legislation.

Data Protection Legislation:  the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.

Data Subject: has the meaning given under the Data Protection Legislation.

Deliverables: all products and materials developed by the Supplier in relation to the Services in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).

KB Documentation: the Knowledge Base document made available to the Customer by the Supplier online via www.support.nxsys.tech or such other web address notified by the Supplier to the Customer from time to time which sets out a description of and the user instructions for the Subscription Services.

Effective Date: the date set out on the Services Confirmation.

Fees: The Software licence fees, Software configuration and customisation fees, Optional Services and licence renewal fees set out on the Services Confirmation.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Initial Contract Term: the initial term of the Contract as set out on the Services Confirmation.

Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.

Optional Services: any of the optional services listed in the Services Confirmation, and any other services that the Customer and Supplier may from time to time agree in writing shall be supplied to the Customer under the terms of the Contract.

Personal Data: has the meaning given under the Data Protection Legislation.

Preexisting Materials: materials which existed before the commencement of the Services.

Processor: has the meaning given under the Data Protection Legislation.

Renewal Period: the period described in condition ‎13.1.

Schedule: means the schedule in two parts attached to and forming part of these Conditions.

Services: means (i) the Subscription Services; (ii) the Configuration Services; (iii) the Customisation Services; (iv) the Standard Support Services; and (v) the Optional Services (if relevant).

Services Confirmation: means the services confirmation signed by the parties attached to these Conditions.

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

Standard Support Service: the support service more particularly described in Part 2 of the Schedule provided by the Supplier to the Customer under the Contract.

Subscription Services: the subscription services provided by the Supplier to the Customer under the Contract via www.nxsys.tech or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the KB Documentation.

Subscription Term: has the meaning given in condition ‎13.1  (being the Initial Contract Term together with any subsequent Renewal Periods).

Supplier: Encom International Limited T/A NXSYS, registered number SC675776, whose registered office is at 272 Bath Street, Glasgow, United Kingdom, G2 4JR.

Third Party Software: any software used or to be used by the Customer in which the Intellectual Property Rights are not owned by the Supplier;

UK Data Protection Legislation:  any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.

Virus: anything 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.

Year: a period of 12 months beginning on the Effective Date or any anniversary of that date.

1.3           Condition headings shall not affect the interpretation of these Conditions.  Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.  A reference to a statute includes any amendment, variation or replacement to the same.    A reference to writing or written includes e-mail.

2.              BASIS OF SUPPLY

2.1           The Supplier shall license the Software and supply the Services to the Customer in accordance with these Conditions.

2.2           These Conditions shall apply to the exclusion of any other express or implied conditions, including any terms and conditions to which the order of the Customer may purport to be subject.

2.3           Variations or additions to these Conditions shall apply only if agreed in writing between a director of the Supplier and an authorised representative of the Customer.

2.4           Subject to any variation in accordance with condition ‎2.3, these Conditions (together with matters referred to on the face of the Supplier’s quotation and/or order confirmation) embody the entire understanding of the parties and override any prior promises, undertakings or representations.  Nothing contained in these Conditions shall, however, operate to limit or exclude the liability of either party for fraud.

2.5           Any quotation, tender or price list in whatever form given to the Customer is subject to these Conditions and does not constitute an offer to supply.

2.6           The Supplier will only be bound by an order when written confirmation of the order has been given to the Customer by the Supplier.

2.7           Subject to the Customer paying the Fees in accordance with condition ‎8.1, the  restrictions set out in these Conditions and the other terms and conditions of the Contract, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Subscription Services and the KB Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.8           In relation to the Authorised Users, the Customer undertakes that:

(a)        each Authorised User shall keep a secure password for his use of the Subscription Services and KB Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential; and

(b)        it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times.

2.9           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)        infringes the privacy rights or Intellectual Property Rights of any third party;

(f)          is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(g)        in a manner that 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 condition

2.10        The Customer shall not:

(a)        except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i)         and except to the extent expressly permitted under the Contract, 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 KB Documentation (as applicable) in any form or media or by any means; or

(ii)       attempt to 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 KB Documentation in order to build a product or service which competes with the Services and/or the KB Documentation; or

(c)        use the Services and/or KB Documentation to provide services to third parties; or

(d)        subject to condition ‎16.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or KB 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 KB Documentation, other than as provided under this condition ‎2.

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

3.              SERVICES

3.1           The Services shall be provided in accordance with these Conditions and any description set out in the Services Confirmation (or as otherwise agreed by the parties in writing).  Any other descriptive material provided by the Supplier to its Customer is provided only to assist the Customer and does not form part of the Contract.

3.2           Where any timescales are given in the Supplier’s quotation or KB Documentation for the performance of any Services, such timescales are given as estimates only and accordingly no liability shall accrue to the Supplier in the event that any such timescales are not met.

3.3           The Supplier shall, during the Subscription Term, provide the Services and make available the KB Documentation to the Customer on and subject to the terms of the Contract.

3.4           The Supplier shall use commercially reasonable endeavours to make the Services available during Normal Business Hours’. If a supplier of Third-Party Software suspends its services at any time, the provision of the Services by the Supplier may be suspended.

3.5           The Supplier may, on prior notice to the Customer, make changes to the Services, provided such changes do not have a material adverse effect on the Customer’s business operations.

3.6           The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Standard Support Service during Normal Business Hours.  The Customer may purchase Optional Services separately at the Supplier’s then current rates.

3.7           The Supplier shall have no obligation to provide any Service where faults arise from:

(a)        misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by the Supplier), including failure or fluctuation of electrical power;

(b)        failure to maintain the necessary environmental conditions for use of the Software;

(c)        use of the Software in combination with any equipment or Third-Party Software, or any fault in any such equipment or Third-Party Software;

(d)        any breach of the Customer’s obligations under the Contract howsoever arising or having the Software maintained by a third party; or

(e)        operator error.

4.              CUSTOMER DATA AND CUSTOMER PERSONAL DATA

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

4.2           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 cloud back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

4.3           Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition ‎4 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

4.4           Neither party shall do or omit to do anything which puts the other party in breach of the Data Protection Legislation.

4.5           The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor in respect of Customer Personal Data.

4.6           As Controller, the Customer shall take overall responsibility for ensuring that the Supplier’s processing of the Customer Personal Data (in accordance with this Contract) complies with Data Protection Legislation (which shall include the Customer providing the Data Subjects with fair processing notices and establishing the fair and lawful basis for the processing of the Customer Personal Data as required by Data Protection Legislation).

4.7           Notwithstanding condition ‎4.5 above, the Supplier will be a Controller in respect of any Personal Data relating to the Customer’s staff that it processes for the purpose of entering into the Contract and providing the Services.

4.8           Subject to condition ‎4.7 above, the Supplier acknowledges that the Customer shall solely be responsible for the following decisions and determinations:

(a)        the purpose(s) for which and the manner in which the Customer Personal Data will be processed or used;

(b)        what Customer Personal Data to collect and the legal basis for doing so;

(c)        which items (or content) of Customer Personal Data to collect;

(d)        which individuals to collect Customer Personal Data about;

(e)        whether to disclose the Customer Personal Data, and if so, who to;

(f)          whether subject access and other individuals’ rights apply including the application of any exemptions;

(g)        how long to retain the Customer Personal Data; and

(h)        whether to make non-routine amendments to the Customer Personal Data.

4.9           The parties acknowledge that:

(a)        Part 1 of the Schedule sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Customer Personal Data and categories of Data Subject; and

(b)        Customer Personal Data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under the Contract.

4.10        Without prejudice to the generality of condition ‎4.3, the Customer will ensure that it has all necessary appropriate consents, rights and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this Contract so that the Supplier may lawfully use, process and transfer the Customer Personal Data in accordance with this Contract on the Customer’s behalf.

4.11        Without prejudice to the generality of condition ‎4.3, the Supplier shall, in relation to any Customer Personal Data processed in connection with the performance by the Supplier of its obligations under this Contract:

(a)        process that Customer Personal Data only on the written instructions of 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 Customer 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 Customer 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 all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;

(c)        assist the Customer in ensuring compliance with the obligations under the Data Protection Legislation and within the timescales required by the Data Protection Legislation;

(d)        not transfer any Customer 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 Customer Personal Data that is transferred; and

(iv)      the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer Personal Data.

(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 Data Breach;

(g)        at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Customer Personal Data;

(h)        maintain complete and accurate records and information to demonstrate its compliance with this condition ‎4;

(i)          at no cost to the Supplier, submit and contribute to audits and inspections carried out by the Customer (or a third-party appointed by the Customer to carry out such audits or inspections) for the purpose of ensuring the Supplier’s compliance with this condition ‎4. Any such audit or inspection shall be subject to the following restrictions:

(i)         the Customer shall provide reasonable written notice of the date of inspections or audits;

(ii)       the Customer may perform such audits no more than once per year unless required by the Data Protection Legislation;

(iii)     any third party appointed by the Customer to perform such audit or inspection shall be required to execute a confidentiality agreement acceptable to the Supplier prior to such audit or inspection;

(iv)      audits must be conducted during Normal Business Hours, subject to the Supplier’s policies, and may not unreasonably interfere with the Supplier’s business activities;

(v)       the Customer must provide the Supplier with any audit reports generated in connection with any audit at no charge unless prohibited by Applicable Law. The Customer may use the audit reports only for the purposes of meeting its audit requirements under Data Protection Legislation and/or confirming compliance with the requirements of this condition ‎4.  The audit reports shall be confidential; and

(vi)      nothing in this condition ‎4.11‎(i) shall require the Supplier to breach any duties of confidentiality owed to any of its customers, employees or third parties.

4.12        The Supplier shall promptly comply with any reasonable request from the Customer requiring the Supplier to provide details of the Customer Personal Data or amend, transfer or delete the Customer Personal Data (at the Customer’s request), provided that the Customer shall reimburse the Supplier for any reasonable costs and expenses incurred in complying.  The Supplier shall inform the Customer in writing without delay (and in any event within five Business Days) of receipt of any request from a Data Subject in connection with any Customer Personal Data.  The Supplier shall not respond directly to any Data Subject in connection with any such request.

4.13        The Customer shall take overall responsibility for any Data Breach.  The Supplier shall conform to the reasonable requirements of the Customer in respect of the Data Breach notification requirements under the Data Protection Legislation, provided that the Customer shall reimburse the Supplier for any reasonable costs and expenses incurred in doing so.

4.14        The Customer shall ensure that its instructions and requirements under this Contract conform with all Data Protection Legislation.  The Supplier shall inform the Customer in writing without delay if the Supplier considers that any of the Customer’s instructions infringe the Data Protection Legislation.

4.15        Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Customer Personal Data and against accidental loss or destruction of, or damage to, Customer 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.

4.16        The Customer consents to the Supplier appointing sub-processor(s) as third-party processors of the Customer Personal Data.  For the avoidance of doubt, this condition ‎4.16 is intended to be general authorisation under Article 28(2) of the GDPR to the appointment of third-party processors. The Supplier 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 condition ‎4. The Suppliers sub-processors as at the Effective Date are set out in Part 1 of the Schedule. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this condition ‎4.

4.17        Notwithstanding the generality of condition ‎4.16, the Supplier may only authorise any replacement or additional third-party processor to process Customer Personal Data if prior to such authorisation, the Customer is notified of any change in any appointment of a third-party processor and is provided with an opportunity to object to the appointment (or any change in the appointment) of a third-party processor within 28 days after the Supplier provides the Customer with full details regarding such third-party processor.

4.18        The Supplier shall not authorise a third-party processor to process Customer Personal Data if the Customer has objected to such appointment pursuant to condition ‎4.17.

4.19        The Supplier may, at any time on not less than 30 days’ notice, revise this condition ‎4 by replacing it with any applicable controller to processor standard conditions or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).

5.              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 and that it does so solely at its own risk.  The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the correspondence, any transactions completed and any contract entered into by the Customer with any such third party.  Any contract entered into and any transaction completed 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 entering into any contract with such third party.  The Supplier does not endorse or approve any third-party the Customer may engage with via the Services or any third-party website accessed via the Services.

6.              SUPPLIER’S OBLIGATIONS

6.1           Subject to the provisions of condition ‎12, the Supplier undertakes that the Services will be performed with reasonable skill and care.

6.2           The undertaking at condition ‎6.1 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 condition ‎6.1.  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, KB Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;

(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 KB Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

(c)        does not warrant that the Services or Deliverables will be totally secure from unauthorised third-party access.

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

6.4           The Supplier undertakes that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Contract.

7.              CUSTOMER’S OBLIGATIONS

The Customer shall:

(a)        provide the Supplier with:

(i)         all necessary co-operation in relation to the Contract; 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, Customer Personal Data, Customer Materials, security access information and Configuration Services;

(b)        comply with all applicable laws and regulations with respect to its activities under the Contract;

(c)        carry out all other Customer responsibilities set out in the Contract 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 Subscription Services and the KB Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any Authorised User’s breach of the Contract;

(e)        obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Contract, 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;

(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)        maintain and operate the Software in a proper and prudent manner in accordance with such advice and instructions that the Supplier shall issue from time to time, and allow its use only by competent and authorized personnel;  

(i)          notify the Supplier of any defect or alleged defect within a period not exceeding 5 Business Days from the date the said defect becomes apparent; and

(j)       be responsible for ensuring that the Software is suitable for the purpose intended.

8.              CHARGES AND PAYMENT

8.1           The Customer shall pay the Fees to the Supplier in accordance with this condition ‎8 and the Services Confirmation, or where no Fees have been quoted, the Fees shall be calculated by reference to the subscription fees, support fees and charges set out in the Supplier’s list of charges last published by the Supplier before the date on which the Customer’s order is accepted by the Supplier.

8.2           The Customer shall pay all costs (at the Supplier’s then prevailing rates) and expenses incurred by the Supplier for work carried out by the Supplier in connection with any fault which is not covered by this Contract.

8.3           The Customer shall reimburse any travel or subsistence expenses incurred by the Supplier where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.

8.4           The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details. The Supplier shall invoice the Customer in accordance with the payment terms set out in the Services Confirmation.

8.5           If the Supplier has not received payment by the due date in accordance with the payment terms set out in the Services Confirmation, 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 Royal Bank of Scotland Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.6           All amounts and fees stated or referred to in the Contract:

(a)        shall be payable in pounds sterling;

(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.

9.              PROPRIETARY RIGHTS

9.1           The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and the KB Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the KB Documentation.

9.2           All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier.  The Supplier hereby licenses all such rights to the Customer subject to payment of the fees in relation to the Software and the Services and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties.  If the Supplier terminates the Contract under condition ‎13, this licence will automatically terminate.

9.3           The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.

9.4           The Customer hereby grants to the Supplier on and subject to the terms and conditions of the Contract a non-exclusive, non-transferable licence to use the Customer Materials, Customer Data and Customer Personal Data for the purposes of the Supplier providing the Services.

9.5           The Supplier confirms that it has all the rights in relation to the Services and the KB Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

10.           CONFIDENTIALITY

10.1        Each party shall keep confidential all information obtained from the other pursuant to or in contemplation of the Contract, shall use the same only for the purposes of the Contract and shall not disclose such information to any person (except to its own employees or, in the case of the Supplier, its sub-contractors and then only to those employees or sub-contractors who need to know the same) without the other’s prior written consent.  In addition, the Customer shall keep confidential and disclose (except as mentioned) any terms of the Contract.

10.2        The obligations of the parties pursuant to condition ‎10.1 shall not extend to any information which was rightfully in the possession of the receiving party (and at its free disposal) prior to the commencement of negotiations leading to the Contract; which is already public knowledge or becomes so at a future date otherwise than as the result of a breach of this condition ‎10; which is trivial or obvious; or whose disclosure is required (and to the extent that it is required) by law.

10.3        This condition ‎10 shall survive termination of the Contract, however arising.

11.           INDEMNITY

11.1        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 KB Documentation and the Supplier’s use of the Customer Materials, Customer Data and Customer Personal Data in connection with the Services   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.

11.2        Subject to condition ‎11.4, the Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or KB 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.

11.3        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 the Contract 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.

11.4        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 KB Documentation by anyone other than the Supplier; or

(b)        the Customer’s use of the Services or KB Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c)        any open-source software within the Software or Third-Party Software; or

(d)        the combination of the Software with any Customer equipment, operating system or Third-Party Software; or

(e)        the Customer’s use of the Services or KB Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

11.5        The foregoing and condition ‎12.8(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.

12.           LIMITATION OF LIABILITY

12.1        This condition ‎12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a)        arising under or in connection with the Contract;

(b)        in respect of any use made by the Customer of the Services and KB Documentation or any part of them; and

(c)        in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

12.2        Except as expressly and specifically provided in the Contract:

(a)        the Customer assumes sole responsibility for results obtained from the use of the Services and the KB 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 the Contract; and

(c)        the Services and the KB Documentation are provided to the Customer on an “as is” basis.

12.3        Nothing in the Contract 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.

12.4        Part 2 of the Schedule states the Customer’s full and exclusive right and remedy and the Supplier’s only obligation and liability in respect of the performance and/or availability of the Standard Support Services or their non-performance and non-availability.

12.5        The Supplier is not responsible for any equipment, hardware, deliverables, software or services (a) not expressly stipulated in this Contract that the Supplier will provide or (b) that the Supplier requires the Customer to obtain from a third party.  The Customer is responsible for any equipment, hardware, deliverables, software and services that it is required to obtain from someone other than the Supplier or a third party stipulated by the Supplier.

12.6        The Supplier shall not have any liability for actions of third parties in intentionally and/or maliciously breaching any security measures save where the Supplier (or its employees, agents, consultants, third party service providers or subcontractors) was negligent, careless or slow in using or implementing or enforcing any such security measures.

12.7        The Customer acknowledges that:

it is exclusively responsible for:

(i)  reviewing any modifications to the Software;

(ii) ensuring that the staff of the Customer are trained in the proper use and operation of the Software;

(iii) ensuring the security, completeness and accuracy of all inputs and outputs; and

(iv) the selection, use of and results obtained from any other programs, equipment, materials or services used in conjunction with the Software.

12.8        Subject to condition ‎12.2, condition ‎12.3 and condition ‎12.4:

(a)        the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), 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 the Contract; and

(b)        the Supplier’s total aggregate liability in contract (including in respect of the indemnity at condition ‎11.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions shall be limited to the total Fees paid under the Contract.

13.           TERM AND TERMINATION

13.1        The Contract shall, unless otherwise terminated as provided in this condition ‎13, commence on the Effective Date and shall continue for the Initial Contract Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a)        either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Contract Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Contract Term or Renewal Period; or

(b)        otherwise terminated in accordance with the provisions of the Contract;

and the Initial Contract Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

13.2        Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:

(a)        the other party commits a breach of the Contract provided that if the breach is capable of remedy (being actual remedy as opposed to remedy by payment of damages or compensation) the notice shall only be given if the party shall not have remedied the same within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied; or

(b)        the other party has a winding up petition against it and does not make an application to set aside the same within 7 days or goes into liquidation whether compulsory or voluntarily (unless part of a bona fide scheme for amalgamation or reconstruction first approved in writing by the party not in default), becomes subject to an administration order, has a receiver or administrative receiver appointed over or encumbrancer take possession of the whole or any part of its assets, compounds with its creditors or any class of the same, ceases to carry on its business or threatens to cease the same or becomes unable to pay its debts within the meaning of s123 of the Insolvency Act 1986; or

(c)        the other party being an individual, has a bankruptcy order made against him or, being a partnership, has a bankruptcy order made against any of the partners or a notice served by a partner for the dissolution of the partnership.

13.3        Termination of the Contract for any reason shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into or continuance in force of any provision of the Contract which is expressly or by implication intended to come into or continue in force or on after such termination.

13.4        Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

13.5        Upon termination of the Contract for any reason all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease using the Software.  In addition, the Customer shall, at the Supplier’s option, either return to the Supplier or destroy all copies of such Software and associated KB Documentation.

13.6        Upon termination of the Contract the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent cloud back-up of the Customer Data.  The Supplier shall use reasonable commercial endeavours to deliver the cloud back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at the time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).  The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data and/or Customer Personal Data.

14.           FORCE MAJEURE

The Supplier shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Supplier’s obligations under the Contract if the delay or failure was due to any cause beyond the Supplier’s reasonable control including but not limited to industrial action, war, fire, prohibition or legal enactment of any kind or any act or omission of the Customer.

15.           NOTICES

Notices or other documents to be given under these Conditions shall be in writing and delivered by hand or sent by registered post or facsimile to the party concerned at the address set out in the Contract and/or such address as one party may from time to time designate by written notice to the other.  Any such notice or other document shall be deemed to have been received by the addressee if delivered, upon delivery; if posted, on the second Business Day following the date of posting; and if sent by email, at the time of transmission if no failed delivery message is received by the sender provided that a copy of the communication is sent by registered post or delivered by hand as soon as possible thereafter.

16.           GENERAL

16.1        The Contract shall be binding upon and inure to the benefit of the parties and the legal successors of the Supplier but shall not be assignable by the Customer without the prior written consent of the Supplier.  The Supplier may assign, novate, license or sub-contract all or any part of its obligations under the Contract without the consent of the Customer.

16.2        No waiver by the Supplier of any breach of these Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.  Any waiver must be in writing to be effective.

16.3        If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

16.4        The Contract is governed by the laws of England and the English courts shall have exclusive jurisdiction to resolve any disputes arising as a result of or in connection with it.