1.AGREEMENT
1.1These are the Terms and Conditions for DataPA Limited, a company incorporated in Scotland (registered number SC191898) with registered office at 14 Albany Street, Edinburgh. EH1 3QB (“Supplier”).
1.2These Terms and Conditions together with the Services Confirmation form the agreement between the Supplier and the Customer for the provision of the Services (“Agreement”).
2.INTERPRETATION
2.1The definitions and rules of interpretation in this clause apply in these Terms and Conditions.
ADAU: the average daily active users, calculated by summing the Daily User Count for a month and dividing by the number of days in that month. Where ADAU is used to calculate Fees, we reserve the right to impose a minimum ADAU figure of 2 and/or increase the ADAU figure (and so the Fees) so the usage by the customer adheres to our Fair Usage Policy.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in Clause 3.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Scotland are open for business.
Confidential Information: information that is proprietary or confidential, or is either clearly labelled as such or identified as Confidential Information.
Customer: means the person or organisation who purchases Services from the Supplier as set out in the Services Confirmation.
Customer Data: the data inputted by the Customer or the Supplier on the Customer’s behalf for the purpose of using the Services.
Daily User Count: the number of distinct user accounts that are accessed in one day.
Data Protection Legislation: the Data Protection Act 2018, GDPR (while applicable within the UK) and all other applicable laws and regulations relating to the processing of Personal Data.
Data Request: means a process as part of the Services to read Customer Data that is actioned as the result of an action performed by the Customer.
Documentation: the document made available to the Customer by the Supplier online or as otherwise notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: date of last signature to the Agreement.
Fair Usage: means usage of the Services should not exceed the following limits: no more than the licensed ADAU count multiplied by 15 hours processing newly published Customer Data a month, no more than the licensed ADAU count multiplied by 10,000 Data Requests a month, no more than the licensed ADAU count multiplied by 100,000 address searches per month, the Customer Data should take up no more than the licensed ADAU count multiplied by 1.5 GB in storage space on the Services platform, no more than the licensed ADAU count multiplied by 40 questions per month asked of inmydata copilot.
Fees: the fees payable by the Customer to the Supplier as set out in the Services Confirmation.
GDPR: the General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Business Hours: 9.00am to 5.00pm GMT, each Business Day.
Services:the services provided by the Supplier to the Customer under the Agreement as more particularly described in the Documentation.
Services Confirmation: means, where the Agreement is formed offline, the services confirmation to which these Terms and Conditions are attached, and where the Agreement is formed online, the web page containing Customer and Services information where the Terms and Conditions are accepted to form the Agreement.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Period: means the period identified as such in the Services Confirmation.
Term: has the meaning provided at Clause 14.1.
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.
3.AUTHORISED USERS
3.1Subject to the Customer paying the Fees, the restrictions set out in this Clause 3 and the other terms and conditions of this agreement, the Supplier now grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer's internal business operations.
3.2In relation to Authorised Users the Customer undertakes that:
3.2.1the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number stated in the Services Confirmation or otherwise agreed in writing with the Supplier;
3.2.2Authorised Users shall keep passwords for the use of the Services secure;
3.2.3it shall permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish compliance with this Clause 3.2. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.2.4 if any of the audits referred to in Clause 3.2.3 reveal that the Customer has underpaid Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
3.3The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2facilitates illegal activity;
3.3.3depicts sexually explicit images;
3.3.4promotes unlawful violence;
3.3.5is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
3.4The Customer shall not:
3.4.1except 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 the Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
3.4.2access all or any part of the Services and Documentation in order to build a product or service which competes with the Services or the Documentation;
3.4.3use the Services or Documentation to provide services to third parties;
3.4.4subject to Clause 21, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except other than as provided by this Clause 3, or
3.4.5attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 3.
3.5The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6The rights provided under this Clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.SERVICES
4.1The Supplier shall provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
4.2The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
4.2.2unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3The Supplier will, as part of the Services provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.
5.COMPANY DATA
5.1The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the Supplier’s archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
5.3The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor (where “Controller”, “Processor”, “Data Subject” and “Personal Data” have the meanings as defined in the Data Protection Legislation).
5.4The scope, nature and purpose of processing by the Supplier is in relation to the provision of the Services. The type of Personal Data will be set out in the Customer Data and the categories of Data Subjects are any individuals that may be referred to within the Customer Data. The duration of the processing is that of the Supplier’s standard retention period as set out in the Supplier’s Privacy Policy as amended from time to time.
5.5The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Agreement.
5.6The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement:
5.6.1process that 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 Personal Data (“Applicable Laws”);
5.6.2ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
5.6.3ensure that all personnel who have access to or process Personal Data are obliged to keep the Personal Data confidential;
5.6.4not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained (including as set out in the Agreement) and the following conditions are fulfilled:
(1)the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(2)the Data Subject has enforceable rights and effective legal remedies;
(3)the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(4)the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
5.6.5assist 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;
5.6.6notify the Customer without undue delay on becoming aware of a Personal Data breach;
5.6.7at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the Personal Data;
5.6.8maintain complete and accurate records and information to demonstrate its compliance with this Clause 5.6 and allow for audits by the Customer or the Customer's designated auditor.
5.7The Customer consents to the Supplier appointing the following third-party processors of Personal Data under the Agreement: Amazon Web Services Inc. and Panoply Technologies Inc. The Supplier confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement substantially on that third party's standard terms of business which the Supplier confirms will reflect and continue to reflect the requirements of the Data Protection Legislation. 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 Clause 5.
5.8The Supplier shall be entitled, on a perpetual and irrevocable basis, to create anonymised data from the Customer Data for the purposes of research, analysis and developing and improving its services, and the exploitation of such anonymised data, and shall own all right, title and interest in such anonymised data.
6.THIRD PARTY PROVIDERS
6.1The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7.SUPPLIER’S OBLIGATIONS
7.1The Supplier undertakes that the Services will be performed with reasonable skill and care and substantially in accordance with the Documentation and the Services Confirmation.
7.2The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
7.2.2is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3The Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
7.4The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
8.CUSTOMER’S OBLIGATIONS
8.1The Customer shall:
8.1.1provide the Supplier with:
(1)all necessary co-operation in relation to the Agreement; and
(2)all necessary access to such information as may be required by the Supplier, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2comply with all applicable laws and regulations with respect to its activities under the Agreement;
8.1.3carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
8.1.5ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
8.1.6ensure Customers comply with the terms of the Agreement; and
8.1.7be 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.
9.CHARGES AND PAYMENT
9.1The Customer shall pay the Fees in accordance with this Clause 9 and the Services Confirmation.
9.2The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
9.2.1its credit card details to the Supplier, the Customer hereby authorises the Supplier, subject to Clause 14.1, to bill such credit card for the Fees for the first Subscription Period 30 days from the Effective Date, and to bill such credit card for the Fees for each successive Subscription Period immediately prior to that Subscription Period commencing; or
9.2.2its approved purchase order information to the Supplier, the Supplier shall, subject to Clause 14.1, invoice the Customer 30 days from the Effective Date for the Fees payable in respect of the first Subscription Period, and in relation to each successive Subscription Period, prior to that Subscription Period commencing, and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
9.3.1the 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
9.3.2interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.4All amounts and fees stated or referred to in the Agreement:
9.4.1shall be payable in the currency stated for the Fees in the Services Confirmation;
9.4.2are non-cancellable and non-refundable; and
9.4.3are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.5The Supplier shall be entitled to increase the Fees at the start of each Subscription Period upon 20 days’ prior notice to the Customer and the Agreement shall be deemed to have been amended accordingly. The Supplier shall not be entitled to increase the Fees more than once in any 12 month period.
10.PROPRIETARY RIGHTS
The Customer acknowledges and agrees that the Supplier and its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services or the Documentation.
11.CONFIDENTIALITY
11.1Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
11.1.1is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2was in the other party’s lawful possession before the disclosure;
11.1.3is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2Subject to Clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
11.3Each 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 and conditions of the Agreement.
11.4A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5The Customer acknowledges that details of the Services constitute the Supplier’s Confidential Information.
11.6No party shall make, or permit any person to make, any public announcement concerning the 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.
11.7The above provisions of this Clause 11 shall survive termination of the Agreement.
12.INDEMNITY
12.1The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of, or in connection with, the Customer’s use of the Services and/or Documentation, provided that
12.1.1the Customer is given prompt notice of any such claim;
12.1.2the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
12.1.3the Customer is given sole authority to defend or settle the claim.
12.2The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation 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 Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1the Supplier is given prompt notice of any such claim;
12.2.2the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
12.2.3the Supplier is given sole authority to defend or settle the claim.
12.3In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4In 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:
12.4.1modification of the Services or Documentation by anyone other than the Supplier; or
12.4.2the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.4.3the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5The foregoing and clause 13.3.2 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.
13.LIMITATION OF LIABILITY
13.1Except as expressly and specifically provided in the Agreement:
13.1.1the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
13.1.2all 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 Agreement; and
13.1.3the Services and the Documentation are provided to the Customer on an “as is” basis.
13.2Nothing in the Agreement excludes the liability of the Supplier:
13.2.1for death or personal injury caused by the Supplier’s negligence; or
13.2.2for fraud or fraudulent misrepresentation.
13.3Subject to Clause 13.1 and Clause 13.2:
13.3.1the Supplier shall not be liable whether in delict (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 the Agreement; and
13.3.2the Supplier’s total aggregate liability in contract (including in respect of the indemnity at 12.2, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
14.TERM AND TERMINATION
14.1The Agreement shall commence on the Effective Date and unless otherwise terminated as provided in this Clause 14, it shall continue for 30 days during which time the Customer may terminate without liability for any Fees, by giving written notice to the Supplier. If no such notice is given the Agreement shall continue following expiry of that 30 day period for the Subscription Period, and thereafter automatically renew for successive Subscription Periods, unless:
14.1.1the Customer notifies the Supplier of termination in writing (including through any termination facility provided in the Services), in which case the Agreement shall terminate at the end of the then current Subscription Period; or
14.1.2the Supplier provides the Customer with at least [3] months notice of termination in writing, in which case the Agreement shall terminate at the end of the Subscription Period in which the period of notice expires.
14.1.3otherwise terminated in accordance with the provisions of the Agreement, (the initial 30 day period and all subsequent Subscription Periods together shall constitute the “Term”).
14.2Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:
14.2.1the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;
14.2.2the Customer commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so;
14.2.3the Customer 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;
14.2.4the Customer 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 any of its creditors;
14.2.5a 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 the Customer (being a company, limited liability partnership or partnership);
14.2.6the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
14.2.7an 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 Customer;
14.2.8a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
14.2.9a creditor or encumbrancer of the Customer 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 Customer's assets and such attachment or process is not discharged within 14 days;
14.2.10any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2.3 and Clause 14.2.9 (inclusive);
14.2.11the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
14.2.12there is a change of control of the Customer.
14.3On termination of the Agreement for any reason:
14.3.1all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services or the Documentation;
14.3.2each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.3.3subject to Clause 5 and the Data Protection Legislation, the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
14.3.4any 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.
15.FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16.VARIATION
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.WAIVER
No failure or delay by a party to exercise any right or remedy provided under the 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.
18.RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.SEVERANCE
19.1If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20.ENTIRE AGREEMENT
20.1The 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.
20.2Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
20.3Nothing in this clause shall limit or exclude any liability for fraud.
21.ASSIGNMENT
21.1The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
21.2The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.NO PARTNERSHIP OR AGENCY
Nothing in the 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).
23.THIRD-PARTY RIGHTS
No clause under the Agreement shall be enforceable by a third party (being any person other than the parties, their permitted successors and assignees) under the Contract (Third Party Rights) (Scotland) Act 2017 or any other law.
24.NOTICES
24.1Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Services Confirmation.
24.2A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
25.Dispute resolution
25.1If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it, then it shall be referred to the chief executive officer (or equivalent) of either party, who shall attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
25.2If the chief executive officers (or equivalent) fail to resolve the dispute, the parties will attempt to settle it by mediation in good faith in accordance with the CEDR Model Mediation Procedure and the mediation will start, unless otherwise agreed between the parties, within seven (7) days of one party issuing a request to mediate to the other. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in Edinburgh and the language of the mediation will be English. Any Mediation Agreement (referred to in the Model Procedure) shall be governed by, and construed and take effect in accordance with, the substantive laws of Scotland.
25.3If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, or if either party fails to participate or ceases to participate in the mediation before the expiry of that period, the dispute shall be referred to arbitration. CEDR shall be the appointing body and administer the arbitration. CEDR shall apply the UNCITRAL rules in force at the time arbitration is initiated. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be one (1) and the seat or legal place of arbitration shall be Edinburgh, Scotland.
25.4Parties shall be entitled to challenge the decision of the arbitrator, but only on the grounds of manifest error, serious procedural irregularity or point of law; otherwise the decision of the arbitrator shall be final and binding.
26.GOVERNING LAW
The 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 laws of Scotland.
27.JURISDICTION
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
